James Eye v. Porterhouse Homes, LLC A/K/A Porterhouse Construction, LLC A/K/A Alvin Lloyd

Opinion

RENDERED: AUGUST 7, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2025-CA-0781-MR

JAMES EYE AND JASON EYE, AS ADMINISTRATOR FOR THE ESTATE OF MARGARITA EYE, DECEASED APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE TRACY E. DAVIS, JUDGE ACTION NO. 21-CI-002413

PORTERHOUSE HOMES, LLC A/K/A PORTERHOUSE CONSTRUCTION, LLC A/K/A ALVIN LLOYD AND LEWIS ALAN HARTLEY A/K/A ALAN HARTLEY LAND SURVEYS APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, A. JONES, AND L. JONES, JUDGES. CETRULO, JUDGE: Appellants James and Jason Eye1 appeal the Jefferson Circuit

Court order denying their motion to vacate an arbitration award. As James and

Jason failed to demonstrate arbitrator partiality, we affirm.

BACKGROUND

In 2019, James and Margarita Eye (together, the “Eyes”) contracted

with Appellee Porterhouse Homes, LLC (“Porterhouse”) and Alvin Lloyd

(“Lloyd”) for a custom-built retirement home in Louisville, Kentucky (“House”).

This Construction and Purchase Agreement (“Contract”) required the parties to

participate in binding arbitration if the parties were unable to mutually resolve any

controversy or claim arising out of the Contract.

In 2020, the Eyes, alleging uncured defects in the House construction,

initiated arbitration. The Eyes asserted Porterhouse breached the Contract by (1)

fraudulently misrepresenting the required elevation of the House; (2) failing to

properly excavate the home site to avoid the need for steps; and (3) improperly

positioning the House on the lot (resulting in an “S” curve in the driveway). As the

completed House contained steps the Eyes were unable to navigate, they sold it at a

loss nine months after closing (without having moved into the House). The Eyes

sought damages for the reduction in the fair market value of the House due to the

1 The original parties in the underlying action were James and Margarita Eye, husband and wife. However, Margarita passed away in 2024, and her son, Jason Eye, represents her interests on appeal as the administrator of her estate.

-2- alleged defects as well as other expenses incurred for an approximate total of

$90,000. Porterhouse denied the Eyes’ claims and asserted the House was built

according to the agreed upon terms.

In preparation for an arbitration evidentiary hearing, the Eyes

attempted to depose the House’s surveyor, Lewis Alan Hartley, Jr. (“Surveyor

Hartley”). The Eyes alleged that Porterhouse hired Surveyor Hartley to “square,

locate and position” the “lot[] improvements.” Despite an arbitrator-issued

subpoena, the Eyes alleged Surveyor Hartley did not appear for his March 2021

deposition. Subsequently, in April 2021, the Eyes, pro se, moved the Jefferson

Circuit Court for a show cause order pursuant to KRS2 417.1903 and requested the

court’s assistance in compelling Surveyor Hartley to testify. The Eyes named both

Porterhouse and Surveyor Hartley as defendants.4 Neither Porterhouse nor

Surveyor Hartley replied.

2 Kentucky Revised Statute. 3 “Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions in civil cases. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in civil cases.” KRS 417.190. 4 The Eyes’ civil case cover sheet named the defendants as only “Alvin Lloyd d/b/a/ Porterhouse Construction, LLC” but the only named defendants on the show cause motion were Porterhouse and Surveyor Hartley.

-3- In June 2021, the circuit court denied the Eyes’ motion and stated it

was unclear from the record if the court had jurisdiction over Surveyor Hartley.

The circuit court determined “service provided by the Eyes appear[ed] deficient[,]”

and granted the Eyes leave to amend their complaint to have summons issued and

served on Surveyor Hartley (in order to invoke jurisdiction over him). The circuit

court encouraged the Eyes to seek the assistance of legal counsel.

In July 2021, the Eyes, pro se, filed a Petition for Sworn Testimony

and Subpoena Duces Tecum requesting an order “commanding” Surveyor Hartley

to testify.5 This pleading included defendants Porterhouse, Lloyd, and Surveyor

Hartley. In August, Surveyor Hartley responded and agreed to submit to a

deposition. The record does not include responses on behalf of Porterhouse or

Lloyd. It does not appear the circuit court ruled on the Eyes’ petition, presumably

due to Surveyor Hartley’s response agreeing to the deposition.

On September 9, 2021, the Eyes filed a notice-motion alerting the

circuit court to the agreed-upon Surveyor Hartley deposition date of September 23

and moving for a second subpoena for Surveyor Hartley’s appearance at the final

arbitration hearing. The circuit court did not rule on this notice-motion in written

5 The Eyes accused the surveyor of “recklessly position[ing] the [House] without care or concern whether the House was properly aligned” and accused him of “ignoring” a lawful subpoena. Further, the Eyes argued Porterhouse (and its architect) failed to select and recommend a building plan that was appropriate for their pie-shaped lot and breached the Contract by failing to provide the Eyes with a closing survey, a void that was likely rooted in intentional deceit.

-4- form. As the record on appeal does not include any video recordings, it is unclear

if the court orally ruled from the bench during its September 13 motion hour.

After this notice-motion, nothing appears in the record until August 2023.

However, it appears from later filings that the arbitration proceeded without

Surveyor Hartley’s deposition having taken place.

In May 2023, the Arbitrator issued findings of fact and conclusions of

law and found in favor of Porterhouse on all counts (“Arbitration Award”). The

Arbitration Award stated: (1) the Eyes were barred from recovering for any alleged

breach of the contract because James breached it first; (2) the Eyes were equitably

estopped from recovering for any alleged problem with the House because James

“failed to raise any concerns with the location, number of steps, or location of the

House with Lloyd . . . prior to it being all but completed”; (3) James waived any

right to complain about the House as he did not give Lloyd adequate opportunity to

repair any House defects; (4) the House was constructed in a workmanlike manner;

and (5) the Eyes failed to meet their burden of proof on their fraud claim.

In August 2023, the Eyes, pro se, moved the circuit court to vacate the

Arbitration Award by filing a motion to join their arbitration appeal with the

“current case” against Porterhouse.6 In their motion, the Eyes (1) accused the

6 The Eyes’ motion was titled “MOTION TO JOIN PLAINTIFF’S ARBITRATION APPEAL PURSUANT TO KRS 417 WITH PLAINTIFF’S CURRENT CASE AGAINST PORTERHOUSE CONSTRUCTION LLC, ET. AL.”

-5- “ArbiTRATOR” of bias and improperly withholding Porterhouse exhibits from

them; (2) asserted the Arbitrator’s findings were unsupported by the record; (3)

stated the Arbitrator improperly relied upon the testimony of an “unlicensed”

engineer; and, (4) the arbitration award should be vacated because the arbitration

requirement was “buried within an eight-page adhesive Contract[,]” and contrary

to public policy. The Eyes argued the Arbitrator “caused a stench in the nostrils of

jurisprudence.” The record does not include a response by any party or an order

from the circuit court addressing the Eyes’ motion. It is unclear if the circuit court

orally addressed the Eyes’ motion during its September 5, 2023 motion hour, and

nothing appears in the written record until May 2025.

On May 8, 2025 – now two years after the Arbitration Award – James

again moved pro se for arbitration review and an order vacating the arbitration.

James alleged the Arbitration Award was a “sham” and “tainted by fraud or

favoritism.” On May 22, 2025, before any responses were entered, the Jefferson

Circuit Court denied James’s motion to review the Arbitration Award. Granting

James, as a pro se litigant, leniency on procedural issues, the circuit court ruled on

the merits of the motion, but denied the motion, determining that he did not

establish the Arbitrator was biased or acted fraudulently. This appeal followed.

-6- ANALYSIS

“Generally, courts may not review an arbitrator’s award.” Don Booth

of Breland Grp. v. K&D Builders, Inc., 626 S.W.3d 601, 606-07 (Ky. 2021)

(quoting Taylor v. Fitz Coal Co. Inc., 618 S.W.2d 432, 432 (Ky. 1981)). “Only if

the arbitrator’s decision is alleged to have been tainted by fraud or favoritism does

the trial court have the ability to intercede.” Ernst & Young, LLP v. Clark, 323

S.W.3d 682, 692 (Ky. 2010) (citations omitted). In fact, the sole means by which

an award may be vacated is upon a showing that it meets one of the specific

grounds enumerated in Kentucky’s Uniform Arbitration Act, KRS Chapter 417.

See Meers v. Semonin Realtors, 525 S.W.3d 545, 549 (Ky. App. 2017) (quoting

Ison v. Robinson, 411 S.W.3d 766, 770 (Ky. 2013)) (citing KRS 417.160(1)).

KRS 417.160(1) establishes five grounds upon which the reviewing court may

vacate an arbitration award. Relevant here is only KRS 417.160(1)(b), which

states that an arbitration award may be vacated if “[t]here was evident partiality by

an arbitrator appointed as a neutral or corruption in any of the arbitrators or

misconduct prejudicing the rights of any party[.]”

On appeal, James fails to appreciate our limited review.7 He attempts

to relitigate the issues argued before the Arbitrator such as alleged

7 James mistakenly argues for de novo review of legal issues as applied to a summary judgment, but the order on appeal is not granting summary judgment; the order on appeal is denying a motion to vacate an arbitration decision.

-7- builder/surveyor/engineer errors in the placement of the House upon the lot and the

elevation of the House. James also challenges the Arbitrator’s evidentiary

determinations, including the decision to proceed to the final hearing before

Surveyor Hartley’s deposition could be taken and the Arbitrator’s decision to admit

the engineer’s sworn statement (as opposed to requiring him to testify in person).

Yet, this appeal is not an opportunity to relitigate contractual matters, challenge the

facts or legal conclusions of the Arbitrator, or present new facts. “An arbitration

award may not be set aside for mere errors of law or fact, and an arbitrator’s

resolution of factual disputes and his application of the law are not subject to

review by the courts.” Don Booth, 626 S.W.3d at 607 (internal quotation marks

and citations omitted). The Arbitrator’s “resolution of factual disputes and his

application of the law” are irrelevant here, because those findings and conclusions

are “not subject to review by the courts.” Id. (quoting Conagra Poultry Co. v.

Grissom Transp., Inc., 186 S.W.3d 243, 245 (Ky. App. 2006)).

Additionally, James improperly raises issues for the first time on

appeal. For instance, James contends the issues on appeal include legal arguments

around open-and-obvious hazards and implied warranties. Even if this Court was

permitted a substantive review of an arbitration award, we are not permitted to

review arguments presented for the first time on appeal. Jones v. Livesay, 551

S.W.3d 47, 52-3 (Ky. App. 2018) (citations omitted). Thus, as these issues were

-8- not presented to the circuit court, we cannot address arguments surrounding open-

and-obvious hazards and implied warranties.

Focusing on the arguments as they relate to KRS 417.160(1)(b),

James argues the Arbitration Award must be vacated because the Arbitrator

exhibited partiality. He asserts the Arbitrator egregiously disregarded the law,

thereby demonstrating his bias. However, James “cannot, under the guise of an

accusation of bias,” challenge the Arbitrator’s legal conclusions to this Court. See

Hastetter v. Commonwealth Pain Specialists, PLLC, 695 S.W.3d 80, 87 (Ky. App.

2024). “The alleged partiality must be direct, definite, and capable of

demonstration, and the party asserting it must establish specific facts that indicate

improper motives on the part of the arbitrator.” Id. (quoting Meers, 525 S.W.3d at

550). James does not meet this burden.

James does not direct us to any specific aspect of the Arbitration

Award that meets this partiality standard. He argues the Arbitrator improperly

found that he failed to notify Porterhouse of the problems with the House, thereby

breaching the Contract and waiving the right to contest structural issues. Yet even

assuming arguendo that this argument had merit, these claims are still not

demonstrative of partiality.

Additionally, James argues the arbitration proceedings indicate bias as

the Arbitrator (1) rolled his eyes during James’s expert witness testimony; (2)

-9- required James to proceed to the hearing without first having the opportunity to

depose Surveyor Hartley; and (c) allowed Porterhouse to submit an expert’s sworn

affidavit (as opposed to requiring him to testify in person). Yet, again, these are

not direct, definite, or demonstrative examples of partiality but rather, attempts to

demonstrate bias indirectly. First, eye-rolling, assuming such existed, might

indicate annoyance but is not directly indicative of bias. Second, the Arbitrator’s

evidentiary decisions, such as the admission of the expert’s affidavit, are non-

reviewable. These examples are insufficient to demonstrate bias and do not

warrant vacating the arbitration decision.

We reiterate that, in Kentucky, “arbitrators hold expansive power.”

Hastetter, 695 S.W.3d at 86. Under these circumstances, our review is limited, and

James did not meet his burden of demonstrating partiality. We may not engage in

an impermissible review of the Arbitrator’s legal analysis under the pretext of

alleged bias.

CONCLUSION

Accordingly, we AFFIRM the Jefferson Circuit Court order denying

James’s motion to vacate the Arbitration Award.

ALL CONCUR.

-10- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE PORTERHOUSE HOMES, LLC James Eye, pro se A/K/A PORTERHOUSE Jason Eye, pro se CONSTRUCTION, LLC A/K/A Louisville, Kentucky ALVIN LLOYD:

Douglas L. Hoots Lexington, Kentucky

-11-