Lexington Fayette Urban County Human Rights Commission v. Leslie Whaley ( 2022 )

RENDERED: JUNE 17, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1465-MR
LEXINGTON FAYETTE URBAN
COUNTY HUMAN RIGHTS
COMMISSION AND RAYMOND
SEXTON APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 15-CI-02497
LESLIE WHALEY APPELLEE
AND
NO. 2020-CA-1537-MR
LESLIE WHALEY CROSS-APPELLANT
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 15-CI-02497
LEXINGTON FAYETTE URBAN
COUNTY HUMAN RIGHTS
COMMISSION ON BEHALF OF
ASHLEY BRADFORD; AND
RAYMOND SEXTON,
INDIVIDUALLY AND IN HIS
CAPACITY AS EXECUTIVE
DIRECTOR, LEXINGTON-FAYETTE
URBAN COUNTY HUMAN RIGHTS
COMMISSION APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: The Lexington Fayette Urban County Human Rights
Commission (“the Commission”) and Raymond Sexton appeal, and Leslie Whaley
cross-appeals, from the order of the Fayette Circuit Court entered November 10,
2020. Following a careful review of the record, briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
This case was previously on appeal in Lexington-Fayette Urban
County Human Rights Commission v. Whaley, No. 2017-CA-001349-MR, 2019
WL 3246496 (Ky. App. Jul. 19, 2019). We adopt the following statement of facts
herein:
[The Commission], on behalf of Ashley Bradford, filed a
notice of appeal from the judgment of the Fayette Circuit
Court dismissing its claims against Leslie Whaley
pursuant to the provisions of Kentucky Rule of Civil
Procedure (CR) 37.02. Whaley filed a notice of cross-
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appeal. Several months later, Whaley filed a separate
notice of appeal of the court’s judgment as modified.
After our review, we dismiss the appeals and cross-
appeal.
Despite our summary resolution of these appeals
and cross-appeal, a recitation of the lengthy, convoluted,
and acrimonious procedural history of this matter is
necessary. Ashley Bradford (Bradford), a resident of
Malabu Terrace Condominiums alleged discrimination
on the part of: Malabu Terrace Condominiums, (Malabu
Terrace); Scott Lyons (president of the Malabu Terrace
Condominiums Homeowners Association); and Leslie
Whaley (owner of a Malabu Terrace condominium leased
to Ashley Bradford). Bradford claimed that they
unlawfully discriminated against her and her three minor
children based upon familial status, thereby violating a
local ordinance and the provisions of Kentucky’s Civil
Rights Act codified at [Kentucky Revised Statutes
(KRS)] 344.010, et seq.
On May 19, 2005, the Commission found probable
cause to indicate that Malabu Terrace, Lyons, and
Whaley did indeed discriminate as Bradford had alleged.
Specifically, the Commission found that Malabu Terrace,
Lyons and Whaley unlawfully discriminated against
Bradford and the children “by requiring [Bradford] to
supervise her children when outside at all times, giving
her constant complaints about the noise level and
behavior of her children and placing rules that forbid
riding bicycles on the property.” However, the
Commission found no probable cause to support
Bradford’s allegation that she had been denied a
reasonable accommodation based upon her minor child’s
disability. Malabu Terrace, Lyons, and Whaley
vehemently denied the allegation of any unlawful
discrimination.
On July 7, 2015, the Commission filed an action in
Fayette Circuit Court against Malabu Terrace, Lyons, and
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Whaley. The Commission alleged that Bradford had
been “subject to harassment because of her children”;
that the children had not been “allowed outside the
apartment to play or allowed to be in common areas of
the condominium complex”; that Bradford had been
denied use of a parking space set aside for the disabled
“despite authorization”; and that Bradford had suffered
embarrassment and humiliation as a result. The
Commission sought imposition of a civil penalty,
attorney fees, and costs. By order entered by the Fayette
Circuit Court on October 24, 2016, the claims against
Malabu Terrace and Scott Lyons were dismissed.
Whaley responded to the complaint with a motion
to dismiss the lawsuit. In her memorandum in support of
the motion, Whaley explained that she had rented her
condominium at Malabu Terrace to Bradford (a single
parent of three children, including a child with a
disability) and that about five months after executing the
lease and with rent outstanding, Bradford lodged a charge
of discrimination against her. She argued that even if all
of Bradford’s allegations were true, Bradford would not
be entitled to judgment because Whaley was not in
control of the areas in which Bradford alleged she had
suffered the alleged unlawful familial discrimination.
Additionally, Whaley observed that the Commission
made a finding of “no probable cause” with respect to
Bradford’s allegation that she had been the subject of
unlawful discrimination based upon her son’s disability.
On July 30, 2015, Whaley sent Bradford a notice
to vacate the property within 7 days based upon non-
payment of rent. Whaley sent a separate notice to
Bradford advising that her lease would not be renewed
upon the expiration of the term (September 30, 2015).
The Commission immediately filed a motion for
injunctive relief, contending that the eviction was
retaliatory. In response, Whaley explained that Bradford
had not paid rent since June 2015 and that she had been
late with rent payments on 6 previous occasions.
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Bradford moved out of the condominium in October
2015, and the Commission withdrew the motion for
relief. A year after the Commission’s finding of probable
cause, Whaley filed an action in the small claims division
of the Fayette District Court to recover three-months’
rent.
Additionally, on November 3, 2016, Whaley filed
a counterclaim against the Commission and a third-party
complaint against Bradford and Raymond Sexton,
individually, and in his capacity as executive director of
the Commission. Whaley alleged that she had been fully
aware of Bradford’s familial status when she decided to
rent the Malabu Terrace condominium to Bradford; that
Bradford had advised Whaley after she moved into the
condominium that multiple neighbors appeared to be
upset with her; that Lyons, the president of the Malabu
Terrace homeowners’ association, had alerted Whaley
that Bradford’s children left bicycles in the middle of the
walkway, broke a common-area light fixture, and were
permitted to run up and down the common stairs very
loudly, disturbing other residents. Whaley also alleged
that Bradford filed a complaint against her with the
Commission only after Bradford began to have difficulty
making her rent payments; that the Commission violated
the provisions of the Kentucky Civil Rights Act by
failing to conduct a timely investigation; that the
Commission’s investigator, Marjorie Gonzalez,
conducted a patently unfair investigation; that Gonzalez
determined that there was probable cause to believe that
Whaley had unlawfully discriminated against Bradford
without any evidence to support the allegation; and that
Sexton approved the determination by Gonzalez despite
the lack of evidence.
Whaley sought an order enjoining the Commission
from acting outside its authority; an order enjoining
Sexton from further retaliatory conduct; reimbursement
of attorney fees, costs, and expenses associated with her
defense of the unsupported action against her; damages
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incurred as a result of Bradford’s breach of the lease
agreement and her destruction of the condominium
property.
The Commission filed a motion to dismiss
Whaley’s counterclaim and third-party complaint. On
December 2, 2016, the trial court denied the motion.
Sexton then filed an action against Whaley for abuse of
process and for making a claim of retaliation under the
provisions of Kentucky’s Civil Rights Act.
Discovery commenced.
On February 3, 2017, Whaley filed a motion for
sanctions, including dismissal of the action filed against
her by the Commission. She also sought attorney fees
based upon the Commission’s alleged discovery
misconduct, including perjury and a repeated failure to
comply with the trial court’s orders. The Commission
responded, arguing that its action should not be
dismissed.
After a hearing, and by its interlocutory order
entered on March 27, 2017, the circuit court granted
Whaley’s motion to dismiss the Commission’s claims
against her pursuant to the provisions of CR 37 (the civil
rule dealing with sanctions for failure to comply with
discovery orders). The trial court found that in acting on
behalf of Bradford, the Commission responded
dishonestly on multiple occasions in its verified
responses to written discovery; that Bradford testified
dishonestly multiple times; that the Commission failed
and refused to produce relevant evidence, including the
personnel file of Investigator Gonzalez; that the
Commission’s conduct reflected a pattern of dilatory
conduct; that the Commission’s counsel had not caused
the misconduct; and that the Commission’s claims would
be difficult to prove. The trial court found that no
sanctions short of dismissal would be sufficient. It
ordered the Commission’s claims of discrimination and
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retaliation to be dismissed. It also ordered the
Commission to produce the outstanding discovery,
including Whaley’s request for Gonzalez’s personnel file.
Finally, the trial court concluded that following the
submission of Whaley’s bill of costs, “the Court will
make an award of fees and costs against Ms. Bradford.”
On April 6, 2017, the Commission filed a motion
to alter, amend, or vacate the court’s order entered on
March 27, 2017. On April 10, 2017, Whaley submitted a
bill of costs totaling $27,440.85. On April 19, 2017, she
filed her response to the Commission’s motion to alter,
amend, or vacate.
On April 25, 2017, Sexton filed a motion for
summary judgment with respect to the claims brought
against him in both his individual and official capacities.
Sexton contended that he was entitled to qualified
immunity from Whaley’s claims because: his official
actions had been discretionary; her federal civil rights
claims were time-barred; and she did not have a private
right of action against him under provisions of the state
Constitution.
Whaley challenged Sexton’s motion and, on May
21, 2017, she filed a cross-motion for summary
judgment. Whaley argued that Sexton acted improperly
with malicious intent and exceeded his authority as the
Commission’s executive director. Whaley contended
that Sexton directed the Commission to target her based
upon nothing more than a text message that she sent to
Bradford in reply to Bradford’s query and which was
plainly consistent with the Commission’s express
recommendations for landlords. Whaley contended that
Sexton utterly failed to investigate whether any of the
Commission’s rules had a disparate impact on families
with children; whether Malabu Terrace brought claims
for disability discrimination and disparate impact
discrimination without cause; and whether the
Commission refused to serve as an unbiased fact-finder.
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On May 26, 2017, Whaley filed a motion
requesting the trial court to modify its order of March 27,
2017, that dismissed the Commission’s action against her
and awarded her costs and fees against Bradford.
Whaley contended that the Commission should be jointly
responsible for the costs and fees awarded to her. The
Commission opposed the motion.
On June 3, 2017, Bradford filed an answer to
Whaley’s complaint against her. Bradford also filed a
counterclaim asserting retaliatory conduct for Whaley’s
decision to file a small claims complaint against her for
the recovery of unpaid rent. Discovery relative to
Whaley’s action against the Commission continued.
Following oral argument, the circuit court granted
Sexton’s motion for summary judgment and entered an
interlocutory order on July 20, 2017. The court
concluded that Whaley’s federal civil rights action was
time-barred; that Sexton was immune from Whaley’s
state constitutional claims; and that Sexton’s actions had
not been undertaken in bad faith or with a reckless
disregard for Whaley’s rights. The court also granted
Whaley’s motion for summary judgment with respect to
Sexton’s claims against her for abuse of process and
unlawful retaliation in violation of Kentucky’s Civil
Rights Act.
On July 26, 2017, another interlocutory order was
entered. This order was substantially similar to the order
entered on March 27, 2017, dismissing the Commission’s
action against Whaley and awarding fees and costs
against Bradford.
On August 10, 2017, yet another interlocutory
order was entered. The order granted, in part, Whaley’s
motion to modify the court’s order of July 26, 2017. The
Commission was ordered to pay a portion of the attorney
fees awarded to Whaley in the court’s order of July 26.
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On August 18, 2017, the Commission filed a
motion to vacate the August 10 award of attorney fees.
Several days later, the Commission filed a notice of
appeal of the court’s judgment entered on July 26, 2017.
The appeal is designated by this Court as 2017-CA-
001349-MR.
On August 31, 2017, Whaley filed a notice of her
cross-appeal of the court’s order entered on July 26,
2017. This cross-appeal is designated as 2017-CA-
001454-MR.
On September 20, 2017, the Commission filed a
motion re-noticing its motion to vacate the award of
attorney fees made by the trial court through its order
entered on August 10, 2017. The Commission argued
that as a matter of law, an award of attorney fees could
not be made against the Commonwealth as a discovery
sanction. Whaley opposed the motion, arguing in part
that the trial court no longer had jurisdiction over the
matter because the order was now the subject of the
Commission’s appeal and her cross-appeal.
Through its order entered on October 16, 2017, the
trial court vacated (in part) its order of August 10, 2017 –
essentially granting the Commission’s motion of August
18, 2017.
On November 1, 2017, Whaley filed her notice of
appeal of the court’s order entered on July 26, 2017, as
modified by the orders entered on August 10, 2017, and
October 16, 2017. This appeal is designated as 2017-
CA-001782-MR.
The parties filed numerous and voluminous briefs.
On May 14, 2018, we ordered the appeals and cross-
appeal consolidated to the extent that they would be
considered by a single panel of the court. The panel has
considered the appeals and cross-appeal. After our
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review, we are compelled to dismiss them as having been
taken from a non-final order of the trial court.
....
Although the court’s order entered on July 26,
2017, stated that it was final and appealable, and due to
the fact that not all claims had been finally adjudicated,
the trial court did not treat it as such. Moreover, the
order did not recite that a determination had been made
that there was no just cause for delay. In the absence of
such language, the appeal must be dismissed. [See
Stillpass v. Kenton Cty. Airport Bd., Inc.,] 403 S.W.2d 46(Ky. 1966), and Beasley v. Trontz, 677 S.W.2d 891 (Ky.
App. 1984).
Finally, we note that both parties present lengthy
arguments related to the order of the trial court entered
on July 20, 2017. As summarized above, through the
order entered on July 20, 2017, the circuit court granted
Sexton’s motion for summary judgment with respect to
Whaley’s federal civil rights claims and state
constitutional claims. The court also granted Whaley’s
motion for summary judgment with respect to Sexton’s
claims against her for abuse of process and unlawful
retaliation in violation of Kentucky’s Civil Rights Act.
This order, too, was designated as interlocutory and did
not contain the finality language required by the
provisions of CR 54.02(1). Critically, however, it is not
the subject of either of the notices of appeal or the notice
of cross-appeal.
It is hereby ORDERED that this appeal be
DISMISSED for lack of jurisdiction because it is an
appeal from a nonfinal judgment that was not made final
by the language required by CR 54.02(1) and because it
did not adjudicate all the claims of all of the parties.
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Following the dismissal of the previous appeals and cross-appeals, the Commission
moved the trial court to consolidate its July 20, 2017, July 26, 2017, and August
10, 2017, orders into one final and appealable order. The trial court granted the
motion in its November 10, 2020, order, which plainly stated it “is a Final and
Appealable Order and there is no just use [sic] for delay.” This appeal and cross-
appeal followed.
STANDARD OF REVIEW
The final judgment in this case is comprised of the trial court’s
granting of each party’s motion for summary judgment to dismiss the claims
brought against them, as well as the granting of Whaley’s motion for attorney’s
fees and costs against Bradford.
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
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Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
Unless otherwise directed by statute, the amount of an award of
attorney’s fees is within the trial court’s discretion. King v. Grecco, 111 S.W.3d
877, 883 (Ky. App. 2002), superseded by statute on other grounds as stated in
Meece v. Feldman Lumber Co., 290 S.W.3d 631 (Ky. 2009). “The test for abuse
of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted). “When a trial court
is considering whether to award attorney fees and costs and/or how much to award,
the trial court’s decision should be guided by the purpose and the intent of
providing an award of attorney fees and costs[.]” Alexander v. S & M Motors, Inc.,
28 S.W.3d 303, 305 (Ky. 2000).
ANALYSIS
On appeal, the Commission argues the trial court erred in dismissing
Sexton’s claims of retaliation brought against Whaley. KRS 344.280 makes it
unlawful to “retaliate or discriminate in any manner against a person because he
has opposed a practice declared unlawful by this chapter, or because he has made a
charge, filed a complaint, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under this chapter.” Kentucky courts
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interpret retaliation under the Kentucky Civil Rights Act (KCRA) consistent with
its interpretation under federal law. Brooks v. Lexington-Fayette Urban Cty.
Housing Auth., 132 S.W.3d 790, 801 (Ky. 2004). One claiming retaliation bears
the initial burden of proof, showing a prima facie case, including presenting proof
that: “(i) the plaintiff engaged in a protected activity; (ii) his exercise of such
activity was known by the defendant; (iii) the defendant took an action that was
materially adverse to the plaintiff; and (iv) there is a causal connection between the
protected activity and the materially adverse action.” McCartt v. Kellogg USA,
Inc., 139 F. Supp. 3d 843, 855 (E.D. Ky. 2015).
Under the burden-shifting framework of McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 801-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668(1973), once a plaintiff makes a prima facie case, the burden shifts to the defendant
to produce a legitimate, non-retaliatory reason for its action. If the defendant can
produce such an explanation, the burden shifts back to the plaintiff to put forth
competent evidence from which a reasonable jury could conclude that the stated
reason is merely pretextual. Id.; see also Montell v. Diversified Clinical Servs.,
Inc., 757 F.3d 497, 504 (6th Cir. 2014). A plaintiff “may demonstrate that the
defendant’s explanation was merely pretext by showing (1) that the proffered
reason had no basis in fact, (2) that the proffered reason did not actually motivate
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[the action], or (3) that the proffered reason was not sufficient to motivate [the
action].” Woods v. W. Kentucky Univ., 303 S.W.3d 484, 487 (Ky. App. 2009).
Here, the trial court determined Sexton did not engage in protected
activity under the KCRA. Indeed, Sexton has failed to allege or demonstrate that
he “engaged in protected activities with regard to other persons’ grievances
beyond [his] regular job duties[;]” thus, he is not afforded protection under the
KCRA. Lewis-Smith v. W. Kentucky Univ., 85 F. Supp. 3d 885, 909 (W.D. Ky.
2015), aff’d (Jan. 12, 2016) (emphasis added).
The trial court further determined that – even if he met his initial
burden of making a prima facie showing – Sexton failed to meet his burden of
showing Whaley’s action was retaliatory. “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not rest upon
mere allegation or denials of his pleading, but must set forth specific facts showing
that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986). The trial court correctly
found that Sexton failed to meet his burden of proof here as he proffered no
evidence that Whaley’s action was retaliatory. This is particularly significant
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considering the length and volume of this litigation.1 Thus, the retaliation claim
was properly dismissed.
The Commission next argues the trial court erred in dismissing
Sexton’s claims of abuse of process against Whaley. In Bonnie Braes Farms, Inc.
v. Robinson, 598 S.W.2d 765, 766 (Ky. App. 1980), the Court stated that “[t]he
essential elements of the tort [of abuse of process] include (1) an ulterior purpose
and (2) a [willful] act in the use of the process not proper in the regular conduct of
the proceeding[.]” See also Mullins v. Richards, 705 S.W.2d 951, 952 (Ky. App.
1986). Again, Sexton failed to put forth sufficient evidence Whaley committed
this tort; therefore, the trial court properly dismissed the claim. See Toler v. Süd-
Chemie, Inc., 458 S.W.3d 276 (Ky. 2014), as corrected (Apr. 7, 2015).
On cross-appeal, Whaley argues the Commission should bear joint
responsibility for the attorney’s fees and costs the trial court awarded to her.
Whaley admits that CR 37.05 provides that “[e]xpenses and attorney’s fees are not
to be imposed upon the Commonwealth under Rule 37” for failure to make
discovery. Even so, most of her claims pertaining to the Commission’s so-called
misconduct directly relate to discovery matters – such as Sexton verifying
Bradford’s false information provided in written discovery responses, Sexton
1
The initial complaint was filed on July 7, 2015, nearly seven years ago. The record on appeal
consists of 1,474 numbered pages, a volume of sealed exhibits to pleadings, a volume of
supplemental filing(s), and multiple disks.
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allowing Bradford to testify falsely at her deposition, and Sexton failing to notify
the trial court “right away” to correct the record concerning Bradford’s bank
account information after its production was compelled.
Nevertheless, Whaley asserts an award of attorney’s fees and costs
from the Commission may be available to her under the KCRA. She claims the
Commission and Sexton pursued the initial litigation against her in bad faith, as
well as the KCRA counterclaim against her. Although Whaley fails to point us to
a specific provision under the KCRA pertaining to attorney’s fees and/or costs,
KRS 344.450 states, “[t]he court’s order or judgment shall include a reasonable fee
for the plaintiff’s attorney of record and any other remedies contained in this
chapter.”
Here, the trial court ordered Bradford to pay Whaley’s attorney’s fees
and costs since it deemed Bradford to be culpable and the Commission not. In its
July 26, 2017, order, the trial court specifically found the Commission did not
cause the misconduct while Bradford “has extensive personal responsibility for the
misconduct[.]” The trial court also dismissed Bradford’s claims against Whaley as
a sanction under CR 37. Thus, joint imposition of attorney’s fees and costs against
the Commission was not available to Whaley under the KCRA because the award
was made pursuant to CR 37, and CR 37.05 prohibits such an imposition on the
Commonwealth and its agencies, including the Commission. Furthermore, since
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the trial court’s award was not “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles[,]” we cannot say the trial court abused its discretion in
awarding Whaley’s attorney’s fees and costs in this manner. Goodyear Tire &
Rubber Co., 11 S.W.3d at 581.
Whaley further contends the trial court erred in dismissing her claims
against Sexton. She first argues that the judgment was premature. It is well-
established “summary judgment is only proper after a party has been given ample
opportunity to complete discovery, and then fails to offer controverting
evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth Fin. & Admin.
Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (emphasis added) (citing Hartford Ins.
Grp. v. Citizens Fid. Bank & Tr. Co., 579 S.W.2d 628 (Ky. App. 1979)). Yet, it is
“not necessary to show that the respondent has actually completed discovery, but
only that respondent has had an opportunity to do so.” Hartford, 579 S.W.2d at
630.
In Hartford, a period of approximately six months between the filing
of the complaint and the summary judgment was found to be sufficient time to
conduct discovery. However, this is not a bright-line rule, and the appropriate time
for discovery necessarily varies from case to case depending on the complexity,
availability of information sought, and the like. See Suter v. Mazyck, 226 S.W.3d
837, 842 (Ky. App. 2007).
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Here, more than eight months elapsed between the filing of Whaley’s
third-party complaint against Sexton – and more than two years since the original
complaint was filed in this matter – and the grant of partial summary judgment.
This is not a complicated part of the case, nor does it appear that any relevant
information sought has been withheld. Thus, we cannot say the trial court’s grant
of summary judgment was premature.
Whaley also argues her claims against Sexton were improperly denied
on statute of limitations and/or immunity grounds. Yet, we may affirm a lower
court on any grounds supported by the record. Commonwealth v. Mitchell, 610
S.W.3d 263, 271 (Ky. 2020) (“If an appellate court is aware of a reason to affirm
the lower court’s decision, it must do so, even if on different grounds.” Mark D.
Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014)).
Here, Whaley’s claims suffer the same fatal flaw that led to the dismissal of
Sexton’s claims against her: insufficient proof. See CR 56.03; Anderson, 477 U.S.
at 256, 106 S. Ct. at 2514; and Toler, 458 S.W.3d 276. Accordingly, her claims
were properly dismissed.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Fayette Circuit Court is AFFIRMED.
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ALL CONCUR.
BRIEFS FOR APPELLANTS/ BRIEFS FOR APPELLEE/CROSS-
CROSS-APPELLEES: APPELLANT:
Edward E. Dove Jay Inman
Lexington, Kentucky Lexington, Kentucky
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