               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY.COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                  RENDERED: AUGUST 24, 2017
                                                       NOT TO BE PUBLISHED

               juprttttt @nutf nf !ftt:eufurku
                               2016-SC-000582-MR


KENNETH D. PARRISH, D.M.D, PH.D.,                                      APPELLANTS
P.S.C. AND KENNETH D. PARRISH, D.M.D.,
PH.D.


                    ON APPEAL FROM COURT OF APPEALS
V.                        CASE NO. 16-CA-000971
                JEFFERSON CIRCUIT COURT NO. 11-CI-004100


HONORABLE ANN BAILEY SMITH, JUDGE,                                        APPELLEE
JEFFERSON CIRCUIT COURT, DIVISION 13

AND

ROBERT SCHROERlNG, D.M.D. AND
ADVANCED IMPLANT CENTER, P.S.C.                       REAL PARTIES IN INTEREST .


                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING
             '
      Dr. Kenneth D. Parrish, DMD, appeals from the Court of Appeals' order

denying his petition for a writ of mandamus and/ or writ of prohibition.1 For

the foIIowing reasons, we affirm.

                    I. FACTUAL AND PROCEDURAL HISTORY.



       1 Depending on how Parrish's requests for relief are framed, either writ may be
appropriate. Both are "extraordinary writs" that are treated the same for the purposes
of determining whether a writ is available in a particular case. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010).
      This case arose from a contract dispute between Parrish and Dr. Robert

Schroering, DMD, concerning the dissolution of their dental pra~tice. In

November 2005, Parrish and Schroering entered into a partnership governed by

an 82-page Partnership Agreement (hereinafter "the Agreement") to create

Advanced Implant Center, P.S.C, a practice specializing in dental implants and

periodontics. This dispute centers on Article 8 of the Agreement, "Retirement;

Departure; Related Issues," which requires either dentist to give two years'

written notice before retiring. Article 8 further provides that the non-retiring

party will be requtred to purchase all practice interests; the price of which

(hereinafter "buyout price") was set at $975,000.00, plus the fair market value

of the other partner's interests in any practice interest' acquired after the date

of retirement, as determined by a certified public accounting firm, "which shall

be binding on the Parties and Shareholders."

      The Agreement continues that, if elected by one of the parties, a

revaluation of the buyout price can occur. The Agreement sets forth the

following process for that revaluation: the revaluation is to be performed by an

appraiser mutually selected and agreed upon by both parties; if the parties fail

to mutually agree on an appraiser, each party is to select a qualified appraiser,

and those two appraisers are to select a third. Each appraiser is to then

submit his or her appraisal of the value of the practice, and the two closest

appraisals are to be selected, and averaged; the parties will be bound by that

average as the "Revalued Buyout Price."




                                         2
      In keeping with the Agreement, in 2009, Schroering gave his written two-

year notice of retirement, with his date of retirement to be June 9, 2011. Upon

notice of Schroering's retirement, Parrish sought a revaluation of the practice

pursuant to Article 8(E). Since the parties could not agree on a single

appraiser, each party selected an appraiser, and those two appraisers selected

a third. After an extensive revaluation process, the three appraisals were

submitted, and the two figures closest in value were averaged to determine the

practice's worth.

      Thereafter, the parties contested the method of valuation used and the

final valuation of the practice. Schroering filed suit against Parrish for breach

of contract, eventually amending his complaint to add claims for fraud, breach

of covenant of good faith and fair dealing, and breach of fiduciary duty. Parrish

then moved for a partial summary judgment on the tort claims, which the

circuit court denied, finding that material issues of fact existed regarding

Schroering's tort claims. Parrish and Schroering also filed cross-motions for

summary judgment regarding the proper valuation method and final valuation

of the practice, both of which the circuit court denied.

      Parrish filed a petition for a writ of mandamus and/ or prohibition,

pursuant to CR2 76.36 asking: that the Court of Appeals prohibit the circuit

court from enforcing its order denying summary judgment and allowing the

question of the proper value of the dental practice go to a jury; and compel that



      2   Kentucky Rules of Civil Procedure.

                                               3
the circuit court enter an order enforcing the terms of the Agreement that

designated how that value is to be determined. Concurrently, Parrish also filed

a motion for intermediate relief under CR 76.36(4), which the Court of Appeals

denied on August 5, 2016 since Parrish did not demonstrate the requisite

"immediate and irreparable injury" before a hearing can be held on the petition.

      The Court of Appeals denied the petition for a writ, holding that Parrish

was unable to meet his burden.to show that the circuit court"acted erroneously

since material issues of fact remain regarding which appraiser used the proper

method of valuation, as well as with respect to the tort claims Schroering

brought against Parrish. Further, the Court of Appeals held that the circuit

court was correct in ruling that the valuation clause of Article 8 did not contain

an arbitration clause. '.This appeal follows as a matter of right.

                                    II. ANALYSIS.

      As this Court has outlined,

            A writ of prohibition may be granted upon a showing
            that (1) the lower court is proceeding or is about to
            proceed outside of its jurisdiction and there is no
            remedy through an application to an intermediate
            court; or (2) that the lower court is acting or is about
            to act erroneously, although within its jurisdiction,
            and there exists no adequate remedy by appeal or
            otherwise and great injustice and irreparable injury
            will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Since Parrish sought relief

under the second class of writs, he has the burden to show that the circuit

court is acting erroneously, that no remedy exists by appeal or otherwise, and



                                         4
   that great injustice and irreparable injury will result if the petition is not

   granted. Id.

         First, Parrish contends that the Court of Appeals erred in construing

   Article 8 as not containing an arbitration clause and thus denying his writ to

   compel arbitration. Parrish asks this Court to hold that the binding valuation

   procedure in Article 8 of the Agreement is an arbitration provision subject to

   the Federal Arbitration Act ("FM"), and therefore the valuation is an

   enforceable arbitration agreement. 9 U.S.C. §1, et seq.

         As this Court has stated, "a party seeking to compel arbitration has the

   initial burden of establishing the existence of a valid agreement to arbitrate."

   Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 590 (Ky. 2012). "Questions

   concerning the formation of an arbitration agreement are resolved in

. , accordance with the applicable state law governing contract formation."3

   Ex:tendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 320 (Ky. 2015), rev'd on

   other grounds sub nom. Kindred Nursing Ctr. 's Ltd. P'ship v. Clark, 137 S. Ct.

   1421 (2017). "[I]n the absence of ambiguity a written i_nstrument will be

   enforced strictly according to its terms, and a court will interpret the contract's

   terms by assigning language its ordinary meaning and without resort to

   extrinsic evidence." Wehr Constructors, Inc. v. Assurance Co. of America, 384

   S.W.3d 680, 687 (Ky. 2012) (internal quotations omitted). Generally, the

   interpretation of a contract, including whether a contract is ambiguous, is a


         3   Article l 7(N) of the Agreement provides that the governing law is that of
   Kentucky.

                                                5
question of law to be determined de novo on appellate review. Abney v .

. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 703 (Ky. 2006).

       Upon review of the record and the Agreement, we agree with the Court of

Appeals that the language of Article 8(E) is not ambiguous: it contains a precise

process for selecting an appraiser, or each party selecting an appraiser and

averaging the valuations to determine the revalued buyout price, and provides

that

             all Parties and Shareholders will be bound by that
             average as the revaluation of the value of the practice
             and the Partnership .... The Percentage Ownership of
             the Partnership of the retiring Party and Shareholder
             shall then be utilized for determining the Buyout Price,
             by the Percentage Ownership modifying the
             revaluation, as of the date of retirement of the retiring
             Party and its Shareholder, for all purposes, hereinafter
             called "Revalued Buyout Price. 4

By the plain language of the Agreement, the parties agreed to be bound by the

average amount of the appraised values, but in no way did the parties agree

that this valuation would constitute a final arbitration, or to submit any

dispute to arbitration, especially regarding issues other than the revalued

buyout price.

       This Court recently ruled, in Kentucky Shakespeare Festival, Inc. v.

Dunaway, 490 S.W.3d 691 (Ky. 2016), that an employment agreement without

any express reference to arbitration or setting forth any process for arbitration

is not an arbitration agreement. The facts of this case, although a partnership



       Article 8 also states that the phrase "Buyout Price" is deemed to include the
       4

"Revalued Buyout Price."

                                          6
agreement and not an employment contract, are similar to those in Dunaway.

In this instance, the "binding valuation" language in Article 8(E) does not

contain any express reference to "arbitration," nor does it set forth any process

by which an arbitration would occur. Further, as in Dunaway, Parrish did not

promptly seek arbitration at the outset of this action, but rather raised this

arbitration argument almost three years after the dispute arose and over a year

after the final submission of all three appraisal values. See Dunaway, 490

S.W.3d a~ 695 ("The fact that KSF did not promptly assert the arbitration

award as an affirmative defense ... suggests that KSF did not immediately

think of Section 5(e) as an arbitration clause and did not immediately regard

the DMLO calculation as a binding arbitration award."). As succinctly stated in

Dunaway, "[a]rbitration is a process, not an answer." Id. at 696. An

agreement to abide by the averaged appraisal value of the two closest

appraisers is fundamentally different than the appraisers acting as binding

arbitrators of the Agreement.

      Significantly, the Agreement expressly disclaims arbitration. Article

17(L), "General Provisions: No Arbitration," states that "The Parties hereto

waive any arbitration rights." This section continues that the parties will first

attempt to settle disputes arising out of this Agreement, and if that fails, the

parties agree to enter into non-binding mediation, with a certified public

accounting firm to be selected to serve as mediator, pursuant to Article 16.

This Agreement expressly disclaims arbitration in favor of non-binding

mediation. Since this Agreement does not contain a binding arbitration clause,

                                         7
Parrish has not established that the Court of Appeals and circuit court acted

erroneously in allowing this question of valuation to go to a jury.

      Second, Parrish has not shown that he has no adequate remedy by

appeal or otherwise as required for issuance of a writ. Parrish could have filed

a CR 65.07 motion within twenty days of the trial court's order, seeking

"appellate review for what would be ordinarily considered a non-appealable,

interlocutory order." Kindred Hasps. Ltd. P'ship v. Lutrell, 190 S.W.3d 916, 920

(Ky. 2006). s His failure to avail himself of this avenue for appeal does not

establish the lack of remedy required for issuance of a writ. Therefore, we

affirm the Court of Appeals' denial of his writ petition.

      Last, Parrish asks this Court to reverse the Court of Appeals, and compel

the circuit court to enforce the valuation of the practice as binding.

                   Mandamus is a proper remedy to compel an
            inferior court to adjudicate on a subject within its
            jurisdiction where the court neglects or refuses to do
            so, but it will not lie to revise or correct a decision of a
            court. While mandamus will lie to set a court in
            motion, it cannot be used to control the result. In
            short, mandamus will not issue to control the
            discretion of an inferior court.

                   The purpose of the mandamus sought herein is
             not to compel [the judge] to act on the motion, for he
             has acted, but to control his discretion and to compel
             him to grant summary judgment in petitioner's favor.
             Under these circumstances it is well-settled that this
             Court has no authority to issue the order requested.

s When the KRS 417.220 right to an interlocutory appeal does not apply, as is
the case here, "in the arbitration context, we have recognized CR 65.07 and CR
65.09 as appropriate avenues for the review of trial court orders denying
motions to compel arbitration." N. Fork Collieries, LLC v. Hall, 322 S.W.3d 98,
101-02 (Ky. 2010).

                                          8
Fannin v. Keck, 296 S.W.2d 226, 226--27 (Ky. 1956). We therefore lack

authority to compel the circuit court to accept the valuation of the practice as

binding.

                                 III.   CONCLUSION.

      For the foregoing reasons, we affirm the Court of Ap_peals' order denying

the writ of mandamus and/ or prohibition. We do not believe the Court of

Appeals erred in deciding that Parrish failed to show sufficient grounds for

issuance of a writ.

      All sitting. All concur.


COUNSEL FOR APPELLANTS:

Michael W. Oyler
Rebecca Naser
Brooks D. Kubik
REED WEITKAMP SCHELL & VICE, PLLC


COUNSEL FOR APPELLEE:

Honorable Ann Bailey Smith
Louisville, Kentucky


COUNSEL FOR REAL PARTIES IN INTEREST:

Gregg Y. Neal
NEAL & DAVIS, PLLC




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