RENDERED: OCTOBER 16, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0750-MR
TERRY SCHMUCKIE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JENNIFER BRYANT WILCOX, JUDGE
ACTION NO. 24-CI-009291
MINDY SHERMAN AND DONNA
SUE MAGGARD APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: COMBS, MOYNAHAN, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Terry Schmuckie (Schmuckie), appeals from the May 15,
2025, Order of the Jefferson Circuit Court, which granted appellees’ motion for
summary judgment and denied Schmuckie’s motion to amend his complaint filed
in the underlying case. After consideration of the briefs filed, review of the record
on appeal, and analysis of the relevant law, we affirm in part, reverse in part, and
remand.
BACKGROUND
In 2003, appellee, Donna Sue Maggard, and her husband, Marty
Maggard (collectively the Maggards), purchased a residential property (the
property) in Louisville, Kentucky.1 Donna Maggard is the mother of appellee,
Mindy Sherman (Sherman). The following year, Schmuckie and Sherman, who
were in a romantic relationship at the time, moved into the property together with
Sherman’s two daughters. Notably, Sherman and Schmuckie were never married.
For the following twelve years, Sherman and Schmuckie lived at the
property, and Schmuckie did not pay any rent to the Maggards.2 In 2016,
Schmuckie claims that he, Sherman, and the Maggards made an oral rent-to-own
agreement, in which the parties agreed that the Maggards would ultimately transfer
the property to both Schmuckie and Sherman after the Maggards’ mortgage was
paid off. Schmuckie began paying monthly rent which was to be applied to the
mortgage indebtedness. He allegedly increased his payments in early 2019 at the
Maggards’ request so that extra amounts could be applied to the principal on the
Maggards’ mortgage. Schmuckie alleges that the mortgage debt was substantially
paid off in February of 2022. Record at 63. At that time, Sherman and Schmuckie
1
Donna Sue Maggard and her husband Marty Maggard (the Maggards) had a mortgage indebtedness for the property after the purchase in 2003. The monthly mortgage payment was the basis for the future rent payment that Terry Schmuckie alleges he paid. 2
It is not clear from the record available if Mindy Sherman paid any rent to the Maggards during this time.
-2-agreed that they would also pay the Maggards an additional $20,000, which was
the amount paid by the Maggards in 2003, as a down payment for the house. The
parties then made another oral agreement that this $20,000 would be paid in ten
monthly payments of $2,000. For the first payment, Schmuckie alleges he paid
$1,500 while Sherman paid $500, and that he made all of the remaining payments.3
On August 31, 2022, the Maggards executed a quit claim deed
transferring ownership of the property to Sherman in consideration for “love and
affection.” Schmuckie maintains that he was not aware of this transfer until
October 2022; however, he continued to make the remaining seven payments of
$2,000 to the Maggards, with the last payment being in April 2023. Schmuckie
alleged he made repeated requests to be added to the deed for the property; while
Sherman apparently assented, she took no action to add him to the deed.
The parties ended their romantic relationship in February of 2024, at
which time Schmuckie moved from the property. He continued to make requests
for his name to be added to the deed, or that he be paid for his interest in the
property based on the payments he made to the Maggards. Sherman denied his
requests. On December 30, 2024, Schmuckie filed a complaint in Jefferson Circuit
3
In total, Schmuckie calculates that he paid an additional $36,675.96 to the Maggards in addition to what may be considered rent. Schmuckie claims this includes the $19,500 paid towards the Maggards’ original downpayment of $20,000 and $17,175.96 ($477.11 per month for 36 months) that he began paying towards the Maggards’ mortgage principal beginning in 2019. Appellant’s Brief at 4.
-3-Court initiating this action. Therein, Schmuckie asserted that appellees “acted in a
manner that is unfair, false and misleading and [appellees] have both breached
their agreement with [Schmuckie], they have been unjustly enriched, and they
should pay compensation to [Schmuckie] and be required to make contribution and
repay in equity and pursuant to the laws of this Commonwealth, including
principles of promissory and equitable estoppel, any and all amounts paid by
[Schmuckie] together with interest.” Record at 3.4
On January 31, 2025, appellees moved to dismiss Schmuckie’s
complaint, arguing the alleged oral agreement for Schmuckie to purchase the
property was barred from enforcement pursuant to the statute of frauds as set forth
in Kentucky Revised Statutes (KRS) 371.010. On March 10, 2025, the court
entered an order holding discovery in abeyance until resolution of the motion to
dismiss. Record at 52. Thereafter, on April 2, 2025, Schmuckie moved to amend
his complaint to add Marty Maggard as a necessary party, add a claim of fraud, and
additionally assert that he contributed extensive work and labor to renovate the
kitchen on the property in 2023 in reliance on appellees’ representations that he
would eventually be named in the deed. Considering appellees’ motion to dismiss
4
Schmuckie’s complaint also included a request for the return of an engagement ring, but as indicated in appellees’ response brief, that issue appears to be moot since the ring has been returned.
-4-as a motion for summary judgment,5 the circuit court granted the motion on May
15, 2025, dismissing the complaint and denying Schmuckie’s motion to amend his
complaint. This appeal followed.
STANDARD OF REVIEW
The standard of review on appeal when a trial court grants a motion
for summary judgment is whether the trial court correctly found that there exists no
genuine issue as to any material fact and that the movant was entitled to judgment
as a matter of law. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476,
480 (Ky. 1991). The evidence must be viewed “in the light most favorable to the
nonmoving party, and summary judgment should be granted only if it appears
impossible that the nonmoving party will be able to produce evidence at trial
warranting a judgment in his favor.” First Fed. Sav. Bank v. McCubbins, 217
S.W.3d 201, 203 (Ky. 2006). When evaluating a motion for summary judgment,
the role of the circuit court is not to decide issues of fact, but rather to determine
whether a real issue exists. Commonwealth v. R.J. Corman R.R. Co./Memphis
Line, 116 S.W.3d 488, 497 (Ky. 2003). Because summary judgment looks to
questions of law and not disputed material facts, an appellate court need not defer
5
“Generally, a trial court’s reliance on matters outside of the pleadings converts a motion to dismiss to a motion for summary judgment[.]” Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558, 563 (Ky. App. 2017).
-5-to the trial court’s decision and our review is de novo. Ballard v. 1400 Willow
Council of Co-Owners, Inc., 430 S.W.3d 229, 234 (Ky. 2013).
Additionally, this Court reviews a lower court’s decision regarding the
amendment of a complaint for an abuse of discretion. See Caldwell v. Bethlehem
Mines Corp., 455 S.W.2d 67, 68 (Ky. 1970) (“A court, under [Kentucky Rules of
Civil Procedure] CR 15, has liberal discretion to allow amendments to pleadings,
and is directed to give leave freely when justice so requires.”).
ANALYSIS
On appeal, Schmuckie argues that the circuit court erred in granting
appellees’ motion for summary judgment and denying his motion to amend his
complaint. Specifically, as noted, Schmuckie asserts that appellees breached a
contractual agreement to deed him a one-half interest in the property or
alternatively, he is entitled in equity for reimbursement of funds he paid for the
house based on promissory and equitable estoppel. We will address each argument
in the order presented.
The circuit court concluded that the statute of frauds applied to bar
both Schmuckie’s breach of contract claim and his claims in equity.6 Schmuckie
6
Appellees have argued in their brief that Schmuckie did not sufficiently plead his claims in equity. Considering the circuit court did not dismiss the underlying case based on any of the alleged pleading deficiencies and appears to have considered Schmuckie’s claims in equity, we shall not delve into this argument. However, we shall note that from our review of the record, there is nothing which indicates appellees’ received a lack of fair notice, nor do they assert a lack of notice of Schmuckie’s claims in equity as identified in his initial complaint. See Grand Aerie
-6-maintains this was in error, asserting there are genuine issues of material fact
relating to his claims in equity and that the statute of frauds did not bar the contract
or equity claims.
“The statute of frauds is a legislative enactment designed to prevent
the perpetration of fraud” by requiring certain contracts and agreements to be
reduced to writing and signed by the parties involved. Bennett v. Horton, 592
S.W.2d 460, 463 (Ky. 1979); KRS 371.010. In Kentucky, the sale of real estate is
subject to the statute of frauds, and an oral agreement involving such a sale is
unenforceable. KRS 371.010(6); Smith v. Williams, 396 S.W.3d 296, 299-300
(Ky. 2012).
The Kentucky Supreme Court has recognized, however, that “the
effect of the statute of frauds on oral contracts for the sale of land is to render the
contract unenforceable by either party, not to void the agreement.” Id. at 299.
Thus, while the exact terms of an oral land sale contract may be unenforceable and
specific performance unavailable as a remedy, there may be some exceptions to the
statute of frauds, such as actual fraud and claims in equity. Id. at 300 (citing Smith
v. Ash, 448 S.W.2d 51 (Ky. 1969)). However, such exceptions are usually only
Fraternal Ord. of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky. 2005) (citing Kentucky Rules of Civil Procedure (CR) 8.01).
-7-available under exceptional circumstances. See, e.g., United Parcel Serv. Co. v.
Rickert, 996 S.W.2d 464, 470-71 (Ky. 1999).
Appellees rely primarily on Normandy Farm, LLC v. Kenneth McPeek
Racing Stable, Inc., 701 S.W.3d 129, 143 (Ky. 2024). However, we find
Normandy inapposite as explained in more detail below. The parties in Normandy,
a horse owner and a horse trainer, entered an oral contract pertaining to the training
of a racehorse, one alleged term being a 5 percent commission to be paid to the
trainer if the horse ever sold. Id. at 133-34. After the horse was sold and the
owner refused to pay the 5 percent commission, the trainer brought claims of
breach of contract and for restitution under the equitable theory of quantum meruit
for his training services rendered. Id. The trial court granted the owner’s motion
for summary judgment, finding all of the trainer’s claims were barred by KRS
230.357, which serves as a statute of frauds requiring a written contract for any
payment of a commission associated with the sale, purchase, or transfer of a horse.
Id. It specifically found quantum meruit was not applicable because the trainer had
already been paid for his training services as well as a 12 percent payout from the
horse’s race winnings. The Supreme Court held that the trial court appropriately
granted summary judgment, noting that while “it is evident that there is no brightline rule that a statute of frauds bars a quantum meruit claim[,]” allowing
-8-restitution under quantum meruit in that case would clearly violate KRS 230.357.
Normandy, 701 S.W.3d at 145.
As Normandy illustrates, when determining if an exception to a statute
of frauds may be appropriate, the ultimate focus is whether allowing the exception
would completely defeat or circumvent the purpose of the statute of frauds “lest the
Court run afoul of judicially amending the statute in violation of separation of
powers.” Farmers Bank & Tr. Co. of Georgetown, Kentucky v. Willmott
Hardwoods, Inc., 171 S.W.3d 4, 10 (Ky. 2005); see also Cougler v. Fackler, 510
S.W.2d 16, 18 (Ky. 1974) (“[T]he remedy of restitution to prevent unjust
enrichment is available unless the statute that makes the contract unenforceable
prohibits the remedy, or if the purpose of the statute [of frauds] would be nullified
by granting such a remedy.”).
In Kentucky, whether a claim in equity may serve as an exception to
the statute of frauds is heavily dependent on the specific circumstances of the case
at hand and may involve mixed questions of law and fact. See Sebastian-Voor
Props., LLC v. Lexington-Fayette Urb. Cnty. Gov’t, 265 S.W.3d 190, 194 (Ky.
2008) (“Estoppel is a question of fact to be determined by the circumstances of
each case.”); see also Satterfield v. Satterfield, 608 S.W.3d 171, 173 (Ky. App.
2020) (“[T]he theory of unjust enrichment is an equitable doctrine, and the
application of that doctrine to the facts of a particular case is a question of law.”).
-9-Sub judice, Schmuckie concedes there were no written contracts
between the parties, and the only alleged agreements were orally made. Notably,
both parties refer to the alleged oral agreement as a “rent-to-own” arrangement.
However, it is not clear from the meager record on appeal whether the arrangement
was an installment land sale contract or something else. While the ultimate nature
of the agreement may factor into the consideration of appropriate remedies that
might be available, the underlying transaction looked to the transfer and sale of
real estate.7 Thus, Kentucky’s statute of frauds applies. Therefore, we find no
error in the circuit court’s application of the statute of frauds in granting appellees’
motion for summary judgment regarding Schmuckie’s claim for breach of contract
concerning the sale of the property.
However, we disagree with the circuit court that there are no genuine
issues of material fact involving Schmuckie’s claims in equity. Based on our
review of the record, and the reasons that follow, applying the statute of frauds
without discovery to bar those claims was in error.
In applying the statute of frauds to Schmuckie’s equity claims, the
circuit court relied upon Sawyer v. Mills, 295 S.W.3d 79, 89 (Ky. 2009), explicitly
stating that “[w]ith respect to Mr. Schmuckie’s promissory estoppel/detrimental
7
See Slone v. Calhoun, 386 S.W.3d 745, 748 (Ky. App. 2012) (citing Sebastian v. Floyd, 585 S.W.2d 381, 382 (Ky. 1979)).
-10-reliance claims, the Kentucky Supreme Court has expressed its intent to move
away from the broad implications of the Rickert holding as it relates to oral
representations in violation of the [s]tatute of [f]rauds.” Record at 107-08.8 While
we agree with the circuit court’s interpretation of Sawyer, we disagree with its
application to this case.
First, the trial court in Sawyer determined, in a judgment
notwithstanding the verdict, that the plaintiff’s claims were barred by the statute of
frauds after conducting a four-day evidentiary trial, rather than upon a motion for
summary judgment as in this case. Sawyer, 295 S.W.3d at 83. Second, the
Kentucky Supreme Court did not hold that any claim in equity was necessarily
barred in Sawyer; instead, it held that there was insufficient proof presented to
support the plaintiff’s claim for promissory estoppel. Id. at 89-91; see also
Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 642 (Ky. App.
2003) (holding that a claim of promissory estoppel alone is not sufficient to defeat
the statute of frauds). In our case, no discovery was permitted before the granting
of summary judgment. Finally, in addition to promissory estoppel, Schmuckie has
raised claims of equitable estoppel and unjust enrichment, though neither claim
8
In United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 471 (Ky. 1999), the Supreme Court had held that the statute of frauds would not bar a claim for fraud or promissory estoppel where a promise for indefinite employment was at issue.
-11-was brought in Sawyer. Notably, the appealed order in this case does not explicitly
mention unjust enrichment or equitable estoppel.
Examining Schmuckie’s complaint in the light most favorable to him,
there appears to be, at the very least, approximately $14,000.00 in monies
Schmuckie paid to the Maggards, after Schmuckie became aware of the Maggards’
transfer of the property to Sherman,9 that arguably would not constitute rent.
According to Schmuckie, he paid this amount, to his detriment, in reliance on the
promise from appellees that they would eventually add him to the deed. If
appellees made intentional misrepresentations to Schmuckie to induce him to
continue to make payments to the Maggards, claims thereon would not be
precluded by the statute of frauds. Though it was only later raised in his amended
complaint, Schmuckie also alleges that he made improvements to the property after
the deed was transferred to Sherman, in reliance on a promise that he would be
added to the deed. The exact nature of monies paid and any specific promises or
possible misrepresentations are questions of fact which may support a claim of
estoppel or unjust enrichment if proven to be true in Schmuckie’s favor. See
Bennett, 592 S.W.2d at 463; see also Jones v. Sparks, 297 S.W.3d 73, 76 (Ky.
App. 2009).
9
As claimed in his complaint, Schmuckie learned of the quitclaim deed in October 2022 and continued making $2,000 monthly payments to the Maggards until April 2023.
-12-Additionally, the equity claims, if proven, would not on their face
defeat the purpose of the statute of frauds. While it could be said that a request for
specific performance of the oral contract, i.e., transfer of the deed into
Schmuckie’s name or remuneration for exactly half of the value of the property,
would contravene the purpose of the statute of frauds, an equitable remedy, in this
case restitution for the monies Schmuckie claims he paid in addition to rent, may
not completely contravene that purpose, especially if he was induced to make
payments by intentional misrepresentations.
Considering the circumstances before this Court, we agree with
Schmuckie that there are genuine issues of material fact as to his claims in equity,
and that potential remedies from such claims, if proven to be true, would not run
afoul of the purpose of the statute of frauds. Therefore, granting appellees’ motion
for summary judgment, before discovery, was improper regarding the equity
claims.
This leads to the final question that we must address; whether the
circuit court abused its discretion in denying Schmuckie’s motion to amend his
complaint. In determining whether to grant a party leave to amend a complaint, a
circuit court should consider the nature of the amendment and whether the
amendment would prejudice the opposing party or would work an injustice. See
Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869 (Ky. App.
-13-2007). “[T]he trial court has wide discretion and may consider such factors as the
failure to cure deficiencies by amendment or the futility of the amendment itself.”
First Nat. Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky. App. 1988).
In the instant case, the circuit court denied Schmuckie’s motion to
amend his complaint because it determined the amended complaint would have
been futile given its grant of summary judgment; no other reasoning was provided.
However, because we have determined that the circuit court erred in granting
appellees’ motion for summary judgment below on the equity claims, Schmuckie’s
request to add Marty Maggard and add a claim of fraud would not necessarily be
futile as concerns his equity claims. Additionally, it does not appear that
Schmuckie sought to amend his complaint in bad faith, nor was it untimely, given
it was filed only three months after the complaint was filed and no discovery had
been permitted. See Lawrence v. Marks, 355 S.W.2d 162, 164 (Ky. 1961).
Therefore, we find that the circuit court abused its discretion by denying the
motion to amend the complaint.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s grant of
appellees’ motion for summary judgment as to Schmuckie’s claim for breach of
contract only, reverse the circuit court’s grant of summary judgment to
-14-Schmuckie’s remaining claims in equity and the denial of his motion to file an
amended complaint.
For the reasons stated, we affirm in part, reverse in part, and remand
for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Monica Shahayda Griffin Terry Sumner
Shepherdsville, Kentucky Lori E. Hammond
Louisville, Kentucky
-15-