RENDERED: MARCH 13, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0428-MR
MAJED KHARBOUTLI APPELLANT
APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 18-CI-00089
FOUR SEASONS SOLAR PRODUCTS, LLC; MIKE RITCHIE; AND VANGUARD HOME INNOVATIONS INC. D/B/A FOUR SEASONS SUNROOMS APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
THOMPSON, CHIEF JUDGE: Majed Kharboutli appeals from an order of the
Boone Circuit Court which dismissed Four Seasons Solar Products, LLC from his
cause of action pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f). We
believe the trial court erred in dismissing Four Seasons Solar pursuant to CR
12.02(f); therefore, we reverse and remand for additional proceedings. FACTS AND PROCEDURAL HISTORY
Mike Ritchie owns Vanguard Home Innovations, Inc. and is based out
of Louisville, Kentucky. He contracts with Four Seasons Solar Products, LLC
(“Four Seasons Solar”), a New York based company, to provide materials for the
construction of sunrooms. Ritchie alleges he is not employed by Four Seasons
Solar, but is an independent contractor. Four Seasons Solar supplies Ritchie with
building materials, promotional and marketing materials, blueprints, and
commercial contract templates.
On June 13, 2017, Appellant entered into a contract with Ritchie and
Vanguard for the construction of a sunroom. The contract was created from a
template provided by Four Seasons Solar. A portion of the contract stated as
follows:
The Owner acknowledges and agrees that the Contractor is an Independently Owned and Operated entity licensed to sell the Four Seasons Products Line and is not an agent or affiliate of Four Seasons Solar Products, LLC. The Owner expressly waives any claim against Four Seasons Solar Products, LLC, or its affiliates except as may be expressly set forth in written warranties accompanying the products.[1]
1 The contract defines “Owner” as Appellant and “Contractor” as Vanguard. This section of the contract was bolded and underlined, and it was located just above the signature lines.
-2- Although no start or finish dates were listed in the contract, Appellant wanted the
sunroom completed by October 31, 2017. After entering into the contract,
Appellant paid Ritchie $38,000 as a down payment.
Ritchie also provided to Appellant a “Scope of Work” document
which detailed the specifications of the sunroom and the materials that would be
used. Part of this document stated the following: “We have been in business
Continuously for over 30 years”; “Network of over 300 locations in 25 countries”;
and “More than 250,000 sunrooms built.” Ritchie stated during his deposition in
this case that these statements referred to Four Seasons Solar and not him or
Vanguard.
Ritchie and Vanguard did not start on the project and the deposit was
used to help pay for the projects of other customers. On January 19, 2018,
Appellant filed a complaint against Ritchie, Vanguard, and Four Seasons Solar.
Appellant later amended his complaint two times. The final version of the
complaint alleges that Ritchie and Vanguard made false statements to fraudulently
induce Appellant to enter into a contract with them. He also alleged that Vanguard
and Four Seasons Solar violated Kentucky Revised Statutes (KRS) 367.170,
Kentucky’s Consumer Protection Act. Appellant claimed that Ritchie was an
agent of Vanguard and Four Seasons Solar, and used deceptive and misleading
-3- practices in order to procure Appellant’s down payment. Appellant also raised
claims for breach of contract and punitive damages.
Four Seasons Solar eventually filed a Kentucky Rules of Civil
Procedure 12.02(f) failure to state a claim motion seeking to be dismissed from the
case. Four Seasons Solar argued that it was not a party to the sunroom contract
and that Ritchie was an independent contractor and not an employee. In addition,
Four Seasons Solar argued that it made no statements, fraudulent, misleading or
otherwise, to Appellant; therefore, it could not have committed fraud or violated
KRS 367.170. Finally, Four Seasons argued that Appellant waived all claims
against Four Seasons Solar due to the waiver language in the contract.
The trial court agreed with Four Seasons Solar’s argument and
dismissed them from the case. Appellant, Ritchie, and Vanguard later settled the
remaining claims. We note that the settlement did not contain an admission that
Ritchie committed fraud. Appellant then brought this appeal regarding Four
Season Solar’s dismissal.
ANALYSIS
On appeal, Appellant argues that the trial court erred in granting Four
Seasons Solar’s CR 12.02(f) motion. We agree.
Confronted with a CR 12.02(f) motion to dismiss for failure to state a claim, trial courts must assume the truth of all facts pled in the complaint and determine whether, given proof of those facts, the plaintiff would be
-4- entitled to relief. The motion presents “a pure question of law” and our review is de novo.
Combs v. Spicer, 686 S.W.3d 151, 155 (Ky. 2024) (citations omitted). In the case
at hand, Appellant alleges Ritchie made fraudulent misrepresentations in order to
secure the sunroom contract. Appellant alleges that Ritchie promised to have the
sunroom completed before October 31, 2017, even though he knew this was not
possible. Appellant also claims that the statements previously mentioned in the
“Scope of Work” document misled him into believing Ritchie and Vanguard had
more experience than they did.
For the purposes of a CR 12.02(f) motion, we must assume these
allegations are true. There is also some evidence to support these allegations.
Ritchie did not start building the sunroom before October 31, 2017, and used
Appellant’s downpayment to fund other contracts. In addition, Ritchie stated
during his deposition that the “Scope of Work” statements were about Four
Seasons Solar and did not refer to him or Vanguard. Assuming these were
fraudulent representations, then the sunroom contract, including the waiver section,
could be deemed void.2 This is because “fraud vitiates everything into which it
enters.” Veterans Service Club v. Sweeney, 252 S.W.2d 25, 27 (Ky. 1952).
2 We are not holding that these were fraudulent representations. There has been no finding of fraud in this case at any point. We are assuming fraud for purposes of CR 12.02(f) review.
-5- In addition, Appellant has alleged some facts that Ritchie is an agent
of Four Seasons Solar. The complaint and the record indicate that Four Seasons
Solar has provided building materials, marketing materials, contracts, blueprints,
and other services to Ritchie. This could suggest an agency relationship between
Ritchie and Four Seasons Solar. It could also simply be a company providing
materials to an independent contractor; however, for purposes of reviewing a CR
12.02(f) decision, we will assume it is the former. If Ritchie is an agent of Four
Seasons Solar and made fraudulent statements to secure the sunroom contract, this
could create liability for Four Seasons Solar.
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RENDERED: MARCH 13, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0428-MR
MAJED KHARBOUTLI APPELLANT
APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 18-CI-00089
FOUR SEASONS SOLAR PRODUCTS, LLC; MIKE RITCHIE; AND VANGUARD HOME INNOVATIONS INC. D/B/A FOUR SEASONS SUNROOMS APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
THOMPSON, CHIEF JUDGE: Majed Kharboutli appeals from an order of the
Boone Circuit Court which dismissed Four Seasons Solar Products, LLC from his
cause of action pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f). We
believe the trial court erred in dismissing Four Seasons Solar pursuant to CR
12.02(f); therefore, we reverse and remand for additional proceedings. FACTS AND PROCEDURAL HISTORY
Mike Ritchie owns Vanguard Home Innovations, Inc. and is based out
of Louisville, Kentucky. He contracts with Four Seasons Solar Products, LLC
(“Four Seasons Solar”), a New York based company, to provide materials for the
construction of sunrooms. Ritchie alleges he is not employed by Four Seasons
Solar, but is an independent contractor. Four Seasons Solar supplies Ritchie with
building materials, promotional and marketing materials, blueprints, and
commercial contract templates.
On June 13, 2017, Appellant entered into a contract with Ritchie and
Vanguard for the construction of a sunroom. The contract was created from a
template provided by Four Seasons Solar. A portion of the contract stated as
follows:
The Owner acknowledges and agrees that the Contractor is an Independently Owned and Operated entity licensed to sell the Four Seasons Products Line and is not an agent or affiliate of Four Seasons Solar Products, LLC. The Owner expressly waives any claim against Four Seasons Solar Products, LLC, or its affiliates except as may be expressly set forth in written warranties accompanying the products.[1]
1 The contract defines “Owner” as Appellant and “Contractor” as Vanguard. This section of the contract was bolded and underlined, and it was located just above the signature lines.
-2- Although no start or finish dates were listed in the contract, Appellant wanted the
sunroom completed by October 31, 2017. After entering into the contract,
Appellant paid Ritchie $38,000 as a down payment.
Ritchie also provided to Appellant a “Scope of Work” document
which detailed the specifications of the sunroom and the materials that would be
used. Part of this document stated the following: “We have been in business
Continuously for over 30 years”; “Network of over 300 locations in 25 countries”;
and “More than 250,000 sunrooms built.” Ritchie stated during his deposition in
this case that these statements referred to Four Seasons Solar and not him or
Vanguard.
Ritchie and Vanguard did not start on the project and the deposit was
used to help pay for the projects of other customers. On January 19, 2018,
Appellant filed a complaint against Ritchie, Vanguard, and Four Seasons Solar.
Appellant later amended his complaint two times. The final version of the
complaint alleges that Ritchie and Vanguard made false statements to fraudulently
induce Appellant to enter into a contract with them. He also alleged that Vanguard
and Four Seasons Solar violated Kentucky Revised Statutes (KRS) 367.170,
Kentucky’s Consumer Protection Act. Appellant claimed that Ritchie was an
agent of Vanguard and Four Seasons Solar, and used deceptive and misleading
-3- practices in order to procure Appellant’s down payment. Appellant also raised
claims for breach of contract and punitive damages.
Four Seasons Solar eventually filed a Kentucky Rules of Civil
Procedure 12.02(f) failure to state a claim motion seeking to be dismissed from the
case. Four Seasons Solar argued that it was not a party to the sunroom contract
and that Ritchie was an independent contractor and not an employee. In addition,
Four Seasons Solar argued that it made no statements, fraudulent, misleading or
otherwise, to Appellant; therefore, it could not have committed fraud or violated
KRS 367.170. Finally, Four Seasons argued that Appellant waived all claims
against Four Seasons Solar due to the waiver language in the contract.
The trial court agreed with Four Seasons Solar’s argument and
dismissed them from the case. Appellant, Ritchie, and Vanguard later settled the
remaining claims. We note that the settlement did not contain an admission that
Ritchie committed fraud. Appellant then brought this appeal regarding Four
Season Solar’s dismissal.
ANALYSIS
On appeal, Appellant argues that the trial court erred in granting Four
Seasons Solar’s CR 12.02(f) motion. We agree.
Confronted with a CR 12.02(f) motion to dismiss for failure to state a claim, trial courts must assume the truth of all facts pled in the complaint and determine whether, given proof of those facts, the plaintiff would be
-4- entitled to relief. The motion presents “a pure question of law” and our review is de novo.
Combs v. Spicer, 686 S.W.3d 151, 155 (Ky. 2024) (citations omitted). In the case
at hand, Appellant alleges Ritchie made fraudulent misrepresentations in order to
secure the sunroom contract. Appellant alleges that Ritchie promised to have the
sunroom completed before October 31, 2017, even though he knew this was not
possible. Appellant also claims that the statements previously mentioned in the
“Scope of Work” document misled him into believing Ritchie and Vanguard had
more experience than they did.
For the purposes of a CR 12.02(f) motion, we must assume these
allegations are true. There is also some evidence to support these allegations.
Ritchie did not start building the sunroom before October 31, 2017, and used
Appellant’s downpayment to fund other contracts. In addition, Ritchie stated
during his deposition that the “Scope of Work” statements were about Four
Seasons Solar and did not refer to him or Vanguard. Assuming these were
fraudulent representations, then the sunroom contract, including the waiver section,
could be deemed void.2 This is because “fraud vitiates everything into which it
enters.” Veterans Service Club v. Sweeney, 252 S.W.2d 25, 27 (Ky. 1952).
2 We are not holding that these were fraudulent representations. There has been no finding of fraud in this case at any point. We are assuming fraud for purposes of CR 12.02(f) review.
-5- In addition, Appellant has alleged some facts that Ritchie is an agent
of Four Seasons Solar. The complaint and the record indicate that Four Seasons
Solar has provided building materials, marketing materials, contracts, blueprints,
and other services to Ritchie. This could suggest an agency relationship between
Ritchie and Four Seasons Solar. It could also simply be a company providing
materials to an independent contractor; however, for purposes of reviewing a CR
12.02(f) decision, we will assume it is the former. If Ritchie is an agent of Four
Seasons Solar and made fraudulent statements to secure the sunroom contract, this
could create liability for Four Seasons Solar.
A principal may be held vicariously liable for the [tortious] acts of his or her agent, but generally is not held liable for the conduct of an independent contractor. An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work. If, however, an individual is free to determine how work is done and the principal cares only about the end result, then that individual is an independent contractor.
Nazar v. Branham, 291 S.W.3d 599, 606-07 (Ky. 2009), as modified on denial of
reh’g (Aug. 27, 2009) (citations omitted); see also University Medical Center, Inc.
v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011), as modified on denial of reh’g (Mar.
22, 2012).
If we assume the sunroom contract is void due to fraudulent
representations from Ritchie, and we assume Ritchie is an agent of Four Seasons
-6- Solar, then it is not impossible for Appellant to prevail. We note, however, that
Appellant did not make a claim against Four Seasons Solar for fraud, only for
violating KRS 367.170, the Kentucky Consumer Protection Act, and for punitive
damages.3 KRS 367.170(1) states that “[u]nfair, false, misleading, or deceptive
acts or practices in the conduct of any trade or commerce are hereby declared
unlawful.” If Ritchie made fraudulent statements in order to cause Appellant to
enter into the sunroom contract, then that would also be a violation of KRS
367.170.
CONCLUSION
In order for Appellant to prevail, he would need to show Ritchie made
fraudulent statements in order to secure the sunroom contract. This would void the
contract and the waiver language within. If Appellant can prove fraud, then
Appellant can show a violation of KRS 367.170. Appellant would then need to
prove that Ritchie is an agent of Four Seasons Solar and not an independent
contractor. This may be a difficult proposition for Appellant, but it is not
impossible. Four Seasons Solar might eventually triumph, but it should not have
been dismissed from the case pursuant to a CR 12.02(f) motion. Based on the
foregoing, we reverse and remand for additional proceedings.
3 KRS 367.220(1) allows for punitive damages for violations of KRS 367.170. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 905 (Ky. 2008).
-7- ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE FOUR SEASONS SOLAR PRODUCTS, David H. Steele LLC: Covington, Kentucky Paul J. Dickman Covington, Kentucky
-8-