RENDERED: JULY 17, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2025-CA-1283-MR
MARK FRECH AND LOUISVILLE CORRECTIONS FRATERNAL ORDER OF POLICE LODGE #77 APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 24-CI-009034
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, ECKERLE, AND MOYNAHAN, JUDGES.
CETRULO, JUDGE: Mark Frech (“Frech”) and Louisville Corrections Fraternal
Order of Police Lodge #77 (“FOP”) appeal a Jefferson Circuit Court order denying
their motion for summary judgment and granting summary judgment in favor of
Louisville/Jefferson County Metro Government (“Louisville Metro”). The circuit
court determined it lacked particular case jurisdiction to grant the relief requested by Frech/FOP – enforcement of an arbitration award – because the arbitrator’s award
was merely advisory, not binding. After review, we affirm the Jefferson Circuit
Court, albeit on different jurisdictional grounds.
BACKGROUND
In January 2006, Louisville Metro Department of Corrections
(“LMDC”) hired Frech as a corrections officer. Frech was a member of the FOP
and covered by a November 2016 collective bargaining agreement (“CBA”)
between Louisville Metro and the FOP.
The CBA allows Louisville Metro to discipline members for “just
cause.” Article 16 outlines the process by which employment grievances are filed
and adjudicated. Step 4 provides that the parties may proceed to mediation or
“advisory arbitration” in the event that a grievance is not resolved at a lower level.
Specifically, Step 4(ii) states that “[t]he decision of the arbitrator shall be advisory
in nature with respect to all matters.”
In October or November 2018, the Louisville Metro Council amended
Louisville Metro Code Ordinance (“LMCO”) § 35.056 concerning the grievance
procedures within collective bargaining contracts. In pertinent part, the relevant
ordinance read:
[A]nytime a collective bargaining agreement uses the term “arbitration” or “arbitrate”, those terms shall, at the election of the Union, mean “binding” arbitration, instead of “advisory” arbitration.
-2- ...
2. The union’s election for “binding” arbitration must be transmitted to the Mayor in writing within 45 days after this ordinance becomes effective. If a Union wishes to elect “binding” arbitration or to revoke a prior election, it may do so in writing to the Mayor within 30 days of the expiration date of the applicable collective bargaining agreement.
...
5. After the union has elected binding arbitration, the arbitration will be binding, except for terminations not as a result of progressive discipline, and health insurance benefits. These matters may seek judicial review, de novo, under Kentucky law, if adverse by the parties.
LMCO § 35.056(A)(1)(e) (emphasis added). In December 2018, the FOP notified
the Mayor that it elected binding arbitration for its CBA with Louisville Metro. In
September 2022, LMDC Director Jerry Collins (“Director Collins”) implemented a
zero-tolerance policy regarding sexual harassment in the LMDC workplace.
On March 9, 2023, Frech was placed on administrative leave due to
sexual harassment allegations (made by another corrections officer) that
supposedly occurred the day prior, on March 8. A subsequent investigation
concluded that there was a sustained policy violation against Frech.
In June 2023, a Corrections Disciplinary Action Notice (“DAN”)
recommended Frech’s employment be terminated. The only factual allegations
-3- contained in the DAN related to the events of March 8 and Frech’s violation of the
zero-tolerance sexual harassment policy.
In July 2023, LMDC terminated Frech’s employment. After his
termination, Frech (and the FOP) filed a grievance against Louisville Metro
alleging noncompliance with the CBA and arguing the termination was not
supported by just cause. Eventually, the parties met for a two-day arbitration
hearing in May 2024. Frech elected “binding” arbitration by submitting a written
transmittal of the election to the Mayor pursuant to LMCO § 35.056(A)(1)(e)(2).
As a result, arbitration was to be binding with the exception of “terminations not
the result of progressive discipline” in accordance with LMCO §
35.056(A)(1)(e)(5).
During the arbitration hearing and over Frech’s objections, Louisville
Metro introduced two previous disciplinary actions involving Frech while he was
employed with the LMDC. These prior allegations had resulted in a 2015 written
reprimand and a 2020 suspension recommendation. Frech opposed the admission
into evidence of the prior allegations, but Louisville Metro asserted the prior
discipline was relevant to the “level of discipline” and the fact that “the previous
discipline occurred for the same policy violation.”
Director Collins testified during the arbitration hearing that he did
review and consider the prior disciplinary actions. However, Director Collins also
-4- testified that the March 8 sexual harassment by itself warranted the termination due
to the zero-tolerance sexual harassment policy.
In September 2024, the arbitrator ruled in Frech’s favor and
determined Louisville Metro failed to establish just cause for Frech’s termination.
Specifically, the arbitrator determined that the two eyewitnesses (the complainant
and another officer) to the March 8 incident were not credible. The arbitrator
advised Louisville Metro to reinstate Frech with full backpay and benefits, but
Louisville Metro declined to follow that directive. Louisville Metro argued the
arbitrator’s position was erroneous for various reasons, and as Frech’s termination
was not the result of progressive discipline, the arbitration was merely advisory,
not binding. Frech requested the arbitrator enforce the award, but the arbitrator
determined that enforcement of the award was outside his retained jurisdiction.
In December 2024, having exhausted his administrative remedies,
Frech sought enforcement of the arbitration award through the Jefferson Circuit
Court.1 Frech argued the arbitrator properly determined Louisville Metro failed to
meet its burden for termination, and that the arbitration was binding because he
was terminated as a result of progressive discipline. Conversely, Louisville Metro
1 Frech and the FOP were listed as co-plaintiffs on the “Complaint to Enforce Arbitration Award.” However, as the complaint only sought enforcement of the arbitration award and did not include a cause of action for breach of contract, we shall refer to the party singularly as Frech.
-5- argued that the circuit court, like the arbitrator, lacked jurisdiction to enforce the
award as the arbitration was merely advisory and nonbinding. Louisville Metro
asserted that Frech was terminated because of the severity of the alleged March 8
sexual harassment violation, not as a result of progressive discipline.
In May 2025, Metro moved for summary judgment and in June, Frech
moved in kind. In September, the circuit court entered an order granting Louisville
Metro’s motion and denying Frech’s motion (“2025 Order”). The 2025 Order
determined the circuit court lacked particular case jurisdiction to grant the relief
requested by Frech because the arbitrator’s decision was merely advisory under
LMCO and the CBA, thus, not final and binding. The court noted:
Although the evidence in the record shows that Director Collins reviewed and considered Frech’s prior disciplinary actions before implementing Frech’s termination, the evidence in the record does not show that the use of those prior disciplinary actions constituted “progressive discipline.”
Frech appealed.
STANDARD OF REVIEW
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found 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) (citing
-6- CR2 56.03). Upon a motion for summary judgment, all facts and inferences in the
record are viewed in a light most favorable to the non-moving party and “all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). As summary judgment looks
only to questions of law, we review de novo. Brown v. Griffin, 505 S.W.3d 777,
781 (Ky. App. 2016) (citing Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71
(Ky. 2010)). Similarly, we review questions involving interpretation of statutes
and local ordinances de novo. Lexington-Fayette Urban Cnty. Gov’t v. Fraternal
Ord. of Police, Bluegrass Lodge #4, 723 S.W.3d 742, 746 (Ky. 2025) (citations
omitted).
ANALYSIS
The only issue on appeal is whether the Jefferson Circuit Court erred
in concluding it did not have jurisdiction to enforce the arbitration award.
Ultimately, we agree that the circuit court did not have jurisdiction, but on different
jurisdictional grounds.
Jurisdiction, broadly speaking, is the “power of the court to decide an
issue in controversy.” Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007) (citing
BLACK’S LAW DICTIONARY (8th ed. 2004)). A court must have personal, subject
matter, and particular case jurisdiction before it may hear a case. Hisle v.
2 Kentucky Rule of Civil Procedure.
-7- Lexington-Fayette Urban Cnty. Gov’t, 258 S.W.3d 422, 429 (Ky. App. 2008)
(citations omitted). Here, the circuit court determined it had subject matter
jurisdiction but did not have particular case jurisdiction. We disagree.
Subject matter jurisdiction concerns the court’s power to hear and rule
on a type of case, not a particular case. Louisville Hist. League, Inc. v.
Louisville/Jefferson Cnty. Metro Gov’t, 709 S.W.3d 213, 221 (Ky. 2025) (citation
omitted). “Subject matter jurisdiction and particular case jurisdiction are related,
but they are different in that the former concerns a more broad, general class;
whereas, particular case jurisdiction focuses on a more limited or narrow fact-
specific situation.” Hisle, 258 S.W.3d at 429 (citation omitted). In fact, particular
case jurisdiction is a subset of subject matter jurisdiction, and “a court that lacks
subject-matter jurisdiction over an action will also always lack particular-case
jurisdiction[.]” Id. (internal quotation marks and citation omitted). Here, the
circuit court lacked subject matter jurisdiction rendering a particular case
jurisdiction analysis unnecessary.
A court must be granted subject matter jurisdiction; i.e., it must be
granted the power to hear that type of case before proceeding. Louisville Hist.
League, 709 S.W.3d at 221 (citations omitted).
[A] court is deprived of subject matter jurisdiction only where that court has not been given, by constitutional provision or statute, the power to do anything at all. To determine subject matter jurisdiction, the pleadings should
-8- be examined and taken at face value. The court has subject matter jurisdiction when the “kind of case” identified in the pleadings is one which the court has been empowered, by statute or constitutional provision, to adjudicate.
Id. (alteration in original) (quoting Daugherty v. Telek, 366 S.W.3d 463, 466 (Ky.
2012)). Simply, if a court does not have subject matter jurisdiction, judicial
analysis cannot reach the merits of matter because the “court has not been given,
by constitutional provision or statute, the power to do anything at all.” Id. (quoting
Daugherty, 366 S.W.3d at 466).
Neither Louisville Metro nor Frech challenged the circuit court’s
subject matter jurisdiction, but that absence is irrelevant as subject matter
jurisdiction “is not for a court to ‘take,’ ‘assume,’ or ‘allow.’” Nordike, 231
S.W.3d at 738 (citation omitted). “[S]ubject matter jurisdiction cannot be waived
or conferred by agreement, and a party may challenge a court’s lack of subject
matter jurisdiction any time, even for the first time on appeal.” Bd. of Educ. of
Paris v. Earlywine, 719 S.W.3d 1, 6 (Ky. 2025) (quoting Commonwealth v. B.H.,
548 S.W.3d 238, 245 (Ky. 2018)). “Subject matter jurisdiction is binary – ‘[a]
court either has it or it doesn’t. . . . ’” Louisville Hist. League, 709 S.W.3d at 221
(quoting Nordike, 231 S.W.3d at 738).
-9- The circuit court determined it had subject matter jurisdiction pursuant
to KRS3 67A.6908(3), but we disagree due to the specific cause of action that was
brought. According to KRS 67A.6908(3), “[s]uits for violation of agreements
between an urban-county government and a labor organization representing police
officers, firefighter personnel, firefighters, or corrections personnel may be brought
by the parties to the agreement in the Circuit Court of the urban-county
government.” For instance, that statute allows a fraternal order of police lodge to
bring a breach of contract claim against an urban-county government for alleged
failures to abide by the terms of a collective bargaining agreement. See River City
Fraternal Ord. of Police Lodge 614, Inc. v. Louisville/Jefferson Cnty. Metro. Gov’t,
585 S.W.3d 258 (Ky. App. 2019). However, the action filed below was not a breach
of contract claim. The action filed below was strictly a request for enforcement of
an arbitration award.
Arbitration awards are afforded a high level of deference, and judicial
review is limited. Hastetter v. Commonwealth Pain Specialists, PLLC, 695 S.W.3d
80, 84 (Ky. App. 2024) (citations omitted). In fact, the evidence supporting an
arbitration award is nonreviewable. Id. Typically, arbitration awards may only be
set aside for a “gross mistake of law or fact constituting evidence of misconduct
amounting to fraud or undue partiality.” Taylor v. Fitz Coal Co., Inc., 618 S.W.2d
3 Kentucky Revised Statute.
-10- 432, 433 (Ky. 1981) (citations omitted). Relevant here, a local ordinance explicitly
permits this limited judicial review of arbitration awards. More specifically, LMCO
§ 35.056(A)(1)(e)(5) allows the parties to “seek judicial review, de novo, under
Kentucky law, if adverse by the parties.” However, that limited de novo review of
arbitration awards is only appropriate for final, binding arbitration awards, not
advisory arbitration awards.
While little has been written on “advisory arbitration” in Kentucky, the
decision in River City provides some guidance. That case, as cited by the circuit
court and parties, is helpful for an understanding of advisory arbitration in the
Commonwealth, but too factually distinct to be dispositive in this case. In River
City, a police officer (“Shaw”) was fired after a physical altercation with another
off-duty law enforcement officer. 585 S.W.3d at 260. After proceeding through the
grievance process, the matter spawned two separate lawsuits: (1) Shaw appealed
Louisville Metro’s decision to terminate her; and (2) her fraternal order of police
lodge pursued a breach of contract claim. Id. at 262. River City is the appeal for the
lodge’s breach of contract claim. Id. at 263-64. This cause of action distinction
prevents us from applying an analysis similar to that in River City.4 However, River
4 We note, Shaw’s action is also factually distinguishable from the case sub judice as she was not requesting enforcement of an arbitration award, but rather appealing Louisville Metro’s decision to terminate her employment as permitted by KRS 67C.323(3)(a). Id. at 262; see also Shaw v. Louisville/Jefferson Cnty. Metro. Gov’t Acting Through its Police Dep’t, No. 2017-CA-000867- MR, 2018 WL 3954278 (Ky. App. Aug. 17, 2018) (unpublished).
-11- City does expressly state that advisory arbitration “is not the equivalent of ‘final and
binding arbitration[.]’” Id. at 265. According to River City, advisory arbitration
results in recommendations that “the parties are free to consider but not required to
adopt.” Id. As such, advisory arbitration serves as guidance for parties to consider,
similar to consideration of judicial dicta. See T-Mobile South LLC v. Kentucky Com.
Mobile Radio Serv. Emergency Telecomms. Bd., 718 S.W.3d 671, 676 (Ky. 2025)
(stating the Court’s guidance was “dicta and merely advisory” because it gave
suggestions as to what the party could have done differently).
“[A]rbitration is a matter of contract[.]” Fraternal Ord. of Police,
Lodge #4 v. Lexington-Fayette Urban Cnty. Gov’t, 718 S.W.3d 633, 641 (Ky. 2025)
(quoting AT&T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 648-50
(1986)). “An appellate court cannot carte blanche grant decision-making authority
to an advisory arbitrator in contravention of legitimately negotiated terms adopted
by the parties.” River City, 585 S.W.3d at 266. Choosing non-binding, advisory
arbitration – as opposed to binding arbitration – is a contractual choice. Kentucky
“has long respected freedom of contract and allowed parties to allocate among
themselves the foreseeable risks.” Superior Steel, Inc. v. Ascent at Roebling’s
Bridge, LLC, 540 S.W.3d 770, 786 (Ky. 2017) (citations omitted). Here, the
grievance process within the CBA provides that the parties may proceed to advisory
arbitration in the event that a grievance is not resolved at a lower level, and “[t]he
-12- decision of the arbitrator shall be advisory in nature with respect to all matters.”
Despite this clear language, and the freedom of the parties to make such an
agreement, this contractual CBA language was not conclusive herein due to
Louisville’s local ordinance, an ordinance that alters the CBA’s contractual terms.5
Contrary to the CBA language, LMCO § 35.056(A)(1)(e) allows an
officer to timely elect binding arbitration. Yet, notably, the ordinance places limits
on such an election. LMCO § 35.056(A)(1)(e)(5) states that even if binding
arbitration is chosen by the terminated officer (or FOP), that binding conclusion
does not apply to terminations not a result of progressive discipline. Stated another
way, even if the officer elected binding arbitration, the binding effect would only
apply to terminations that resulted from progressive discipline. Thus, the dispositive
factor as to whether the arbitration was binding, depends upon whether Frech’s
employment termination was the result of progressive discipline. If his termination
was not a result of progressive discipline, the arbitration was not binding. If his
termination was the result of progressive discipline, the arbitration was binding.
Here, the parties agree that after Frech elected binding arbitration, and
pursuant to the local ordinance, the arbitration would be binding only if his
termination was the result of progressive discipline. The circuit court determined
Frech’s termination was not the result of progressive discipline; hence, the
5 Neither party is contesting the validity of LMCO § 35.056(A)(1)(e)(5).
-13- arbitration was merely advisory. We review this factual finding only for clear error.
CR 52.01; see also Moore v. Landes, No. 2005-CA-002237-MR, 2006 WL
2919064, at *3 (Ky. App. Oct. 13, 2006) (applying clear error factual review to an
arbitration award review).6 Factual findings are clearly erroneous if not supported
by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)
(citations omitted). “‘[S]ubstantial evidence’ is ‘[e]vidence that a reasonable mind
would accept as adequate to support a conclusion[.]’” Id. (citations omitted). The
record shows Director Collins instituted a zero-tolerance policy for sexual
harassment violations. The only factual allegation in the DAN related to the events
of March 8. The arbitration award does not mention progressive discipline. While
Director Collins reviewed and considered Frech’s prior discipline, he testified that
the March 8 incident by itself warranted termination. Therefore, the circuit court’s
finding that Frech’s firing was not a result of progressive discipline is not clearly
erroneous. See id. As that finding is not clearly erroneous, the arbitration award is
non-binding and advisory, not binding or final.
However, judicial review is typically limited to final orders. The
general rule regarding appellate jurisdiction is that only the final orders of a trial
court are appealable, and thus appellate courts lack jurisdiction to consider a trial
6 Citing this unpublished opinion as merely exemplative, not binding. Kentucky Rule of Appellate Procedure (“RAP”) 41.
-14- court’s interlocutory rulings (with some exceptions not applicable here). Hensley
v. Haynes Trucking, LLC, 549 S.W.3d 430, 436 (Ky. 2018). A final order is either
an “order adjudicating all the rights of all the parties in an action or proceeding, or
a judgment made final under [CR] 54.02.” CR 54.01. Thus, non-final orders
typically lack ripeness for appellate review. While these finality rules are specific
to court orders, as opposed to arbitration awards, we believe the same concepts are
applicable. It would be inconsistent for our courts to disallow review of its own
non-final orders but then allow review of non-final arbitration awards. Judicial
review of binding arbitration is quite limited, and – considering our rules of finality
– extending judicial review to advisory arbitration awards is inappropriate.7
“Where there is no final order on a particular question from the trial
court, an appellate court lacks subject-matter jurisdiction over that issue.” Ashland
Hospital Corp. v. Darwin Select Ins. Co., 664 S.W.3d 509, 519-20 (Ky. 2022)
(citing KY. CONST. § 111(2) and Erie Ins. Exch. v. Johnson, 647 S.W.3d 198, 204
(Ky. 2022)). Extending that concept, while circuit courts have subject matter
7 While not bound by state precedent outside the Commonwealth, we nonetheless note the consistency of our understanding of the non-binding nature of advisory arbitration with that of other states. See Dyer v. Illinois, 40 Ill. Ct. Cl. 8, 29 (1983) (“Binding arbitration means nothing more than that the parties are bound by the decision of the arbitrator as opposed to advisory arbitration where the decision of the arbitrator is just that – advisory – and neither party is bound by it.”); Appeal of State Employees’ Ass’n of New Hampshire, Inc., 661 A.2d 226, 227 (N.H. 1995) (referring to advisory arbitration as “not final and binding”); Water Works Emp. Local No. 1045, AFSCME, AFL-CIO v. Bd. of Water Works, 615 P.2d 52, 53 (Colo. App. 1980) (stating “the arbitrator is deprived of any power to bind either party” if the contractual terms call for advisory arbitration).
-15- jurisdiction to perform a limited review of binding arbitration awards, our circuit
courts lack subject matter jurisdiction to enforce non-final, advisory arbitration
awards. Thus, the Jefferson Circuit Court did not err in holding it lacked
jurisdiction to enforce the advisory arbitration award.
CONCLUSION
Accordingly, we AFFIRM the Jefferson Circuit Court order.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
L. Scott Miller Carrie Pearson Hall Tyler J. Chelf John S. Harrison Lexington, Kentucky Louisville, Kentucky
-16-