Gerald Dick v. Lake Cumberland Resort Community Association, Inc. ( 2023 )

RENDERED: MAY 12, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1030-MR
GERALD DICK APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE JOHN G. PRATHER, JR., JUDGE
ACTION NO. 18-CI-00712
LAKE CUMBERLAND RESORT
COMMUNITY ASSOCIATION, INC.;
RENAISSANCE ENTERPRISES OF
SOMERSET, INC., D/B/A HOUSE
DOCTORS 484; AND CHARLES
PARKS, IN HIS CAPACITY AS AGENT
OF RENAISSANCE ENTERPRISES
OF SOMERSET, INC., D/B/A HOUSE
DOCTORS 484, AND INDIVIDUALLY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Gerald Dick (Gerald) appeals sundry orders entered by the
Pulaski Circuit Court granting summary judgment for Lake Cumberland Resort
Community Association, Inc., (LCRCA); Renaissance Enterprises of Somerset,
Inc., d/b/a House Doctors 484 (House Doctors); and Charles Parks, individually,
and in his capacity as agent of Renaissance Enterprises of Somerset, Inc., d/b/a
House Doctors 484 (collectively referred to as appellees) on various claims he
asserted against appellees. Upon review, for the reasons that follow, we affirm.
I. BACKGROUND
The genesis of the action below and this appeal arises from injuries
sustained by Gerald while mowing a .27-acre triangular tract of land near his home
in a subdivision known as the Lake Cumberland Resort, Enchanted Forest Section
Four (Resort) in Pulaski County. Owners of lots in the subdivision are
automatically members of the homeowners association, known as Lake
Cumberland Resort Community Association (LCRCA).1 Gerald asserts that the
.27-acre tract he was mowing was a common area that LCRCA was required to
maintain under the association’s governing documents, which it failed to do.
1
Lake Cumberland Resort Community Association, Inc. (LCRCA) was incorporated as a
nonprofit corporation in 1995.
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Gerald argues that LCRCA’s failure to maintain this common area was the
proximate cause of the injuries he suffered while mowing the common area.2
During 2017 and early 2018, Gerald frequently communicated his
concerns regarding LCRCA’s failure to maintain the .27 acre common area to
Stephen Halpin, the treasurer and board member for LCRCA. Gerald’s primary
concern was that the overgrowth in the common area could obstruct his view of
traffic when turning from his street onto Harmony Lane and possibly causing an
accident. He was also concerned that the overgrowth could attract snakes and
mosquitos, thus creating a nuisance near his home. After numerous
communications with Halpin, Halpin suggested that Gerald could cut the grass and
overgrowth in the common area, but Gerald could not deduct his expenses from the
annual dues and assessments he owed to LCRCA.
Gerald testified at his deposition that he started cutting the common
area in April of 2018, and had cut the area 4 to 6 times prior to his accident on June
4, 2018 (Gerald’s Deposition at 280). He had cut the area with both a push mower
and a bush hog deck, that he pulled with his four-wheeler ATV. On the day of the
accident, he was pulling the bush hog with his ATV. While making his sixth pass
through the tract with the bush hog, the ATV and bush hog rolled over, eventually
coming to rest in a ditch, where his right leg and foot were pinned beneath one of
2
Paragraph 23 of the First Amended Complaint, Record at 602.
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the ATV’s tires. Gerald testified that he began videotaping with his cell phone,
while mowing, about two minutes before the accident occurred. (Gerald’s Depo. at
78). He further testified that he was the only witness to the accident and had “no
idea” how it occurred, admitting that he had lost control of the ATV. (Gerald’s
Depo. at 282-83).
Gerald was trapped beneath the ATV for approximately six hours
before he was able to free himself. Gerald then crawled up a hill to his house
where he called for emergency assistance. He was taken by ambulance to Lake
Cumberland Regional Hospital and then taken by helicopter to a hospital in
Lexington, Kentucky, where he received treatment for ten days. Gerald suffered
serious personal injuries, including the aggravation of an existing post-traumatic
stress disorder (PTSD) condition.
On July 3, 2018, Gerald filed this action in Pulaski Circuit Court
against LCRCA, Halpin, both individually and as an officer/director of LCRCA,
House Doctors, and Charles Parks, both individually and as an agent for House
Doctors. He asserted claims for damages resulting from his injuries, based upon
negligence, defamation, and breach of contract.
By partial summary judgment entered March 20, 2020, the circuit
court granted Halpin summary judgment dismissing Gerald’s claims, holding that
neither LCRCA nor Halpin were the proximate cause of Gerald’s injuries. The
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court further stated that the negligence claim against LCRCA was also dismissed.
The court also dismissed Gerald’s defamation claim against Halpin and various
derivative claims for corporate records and documents against LCRCA. On March
29, 2020, Gerald timely filed a Kentucky Rules of Civil Procedure (CR) 59.05
motion to alter, amend, or vacate the partial summary judgment. On September 9,
2020, the circuit court denied the CR 59.05 motion, holding that the judgment was
final and appealable, without just cause for delay, in compliance with CR 54.02.
Because of its relevance to further analysis in this Opinion, we pause to note that
the March 20, 2020, partial summary judgment became final upon entry of this
order and was appealable under CR 73.02(1)(e) (now Kentucky Rules of Appellate
Procedure (RAP) 3(E)(2)).
Thereafter, on December 15, 2020, the circuit court entered a
summary judgment and order dismissing all claims against LCRCA. On that same
date, the circuit court entered an order granting House Doctors a partial summary
judgment as to the negligence claims asserted by Gerald. Gerald then filed notices
to alter, amend, or vacate both orders which were denied by orders entered on July
29, 2021, and August 3, 2021. Also, on August 3, 2021, the circuit court granted
summary judgment to both House Doctors and Charles Parks on all remaining
claims against them. On August 27, 2021, Gerald filed this appeal.
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II. ISSUES
Gerald presents five issues on appeal. First, he contends the circuit
court erred in dismissing the premises liability claims he asserted against LCRCA
and House Doctors for injuries he sustained resulting from what he alleges was
their negligent failure to maintain the .27-acre parcel common area located near his
property. Second, he contends the circuit court erred in dismissing claims he
asserted against LCRCA, House Doctors, and Charles Parks for what he essentially
alleged was their negligent failure to promptly locate and assist him after he
sustained his injuries on the .27-acre tract. Third, he contends the circuit court
erroneously dismissed a defamation claim he asserted against LCRCA. Fourth, he
contends the circuit court improperly dismissed a contract or “financial matters”
claim he asserted against LCRCA. Lastly, he argues the circuit court did not
provide him adequate time to conduct discovery in this action. Our review
proceeds accordingly.
III. STANDARD OF REVIEW
Our standard of review upon appeal of a summary judgment is
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03).
Upon a motion for summary judgment, all facts and inferences in the record are
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viewed in a light most favorable to the nonmoving party and “all doubts are to be
resolved in his favor.” Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d
476, 480 (Ky. 1991) (citation omitted). If there are no factual issues, a summary
judgment looks only to questions of law, whereupon we review a trial court’s
decision to grant summary judgment de novo. Brown v. Griffin, 505 S.W.3d 777,
781 (Ky. App. 2016); see also Blackstone Mining Co. v. Travelers Ins. Co., 351
S.W.3d 193, 198 (Ky. 2011).
IV. CLAIMS AGAINST HALPIN AND LCRCA
As previously noted, the circuit court granted Halpin a partial
summary judgment dismissing all claims against him on March 20, 2020. Gerald’s
motion to alter, amend, or vacate was denied on September 9, 2020. Upon filing
his notice of appeal on August 27, 2021, Gerald named Halpin as a party to this
appeal. On October 20, 2021, Halpin filed a motion in this Court to dismiss
himself as a party to the appeal on the premise that the appeal was untimely filed.
By order entered February 8, 2022, a motion panel of this Court granted the
motion, holding that the order entered September 9, 2020, was final and appealable
pursuant to CR 54.02 and Gerald failed to timely file his appeal. Therein, this
Court stated:
In an action involving multiple claims or multiple
parties, such as the case sub judice, CR 54.02(1) permits
the circuit court to certify an otherwise interlocutory
order as final and appealable upon a determination there
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is no just cause for delay. See Watson v. Best Fin. Serv.,
Inc., 245 S.W.3d 722, 726 (Ky. 2008) (citing CR 54.02)
(“If the trial court grants a final judgment upon one or
more but less than all of the claims or parties, that
decision remains interlocutory unless the trial court
makes a separate determination that ‘there is no just
reason for delay.’ And the trial court’s judgment shall
recite such determination and shall recite that the
judgment is final.”) ([F]ootnotes omitted).
If a circuit court properly certifies the order as
final and appealable under CR 54.02, a party must take
an appeal from that order within the prescribed time. See
id. at 727 (“In the event, however, that a trial court
exercises its discretion and determines that a party is
entitled to immediate appellate review, a party failing to
appeal from a final judgment containing the requisite
recitals . . . does so to its peril.”). The appellant, at the
very least, may appeal whether the trial court abused its
discretion certifying the order as final and appealable. Id.
(“If [the appellant] believed that the trial court abused its
discretion in certifying [the appellant]’s claims, he should
have filed his notice of appeal within thirty days of the
trial court’s final judgment under CR 54.02 and raised
that issue on appeal.”).
Here, the Court holds that the partial summary
judgment, entered on March 20, 2020, adjudicated the
claims against Mr. Halpin, and the circuit court certified
that order as final and appealable under CR 54.02.
Therefore, [Gerald] was required to file a notice of
appeal within thirty days from the circuit court’s order
denying the CR 59.05 motion entered on September 9,
2020.
The record shows that [Gerald] did not file an
appeal from the partial summary judgment in favor of
Mr. Halpin until almost a year after the circuit court
denied his CR 59.05 motion. This far exceeds the
prescribed time for taking an appeal under CR
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73.02(1)(a). Because [Gerald] did not timely file a notice
of appeal from the partial summary judgment in favor of
Mr. Halpin, we are constrained to dismiss Mr. Halpin
from the appeal as a party-appellee.
February 8, 2022, Order at 5-7.
Gerald does not challenge Halpin’s dismissal as an appellant.
However, LCRCA does note in its brief that the circuit court concluded in the
March 20, 2020, order that LCRCA’s conduct was not the proximate cause of
Gerald’s injuries and that like Halpin, LCRCA was entitled to summary judgment
dismissing Gerald’s claims. Record at 500. Similarly, in the September 9, 2020,
order, LCRCA emphasizes footnote 1 of the Order which reads:
The March 20, 2020, Order also dismisses the personal
injury claims asserted by Plaintiff against the Defendant
Lake Cumberland Resort Community Association, Inc.
(“LCRCA”). However, Plaintiff did not address the
dismissal of those claims in his Motion or at the hearing
and, therefore, they are not discussed herein.
Record at 576.3
As previously stated, Gerald did not appeal the March 20, 2020, Order
made final by the Court’s September 9, 2020, Order.4 Apparently, out of an
3
The Court notes that at least four different judges have presided over this case since its filing in
2018. The March 20, 2020, order was entered by Special Judge Daniel J. Venters and the
September 9, 2020, order was entered by Circuit Judge Jeffrey T. Burdette.
4
Gerald Dick also acknowledges in his brief that “while no motions by LCRCA were pending
before the Court, it also granted summary judgement [sic] to LCRCA in its dicta.” Gerald’s
Brief at 7.
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abundance of caution, LCRCA filed a motion on September 28, 2020, for entry of
judgment based on the court’s earlier orders entered on March 20 and September 9.
By Order entered on December 15, 2020, the court granted a summary judgment
for LCRCA based on its March 20 Order. Gerald sought CR 59.05 relief from this
Order which was subsequently denied by order entered July 29, 2021.5
Based on our review of the record and the various orders entered
therein, it is clear that all of the claims asserted against Halpin and LCRCA were
resolved by the orders entered on March 20, 2020, and September 9, 2020. By
failing to timely appeal these orders pursuant to CR 73.02(1)(e) (now RAP
3(E)(2)), any issues or claims against LCRCA must also fail, including the
defamation claim, for the same reasons for which Halpin was dismissed, as stated
in the February 8, 2022, Order of this Court.6
Notwithstanding, since the primary claims in this appeal against all
parties looks to personal injuries suffered by Gerald in mowing the .27-acre
5
The December 15, 2020, summary judgment was entered by Circuit Judge Jeffrey T. Burdette,
who later retired on March 31, 2021. The July 29, 2021, order was entered by Circuit Judge
John G. Prather, Jr.
6
The circuit court specifically addressed the defamation claim in its March 20, 2020, Order.
Since Stephen Halpin was acting on behalf of LCRCA, any claim for defamation against
LCRCA arose through Halpin’s conduct. The court concluded that no defamation occurred in its
earlier order, which as noted, was not timely appealed. This precludes any liability by LCRCA
for defamation.
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common area, we will briefly address the premises liability issues raised in this
appeal by Gerald.
Under prior Kentucky precedents, the facts of this case might have
easily fit into an open and obvious doctrine analysis that would have precluded any
liability by LCRCA to Gerald for injuries from the mowing accident. Under this
doctrine, a land owner or possessor could not be held liable to a visitor on his
property, regardless of the visitor’s status, who was injured by open and obvious
dangers that were known to the visitor or otherwise so obvious that the visitor
would be expected to discover them. Rogers v. Pro. Golfers Ass’n of Am., 28
S.W.3d 869 (Ky. App. 2000).
However, the Kentucky Supreme Court modified the open and
obvious doctrine beginning with Kentucky River Medical Center v. McIntosh, 319
S.W.3d 385 (Ky. 2010) and its progeny.7 In McIntosh, the Kentucky Supreme
Court adopted the position of the Restatement (Second) of Torts with respect to
open and obvious conditions. That position is stated as follows:
A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness. . . .
7
See also Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013); Shelton v. Kentucky
Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013); Carter v. Bullitt Host, LLC, 471 S.W.3d
288 (Ky. 2015); and Goodwin v. Al J. Schneider Co., 501 S.W.3d 894 (Ky. 2016).
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RESTATEMENT (SECOND) OF TORTS § 343A(1) (2020).
The Supreme Court further expounded upon its position in McIntosh
in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013). In
explaining the retreat from the open and obvious doctrine, the Court stated:
Traditionally, the open-and-obvious doctrine
stated, “land possessors cannot be held liable to invitees
who are injured by open and obvious dangers.” As a
result, if a plaintiff was injured by an open and obvious
hazard, the landowner, regardless of any negligent
conduct on its part, had a complete defense to any
asserted liability. But, in McIntosh, we noted that a
growing majority of states has moved “away from the
traditional rule absolving, ipso facto, owners and
occupiers of land from liability for injuries resulting from
known or obvious conditions” and, instead, adopted the
Restatement (Second) of Torts’s approach to allow the
jury to assess comparative fault.
Id. at 906 (citations omitted).
Despite the modifications to the open and obvious doctrine, the
Supreme Court has not closed the door to summary judgment in premises liability
actions. As explained in Shelton, 413 S.W.3d at 904, “a court no longer makes a
no-duty determination but, rather, makes a no-breach determination, dismissing a
claim on summary judgment or directed verdict when there is no negligence as a
matter of law, the plaintiff having failed to show a breach of the applicable duty of
care.” Thus, “when the open-and-obvious doctrine relieves a defendant of liability,
it is not because damages are not recoverable as a matter of policy (as [is] the case
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with contributory negligence). Instead, the defendant is not liable because he has
satisfied the standard of care in the given factual scenario.” Id. at 910.
The Supreme Court further stated in Shelton that:
If reasonable minds cannot differ or it would be
unreasonable for a jury to find breach or causation,
summary judgment is still available to a landowner. And
when no questions of material fact exist or when only
one reasonable conclusion can be reached, the litigation
may still be terminated.
Id. at 916 (footnotes and citations omitted); see also Goodwin v. Al J. Schneider
Co., 501 S.W.3d 894, 898-99 (Ky. 2016).
This case falls squarely within both the non-breach and proximate
cause analysis.8 Gerald was mowing the common area on his own volition and as
he readily admitted at his deposition, he did not know why his ATV overturned.
At most, Gerald demonstrated he was injured in an accident that took place on
LCRCA’s property. Absent proof that any unsafe condition on LCRCA’s property
caused his accident, Gerald could not demonstrate appellees breached any duty
owed to him. This is so because, when confronted with a premises liability claim:
[n]either courts nor juries are authorized to
indulge in speculation or guesswork as to
the cause of accidents; there must be some
tangible evidence from which it may be
8
We acknowledge that the circuit court’s analysis in its March 20, 2020, order focused on
foreseeability and proximate cause. However, whether breach or proximate cause, we believe
the circuit court’s order was correct and we can affirm a lower court for any reason supported by
the record. See McCloud v. Commonwealth, 286 S.W.3d 780, 786 (Ky. 2009).
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fairly said what brought about the accident.
It has long been the rule in this state that no
recovery can be had in such cases where the
evidence is so unsatisfactory as to require
surmise or speculation as to how the injury
occurred, and that there will be no
presumption of negligence.
Weidekamp’s Adm’x v. Louisville & N.R. Co., 159 Ky.
674, 167 S.W. 882, 884 (1914) (citations omitted). As
more recently stated, “‘[b]elief’ is not evidence and does
not create an issue of material fact.” Sparks v.
Trustguard Ins. Co., 389 S.W.3d 121, 124 (Ky. App.
2012) (citations omitted).
Phelps v. Bluegrass Hosp. Mgmt., LLC, 630 S.W.3d 623, 628-29 (Ky. 2021).
There being no evidence in the record below to support a breach of
any duty owed to Gerald by LCRCA, nor any evidence of causation, his premises
liability and personal injury claims against LCRCA are without merit as a matter of
law.
V. CLAIMS AGAINST HOUSE DOCTORS AND PARKS
In January of 2017, House Doctors entered into a contract with
LCRCA to provide maintenance for common areas and security throughout the
Resort. Parks was an employee of House Doctors and a member of security staff
who was on duty at the time Gerald suffered his injuries on June 5, 2018. The gist
of the claims against House Doctors looks to its alleged failure to maintain the .27-
acre common area near his home and to provide adequate security patrols to rescue
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Gerald from his peril when the ATV overturned on him. The claims against Parks
look to his failure to patrol the Resort and also rescue Gerald from his peril.
The earlier analysis of the premises liability issue as concerns
Gerald’s injuries also applies to House Doctors. There is simply no evidence in the
record that House Doctors breached any duty owed to Gerald that could have
remotely been the proximate cause of his injuries. In fact, given that House
Doctors was not the owner or possessor of the common area, as determined by the
circuit court, there does not appear to be any duty owing to Gerald, arising under
House Doctors’ contract with LCRCA other than to conduct its mowing services in
a safe manner. There is no evidence or causal connection to link House Doctors’
services with Gerald’s accident on June 4, 2018.
A similar conclusion can be reached on Gerald’s claims against House
Doctors and Parks for their failure to timely rescue Gerald after the accident
occurred. Gerald argues that had House Doctors and Parks conducted patrols on
the evening of June 4, 2018, they would have discovered his peril and rescued him.
Both House Doctors and Parks emphasized in their motions for summary judgment
below that an affirmative duty to rescue has never been recognized in Kentucky
absent a special relationship between the parties. See Grimes v. Hettinger, 566
S.W.2d 769, 775 (Ky. App. 1978). Even where a special relationship does exist,
“the defendant is not liable for failure to render aid unless he knows or has reason
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to know of the plaintiff’s peril.” Id. (citation omitted). To be clear, Gerald’s
argument is not that these appellees knew or had reason to know of his peril.
There is no evidence any of the appellees knew of Gerald’s peril until Gerald’s
girlfriend informed Parks about the situation when she arrived at the Resort late
that evening after being called by Gerald. And Gerald testified that he believed
Parks “acted appropriately” once Parks learned of the accident. Gerald’s Depo. at
339.
Rather, Gerald’s argument is that if a properly conducted patrol had
occurred, they would have known about his peril. Putting aside the speculative
nature of his argument, Gerald cites no statute, legal authority, or contractual
provision that required appellees to patrol the specific location where the accident
occurred. He also makes no argument that the area in which he was injured was so
inherently dangerous that it required supervision to make it safe.
Equally important, Gerald presented absolutely no evidence that had
he been discovered earlier at the accident site by Parks, his injuries would have
been less severe. For these reasons, we find no disputed material facts or legal
basis to preclude entry of summary judgment for House Doctors and Parks.
VI. FINANCIAL MATTERS/
CONTRACT CLAIM AGAINST LCRCA
In Gerald’s original complaint, he asserted “derivative” claims as a
member of LCRCA, seeking injunctive relief relating to internal and financial
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matters pertaining to LCRCA. The circuit court dismissed these claims against
LCRCA in its March 20, 2020, Order and further enunciated its legal basis for
denying the derivative claims in the September 9, 2020, Order. This ruling was not
timely appealed. However, the court permitted Gerald to amend his complaint by
Order entered October 9, 2020. The amended complaint dropped the derivative
claims regarding financial matters and asserted contractual claims against LCRCA
and its officers and directors regarding the calculation and billing of assessments;
failure to review policies to insure compliance with governing documents and state
law; and failure to recognize the separation of the neighborhoods. Record at 606.
The only demand for relief associated with these claims reads:
8. To require LCRCA Defendants, and its agents, to
follow its governing documents and to follow generally
accepted methods of accounting, [and]
9. To Order the return [of] the LCRCA financial books
and other Association Records to the Resort for member
inspection and viewing[.]
Record at 608.
In his brief, Gerald states that the new contractual claim as set out in
the amended complaint is based upon the Kentucky Supreme Court decision of
Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229 (Ky. 2013).
Gerald asserts that under this precedent, LCRCA has not acted in good faith and
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fair dealing in addressing his demands regarding financial management and other
mandatory duties arising under LCRCA’s contract with its members.
Based on our thorough review of the record on appeal, we find that
the contractual claims asserted in the amended complaint are both vague and
nebulous at best. The purported contract is referenced in paragraph 44 of the
amended complaint but does not identify the contract or the date it was entered
into. Record at 607. The allegations therein contain little or no detail regarding
the purported contract from which these claims arise, or the specific terms of the
contract upon which Gerald relies. Additionally, the amended complaint asserts no
claim for contract damages nor does it seek injunctive relief under the “contract”
theory of recovery.
Equally troubling is that the contract theory of recovery was not
properly presented to the circuit court for consideration after the filing of the
amended complaint in October of 2020. After filing the amended complaint,
Gerald filed two memorandums of law with the court in response to LCRCA’s
motion for entry of judgment and made no reference to this contract theory or
claim. Likewise, Gerald made no reference to the contract claim in his motion to
alter, amend, or vacate the court’s Order of December 15, 2020, filed on December
28, 2020. In fact, the purported contract is not even identified until Gerald filed his
reply brief in this appeal, wherein he describes it as “his mandatory contract with
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LCRCA from language contained in his Deed.” Gerald’s Reply Brief at 8. Again,
absent from the record on appeal are the terms of the purported contract or deed
which support this alleged claim.
Given the vagueness of the contract claim as asserted in the amended
complaint and that the issue was never properly presented to the circuit court for
consideration, this Court will not consider the same in this appeal. Norton
Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016). Notwithstanding, this
opinion does not preclude Gerald from properly asserting contract claims against
LCRCA that may be permitted under Ballard in a separate action.
VII. DENIAL OF DISCOVERY
The final issue raised in this appeal that we shall consider is Gerald’s
claim he was prohibited from conducting discovery related to LCRCA. Again, we
must disagree with Gerald’s argument. We do agree that “for summary judgment
to be properly granted, the party opposing the motion must have been given
adequate opportunity to discover the relevant facts. Only if that opportunity was
given do we reach the issue of whether there were any material issues of fact
precluding summary judgment.” Suter v. Mazyck, 226 S.W.3d 837, 842 (Ky. App.
2007). However, “opportunity” is the operative word in this context: “There is no
requirement that discovery be completed, only that the non-moving party have
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‘had an opportunity to do so.’” Carberry v. Golden Hawk Transp. Co., 402
S.W.3d 556, 564 (Ky. App. 2013) (citation omitted). To that end,
Whether a summary judgment was prematurely
granted must be determined within the context of the
individual case. In the absence of a pretrial discovery
order, there are no time limitations within which a party
is required to commence or complete discovery. As a
practical matter, complex factual cases necessarily
require more discovery than those where the facts are
straightforward and readily accessible to all parties.
Suter, 226 S.W.3d at 842. To demonstrate that more discovery is needed, the party
opposing summary judgment must proffer “specific examples of what discovery
could have been undertaken that would have affected the outcome had it been
conducted.” Benton v. Boyd & Boyd, PLLC, 387 S.W.3d 341, 344 (Ky. App.
2012).
In this case, the complaint was filed on July 3, 2018, and the Court’s
first order finding no negligence by LCRCA or Halpin was entered on March 20,
2020, which did not become final until September 9, 2020. In other words, Gerald
had almost two years to conduct discovery which he failed to do. Based upon his
arguments on appeal, the discovery to be sought, although not specifically
identified, primarily looked to negligence claims against LCRCA, for which we
have held there exists no issues of fact or law in dispute therein. Accordingly, we
find the denial of discovery claim to be without merit.
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VIII. CONCLUSION
As set forth in the foregoing analysis, we affirm the circuit court’s
orders granting summary judgment in favor of each of the appellees named in this
appeal.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE LAKE
CUMBERLAND RESORT
Heidi Weatherly COMMUNITY ASSOCIATION,
Mt. Vernon, Kentucky INC.:
Ian A. Loos
Ryan E. Galloway
Bowling Green, Kentucky
BRIEF FOR APPELLEES
RENAISSANCE ENTERPRISES OF
SOMERSET, INC., D/B/A HOUSE
DOCTORS 484 AND CHARLES
PARKS, IN HIS CAPACITY AS
AGENT OF RENAISSANCE
ENTERPRISES OF SOMERSET,
INC., D/B/A HOUSE DOCTORS 484,
AND INDIVIDUALLY:
Clayton O. Oswald
London, Kentucky
Robert J. Rosing
Louisville, Kentucky
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