RENDERED: JANUARY 19, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0090-MR
GREGORY GIBSON; AND SAMUEL GIBSON APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 19-CI-01881
ANDERSON PROPERTIES, L.L.C.; ANDERSON COMMUNITIES, INC.; AND HARMONY HB, L.L.C. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.
ECKERLE, JUDGE: Appellants, Gregory Gibson and Samuel Gibson
(collectively, “the Gibsons”), appeal from a summary judgment of the Fayette
Circuit Court dismissing their claims against Appellees, Anderson Properties,
L.L.C., Anderson Communities, Inc., and Harmony HB, L.L.C. (collectively, “Anderson”). The Gibsons also appeal from the Trial Court’s denial of their
motion to file an amended complaint. The Gibsons assert that there were genuine
issues of material fact regarding their claims of disability discrimination, breach of
contract, and retaliation, and that they sufficiently pleaded a cause of action for
misrepresentation. We agree with the Trial Court that the Gibsons failed to make
prima facie showings on their discrimination and retaliation claims, and that
promissory estoppel does not preserve their claim for breach of contract. We also
agree that the Gibsons’ allegations of misrepresentation lacked specificity; thus,
the proposed amended complaint would have been futile. Hence, we affirm.
I. Factual and Procedural History
Anderson’s three entities are affiliated realty, development, and
construction companies. Dennis Anderson is the president and registered agent of
Anderson Communities, Inc. and Harmony HB, L.L.C. Bryan Anderson is the
president and registered agent of Anderson Properties, L.L.C. The parties agree
that the Gibsons were interested in building a house with accessibility
modifications to accommodate Sam Gibson, Gregory Gibson’s son. Anderson had
previously built and sold a home for Sam Gibson’s mother (Gregory Gibson’s ex-
wife) with similar modifications. In 2018, Gregory Gibson began discussions with
Anderson about the sale of a lot and construction of a residence at 182 Ash Rapids
Road. Most of the discussions took place with Robert Milam, a real estate agent
-2- employed by Anderson (“Milam”), and Jeremy Gribbins, chief operations officer
for Harmony HB (“Gribbins”).
On July 15, 2018, Gregory Gibson submitted an “Offer to Purchase
Contract for New Construction” (“the 2018 Offer”) to Anderson. That Offer
proposed that Gibson would pay, and Anderson would accept, $359,995.00 for the
property and construction. Paragraph 24 set out additional terms and conditions:
1. This offer is contingent upon seller being able to accommodate special requests for floorplan modifications due to accessibility challenges.
2. This offer to purchase is contingent upon final pricing and design meeting.
3. This offer to purchase is contingent upon buyer securing financing within 7 business day [sic] from date of signed contract.
4. If contingencies #2 and #3 are not removed in full on or before 7/31/2018, this contract shall be null and void.
The Schedule B Addendum attached to the 2018 Offer lists the
“upgrades” and customizations initially selected by the Gibsons. At the time of the
2018 Offer, the price of these “Options” totaled $83,000, and included an
unfinished basement (at a cost of $67,000) and two woodburning fireplaces. The
2018 Offer stated that it would become a “legally binding contract” when executed
by all parties, which occurred on July 23, 2018. Directly before the signatures of
both parties appeared the following bold-print language:
-3- We have read this CONTRACT, fully understand the contents thereof, understand and agree that this is the entire agreement between the parties, understand that upon signing, this CONTRACT becomes legally binding, and acknowledge receipt of a copy of CONTRACT. We further acknowledge that we are not relying on any verbal statements or representations, made by either BUILDER, BUYER or the REALTORS, either expressly or implicitly, warranting the property, its size, construction, condition or materials used, nor any of the fixtures, appliances, appurtenances or amenities.
The Gibsons did not secure financing within the time prescribed in the
offer. However, the parties continued to discuss the purchase and construction of
the residence. The Gibsons paid $2,400 for architectural drawings of the home.
On January 16, 2019, Gregory Gibson submitted a letter to Anderson from
Guardian Savings Bank. The letter stated that Gregory Gibson had been
“preapproved” to purchase the home with “conventional financing” and at a
purchase price of $359,995. However, the letter specifically stated that it was not a
final commitment to financing but was contingent upon the execution of a
purchase contract, satisfactory appraisal, and any other conditions requested by
Guardian’s underwriting. A second preapproval letter from Guardian, received by
Anderson on January 24, 2019, indicated that Gregory Gibson was preapproved for
financing of $450,000, but also required him to pay off a loan to Loanme, Inc.
On February 25, 2019, Gregory Gibson submitted a new “Offer to
Purchase for New Construction” (“the 2019 Offer”). The 2019 Offer proposed that
-4- he would purchase, and Anderson would construct the home for $424,330. The
Schedule B Addendum to this Offer reflected additional upgrades over those in the
2018 Offer. The 2019 Offer proposed Gregory Gibson would make a cash
advance of $21,217.00 to be paid in three monthly installments of $7,000 each. He
tendered the first $7,000 payment with the Offer.
Anderson did not sign or accept the 2019 Offer and returned the
down-payment. As a basis for declining the offer, Anderson cited the high cost of
the upgrades, the relatively low amount of the down payment, and the unpaid loan
to Loanme, Inc. At a meeting on March 13, 2019, Anderson advised the Gibsons
that it was not going forward with the construction or sale under the terms in the
2019 Offer. However, Anderson indicated that it would be willing to build and sell
the home under different financing terms.
The Gibsons filed this action against one Anderson entity on May 22,
2019. By amended complaints, they also asserted claims against the other two
Anderson entities. They asserted claims for breach of contract, disability
discrimination in housing, and retaliation. The parties engaged in discovery, which
included the depositions of Milam and Gribbins. Thereafter, Anderson moved for
summary judgment on all claims. In their response, the Gibsons requested leave to
file another amended complaint to assert a claim for misrepresentation.
-5- In an order entered on December 8, 2022, the Trial Court granted
Anderson’s motion for summary judgment and denied the Gibsons’ motion to file
an amended complaint. The Gibsons filed a timely CR1 59.05 motion, requesting
that the Trial Court reconsider both motions. The Trial Court denied the motion on
January 13, 2023. This appeal followed. Additional facts will be set forth below
as necessary.
II. Summary Judgment Standard
The Gibsons primarily argue that the Trial Court erred by granting
Anderson’s motion for summary judgment on all of their claims. The standard of
review governing an appeal of a summary judgment is well-settled. We must
determine whether the Trial Court erred in concluding 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).
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. In
Paintsville Hospital Company v. Rose, 683 S.W.2d 255 (Ky. 1985), the Kentucky
1 Kentucky Rules of Civil Procedure.
-6- Supreme Court held that for summary judgment to be proper, “the movant shows
that the adverse party could not prevail under any circumstances.” Id. at 256.
Our Supreme Court also stated that “the proper function of summary
judgment is to terminate litigation when, as a matter of law, it appears that it would
be impossible for the respondent to produce evidence at the trial warranting a
judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d
476, 480 (Ky. 1991). However, the word “impossible” “is used in a practical
sense, not in an absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky.
1992). Furthermore, the party opposing summary judgment “cannot rely on the
hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but
must present affirmative evidence in order to defeat a properly supported motion
for summary judgment.” Steelvest, 807 S.W.2d at 481 (internal quotation marks
and citations omitted). “Because summary judgments involve no fact finding, this
Court reviews them de novo, in the sense that we owe no deference to the
conclusions of the trial court.” Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App.
2000).
III. Disability Discrimination
The Gibsons first argue that summary judgment was inappropriate on
their housing-discrimination claim under the Kentucky Civil Rights Act
-7- (“KCRA”). The Gibsons initially cite to KRS2 344.600. However, this section
specifically addresses how an aggrieved person may file a complaint with the
Kentucky Human Rights Commission after an alleged discriminatory housing
practice has occurred. Thus, it is clearly not applicable in this case.
However, the Gibsons also refer to KRS 344.360, which sets out
unlawful housing practices. In pertinent part, the statute states that it is an
unlawful housing practice for a real estate operator, broker, or salesman “[t]o
refuse to negotiate for the sale, rental, or lease of real property to any person
because of race, color, religion, sex, familial status, disability, or national origin[.]”
KRS 344.360(4) (emphasis added). Section 11(b) of the statute further defines
unlawful housing discrimination to include “[a] refusal to make reasonable
accommodations in rules, policies, practices, or services, when the
accommodations may be necessary to afford the person equal opportunity to use
and enjoy a housing accommodation[.]” The Gibsons maintain that Anderson
engaged in unlawful housing discrimination when it refused to build and sell an
accessible residence for Sam Gibson.
Since the relevant language of KRS 344.360 is virtually identical to its
federal counterpart, 42 U.S.C.3 § 3604, the interpretation given by the federal
2 Kentucky Revised Statutes. 3 United States Code.
-8- courts is persuasive. Lexington-Fayette Urb. Cnty. Hum. Rts. Comm’n, No. 2002-
CA-001234-MR, 2003 WL 22271567, at *4 (Ky. App. Oct. 3, 2003). See also
Comm’n on Hum. Rts. v. Fincastle Heights Mut. Ownership Corp., 633 S.W.3d
808, 816 (Ky. App. 2021). A prima facie housing discrimination case is shown
when the plaintiff provides: (1) that he or she is a member of a protected class, (2)
that he or she applied for and was qualified to rent or purchase certain property or
housing, (3) that he or she was rejected, and (4) that the housing or rental property
remained available thereafter. Mencer v. Princeton Square Apartments, 228 F.3d
631, 634-35 (6th Cir. 2000) (citing Selden v. United States Dep’t of Hous. and
Urban Dev., 785 F.2d 152, 160 (6th Cir. 1986)) (adapted from the three-part
evidentiary standard first developed in the employment discrimination context by
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973)). If the plaintiff satisfies those elements, then “the defendant must
offer a legitimate nondiscriminatory reason for the housing decision made.”
Mencer, 228 F.3d at 634. “Finally, the plaintiff must show that the proffered
reason is a pretext that masks discrimination.” Id.
For summary judgment purposes, Anderson concedes that Sam
Gibson is a disabled person protected by the KCRA. However, Anderson argues
that the Gibsons failed to show that they were qualified to purchase the property.
As noted above, Gregory Gibson was unable to secure financing within the time
-9- allowed by the 2018 Offer. While he secured a preapproval letter at the time he
submitted the 2019 Offer, that financing was conditioned upon payment of his
obligation to Loanme, Inc. Anderson also points to other “red flags” regarding
financing – specifically the high cost of construction, the high-risk nature of the
obligation to Loanme, and the low cash advance provided in the Gibsons’ 2019
offer. Finally, Anderson states that it never refused to build or sell the residence.
Rather, it only refused to do so under the terms in the Gibsons’ 2019 Offer.
The Gibsons maintain that the financing issues were merely a pretext
for Anderson’s discriminatory intent. They state that the Loanme obligation was
only a loan to Gregory Gibson’s business and not his personal loan. Furthermore,
the Gibsons also note that Anderson never expressed any concerns about the
financing issues until they added the additional accessibility modifications.
In addition, the Gibsons cite to comments by Milam and Gibbins that
the proposed accessibility modifications would make the residence “too unique”
and limit its resale value. The Gibsons further maintain that Gregory Gibson’s
prior history of working with Anderson should have been sufficient to alleviate any
concerns about financing. We conclude that this evidence was insufficient to
establish a necessary element of the Gibsons’ prima facie case or to establish that
Anderson’s stated non-discriminatory justification was pretextual.
-10- The Gibsons had the burden of presenting proof on each element of
their prima facie case. If the Trial Court had concluded that there was sufficient
proof on each element of the Gibsons’ prima facie case, the Gibsons would have
been entitled to “an inference of discrimination only because we presume these
acts, if otherwise unexplained, are more likely than not based on the consideration
of impermissible factors.” Williams v. Brown-Forman Corp., 640 S.W.3d 73, 82
(Ky. App. 2021) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). Furthermore, “there
must be at least a logical connection between each element of the prima facie case
and the illegal discrimination for which it establishes” this presumption. Id. at 82
(quoting O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311, 116 S. Ct.
1307, 1310, 134 L. Ed. 2d 433 (1996), and Burdine, 450 U.S. at 254 n.7, 101 S. Ct.
at 1094 n.7). A causal connection can be established through either direct or
circumstantial evidence. Kentucky Dep’t of Corr. v. McCullough, 123 S.W.3d 130,
135 (Ky. 2003).
In this case, the Gibsons present no evidence, circumstantial or
otherwise, showing a connection between Sam Gibson’s disability and Anderson’s
unwillingness to proceed with construction and sale of the residence. Under both
the 2018 and 2019 Offers, the Gibsons were required to secure financing. Gregory
Gibson did not secure financing for the 2018 Offer, and the financing for his 2019
-11- Offer was conditional. Anderson’s concerns about financing were not connected
to Sam Gibson’s disability. Thus, we agree with the Trial Court that the Gibsons
failed to establish a prima facie case through a showing that they were qualified to
purchase the property.
Even if the Gibsons could show that they were otherwise qualified to
finance and purchase the property, we agree that they failed to present evidence of
pretext. The Gibsons added a substantial number of upgrades to their 2019 Offer,
which significantly increased the costs of construction. Anderson’s concerns about
financing and resale value were focused on whether the Gibsons would be able to
purchase the residence once it was completed. And Anderson’s concerns about the
resale value did not relate to the disability-related modifications, but only to other
modifications, including substantial upgrades to the basement.
The Gibsons merely assert that Anderson was unwilling to build the
residence with the accessibility modifications. They rely only on the close
temporal proximity between their 2019 Offer and Anderson’s rejection of that
offer. A close temporal proximity alone between the protected activity and the
adverse action may be sufficient to raise an inference of either discriminatory
intent or pretext. McCullough, 123 S.W.3d at 135. But in this case, the Gibsons’
evidence merely demonstrates that the parties had not reached a meeting of minds
over the terms of the offer. Under the circumstances, we conclude that the Trial
-12- Court properly granted summary judgment on the Gibsons’ claim for violation of
the KCRA.
IV. Promissory Estoppel
The Gibsons next assert that the Trial Court erred dismissing their
breach-of-contract claim against Anderson. As noted above, the 2018 Offer
expressly provided that it was null and void if the Gibsons failed to secure
financing by the end of July. However, the Gibsons contend that Anderson
induced them to continue going forward despite the termination provision in that
offer. Consequently, they argue that there were genuine issues of material fact on
their defense of promissory estoppel. Under the doctrine of promissory estoppel:
[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
Meade Constr. Co. v. Mansfield Commercial Elec., Inc., 579 S.W.2d 105, 106 (Ky.
1979) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 90 (Tentative Draft No.
2, 1965)).
But even when promissory estoppel is applicable, it remains subject to
the Statute of Frauds. Sawyer v. Mills, 295 S.W.3d 79, 89-90 (Ky. 2009). Under
KRS 371.010(6), a contract for the sale of real estate must be in writing. See also
-13- Smith v. Williams, 396 S.W.3d 296, 299 (Ky. 2012). Consequently, promissory
estoppel alone is not sufficient to defeat the Statute of Frauds. Actual fraud must
be proven. Sawyer, 295 S.W.3d at 90.
In any case, the Gibsons have not pointed to any explicit promise by
Anderson that it intended to forbear enforcement of the financing provision in the
2018 Offer. Indeed, the 2018 Offer specifically disclaimed any oral
representations that conflicted with the written disclaimers. At most, the Gibsons
contend that Anderson remained silent during the extended negotiations from
August 2018 until March 2019, leading them to believe that Anderson intended to
move forward with the project. However, those negotiations substantially changed
the nature of the construction. The price of the residence increased by nearly
$65,000 and required a new financing approval and a new signed offer. Even if
Anderson’s silence amounted to an implied promise, the Gibsons do not show that
they bypassed any opportunities to build a residence in reliance on the alleged
promise. See Scott v. Forcht Bank, NA, 521 S.W.3d 591, 596-97 (Ky. App. 2017).
Therefore, Anderson was entitled to summary judgment as a matter of law on the
breach contract claim, and the Gibsons cannot legally overcome the Statute of
Fraud’s requirement of a writing.
-14- V. Denial of Motion to File Amended Complaint
For the same reasons, we conclude that the Trial Court did not abuse
its discretion by denying the Gibsons’ motion to file an amended complaint
asserting a claim for misrepresentation. The Trial Court has broad discretion as to
whether to allow the filing of an amended complaint. CR 15.01 provides that “a
party may amend his pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires.” In
determining whether to grant a motion to amend a party’s complaint, the Trial
Court “may consider such factors as the failure to cure deficiencies by amendment
or the futility of the amendment itself.” First Nat’l Bank of Cincinnati v. Hartman,
747 S.W.2d 614, 616 (Ky. App. 1988). Other factors include whether amendment
would prejudice the opposing party or would work an injustice. See Shah v. Am.
Synthetic Rubber Corp., 655 S.W.2d 489, 493 (Ky. 1983). Ultimately, whether a
party may amend his complaint is discretionary with the Trial Court, and we will
not disturb its ruling unless it has abused its discretion. Kenney, 269 S.W.3d at
869-70.
CR 9.02 requires that all allegations of fraud must be “stated with
particularity.” An allegation of fraud in a pleading must set forth the time, place,
and substance of the allegedly fraudulent statements. Keeton v. Lexington Truck
Sales, Inc., 275 S.W.3d 723, 726 (Ky. App. 2008). In this case, the Gibsons failed
-15- to identify Anderson’s alleged misrepresentations. Moreover, Anderson’s mere
silence is not fraudulent absent a duty to disclose. Smith v. Gen. Motors Corp.,
979 S.W.2d 127, 129 (Ky. App. 1998). In the absence of any actionable
allegations of fraud or a duty to disclose, the amended complaint would have been
futile.
VI. Retaliation
Finally, the Gibsons argue that the Trial Court erred in granting
Anderson’s motion for summary judgment on their retaliation claims. After
Anderson declined to accept the Gibsons’ 2019 Offer, Gregory Gibson filed a
complaint with the Lexington Bluegrass Association of Realtors. Thereafter, in
July 2019, Anderson mailed Gregory Gibson a Notice of Maturation of a wrap-
around mortgage he had signed on his ex-wife’s property. The Gibsons allege that
Anderson took this action in retaliation for his protected activity of filing the
complaint.
A prima facie case of retaliation requires a plaintiff to demonstrate:
(1) that plaintiff engaged in an activity protected by the KCRA; (2) that the
exercise of his civil rights was known by the defendant; (3) that, thereafter, the
defendant took an action adverse to the plaintiff; and (4) that there was a causal
connection between the protected activity and the adverse action. Brooks v.
Lexington-Fayette Urb. Cnty. Hous. Auth., 132 S.W.3d 790, 803 (Ky. 2004). In
-16- this case, the Gibsons make no showing that the mortgage became due because of
the Gibsons’ complaint. By its own terms, the wrap-around mortgage was due and
payable on September 28, 2019. Thus, Anderson was entitled to send the maturity
notice in July regardless of the prior complaint. Gregory Gibson merely alleges
that Milam led him to believe that the mortgage would be extended another year,
but he does not allege that Anderson’s failure to extend the mortgage was in
retaliation for his complaint. Therefore, the Trial Court properly granted summary
judgment on the retaliation claim.
VII. Conclusion
Accordingly, we affirm the summary judgment entered by the Fayette
Circuit Court.
THOMPSON, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Edward E. Dove Carroll M. Redford, III Lexington, Kentucky Lexington, Kentucky
D. Jonathan Strom Lexington, Kentucky
-17-