RENDERED: JANUARY 15, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1770-MR

LEGACY HEALTH SERVICES, INC.; 

CAMBRIDGE PLACE GROUP, LLC 

D/B/A CAMBRIDGE PLACE; AND 

CAMBRIDGE PLACE PROPERTIES, 

LLC 

APPELLANTS 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 15-CI-01838 

CHRISTOPHER JACKSON, III, AS 

ADMINISTRATOR OF THE ESTATE 

OF CHRISTINE JACKSON, 

DECEASED APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

ACREE, JUDGE: Legacy Health Services, Inc., and Cambridge Place Group,

LLC d/b/a Cambridge Place, and Cambridge Place Properties, LLC (“Cambridge”) 

appeal from an order of the Fayette Circuit Court denying its motion to compel 
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arbitration of medical malpractice claims brought by Christopher Jackson, III, as 

guardian for his mother, Christine. Cambridge argues Jackson, as Christine’s

court-appointed guardian, had the authority to enter into an arbitration agreement 

on her behalf, and the circuit court erred in finding otherwise. After our careful 

review and consideration of applicable law, we reverse and remand for additional 

proceedings. 

BACKGROUND

In December 2011, after adjudicating Christine wholly disabled, the 

Fayette District Court appointed Jackson as her legal guardian.1 The order of 

appointment did not contain any limitations on Jackson’s authority. Additionally, 

in accordance with KRS2 387.580(3)(c), the order denied Christine the right to vote 

in future election contests. (Trial Record (T.R.) at 204.) 

Three years later, Jackson agreed with Cambridge, a long-term care 

facility, that his mother would reside there. As part of the admissions process, 

Jackson, in his capacity as Christine’s guardian, signed a voluntary alternative 

dispute resolution agreement as his mother’s guardian. The agreement required 

“[a]ny and all claims or controversies arising out of or in any way relating to [the] 

 

1

See In re: Christine Jackson, 99-H-00125-011 (Fayette District Court December 20, 2011). 

2 Kentucky Revised Statutes.
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Agreement or [his mother’s] stay at the [Cambridge] [f]acility . . . [to] be submitted 

to alternative dispute resolution as described in the Agreement.”

Jackson remained Christine’s guardian until her death on January 27, 

2015. He then filed a medical negligence lawsuit against Cambridge on May 18, 

2015. Cambridge moved the circuit court to compel arbitration. The circuit court 

held oral arguments on the motion in November 2015, but entered an order holding 

the case in abeyance. The circuit court was waiting for the Kentucky Supreme 

Court to decide whether to grant discretionary review of this Court’s opinion in LP 

Pikeville, LLC v. Wright, No. 2013-CA-000959-MR, 2014 WL 1345293 (Ky. App. 

Apr. 4, 2014) (Wright I).

The circuit court’s decision to abate the case is understandable. This 

Court had designated Wright I for publication because it addressed, as a matter of 

first impression, the authority of a guardian appointed pursuant to KRS Chapter 

387 to legally obligate his ward to resolve disputes by arbitration. But the wait for 

the Supreme Court would be long and disappointing. 

That Court granted discretionary review in March of 2016. Pursuant 

to the automatic rule regarding publication in CR3 76.28(4)(a),4 Wright I was 

 

3 Kentucky Rules of Civil Procedure.

4 CR 76.28(4)(a) says: “Upon entry of an order of the Supreme Court granting a motion for 

discretionary review the opinion of the Court of Appeals shall not be published, unless otherwise 

ordered by the Supreme Court.”
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ordered to be unpublished, preventing the Court of Appeals opinion from 

becoming precedent. The circuit court and the parties would have to wait until the 

Supreme Court itself addressed the novel issue, and then only if it decided to 

publish its own opinion.

The parties briefed the Supreme Court case of Wright v. LP Pikeville, 

LLC, No. 2014-SC-0238-DG (Ky. Feb. 20, 2019) (Wright II) and the case was

submitted for decision on August 12, 2016. However, before the Supreme Court 

rendered an opinion, the parties in Wright II settled the case and filed a joint 

motion to dismiss. In February 2019, the Supreme Court ordered the case 

dismissed but chose not to order Wright I published,

5 notwithstanding that the case

had addressed an issue of first impression. The circuit court in the instant case was 

left to decide Cambridge’s motion to compel arbitration without the precedent for 

which it waited four years.

As the circuit court correctly noted, Wright I “is not binding on this 

Court.” It entered an order denying Cambridge’s motion, finding Jackson lacked

authority to bind his ward to an arbitration agreement. This appeal followed. 

STANDARD OF REVIEW

A party seeking to compel arbitration has the initial burden of 

establishing the existence of a valid agreement to arbitrate. First Options of 

 

5

See footnote 4, supra.
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Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 

985 (1995); Dixon v. Daymar Colleges Group, LLC, 483 S.W.3d 332, 341 n.23

(Ky. 2015). An appellate court reviews de novo the circuit court’s application of 

rules governing the validity of an arbitration contract, but the court’s factual 

findings, if any, will be disturbed only if clearly erroneous. Conseco Finance 

Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001).

ANALYSIS

For good reason, the circuit court hoped for guidance from our 

appellate courts before ruling, and Wright I seemed near providing it. The circuit 

court’s and the parties’ wait, as it turned out, proved a waste of time. Still, the 

circuit court’s order cites Wright I as do both briefs. 

We want to be perfectly clear that nothing distinguishes Wright I from 

any other unpublished opinion. No one now should read anything into the fact that 

this Court deemed it worthy of publication. Nor should significance be ascribed 

either to Wright I’s “depublication” in accordance with CR 76.28(4)(a), or the 

Supreme Court’s refraining from ordering Wright I published when it dismissed 

the appeal after the parties settled. 

There is an important rule that “denial of a motion for discretionary 

review by the Supreme Court or by the Court of Appeals shall not be taken as 

indicating its approval of the opinion or order sought to be reviewed, and shall not 
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be cited as connoting such approval.” SCR6 1.030(8)(b). There is no logical or 

other reason to withhold applying the spirit of that rule to each procedural step that 

eventually resulted in the status of Wright I as unpublished. What is significant is 

its current status. It is an unpublished opinion.7

We thus proceed with our analysis without binding precedent on this 

specific issue. However, just as this Court is bound by precedent when it exists,

we strive for continuity in all our jurisprudence, published and unpublished. To do 

otherwise would invite criticism that, with unpublished opinions, “the same issue 

under similar facts can be decided in entirely different ways . . . .” Goodlet v. 

Commonwealth, 825 S.W.2d 290, 292 (Ky. App. 1992). Worse still would be a 

resurrection of the charge that the body of unpublished opinions is “a rug under 

which judges sweep whatever they wish never to see the light of day.” Id.

Although our opinion is in harmony with Wright I, we are unaffected 

by it. We reach the same conclusion by following existing precedent relating to 

arbitration.

 

6 Rules of the Supreme Court.

7 We note that the popular computerized legal research database, Westlaw Edge, marks opinions 

of this Court with a red flag when the Supreme Court, either by rule or by order, renders the 

opinions unpublished. According to the database, a red flag indicates “Severe Negative 

Treatment.” This is an editorial comment by the database’s vendor. Attorneys and jurists should 

attribute no significance to it and treat the case no differently than if it had been designated by 

this Court as unpublished when originally rendered. 
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The outcome here is directed by arbitration jurisprudence clarified in 

Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 197 L. Ed. 2d 

806 (2017). Generally, Kindred found the Kentucky rule of law limiting authority 

of attorneys-in-fact to bind their principals only to contracts other than arbitration 

agreements to be in violation of the supremacy of the Federal Arbitration Act 

(FAA). Kindred analogized principles articulated in AT&T Mobility LLC v. 

Concepcion, 563 U.S. 333, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011), relating to 

real and hypothetical statutes and applied them to the grants of powers of attorney. 

See Kindred, 137 S. Ct. at 1426-27. In the instant case, we can apply those same

principles more directly. 

The law as expressed in Kindred is clear to this Court. Interpreting 

KRS 387.500, et seq., in a way that allows a guardian authority to enter into 

contracts generally but denies that authority relative to an arbitration agreement is 

to create a rule violating the supremacy of the FAA, 9 U.S.C.8 § 2.

That statutory provision establishes an equal-treatment 

principle: A court may invalidate an arbitration agreement 

based on “generally applicable contract defenses” like 

fraud or unconscionability, but not on legal rules that 

“apply only to arbitration or that derive their meaning from 

the fact that an agreement to arbitrate is at issue.” AT & T 

Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.

Ct. 1740, 179 L. Ed. 2d 742 (2011). The FAA thus 

preempts any state rule discriminating on its face against 

arbitration—for example, a “law prohibit[ing] outright the 

 

8 United States Code.
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arbitration of a particular type of claim.” Id., at 341, 131 

S. Ct. 1740. 

Kindred, 137 S. Ct. at 1426. Of course, Kentucky’s guardian statutes do not, on 

their face, discriminate against arbitration. But that does not matter.

The Act also displaces any rule that covertly accomplishes 

the same objective by disfavoring contracts that (oh so 

coincidentally) have the defining features of arbitration 

agreements. In Concepcion, for example, we described a 

hypothetical state law declaring unenforceable any 

contract that “disallow[ed] an ultimate disposition [of a 

dispute] by a jury.” Id., at 342, 131 S. Ct. 1740. Such a 

law might avoid referring to arbitration by name; but still, 

we explained, it would “rely on the uniqueness of an 

agreement to arbitrate as [its] basis”—and thereby violate 

the FAA. Id., at 341, 131 S. Ct. 1740 (quoting Perry v. 

Thomas, 482 U.S. 483, 493, n.9, 107 S. Ct. 2520, 96 L. Ed.

2d 426 (1987)).

Id.

When the Kentucky Supreme Court rendered the case Kindred

reversed, Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015), it held 

“that an attorney-in-fact did not have the authority to bind his principal to a predispute arbitration agreement unless that authority was clearly stated in the powerof-attorney document. In Kindred, the Supreme Court dubbed this the ‘clear 

statement rule[.]’” Kindred Nursing Centers Limited Partnership v. Wellner, 533 

S.W.3d 189, 190-91 (Ky. 2017). 

The Kentucky Supreme Court’s clear-statement rule, in 

just that way, fails to put arbitration agreements on an 

equal plane with other contracts. By the court’s own 
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account, that rule (like the one Concepcion posited) serves 

to safeguard a person’s “right to access the courts and to 

trial by jury.” 478 S.W.3d, at 327; see supra, at 1425-

1426. In ringing terms, the court affirmed the jury right’s 

unsurpassed standing in the State Constitution: The 

framers, the court explained, recognized “that right and 

that right alone as a divine God-given right” when they 

made it “the only thing” that must be “ ‘held sacred’ ” and 

“ ‘inviolate.’ ” 478 S.W.3d, at 328-329 (quoting Ky. 

Const. § 7). So it was that the court required an explicit 

statement before an attorney-in-fact, even if possessing 

broad delegated powers, could relinquish that right on 

another’s behalf. See 478 S.W.3d, at 331 (“We say only 

that an agent’s authority to waive his principal’s 

constitutional right to access the courts and to trial by jury 

must be clearly expressed by the principal”). And so it 

was that the court did exactly what Concepcion barred: 

adopt a legal rule hinging on the primary characteristic of 

an arbitration agreement—namely, a waiver of the right 

to go to court and receive a jury trial. See 563 U.S., at 

341-342, 131 S. Ct. 1740; see also 478 S.W.3d, at 353 

(Abramson, J., dissenting) (noting that the jury-trial right 

at the core of “the majority’s new rule” is “the one right 

that just happens to be correlative to the right to arbitrate” 

(emphasis deleted)). Such a rule is too tailor-made to 

arbitration agreements—subjecting them, by virtue of 

their defining trait, to uncommon barriers—to survive the 

FAA’s edict against singling out those contracts for 

disfavored treatment.

Kindred, 137 S. Ct. at 1426-27 (emphasis added) (footnote omitted).

The circuit court did what Kindred prohibits. It adopted “a legal rule 

hinging on the primary characteristic of an arbitration agreement—namely, a 

waiver of the right to go to court and receive a jury trial.” Id. at 1427. We must 

reject that rule. We cannot interpret KRS 387.500, et seq., as did the circuit court 
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because it is “too tailor-made to arbitration agreements . . . singling out those 

contracts for disfavored treatment.” Id. (footnote omitted).

Nor do we believe this was the legislature’s intent. The legislation 

very clearly recognizes and presumes an adjudication of total disability involves 

“the attendant deprivation of civil and legal rights that such a determination 

requires.” KRS 387.500(2).

We note a broader question that is not before the Court – whether a 

guardian may validly agree, generally, with a residential care facility for the care of 

his ward. The complaint is not based on a breach of contract. However, the 

negligence claim alleges breaches of duty owed by Cambridge. Those duties arose 

because of the existence of a contract.

Because neither party argues that such general authority is lacking, we 

will only note that the statutes governing guardianship for disabled persons, KRS 

387.500, et seq., are “remedial rather than exclusive. These statutes intend to 

provide services for incompetent persons not only as specifically articulated but 

also as reasonably inferable from the nature of the powers of a guardian, which 

include in KRS 387.660[.]” DeGrella By and Through Parrent v. Elston, 858 

S.W.2d 698, 704 (Ky. 1993). Consistent with that view is the idea that “[t]he 

scope of authority . . . of a guardian is much broader than that of a traditional 
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power of attorney, even one intended to survive disability.” Rice v. Floyd, 768 

S.W.2d 57, 59 (Ky. 1989). 

The authority to enter into contracts generally is within the ambit of 

what is reasonably inferable from the statutes. That being so, we cannot interpret a 

statute to create, in effect, a rule that “covertly accomplishes” the objective of 

disfavoring arbitration agreements. Kindred, 137 S. Ct. at 1426.

CONCLUSION

For the foregoing reasons, we reverse the Fayette Circuit Court’s 

order and remand with instructions that the circuit court order the parties to 

arbitration in accordance with KRS 417.060(1).

KRAMER, JUDGE, CONCURS. 

TAYLOR, JUDGE, CONCURS AND WRITES SEPARATE 

OPINION.

TAYLOR, JUDGE, CONCURRING: Respectfully, I concur with the 

majority but note that had this been a wrongful death action rather than a medical 

negligence case, the ruling of this Court would likely be different. See Preferred 

Care Partners Mgmt. Group, L.P. v. Alexander, 530 S.W.3d 919 (Ky. App. 2017).
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BRIEFS FOR APPELLANTS:

Rebecca R. Schafer

Paul A. Dzenitis

Emily W. Newman

Louisville, Kentucky

BRIEF FOR APPELLEE:

Lisa E. Circeo

Hannah R. Jamison

Megan L. Adkins

Lexington, Kentucky