CLYDE BROWN, JR. and VIRGINIA BROWN v. BUDDIE R. MORRIS, II, EXECUTOR OF THE ESTATE OF BUDDIE R. MORRIS, and MIDWEST ENERGY DEVELOPMENT CORP.
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RENDERED: January 29, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002792-MR
CLYDE BROWN, JR. and
VIRGINIA BROWN
v.
APPELLANTS
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NO. 94-CI-000231
BUDDIE R. MORRIS, II, EXECUTOR
OF THE ESTATE OF BUDDIE R. MORRIS, and
MIDWEST ENERGY DEVELOPMENT CORP.
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE: Appellants, Clyde Brown, Jr. and Virginia Brown (the
Browns), appeal the judgment of the Hopkins Circuit Court denying
their motion that the court make a determination that its
previous order denying the Brown’s motion to dismiss was final
and appealable, there being no just reason for delay, and,
alternatively, that the trial court erred in denying the Browns’
motion to dismiss.
remand.
Having reviewed the record, we reverse and
Appellees, Buddie R. Morris, II, in his capacity as
executor of the estate of Buddie R. Morris, and Midwest Energy
Development Corp. (the Morrises) filed a lawsuit in Hopkins
Circuit Court alleging the Browns were indebted to the Morrises
for a sum in excess of eight (8) million dollars on certain
written guaranties.
for bankruptcy.
Subsequently, the Browns filed a petition
The bankruptcy court granted relief from the
automatic stay to permit the action to proceed in state court.
During the course of the circuit court case, both parties filed
motions for summary judgment.
On May 19, 1997, while the summary judgment motions
remained pending, the parties negotiated and entered into a
settlement agreement, which provided, in relevant part:
(c) Upon payments of the amounts
aforesaid, and payment of the anticipated
$2,000,000 payment to First Parties [the
Morrises] by Big Rivers Electric Corp., the
parties shall execute and file an agreed
order of dismissal of Hopkins Circuit Court
case and any and all claims First Parties
[the Morrises] have or may have brought in
said action or any other claims shall be
released.
On May 22, 1997, the circuit court entered an order
granting the Morrises summary judgment and further ordering
“[t]he parties shall schedule a hearing to determine the correct
amounts due to the Plaintiffs as a result of this Order.”
Following entry of the aforementioned summary judgment, the
Morrises and the Browns, on June 3, 1997, entered into a separate
global settlement agreement between themselves and other parties
involved in the bankruptcy action, which, too, contained a
-2-
release provision.1
Upon fulfilling all the conditions and
obligations provided for in the settlement agreements, the Browns
moved the court for an order dismissing the action.
On September 5, 1997, the Morrises filed a notice of
satisfaction with the circuit court which provided as follows:
The Plaintiffs, by counsel, pursuant to Civil
Rule 79 and other applicable law, hereby
notify the Court that the Judgment entered
against the Defendants in favor of the
Plaintiffs in the action herein, has been
satisfied in full, and that all claims as a
result hereof have been discharged in their
entirety, and this action shall be dismissed,
with prejudice.
The circuit court denied the Browns’ motion for dismissal on
September 10, 1997, yet did not stipulate the order as final and
appealable.
Upon reconsideration, the circuit court, on October
8, 1997, again denied the Browns’ motion to dismiss, as well as
its motion to render the September 10 order final and appealable.
It is from the final order of October 8, 1997 that this appeal
ensued.
Given that the circuit court’s order of October 8,
1997, adjudicating the exact issues addressed in the September
order, contained the language necessary for the Morrises to seek
appellate relief, the matter is moot.
As such, we pretermit
discussion of this issue on appeal.
With respect to the issue of dismissal, it is our
opinion the language contained in the notice of satisfaction is
dispositive in that it operates as a judicial admission.
1
The copious terms and provisions of the June 3, 1997,
global settlement agreement are not necessary to this opinion,
hence, shall not be discussed.
-3-
A judicial admission is defined in
Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d
1021, 1024 (1941), as “a formal act done in
the course of judicial proceedings which
waives or dispenses with the necessity of
producing evidence by the opponent and bars
the party himself from disputing it.” The
sole reason for having such a doctrine,
binding and conclusive, is because the law
should not permit a party that has made
solemn representations to a court of law to
suit its interests to change positions with
respect to the same subject matter when it
suits other interests.
Goldsmith v. Allied Bldg. Components, Inc., Ky., 833 S.W.2d 378,
382 (1992)(Leibson, J., concurring)(emphasis added).
Since the Morrises tendered notice to the circuit court
that the judgment was wholly satisfied and “that all claims as a
result hereof have been discharged in their entirety, and this
action shall be dismissed, with prejudice[,]” a binding judicial
admission occurred.
As such, in light of the underlying policy
attending judicial admissions, the Morrises are precluded from
seeking any further action, and the court being apprised of the
formal statement of operative facts, should have granted the
motion for dismissal.
The order of the Hopkins Circuit Court is reversed and
the matter remanded for entry of an order dismissing this cause
of action with prejudice.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
B.R. Paxton
Jonathan S. King
Patricia Creager
Central City, Kentucky
Jeff S. Taylor
Owensboro, Kentucky
Roger V. Barth
Washington, DC
-4-
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