RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000544-MR
CHRISTOPHER C. BABCOCK, DMD, MD;
AND SAMUEL V. STEELE, JR. APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 17-CI-004907
RENEE ESTRIDGE; JAMIE WARREN,
DMD, MD; AND KENTUCKIANA ORAL
AND MAXILLOFACIAL SURGERY
ASSOCIATES, PSC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.
CALDWELL, JUDGE: Appellants Christopher C. Babcock, DMD, MD, and
Samuel V. Steele, Jr., appeal from the denial of their motion seeking
reconsideration of the trial court’s order finding that the parties had reached a
settlement which was enforceable against them. For the reasons stated below, we
affirm.
A. Sufficiency of Brief
Preliminarily, Appellees Renee Estridge; Jamie Warren,
DMD, MD; and Kentuckiana Oral and Maxillofacial Surgery Associates, PSC,
allege that the brief filed by the Appellants in this matter is deficient and argue that
it should be stricken, and the questions presented on appeal be decided without
resort to the arguments raised in the deficient brief, or, alternatively, the
assignments of error contained within the allegedly-deficient brief be reviewed
only for manifest injustice. Either option is, of course, a drastic measure and not to
be taken lightly.
Particularly, the Appellees forward that the Appellants’ brief runs
afoul of the requirements outlined in Kentucky Rule of Civil Procedure (CR)
76.12(4)(c)(v), as it fails to allege whether the arguments forwarded were
preserved for review.1 In response, in the reply brief, the Appellants point to
responsive pleadings filed in the trial court and contained in the record on appeal.
Such is not sufficient. The Rule clearly contemplates that an Appellant will
1
CR 76.12(4)(c)(v): “An ‘ARGUMENT’ conforming to the statement of Points and Authorities,
with ample supportive references to the record and citations of authority pertinent to each issue
of law and which shall contain at the beginning of the argument a statement with reference to the
record showing whether the issue was properly preserved for review and, if so, in what manner.”
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specifically state for the reviewing court how and when the arguments presented
on appeal were first made to the trial court, clearly delineating when the trial court
was given the opportunity to decide the question and what that court’s
determination was. As this Court has observed:
Compliance with this rule permits a meaningful
and efficient review by directing the reviewing court to
the most important aspects of the appeal: what facts are
important and where they can be found in the record;
what legal reasoning supports the argument and where it
can be found in jurisprudence; and where in the record
the preceding court had an opportunity to correct its own
error before the reviewing court considers the error itself.
The parties, when acting pro se, or their attorneys who
appear before us have typically spent considerable time,
sometimes even years, creating and studying the record
of their case. On the other hand, the record that arrives
on the desk of the judges of the reviewing court is
entirely unknown to them. To do justice, the reviewing
court must become familiar with that record. To that
end, appellate advocates must separate the chaff from the
wheat and direct the court to those portions of the record
which matter to their argument. When appellate
advocates perform that role effectively, the quality of the
opinion in their case is improved, Kentucky
jurisprudence evolves more confidently, and the
millstones of justice, while still grinding exceedingly
fine, can grind a little faster.
But the rules are not only a matter of judicial
convenience. They help assure the reviewing court that
the arguments are intellectually and ethically honest.
Adherence to those rules reduces the likelihood that the
advocates will rely on red herrings and straw-men
arguments—typically unsuccessful strategies. Adherence
enables opposing counsel to respond in a [meaningful]
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way to the arguments so that dispute about the issues on
appeal is honed to a finer point.
Finally, the brief typically is the first impression
upon the reviewing court that an appellate advocate
makes for himself, or on behalf of his client.
Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010) (footnote omitted).
We agree with the Appellees. The Appellants failed to identify the
arguments forwarded to the trial court that it seeks this Court to review. Rather,
the Appellants point to a “Motion for Reasoned Decision” which does not forward
any legal arguments whatsoever, but asks questions of the trial court’s decision.
Such is not preservation of argument.
As we observed in Ray v. Ashland Oil, Inc., it is not sufficient to
simply refer to documents filed in the trial court to satisfy the preservation
statement requirement. “We are most troubled by the appellants’ failure to
correctly cite to the certified record and to include accurate statements regarding
the preservation of the issues raised in the appeals, which has made this case very
difficult to review.” 389 S.W.3d 140, 145 (Ky. App. 2012) (footnote omitted).
Quite right.
The Appellants addressed the Appellees’ allegation about the lack of
sufficiency in their brief in reply, which can be ameliorative of a deficiency, but
that response did not absolve the deficiency. Simply highlighting which orders of
the trial court one finds objectionable is not preservation of error; rather, one must
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have presented the arguments it forwards to this Court to the trial court. “The
appellants will not be permitted to feed one can of worms to the trial judge and
another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222
(Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d
321 (Ky. 2010) (citations omitted).
We come to the same conclusion in this matter as the Court did in
Ray:
Taking all of these factors into consideration,
including the voluminous size of the appellate record, we
must agree with Ashland Oil that the appellants’ brief is
substantially deficient both in terms of its content as well
as its format. While we are inclined to strike the brief for
these substantial deficiencies, as we are permitted to do
pursuant to CR 76.12(8)(a), we shall instead deny the
passed motion to strike and to dismiss the appeal.
However, our review shall be severely limited to only
those issues that were at least adequately identified for
our review. Therefore, we shall only consider
Arguments I, VI, and VII for manifest injustice because
the appellants have failed to adequately identify how and
where in the record each of these issues was preserved
for appeal pursuant to CR 76.12(4)(c)(v).
389 S.W.3d at 147 (footnote omitted).
B. Analysis
Reviewing the allegation for manifest injustice, we must review the
determination of the trial court that the parties did, in fact, reach an agreement. We
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will now address each of the allegations of error concerning that determination as
forwarded by the Appellants per that standard.
1. CR 52 not applicable
The Appellants first argue that the trial court failed to enter a
sufficient order, despite their motion pursuant to CR 52.02 and CR 52.03. First,
CR 52.03 is only applicable to bench trials, where the trial court acts as fact-finder.
The trial court here did not enter judgment on the pleadings, or act as finder of fact
on the question presented by the lawsuit. CR 52 is not applicable, so the trial court
did not err in not issuing an order in response to the motion. See Page v. City of
Louisville, 722 S.W.2d 60, 61 (Ky. App. 1986) (“CR 52 does not require the court
to make any findings of fact or conclusions of law since there has been no trial on
the matter.”).
2. Third-party consent not required
The Appellants argue that because Dr. Babcock’s former spouse had
an interest in the practice as marital property, she was a necessary party and her
approval was required for the settlement to be actualized. Dr. Karen Babcock was
not a party to the action and she did not implead. The Defendants below were Dr.
Babcock, Samuel V. Steele, Jr. and John Does. There is no argument made that
Dr. Karen Babcock is a Jane Doe. Rather, the argument is made that the initial
settlement offer extended by Dr. Babcock was conditioned on his ex-wife’s assent.
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That offer was rejected by the Appellees. The Appellees then countered, and
Appellants accepted with no indication that Dr. Karen Babcock’s assent was
necessary. Given the clear and unqualified acceptance by counsel for the
Appellants of the counter-offer, we cannot say that it was manifestly unjust for the
trial court to find that the qualification on Appellants’ offer that the former spouse
assent was tantamount to unqualified acceptance of the counter-offer.
Further, the Appellants took significant action following this
unqualified acceptance to support this conclusion. Such indications of such actions
include failing to clarify in response to the trial court’s secretary’s email affirming
cancellation of the hearing after the successful mediation. The fact that Appellees’
counsel reached out concerning whether to cancel an upcoming hearing since
agreeing upon settlement indicates assent was communicated to Appellees. Last,
and, most tellingly, Appellants’ counsel affirmatively informed the
Commonwealth’s Attorney that a settlement had been reached, which placed his
client in a better legal position vis-à-vis pending criminal charges. All such actions
support the court’s finding that the parties reached an agreement. Dr. Karen
Babcock’s assent was not necessary.
3. It is not manifestly unjust to determine there was a meeting of
the minds
The unqualified acceptance by Appellants’ counsel of the counter-
offer made by the Appellees is sufficient evidence, in and of itself, to find that
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there was a meeting of the minds such that enforcement of the Draft Term sheet is
not manifestly unjust. When responding to the counter-offer, counsel accepted as
follows, “Subject to the final language of the documents making this a truly
universal everyone and everything settlement, we are in agreement then.” That is
acceptance of the broad terms outlined in the counter-offer. The trial court then
found that the Draft Term sheet properly reduced the counter-offer to concrete
terms. We find this not to be manifestly unjust.
Apart from the unequivocal actions taken by the Appellants following
their acceptance of the counter-offer, the Appellees detrimentally relied upon that
acceptance. They released expert witnesses and otherwise stopped preparing for a
trial, having every reason to believe there would be no trial, that the parties had
settled. “[A]n otherwise unambiguous contract does not become ambiguous when
a party asserts—especially post hoc, and after detrimental reliance by another
party—that the terms of the agreement fail to state what it intended.” Frear v.
P.T.A. Indus., Inc., 103 S.W.3d 99, 107 (Ky. 2003). This reliance also supports the
trial court’s action.
Much of the Appellants’ argument as to whether there was a meeting
of the minds forwards arguments never made to the trial court. Having found that
the brief is not sufficient in establishing preservation of arguments, we cannot say
that these arguments were ever actually made to the trial court; none of them
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appears in the pleadings referred to in the Appellants’ briefing. So, it would
appear that as to these arguments it is not simply a failure to cite preservation, but
such arguments were actually not preserved. We will not review arguments not
made to the trial court.
4. Post-judgment interest
As the trial court had the authority under Kentucky Revised Statute
(KRS) 360.040(3) to assign post-judgment interest, it is not manifestly unjust for
the trial court to have entered an order requiring it in this matter. “If there are no
factors making it inequitable to require interest, it will be allowed, and the interest
must be at the rate set out in the statute.” Courtenay v. Wilhoit, 655 S.W.2d 41, 42
(Ky. App. 1983) (citations omitted). Further, the parties had agreed to such
interest in their agreement.
CONCLUSION
We find that no manifest injustice resulted from the trial court’s
finding that the Appellants accepted the counter-offer made by the Appellees and
its enforcement of that agreement.
CLAYTON, CHIEF JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
J. Fox DeMoisey Jennifer M. Stinnett
Louisville, Kentucky Matthew Cory Williams
Sarah D. Reddick
Leigh V. Graves
Louisville, Kentucky
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