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Harkrader v. Farrar Oil Co.5/27/2005
AFFIRMING
BEFORE: GUIDUGLI and TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.
The single issue in this appeal is whether the Daviess Circuit Court erred in granting appellees' motion to enforce a settlement agreement negotiated in the course of mediation of a personal injury action. We affirm.
Appellant instituted this action for damages due to personal injuries allegedly incurred as a result of the combined negligence of appellees. After the exchange of discovery information, the parties entered into a voluntary mediation agreement for the purpose of settling the appellant's claim. On September 30, 2003, W. Douglas Myers conducted a mediation conference at the offices of Jerry Rhoads, appellant's former counsel. Appellees maintain that after several hours of negotiation a settlement agreement was reached but that no written document memorializing the agreement was executed on that date. Shortly after the mediation, appellant's counsel informed them that appellant no longer wished to be bound by the agreement, precipitating the motion to enforce the agreement which forms the basis of this appeal.
At the hearing conducted on appellees' motion, appellant's former counsel confirmed appellees' version of the facts surrounding the mediation and settlement. He agreed that a settlement had in fact been reached, that appellant himself had been present and agreed to the terms of the settlement, that he had notes which corresponded to the terms of the settlement as set out by appellees, and that after the settlement appellant had informed him that he no longer wished to go forward with the settlement. The mediator who conducted the settlement negotiations supplied an affidavit in which he stated that all parties including appellant himself entered into a settlement of his claims against appellees; that in exchange for a payment of $310,000.00, appellant agreed to fully and completely release all claims and would hold harmless and indemnify appellees from responsibility for all third party claims including those related to medical care claims and claims for attorneys' fees and costs by appellant's prior counsel; that appellant would pay recoverable court costs to his counsel, estimated to be $500.00, as well as the mediator's fees and expenses; and that all essential terms of the agreement had been specifically agreed to by all parties, including appellant with the advice and assistance of counsel.
Appellant argued at the hearing that when he left the mediation conference he had not agreed to a final settlement, but believed that he had received appellee Farrar's highest offer which he was to consider. He stated that he had no intention of making any final decision on that day because he was still wearing a morphine patch from a recent surgery. The trial judge allowed appellant to fully explain his position as to the facts of the mediation and the purported settlement. The trial judge thereafter entered an order enforcing the settlement agreement according to the previously recited terms.
Appellant supports his argument for reversal of that order by contending: 1) that the trial judge erred in considering the affidavit of the mediator; and 2) that the trial judge was without authority to enforce the settlement agreement absent a written document confirming the terms of the agreement. We find no merit in either proposition.
As a preliminary matter, we note that neither of appellant's complaints were presented to the trial judge and thus have not been preserved for our review. Appellant did not contest the propriety of the mediator's affidavit nor did he argue that pursuant to the Kentucky Model Mediation Rules the agreement was requir
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