RENDERED: SEPTEMBER 11, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0282-MR
WILLIAM HOGG, EXECUTOR OF
THE ESTATE OF RUBY J. HOGG APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE RODNEY D. BURRESS, JUDGE
ACTION NO. 24-CI-00845
THOMAS REED; ABIGAIL REED;
GRACE LAW GROUP, PSC; AND
L&N FEDERAL CREDIT UNION APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
ACREE, JUDGE: William Hogg as executor of the Estate of Ruby Hogg appeals
the Bullitt Circuit Court’s dismissal of its complaint asserting a claim against
Thomas and Abigail Reed to reform a deed based on mistake and against Grace
Law Group, PSC, for negligence in preparing the deed. We affirm.
BACKGROUND
On March 15, 2023, the Estate executed a deed Grace Law prepared
conveying real property to the Reeds. The Estate perceived a mistake in the deed’s
property description allegedly resulting in a conveyance of “[a]pproximately
[t]hree and one-half (3 1/2) acres” instead of what it intended, “approximately one
(1) acre.” (Complaint (Record (R.) 2)).
On August 30, 2024, the Estate filed suit alleging two separate claims.
The first was against the Reeds to compel reformation of the deed. The second
was against Grace Law for negligence in preparing the deed.1 The relief sought
was the value of the real estate “incorrectly conveyed” or reformation of the deed.
On October 2, 2024, the Reeds filed a motion to dismiss the claim
against them citing CR2 12 and a contract provision requiring disputes about the
property, the transaction, or the conveyance to be mediated and, should mediation
fail, requiring the dispute to be submitted to binding arbitration. The Reeds
appended to their motion for the trial court’s consideration certain matters outside
the pleadings: (1) the residential sales contract including the arbitration agreement;
(2) a July 27, 2023 letter from the Estate’s first attorney (John W. Wooldridge) to
1
L & N Federal Credit Union was also named in the suit because of its interest as the Reeds’ lender and mortgagee.
2
Kentucky Rules of Civil Procedure.
-2-the Reeds and Grace Law advising them of the mistake; (3) a March 1, 2024 letter
from the Estate’s second attorney (Mark E. Edison) to the Reeds asking their
willingness to pursue mediation in accordance with the contract provision; and (4)
the procedures established by the Greater Louisville Association of Realtors
(“GLAR”) for initiating and conducting mediation and arbitration.
Grace Law did not file a motion to dismiss the claim asserted against
it, nor did it file a written response to the Reeds’ motion.
On October 14, 2024, the trial court conducted a hearing on the
Reeds’ motion. The Reeds and Grace Law were represented by separate counsel.
The trial court confirmed service was made on counsel for the Estate, but neither
the Estate’s administrator nor its counsel filed a response or appeared at the
hearing. The Reeds’ counsel presented his clients’ argument that the parties’
contract requires the Estate’s claim to be arbitrated. Initiation of the process of
arbitrating was to be noticed to GLAR “within 365 days after the Party raising the
claims knew, or should have known, of the existence of said claims.”
The trial court noted the absence of opposition and asked for Grace
Law’s response which was as follows:
Grace Counsel: We would like the whole case dismissed
as well.
Court: You would like it dismissed as well.
Well, I don’t hear any objection to it.
-3-I’ve reviewed the motion. I’ll sign the
order that’s been tendered.
Reeds Counsel: Thank you.
Court: Anything else for today?
Grace Counsel: I think the tendered proposed order said,
“all defendants, all claims.” I just want
to make sure we didn’t need to tender a
separate order.
Court: Case is dismissed with prejudice.
Grace Counsel: Okay.
Reeds Counsel: Thank you, Judge.
Court: That’s what it says.
The judge signed the tendered order and the clerk entered that order on October 18,
2024. It reads in its entirety:
ORDER TO DISMISS PLAINTIFF’S CLAIMS
This matter is before the Court on the Motion to
Dismiss filed by the Defendants, Thomas Reed and
Abigail K. Reed.
The Court having reviewed the record and being
otherwise sufficiently advised,
IT IS HEREBY ORDERED that this case is
dismissed with prejudice.
This is a final and appealable Order and there is no
just reason for delay in its entry.
(Order to Dismiss Plaintiff’s Claims (R. 80)).
-4-The Estate filed a motion pursuant to CR 59.05 and CR 60.02 to
vacate the order dismissing its claims. The trial court denied the motion. The
Estate now appeals. For the reasons stated in the Standard of Review, we treat the
dismissal as a summary judgment.
STANDARD OF REVIEW
The Reeds’ motion to dispense with the litigation cited CR 12, but
they appended exhibits to that motion. When ruling on a motion to dismiss under
these circumstances, “[i]t is within the discretion of the [trial] court whether or not
this extraneous matter shall be considered, but if the court does not exclude it, the
motion shall be treated as one for summary judgment under Rule 56.” Whisler v.
Allen, 380 S.W.2d 70, 71 (Ky. 1964) (citation omitted) (emphasis added). The trial
court did not exclude the exhibits. Therefore, the trial court was required to treat
the motion “as one for summary judgment and disposed of as provided for in Rule
56, and all parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Rule 56.” CR 12.03.
Here, “the trial court rendered a summary judgment pursuant to CR
12.03 and CR 56.” Hoke v. Cullinan, 914 S.W.2d 335, 337 (Ky. 1995). “Whether
summary judgment is appropriate is a legal question involving no factual findings,
so a trial court’s grant of summary judgment is reviewed de novo.” Brown v.
Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016) (citation omitted).
-5-ANALYSIS
Before reaching the Estate’s argument, we address its failure to
preserve the issues it wishes to raise and argue before this Court. We agree with
Appellees that no issue was preserved because the Estate failed to respond to the
motion to dismiss, thereby waiving all arguments. In Wilder v. Noonchester, we
said the appellant “did not properly preserve her argument for our review because
she failed to respond to the . . . motion to dismiss[.]” 113 S.W.3d 189, 190 (Ky.
App. 2003). Wilder applies here.
Contrary to the Estate’s counsel’s belief, the CR 59.05 motion did not
resurrect the issue for the sake of preserving an alleged pre-judgment error. “CR
59.05 accords the trial court broad discretion to alter or amend a judgment, so as to
correct manifest errors, to address intervening changes in controlling law, to take
into account newly discovered but previously unavailable evidence, or otherwise to
prevent manifest injustice[.]” Rumpel v. Rumpel, 438 S.W.3d 354, 365 (Ky. 2014)
(internal quotation marks and citations omitted). However, “a party cannot invoke
CR 59.05 ‘to raise arguments and to introduce evidence that should have been
presented during the proceedings before the entry of judgment.’” Id. at 365–66
(citations omitted).
The Estate’s motion to alter, amend, or vacate the judgment also cited
CR 60.02, in addition to CR 59.05, but failed to identify any of the six bases for
-6-relief contained in that rule or even cite any of its six subsections. Appellate courts
“are not at liberty to review alleged errors when the issue was not presented to the
trial court for decision.” Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky.
1999). The Estate presented no issue contemplated by CR 60.02 to the trial court.
“[A]ppellate courts need not consider unpreserved issues in the
absence of a request for palpable error review unless there are ‘extreme
circumstances amounting to a substantial miscarriage of justice[.]’” Turner v.
Turner, 672 S.W.3d 43, 51 n.10 (Ky. App. 2023) (quoting Shepherd v.
Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)). The Estate did not request
palpable error review. Therefore, our review became a search for a substantial
miscarriage of justice. Such miscarriages have been found in criminal cases where
liberty interests are at stake. In this civil case, no laws were violated and no
constitutional rights affected. We found no miscarriage of justice.
However, refraining from all substantive review for the failure of
preservation remains the Court’s prerogative. In this case, with a short and tidy
record, even our narrower review for a miscarriage of justice demonstrated there
are no genuine issues of material fact and that both the Reeds and Grace Law are
entitled to judgment as a matter of law.
The terms of the Estate’s contract with the Reeds clearly required the
Estate to pursue relief by means of arbitration and to initiate that pursuit within one
-7-year of discovering the claim. “[T]he source of the [trial] court’s jurisdiction to act
in arbitration matters is wholly derived from the Uniform Arbitration Act.” Artrip
v. Samons Const., Inc., 54 S.W.3d 169, 172 (Ky. App. 2001). In this case, as in
Pavkovich v. Shenouda, the Estate “did not seek application to compel arbitration
while the [trial c]ourt still retained jurisdiction. Had [it] done so, the court would
have had to comply with KRS[3] 417.060(3) and (4). Instead, the court ordered all
claims dismissed with prejudice” after the Reeds apprised the trial court of the
Estate’s contractual obligation to arbitrate. 280 S.W.3d 584, 588 (Ky. App. 2009).
For this reason, the Reeds were entitled to judgment as a matter of law.
Grace Law was also entitled to judgment as a matter of law because
the negligence claim was barred by the statute of limitations. However, that claim
is not governed by the Arbitration Act. Its dismissal implicates intersecting tenets
of appellate review we cannot ignore.
First: “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)
(citation omitted) (emphasis added). Because the trial judge dismissed the claims
pursuant to CR 12.03 and CR 56, he was not required under either rule to articulate
his grounds which may or may not have been the applicable statute of limitations.
3
Kentucky Revised Statutes.
-8-Applying this tenet alone would make our de novo review boundless. But there is
a second tenet—the party-presentation principle.
“In our adversary system, in both civil and criminal cases, in the first
instance and on appeal, [courts] follow the principle of party presentation.”
Greenlaw v. United States, 554 U.S. 237, 243 (2008). “Ordinarily, this Court
confines itself rather closely to deciding only those issues which the parties present
. . . [and] take the view that counsel and the courts below have sufficiently
identified the issues[.]” Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991).
Grace Law did include the statute of limitations as an affirmative
defense in its answer. So, the argument has not been waived. But Grace Law’s
counsel did not argue limitations as a ground for dismissal. Nor did he argue
limitations in Grace Law’s brief to this Court. If we strictly applied only the partypresentation principle, we would have to reverse. Fortunately, this principle does
not always require strict application. As the Supreme Court said, appellate courts:
are constrained by no rule of court or constitutional
provision to observe this procedure [party presentation],
and on rare occasions, the facts mandate a departure from
the normal practice. When the facts reveal a fundamental
basis for decision not presented by the parties, it is our duty
to address the issue to avoid a misleading application of
the law. This is such a case.
Mitchell, 816 S.W.2d at 185. Any hesitation we had about applying this exception
was dispelled by a third tenet—the conservation of judicial resources.
-9-Underpinning many of our rules is the policy of conserving judicial
resources. See, e.g., Daugherty v. Commonwealth, 467 S.W.3d 222, 234 (Ky.
2015) (“needless-presentation-of-cumulative-evidence ‘considerations’” as KRE4
403 terms them, “are designed to conserve judicial resources.”); Gasaway v.
Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023) (citing RAP5 32(A)(4) and
stating “this procedural rule preserves judicial resources”). If we strictly adhere to
the party-presentation principle, we would be sending this case back to the trial
court to do more work, burdening the limited resources of one of the litigation
workhorses of the judiciary—a circuit court judge—unnecessarily so. Therefore,
we conclude the exception to the party-presentation principle applies here.
Based on our de novo review of this single-volume record, “the facts
reveal a fundamental basis for decision[.]” Mitchell, 816 S.W.2d at 185. That is,
the material facts about which there is no genuine dispute reveal that Grace Law is
entitled to judgment as a matter of law because the Estate failed to file suit within
the limitations period for such actions.
The applicable statute of limitations says claims for legal negligence
must “be brought within one (1) year from the date of the occurrence or from the
date when the cause of action was, or reasonably should have been, discovered by
4
Kentucky Rules of Evidence.
5
Kentucky Rules of Appellate Procedure.
-10-the party injured.” KRS 413.245. See Wolfe v. Kimmel, 681 S.W.3d 7, 25 (Ky.
2023). The Estate might have discovered that claim at closing but certainly
discovered it not later than July 2023 when its attorney contacted Grace Law about
the allegedly flawed property description. Thirteen months later, the Estate filed
its negligence claim against Grace Law. That claim was barred by operation of the
statute.
That leaves one detail unaddressed. As noted above, when a CR 12
dismissal motion converts to a CR 56 summary judgment motion, “all parties shall
be given reasonable opportunity to present all materials made pertinent to such a
motion by Rule 56.” CR 12.03. See Martin v. Pack’s Inc., 358 S.W.3d 481, 485
(Ky. App. 2011) (“A trial court can grant a summary judgment only after . . .
ample opportunity to complete pretrial discovery.” (citation omitted)). A mere
seven weeks passed between the filing of the complaint and the entry of judgment.
There is no set duration to satisfy this requirement of ample discovery.
Whether the respondent to a summary judgment motion has had “a sufficient
opportunity to develop the facts” is necessarily case specific. See Suter v. Mazyck,
226 S.W.3d 837, 842 (Ky. App. 2007).
In this case, the undisputed facts that require affirming the judgment
are not substantive facts, but facts needed to determine jurisdiction—not subject
matter jurisdiction, but particular-case jurisdiction. Louisville Historical League,
-11-Inc. v. Louisville/Jefferson Cnty. Metro Gov’t, 709 S.W.3d 213, 221–22 (Ky. 2025)
(“particular-case jurisdiction refers to the authority and power of the court to
decide a specific case, rather than the class of cases over which the court has
subject-matter jurisdiction.” (internal quotation marks and citation omitted)). That
distinction affects what is “a sufficient opportunity to develop the facts[.]” Suter,
226 S.W.3d at 842.
Particular-case “jurisdiction often turns solely on proof of certain
compliance with statutory requirements and so-called jurisdictional facts[.]”
Nordike v. Nordike, 231 S.W.3d 733, 738 (Ky. 2007). This is preliminary
factfinding that, by the nature of the few necessary facts, does not require the same
sort of time as the fleshing out of a claim’s substantive facts.
What we are talking about here are “errors in the procedural
invocation of a court’s [particular-case] jurisdiction[.]” Commonwealth v.
Steadman, 411 S.W.3d 717, 723 (Ky. 2013). These are simple, preliminary,
jurisdictional facts that, in many cases, nearly reveal themselves. When our
Supreme Court “previously tried to explain” particular-case jurisdictional
factfinding, it used the example “of the filing of a notice of appeal in a civil case
on the thirty-second day after the trial court entered judgment. The Court of
Appeals has the authority to decide civil appeals in general, but lacks the power to
adjudicate a case filed too late.” Louisville Historical League, 709 S.W.3d at 222
-12-(quoting Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997)). We apply that
reasoning here.
The trial court in this case has subject matter jurisdiction to adjudicate
legal negligence claims “but lacks the power to adjudicate a case filed too late.”
Id. In this particular case, no greater “opportunity to develop the facts” was
necessary to determine whether the trial court had jurisdiction to adjudicate this
case. Suter, 226 S.W.3d at 842. And we cannot ignore that the Estate made no
effort to challenge the motion or the materials outside the pleadings, or to ask for
more time to do so.
Therefore, we affirm the dismissal of the Estate’s claim against Grace
Law.
CONCLUSION
For the foregoing reasons, we affirm the Bullitt Circuit Court’s order
dismissing the Estate’s claims against the Reeds and Grace Law and the
counterclaims against the Estate.
ALL CONCUR.
-13-BRIEF FOR APPELLANT: BRIEF FOR APPELLEES THOMAS
AND ABIGAIL REED:
Mark E. Edison
Shepherdsville, Kentucky Chad R. Wadlington
Shelbyville, Kentucky
BRIEF FOR APPELLEE GRACE
LAW GROUP, PSC:
Curtis M. Graham
Lexington, Kentucky
-14-