CERTIFIED RESTORATION SERVICES INC APPELLANT v. SEAN FITZGERALD AND BLANCA FITZGERALD APPELLEES (2026)

OPINION AFFIRMING

Appellant (Certified Restoration Services, Inc. (CRS)) performed restoration work related to water damage covered under a homeowner's insurance policy issued to Appellees (the Fitzgeralds)¹ by USAA ² General Indemnity Company (USAA). After a dispute with USAA for the charges CRS claimed, CRS filed a mechanic's and materialman's lien and later brought this action against the Fitzgeralds for breach of contract, unjust enrichment, and quantum meruit.

CRS challenges the Laurel Circuit Court's Orders granting summary judgment on its Complaint and a later partial summary judgment addressing a second purported contract (not mentioned in the Complaint). CRS also challenges the award of attorney's fees and punitive damages on the Fitzgeralds’ Counterclaim for malicious prosecution, slander of title, and violation of the Kentucky Consumer Protection Act (KCPA). After a thorough review of the record, we affirm.

FACTUAL AND PROCEDURAL HISTORY

This appeal requires review of rulings entered both before and after a jury trial in a case spanning several years and involving multiple claims. For completeness, we must examine the facts and rather lengthy procedural background of this case in detail.

In late 2017, the Fitzgeralds were living in Florida. Sean Fitzgerald was retired from the United States Navy. The Fitzgeralds decided to move to Kentucky. They purchased their first home. The home selected was in Corbin, Kentucky. For this property, the Fitzgeralds purchased the coverage provided by a homeowner's insurance policy with USAA.

As they started the move to Kentucky in early February 2018, the Fitzgeralds discovered substantial water damage caused by a frozen pipe under the kitchen sink. The Fitzgeralds began an urgent search to find someone who could address the situation immediately. The local providers they called could not get to the job for a while, but CRS was available right away.

CRS is a Florida corporation but a regional company with its primary place of business located in West Palm Beach, Florida. The principal of the company is Tal Moore (Moore), who is originally from northern Kentucky. The local contractor engaged by CRS through a form of profit sharing arrangement was James Landrum (Landrum).

The Fitzgeralds met with Landrum. From these initial discussions, the Fitzgeralds remembered Landrum's interest in the fact that the Fitzgeralds had equity in their property. Sean Fitzgerald thought this was odd, but later events would show why CRS may have been interested in this potential source of payment. On February 6, 2018, Sean Fitzgerald signed a document authorizing CRS “to enter my property, furnish materials, supply all equipment and perform all labor necessary to preserve and protect my property from further damage.” (Emphasis added.) Under a separate section of the document titled “Assignment of Insurance Benefits and Direct Payment Authorization” (Assignment), USAA could make direct payments to CRS for any insurance covered work, but any additional work requested by the Fitzgeralds, and not covered by insurance, would be paid by the Fitzgeralds directly.

CRS then performed restoration work and, after the work was completed, USAA made payments totaling over $56,000 to CRS on the water-damage claim. The Fitzgeralds also made payment to CRS directly for the installation of new upper kitchen cabinets and a dining room door that were not covered by the insurance policy. CRS insisted there remained an outstanding balance for the water-damage claim. Eventually, CRS would demand another $56,000 for a total approaching $115,000, a number uncomfortably close to the entire purchase price of the property. Not being able to get USAA to pay more, including a failure to negotiate a work appraisal process with USAA, CRS filed a mechanic's and materialman's lien against the Fitzgeralds in February 2019. In the lien, CRS claimed an amount due of $38,859.72.

Approximately two years later, in April 2021, CRS filed a civil action against the Fitzgeralds for breach of contract, unjust enrichment, and quantum meruit. CRS sought damages in the sum of $56,409.14. CRS also brought claims against USAA for bad faith and unfair claims settlement practices. CRS attached, as Exhibit 1 to its Complaint, the Assignment executed by Sean Fitzgerald, referencing the same document in paragraph 10 of the Complaint, as the “contract” that supported its claims.

The Fitzgeralds filed an Answer, arguing they breached no contract with CRS. The contract relied upon by CRS was essentially only an assignment of their insurance benefits from USAA. The Fitzgeralds believed that CRS had engaged in a fraudulent scheme to entice individuals in distress to enter into unconscionable, illegal, invalid, non-binding agreements for the purpose of defrauding them. At trial the Fitzgeralds would offer evidence of at least ten lawsuits brought by CRS in similar circumstances, but the evidence of these other suits was excluded by the circuit court.³

The Fitzgeralds denied making any requests for additional work not covered by their insurance policy, except for the installation of the one door and new upper kitchen cabinets, which were added so that they would match the lower cabinets replaced due to water damage. The Fitzgeralds indisputably paid CRS for the cost and installation of these items and did not request any additional work beyond the scope of the water-damage claim. Thus, the Fitzgeralds believed they had complied with the Assignment's terms.

In addition to their Answer denying a valid contract with CRS, the Fitzgeralds filed a Counterclaim against CRS for both compensatory and punitive damages on several claims. For example, the Fitzgeralds argued CRS had caused a fraudulent and invalid mechanic's and materialmen's lien to be filed against them, which also constituted a slander of title and a violation of the KCPA.

We note here that CRS filed the lien in the wrong county. It was filed in Whitley County and should have been filed in Laurel County.⁴ Even so, as pointed out during the trial, the presence of this lien was for credit bureaus and others to see and would not have prevented an insistence by one of these others to remove the lien to prevent any argument about a cloud on title. CRS did not seek to correct the filing error and failed to file a civil action within one year to enforce the lien as required to KRS ⁵ 376.090. CRS did not attempt to enforce the time-barred lien in its Complaint. Even though the lien was filed in the wrong county and was time barred, it took two court orders to get CRS to remove the lien.

In October 2021, the Fitzgeralds filed a Motion to Compel seeking, among other things, any documents (such as receipts and invoices) relating to any work performed by CRS, including any work done upon the Fitzgeralds’ request that was not covered by insurance. When discovery was eventually provided, the Fitzgeralds argued the outstanding balances CRS claimed they owed and listed in an invoice from February of 2021, were cost estimates completed in March of 2018 and were insufficient as evidence of costs actually incurred by CRS. The Fitzgeralds continued to seek discovery on their Motion to Compel.

The circuit court sustained the continuing discovery motion and entered an Order compelling CRS to produce the requested documents, or state under oath by a corporate officer what records do not exist within its possession or control within thirty (30) days. Later, as an attachment to their Second Set of Supplemental Responses to Requests for Production of Documents, CRS filed an affidavit sworn by Moore stating that, upon conducting a review of CRS files, data, and records, no files or documents other than those already offered by CRS in discovery existed within the possession or control of CRS.

As a result of this lack of proof, the Fitzgeralds filed a Verified Motion for Summary Judgment, seeking both summary judgment on CRS's Complaint and the release of the materialman's and mechanic's lien. The Fitzgeralds argued they paid CRS for all extra work that was not covered by the insurance policy, and CRS failed to produce invoices for any other alleged unpaid work, including any restoration subject to payment by USAA. In its Response, CRS argued it had no other detailed invoices to provide because “it is not the practice of companies or their workers to keep records of every worker and what job they do, where supplies came from, or every detail performed on a job.”⁶

The Fitzgeralds insisted that all claims CRS filed against them must be dismissed because CRS failed to produce any evidence supporting claims for compensation related to “additional work” requested by them or other work for that matter. The circuit court agreed and granted the motion, finding a “distinct lack of evidence tending to show the Fitzgeralds requested CRS to perform non-covered, additional work to the tune of nearly twice the actual claim benefits.”⁷ The circuit court determined the Assignment qualified as a valid assignment of insurance proceeds but failed as an enforceable contract for the additional amounts claimed by CRS due to lack of consideration and lack of essential terms. Further, there was at that time no other agreement argued by CRS as a contract to support CRS's claims.

The circuit court also rejected CRS's argument that summary judgment was premature, finding the work at issue was completed in August of 2018, the civil action was not filed until April of 2021, and this was the second time the issue of production of CRS's invoices or other documentation had been before the court. CRS had ample opportunity to complete relevant discovery.

USAA soon filed its own Motion for Summary Judgment on CRS's claims against it. USAA argued it had paid CRS $56,706.38 for water-damage mitigation and repairs, and, since the circuit court ruled no evidence was offered to sustain a further amount, the Complaint against USAA should be dismissed as well. Before the circuit court ruled on USAA's motion, CRS and USAA entered a Stipulation and Agreed Order Dismissing USAA. Apparently, the dismissal did not result in any additional payment by USAA.

Almost two years after the Complaint was originally filed, CRS produced an “Agreement” it intended to introduce at trial. This Agreement was also dated February 6, 2018, and was entirely different from the one-page Assignment previously relied upon by both parties and attached to CRS's Complaint. The Agreement is a one-page listing of numerous standard fees for various services that could be provided by CRS, without specifying whether any of those enumerated services would in fact be provided. The Agreement also contained the following clause, in small print, at the bottom of the page:

CRS is an environmental company that cares about the environment. In an effort to reduce paper and save trees, the terms of this Agreement are available in large print at www.crstermsandconditions.com. By signing below, I agree to be bound by all the terms therein, and on the front of this Agreement, and agree to resolve all disputes by NAM arbitration as stated therein. This Agreement is from the effective date listed above until the end of time unless properly terminated as per terms therein. I have read, I fully understand and I agree to what I (we) have signed and that CRS and I (we) have had a meeting of the minds. We will not raise any issues that this Agreement is unconscionable in an attempt to avoid our guaranteed promise to pay CRS in full in accordance with all the rates herein and on all invoices.

The Agreement is purportedly signed by Sean Fitzgerald, which he disputes by sworn affidavit. CRS did not provide any contrary affidavit or other evidence about this Agreement. The signature appearing on this newly revealed Agreement appears to be identical to the one on the Assignment. CRS attached to the Agreement provided to the circuit court a series of nine pages from the referenced website, which lists an additional 150 terms and conditions.⁸

The Fitzgeralds filed a Motion in Limine to prohibit use of the Agreement at trial, arguing CRS is precluded by summary judgment from asserting any debt owed by the Fitzgeralds and thereby precluded from introducing any contracts to argue that the Fitzgeralds owe CRS anything. In its Objection to the Motion in Limine, CRS did not press the claim that the Fitzgeralds still owed them anything, but instead argued the intended use of the document was for the purpose of showing the Agreement limits the Fitzgeralds to total damages of $500.00, one of the 150 terms, all remarkably favorable to CRS.⁹

Given this response by CRS, the Fitzgeralds then filed a Motion for Partial Summary Judgment to prohibit use of the Agreement at trial. The circuit court rejected the Fitzgeralds’ arguments that the Agreement should be excluded based on res judicata, collateral estoppel, the law of the case doctrine, or as an unenforceable contract of adhesion. But the circuit court granted the motion because CRS had failed to plead properly and rely on this relatively newly revealed, purported “contract.” The matter then proceeded to jury trial on the Fitzgeralds’ counterclaims.

In February 2024, a jury found in favor of the Fitzgeralds as to malicious prosecution and awarded them $8,500 as damages, being their “reasonable expenses in defending against” CRS's lawsuit. The basis of this award appears undisputed from the evidence. USAA paid $10,000 to the Fitzgeralds arising from the prosecution of CRS's claims, and, with some of that payment applied to what their attorneys had charged up to a point, the Fitzgeralds explained that they then still owed their attorneys $8,500.

The jury also found in favor of the Fitzgeralds as to slander of title and awarded them the same $8,500 in damages for “reasonable expenses in defending against” CRS's wrongful recording of a lien. The jury awarded $1.00 to each of the Fitzgeralds as nominal damages for embarrassment and humiliation, the Fitzgeralds not having proved any specific compensatory damages on this element of damages.

The jury also found in favor of the Fitzgeralds as to defective construction and awarded them $1,985.73 in compensatory damages. This claim related to an area of flooring repaired by CRS that had separated. CRS argued this resulted from a new flooding or other water issue, while the Fitzgeralds argued it was work poorly done by CRS. The jury agreed with the Fitzgeralds.

Finally, the jury found in favor of the Fitzgeralds as to violation of KCPA. The jury awarded punitive damages of $200,000 to each of the Fitzgeralds. All decisions of the jury were unanimous.¹⁰

The circuit court entered an Interlocutory Judgment reciting the jury verdict and awards granting one award of $8,500 for reasonable expenses in the malicious prosecution and slander of title claims. The circuit court's total judgment against CRS was for the sum of $410,487.73 ¹¹ for compensatory and punitive damages, plus interest and court costs. The circuit court later granted the Fitzgeralds’ Motion for Attorney's Fees as permitted by the KCPA in the additional amount of $15,000.

CRS filed a Request for Remittitur, or in the alternative, for a new trial. CRS argued the jury's award of punitive damages was excessive and violated the Due Process Clause of the 14th Amendment contrary to United States Supreme Court decisions imposing due process limitations on punitive damages awards. The circuit court partially sustained the Request for Remittitur, reducing the punitive damages award from $200,000 each to $100,000 each, and amended the Interlocutory Judgment and Final Order to reflect this change. CRS then filed this timely appeal. The Fitzgeralds did not file a cross-appeal.

STANDARD OF REVIEW

Ultimately, CRS's appeal turns first on whether the circuit court properly granted summary judgment and properly held to that judgment despite the new contract offered by CRS. Summary judgment is appropriate where it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his or her favor. Huddleston By & Through Lynch v. Hughes, 843 S.W.2d 901, 903 (Ky. App. 1992). Upon our review, we must determine whether the trial court correctly concluded 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. Pearson ex rel. Trent v. Nat'l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002); Kentucky Rules of Civil Procedure (CR) 56.03. We do not defer to the trial court's conclusions of law. Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 381 (Ky. 1992). Instead, we conduct our review de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).

CRS also objects to the manner in which attorney's fees were determined. Generally, awards of attorney's fees are reviewed for an abuse of discretion. Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App. 2007). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Finally, the appeal addresses the punitive damages awarded as remitted. Our review of this question is de novo because the question is one of law as to whether the particular award violates due process. McDonald's Corp. v. Ogborn, 309 S.W.3d 274, 298 (Ky. App. 2009).

ANALYSIS

In summary, CRS argues the circuit court erred in foreclosing its claims against the Fitzgeralds at the summary judgment stage by misapplying Kentucky's notice-pleading standard when it did not later allow consideration of the lately disclosed Agreement. CRS also contends the circuit court erred by permitting the jury to award attorney's fees, citing this Court's decision in Mo-Jack Distrib., LLC v. Tamarak Snacks, LLC, 476 S.W.3d 900, 907 (Ky. App. 2015), holding that an award of attorney's fees is a matter for the trial court's discretion, and it is not a question to be submitted to a jury. Finally, CRS argues the ratio of punitive to compensatory damages is unconstitutional and violates due process. We will address the contentions in this same sequence.

PRESERVATION OF SUMMARY JUDGMENT ISSUES FOR APPELLATE REVIEW

As an initial matter, the Fitzgeralds argue CRS's claims regarding summary judgment are not properly preserved for appellate review. The circuit court sustained the Fitzgeralds’ Motion for Summary Judgment in January 2022, dismissing CRS's claims against them and directing CRS to file a release of its lien. In July 2023, the circuit court sustained the Fitzgeralds’ Motion for Partial Summary Judgment as to admissibility of the Agreement document. CRS filed its Notice of Appeal challenging these Orders in December 2024. CRS did not file either a CR 59.05 motion to alter, amend, or vacate the judgment dismissing its claims or a CR 60.02(f) motion for relief from these decisions.

The Fitzgeralds argue the failure to file either a CR 59 or CR 60 motion resulted in no tolling of the 30-day appeal period within which to bring this appeal under RAP ¹² 3(A)(1). The Fitzgeralds believe CRS's challenges to the summary judgment Orders are both untimely and unpreserved. We disagree.¹³

CRS opposed both the Motion for Summary Judgment and the Motion for Partial Summary Judgment, thereby preserving the ruling thereon for appellate review. See MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014) (an issue is preserved when it is fairly presented to the trial court and decided upon).

RAP 3(A)(1) provides a 30-day window within which to file an appeal. But orders that are interlocutory in nature are not final and appealable. The circuit court's summary judgment Orders at issue here were not final or appealable because they did not adjudicate all the rights of all the parties and were not made final under the requirements of CR 54.02.

CR 54.02 ․ vests the trial court—as the tribunal most familiar with the case—with discretion to release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. In such a case, the trial court functions as a dispatcher. If the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that there is no just reason for delay. And the trial court's judgment shall recite such determination and shall recite that the judgment is final.

Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal quotation marks and citations omitted).

Although the circuit court's orders in this case disposed of all of CRS's claims, counterclaims remained, and neither the January 2022 nor July 2023 Order included the requisite language certifying the full disposition of CRS's Complaint as final and appealable, which then would have triggered the 30-day time limit for CRS to file its Notice of Appeal. Once the Fitzgeralds’ counterclaims were resolved by a jury and the circuit court rendered its decision on attorney's fees and remittitur, a Final Order was entered in November 2024, and so this appeal was timely filed in December 2024.

THE FITZGERALDS’ MOTIONS FOR SUMMARY JUDGMENT

CRS believes that the circuit court erred in foreclosing its claims by summary judgment. This position appears to challenge both the January 2022 Order granting summary judgment as well as the July 2023 Order granting partial summary judgment. In response, the Fitzgeralds’ Appellee Brief capably defends both Orders. The primary substance of CRS's brief addresses arguments related to the later partial summary judgment. In an attempt to bring closure to this case, we will review de novo both the order granting summary judgment and the order granting partial summary judgment because they are necessarily related and present an opportunity to delineate important procedural considerations.

JANUARY 2022 ORDER GRANTING SUMMARY JUDGMENT

CRS filed a Complaint seeking damages for breach of contract, unjust enrichment, and quantum meruit. To prove breach of contract, the complainant must establish three things: (1) existence of a contract; (2) breach of that contract; and (3) damages flowing from that breach. Barnett v. Mercy Health Partners-Lourdes, Inc., 233 S.W.3d 723, 727 (Ky. App. 2007) (citations omitted). Here, CRS failed to present evidence of the second element – breach of the contract (the Assignment) specifically alleged. We will return to the argument about the second contract – the Agreement – shortly.

To be enforceable, a contract must contain definite and certain terms setting forth promises of performance to be rendered by each party. Id. The Assignment document relied upon by CRS to support its claim fails to meet this standard as to the Fitzgeralds’ responsibility for remediation work covered by USAA and to be paid by USAA. This one-page document only specifically authorizes CRS to enter the Fitzgeralds’ property to perform all labor necessary to preserve and protect their property from further damage. It then assigns any insurance proceeds from the USAA policy to CRS “up to and for services rendered or to be rendered.” It sets forth with specificity the way the insurance funds will be directed to CRS and includes the following pertinent sentence:

I agree that any portion of work, deductibles, betterment, depreciation or additional work requested by the undersigned, not covered by insurance must be paid by the undersigned on or before the work is completed.[14]

(Emphasis added.)

To the extent CRS argues the Assignment creates general liability for the Fitzgeralds for all remediation work, the document fails to identify essential terms, such as a description of the remediation work for which the Fitzgeralds are personally responsible. The document fails to provide an amount of consideration for performance of any work not covered by the insurance proceeds. The document does not contain definite and certain terms setting forth promises of performance to be rendered by each party in the event USAA adjusts the water-damage claim payout to an amount that is less than what CRS demands for the work performed.

Although the document is an enforceable contract, it is so to the extent that it serves as an assignment of insurance proceeds. In making this determination, we note the Assignment was prepared by or for CRS. If there is ambiguity in its terms, they are interpreted against CRS. Majestic Oaks Homeowners Association, Inc. v. Majestic Oaks Farms, Inc., 530 S.W.3d 435, 441 (Ky. 2017). CRS's breach of contract claim as to the Assignment was properly dismissed by summary judgment.

CRS also sought compensation for additional work based on the equitable theories of unjust enrichment and quantum meruit. In order for a party to prevail under the theory of unjust enrichment, it must prove three elements: (1) benefit conferred upon defendant at plaintiff's expense; (2) a resulting appreciation of benefit by defendant; and (3) inequitable retention of benefit without payment for its value. Furlong Dev. Co., LLC v. Georgetown-Scott Cnty. Plan. & Zoning Comm'n, 504 S.W.3d 34, 39–40 (Ky. 2016) (emphasis added) (internal quotation marks and citations omitted).

The four elements necessary to state a claim for quantum meruit recovery are:

1. that valuable services were rendered, or materials furnished;

2. to the person from whom recovery is sought;

3. which services were accepted by that person, or at least were received by that person, or were rendered with the knowledge and consent of that person; and

4. under such circumstances as reasonably notified the person that the plaintiff expected to be paid by that person.

Garmer & Prather, PLLC v. Indep. Bank, 538 S.W.3d 315, 319–20 (Ky. App. 2017) (emphasis added). The general rule is that “quantum meruit is available where the parties understand and intend that compensation is to be paid” by them. Id.

This case is a matter of contract, not equitable claims. Under the Assignment, it was not contemplated that the Fitzgeralds would pay to the extent that USAA rejected the claim. It is not inequitable for CRS not to receive payment from the Fitzgeralds for claims made but not satisfactorily proven to obtain payment from the applicable insurance, especially when a substantial amount was paid by USAA for the work done.

This Court has reviewed the discovery materials in this record. These materials include internal “invoices” generated by CRS listing equipment and employee time logs for water-damage restoration/remediation work, i.e., tearing out flooring, baseboards, drywall, insulation, replacing water-damaged fixtures, painting, and other water-related repairs. Discovery materials also include photographs of water-damaged rooms with dehumidifiers and air monitors, and an invoice from Servpro of Pulaski and Laurel Counties itemizing time and expenses related to initial water-damage remediation. But there is no evidence of additional work performed outside the scope of the water-damage insurance claim paid by USAA. The fact that USAA would not pay what CRS wanted does not turn this into a situation of personal liability for the Fitzgeralds in the contractual circumstances of this case nor as a matter of equity.

We note that the discovery materials include an email dated February 13, 2019, from CRS to the Fitzgeralds regarding their “Intent to Lien” with the statement “we apologize that your insurance company has put you in this position due to their inadequate claim adjustment.”¹⁵ In addition, the Statement and Notice of Mechanic's and Materialman's Lien provides that the lien is for “labor, materials, and rental equipment” for the “clean-up, restoration, repairs, alteration, and/or construction” of the Fitzgeralds’ property, and that the property owners understood CRS “would be paid in full for its services.”¹⁶ Even if CRS might argue about what USAA should have paid, this does not mean the Fitzgeralds should be stuck with whatever bill CRS wanted to submit to USAA. According to the evidence actually offered, CRS was paid in full.

In considering summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and grant summary judgment only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. See Lewis, 56 S.W.3d at 436 (citing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480–82 (Ky. 1991)). “The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present ‘at least some affirmative evidence showing that there is a genuine issue of material fact for trial.’ ” Id. at 436 (citing Steelvest, 807 S.W.2d at 482).

Here, the Fitzgeralds met their burden of showing no genuine issue of material fact existed sufficient to support CRS's contract or equitable claims against them. The Assignment entitled CRS only to the insurance proceeds for restoration or remediation work and failed to obligate the Fitzgeralds for any difference in price between the insurer's adjusted pay-out and the contractor's actual charges for water-damage repairs. The Assignment did not support payment for additional work besides the upper kitchen cabinets and dining room door, for which the record clearly shows CRS was paid.

With a properly supported motion for summary judgment, the burden then shifted to CRS to oppose summary judgment with at least some affirmative evidence that an agreement for additional work existed between the parties, or that costs were expended by CRS for additional work not subject to the insurance claim. CRS was unable to produce any evidence to meet this burden. As the circuit court correctly noted, the actual claim benefits have been released to CRS, albeit in an amount less than the cost estimate initially given by CRS, and payment for services not covered by insurance, which were completed upon the Fitzgeralds’ request, had been made. Summary judgment on CRS's Complaint was proper.

JULY 2023 ORDER GRANTING PARTIAL SUMMARY JUDGMENT

CRS argues the circuit court wrongly dismissed its claims – not due to insufficient evidence, but rather because it determined CRS had inadequately pled the relevant contract (Agreement). On this narrow procedural basis, the circuit court supposedly barred all of CRS's affirmative claims. Consequently, despite CRS having performed significant restoration work at the Fitzgeralds’ residence and alleging non-payment, CRS could not advance to trial just because CRS did not attach the right documentation to its Complaint.

CRS insists the test is not whether every page of a given contract is physically attached to the Complaint but whether the opposing party was fairly apprised of the claims against it. According to CRS, the Fitzgeralds were on notice of the contractual basis of CRS's claims against them, regardless of what contract was pled. We disagree with this argument, but we must also explain other reasons why the circuit court correctly prevented reliance on the new Agreement.

“Kentucky is a notice pleading jurisdiction, where the ‘central purpose of pleadings remains notice of claims and defenses.’ ” Pete v. Anderson, 413 S.W.3d 291, 301 (Ky. 2013) (quoting Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995)). Here, CRS filed its Complaint referencing and attaching to it the Assignment as the basis for its claims. CRS continued to rely solely on the Assignment in its Answer to the Fitzgeralds’ Counterclaim. After summary judgment dismissal of the Complaint, CRS presented a new purported contract ostensibly to be used to defend against the Fitzgeralds’ Counterclaims with its severe limitation of damages, but CRS also renewed its argument that the Fitzgeralds are liable for that part of the claim not paid by USAA because of this Agreement.

The second Agreement document was dated 2018. CRS started this lawsuit in 2021 but notice of the Agreement's existence and CRS's intended reliance on it did not occur until the end of 2022. CRS did not seek leave to amend ¹⁷ the Complaint or to amend its Reply ¹⁸ to the Counterclaim to put the Fitzgeralds on notice that another contract might serve as the basis for CRS's claim or defenses. CRS relies upon the policy of only notice pleading to argue that the Fitzgeralds were notified that they were being sued for breach of contract, so it does not matter which contract CRS specified.

We hold to the policy of notice pleading. But it is not consistent with that policy to say that a Complaint can specifically allege one contract but then claim sufficient notice of any suspicious contract that might be produced years later. The circuit court still properly granted the initial summary judgment, and nothing about the offered second contract required a reassessment of that decision.

Even if this notice argument had any merit, the circuit court still correctly declined to allow consideration of the lately offered Agreement. While the circuit court rejected application of the law of the case doctrine in its decision, we have determined that it does apply to these circumstances as we will explain. We are required to affirm the circuit court for any reason that appears from our examination of the record. McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009). The law of the case doctrine also calls for affirmance.

LAW OF THE CASE

When courts mention the law of the case doctrine, they usually do so in the context of a final appellate decision. It is often referred to as “an iron rule” that a final appellate decision must be followed on remand of the case or in a subsequent appeal. Kincaid v. Johnson, True & Guarnieri, LLP, 538 S.W.3d 901, 916–17 (Ky. App. 2017). But the doctrine has several parts and is broader than that.

The doctrine “refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation.” Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010). These rules encourage finality and guard “against the endless reopening of already decided questions, and the equally important interest courts have in judicial economy, by preventing the drain on judicial resources that would result if previous decisions were routinely subject to reconsideration.” Id.

There is an important caveat in the context of summary judgment. Kentucky law demands caution in granting summary judgment and includes a requirement that there be an adequate opportunity for completion of discovery before summary judgment is granted. Martin v. Pack's Inc., 358 S.W.3d 481, 486 (Ky. App. 2011). Thus, we have recognized the need to sometimes reconsider earlier denials of summary judgment. See Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597 (Ky. App. 2006) (citing Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 n.4 (Ky. App. 2004)).

The same cannot be said when a court grants summary judgment and is then asked later to reverse that course. We have found no Kentucky case directly on point. But we find established guidance from our federal courts on this point. Reconsideration of a grant of summary judgment should be done only on the grounds of: “(1) an intervening change in the law, (2) new evidence that was not previously available, or (3) correction of a clear error of law or to prevent manifest injustice.” Wootten v. Commonwealth of Virginia, 168 F. Supp. 3d 890, 893 (W.D. Va. 2016).

Reconsideration of a previously granted summary judgment is not for situations of a dissatisfied party trying to “craft new [and] improved legal positions” especially by presenting “evidence that could have been addressed or presented previously.” Id. (citations omitted). Reconsideration should not serve as a “mulligan.”¹⁹ Id. at 894.

When we look at the time allotted in this case to present a response to the original summary judgment, there is no valid explanation for why the claimed 2018 Agreement was not presented and argued then. It would have been contrary to the law of the case doctrine for the circuit court to reverse the prior summary judgment. For this reason, separate from the unavailing notice-pleading argument relied upon by CRS, the circuit court did not err in refusing to allow this evidence or reconsider its prior summary judgment.

THE COUNTERCLAIMS

Before we evaluate the complaints about the damages awarded, it is imperative to understand the claims presented to the jury from the Fitzgeralds’ Counterclaim. We start with what is often referred to as “malicious prosecution.” Our courts have tried to limit this phrase to the wrongful prosecution of criminal charges, which the phrase itself suggests, and so we refer to the wrongful litigation of civil claims as “wrongful use of civil proceedings.” Even so, the elements are the same.

A malicious prosecution action may be established by showing that:

1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;

2) the defendant acted without probable cause;

3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;

4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and

5) the plaintiff suffered damages as a result of the proceeding.

Seiller Waterman, LLC v. RLB Props., Ltd., 610 S.W.3d 188, 196 (Ky. 2020) (emphasis in the original).

In this case, based on the evidence as a whole, the circuit court correctly held that CRS lacked probable cause, which is a legal conclusion for the court to make. Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky. 1989). The evidence presented to the jury adequately supports the finding that CRS engaged in a wrongful use of a civil proceeding.

We pause here to note an issue with the element of termination of the civil case. We have before held that a claim for wrongful use of a civil proceeding may not proceed as a counterclaim. Brown v. Physicians Mut. Ins. Co., 679 S.W.2d 836, 839 (Ky. App. 1984), overruled on other grounds by Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985). Being interlocutory, a summary judgment on the Complaint may eventually be reversed. In some cases, circuit courts have abated the counterclaim until there is finality to the dismissal of the Complaint.

In the present case, the question has become academic. This was not raised by the parties, and we have determined that the summary judgment was proper. And so, in retrospect, CRS's case was properly terminated. Still, this procedural concern must be addressed in such cases.

“In order to maintain a slander of title action in this jurisdiction, the plaintiff must plead and prove that the defendant has knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff's title to property; he must also plead and prove that he has incurred special damage as a result.” Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky. App. 1980). In this case, the filing of a lien when CRS knew the money was not actually owed by the Fitzgeralds with a malicious intent to use the lien as leverage to get further payment would suffice to satisfy the elements.

We do not find the misfiling of the lien in the wrong county as prohibiting such a claim. CRS still communicated a false statement even if it directed the statement to the wrong county clerk. As we noted previously, the very presence of the lien would disparage the title because those who see it could insist on its removal before accepting clear title to the property.

The KCPA creates liability for any “[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce[.]” KRS 367.170. We need not extend this Opinion further other than to say that the conduct proven by the Fitzgeralds not only sustains a finding of a wrongful use of a civil proceeding, or a slander of title, or both, but also sustains the finding that CRS violated the KCPA.

ATTORNEY'S FEES

CRS complains of the attorney's fees awarded mostly because the question was submitted in part to the jury when assessing damages for the wrongful use of a civil proceeding and the slander of title. It is true that attorney's fees are “special” damages in such a case. See Barnes v. Culver, 232 S.W. 39 (Ky. 1921). This does not mean that a jury awards such damages. There are important reasons as to why such matters should be resolved by the court.

In Mo–Jack, supra, we held that the authority to decide any amount for attorney's fees belongs to the court, not to a jury. Thus, attorney's fees awards should not be submitted to a jury. This is in part because a proper analysis of reasonable attorney's fees requires a court to evaluate several factors which are within the knowledge and experience of the judge, who is an attorney. It is also unnecessarily awkward and even confusing to have attorneys arguing about their fees to the jury, which should be focusing on the clients’ claims.

“To determine the reasonableness of an attorney's fee, the court may consider various factors, including: the time and labor required, the difficulty of the questions involved, the skill required to perform the legal service, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the customary fee charged for a similar service, the amount involved in the case, the time limitations, the length of the professional relationship with the client, the experience and reputation of the lawyer, and whether the fee is fixed or contingent.” Key v. Mariner Finance, LLC, 617 S.W.3d 819, 824 (Ky. App. 2020).

Even accepting that it would be erroneous to submit the amount of attorney's fees to a jury, the error here resulted in no harm and so must be disregarded. CR 61.01. There is no question that the Fitzgeralds incurred $8,500 for the expense of dealing with the initial stages of the litigation with some focus on the slander of title problem. Later, when the finding of a KCPA violation separately authorized consideration of attorney's fees, the circuit court properly analyzed the claim in total. Recognizing the $8,500 already indicated by the jury, the circuit court awarded an additional $15,000, with the total awarded being considerably less than what the Fitzgeralds sought.

PUNITIVE DAMAGES

The most substantial complaint by CRS is about the punitive damages awarded. CRS argues the ratio of punitive to compensatory damages is unconstitutional. The ultimate amount of punitive damages awarded was a total of $200,000 or $100,000 to each of the Fitzgeralds.

Punitive damages may not be “grossly excessive” in relation to the state's legitimate interests in punishment and deterrence. BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996). CRS contends that the punitive damages imposed exceed all permissible bounds. By CRS's math the 100:1 ratio of punitive damages ($200,000) to compensatory damages ($1,987.73) cannot be sustained as constitutional.

CRS relies on the United States Supreme Court decisions in Gore and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003). A Constitutional analysis of a punitive damages award is guided by three core considerations: (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio between punitive and compensatory damages, and (3) comparison to civil penalties authorized or imposed in similar cases. Although fixated on the ratio factor alone, CRS argues each factor demonstrates that the punitive award here offends due process.

True, this case did not involve physical harm. CRS did not engage in violent acts. Indeed, when the underlying harm is purely economic and nonviolent, the justification for significant punitive awards is at its weakest. Campbell, 538 U.S. at 419. But all factors must be considered.

The circuit court properly instructed the jury pursuant to KRS 411.186(2):

(2) If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then assess the sum of punitive damages. In determining the amount of punitive damages to be assessed, the trier of fact should consider the following factors:

(a) The likelihood at the relevant time that serious harm would arise from the defendant's misconduct;

(b) The degree of the defendant's awareness of that likelihood;

(c) The profitability of the misconduct to the defendant;

(d) The duration of the misconduct and any concealment of it by the defendant; and

(e) Any actions by the defendant to remedy the misconduct once it became known to the defendant.

The circumstances of this case require equal evaluation of the last three of these factors as well as the first two. As for profitability, CRS tried to get the Fitzgeralds to pay twice what the insurance company would pay, an additional $56,000. The duration of the misconduct continued right through the end of the litigation itself. And we will take a moment to comment on the actions or rather inactions by CRS to remedy the misconduct.

It should be remembered that punitive damages are indeed to punish people for their conduct. A review of the trial shows that neither Moore not Thompson ever acknowledged any wrongdoing, much less tried to remedy it. During his testimony, Moore was dismissive. When he thought an attorney was “taunting” him by asking a question, Moore sarcastically referred to him as a “gentleman.” Early on, Moore also made his own objection to relevance. When asked about the appraisal process with USAA (which the evidence showed CRS did not fully comply with), Moore quipped: “Appraisal is a different process – that you should know.” Moore also responded once asking “is that your testimony or mine?” The circuit court had to admonish Moore for his behavior.

At one point, the Fitzgeralds’ counsel said in exasperation that any problem always seemed to be someone else's fault according to Moore. Specifically, Moore blamed his attorneys for the actions CRS took. Indeed, Moore replaced the attorney who had handled the lien with the attorney who handled this trial. Now that attorney has been replaced by new counsel on this appeal.

Landrum was not any better. He was argumentative and also objected to relevance. He expressed heavy sighs to indicate his disdain for the questions asked of him. He bragged of his “many hats and many talents.” An objection was sustained for Landrum's non-responsiveness. The circuit court even had to warn Landrum of contempt outside the presence of the jury.

This should not suggest that punitive damages should be used to punish people who are difficult or not likable. That character issue is not a factor. Yet everyone should understand how trial behavior may validly cause a jury to evaluate the lack of remorse in the context of awareness of the misconduct, the length of that misconduct, and the absence of any effort to remedy the misconduct.

If we return to CRS's math on the ratio factor for a moment, the Fitzgeralds respond with a very different kind of math. They argue the damages were not just $1,987. Even if considered as special damages or otherwise figured in, the attorney's fees the Fitzgeralds incurred makes the total actual loss to the Fitzgeralds at $25,487.73 ($8,500 + $1,987 + $15,000). That results in a less than 10:1 ratio. But again, there is a danger in relying on the ratio in isolation.

There is no magic number or ratio to govern punitive damages awards. In Ragland v. Diguiro, 352 S.W.3d 908, 917 (Ky. App. 2010), we were careful not to adopt a ratio alone approach, remembering that punitive damages are determined by a jury as the voice of the community with proper focus primarily on the reprehensibility of the conduct. Reprehensibility of the conduct also ties into another factor the federal courts have pointed out – what are the other potential penalties for the conduct in question.

One might initially think this factor has little impact here, but it has. When a mechanic's and materialmen's lien has been filed, the law imposes a duty to release it promptly when it is “satisfied.” While CRS would insist it was not satisfied, the lien here had no merit and should not have been filed (in the right or wrong county). After 45 days, a daily penalty of $500 can be applied for failure to release a lien. KRS 382.365. In this case, the lien was pending for years, and it took repeated effort by the circuit court to get the lien removed.

KRS 434.155 makes it a felony offense to file an illegal lien, which includes one that is “groundless, contained a material misstatement, or was a false claim.” Besides the sentence which may be imposed for such a felony, a fine of up to $10,000 may be imposed. KRS 534.030.

Here, the jury found that CRS violated the KCPA by engaging in unfair, false, misleading, or deceptive acts or practices, which behavior encompassed the factual circumstances of the Fitzgeralds’ causes of action for wrongful use of a civil proceeding and slander of title. In awarding punitive damages, the jury specifically determined that CRS acted with malice by engaging in conduct that was specifically intended to cause tangible or intangible injury to the Fitzgeralds.

Having considered all factors, we cannot say that the remitted award of punitive damages in this case violates due process. CRS had no basis for claiming the Fitzgeralds owed an additional $56,000.00 plus interest for remediation and restoration services rendered after the flooding of their home. CRS had already been adequately compensated for these services by USAA. Yet, CRS recorded a lien, sued the Fitzgeralds, and prosecuted this case vigorously ²⁰ to the bitter end. The reprehensibility of CRS's intentional conduct, as determined by the jury, is enough to sustain the ultimate punitive damages award in this case. It was not “grossly excessive” or unrelated to the state's legitimate interests in punishment and deterrence.

CONCLUSION

Finding no error in the Order granting summary judgment on Appellant's Complaint; no error in the Order granting partial summary judgment on the Agreement; no error in the award of attorney's fees as reasonable expenses in defending against the lawsuit and the wrongful recording of a lien; and no error in the award of punitive damages, we AFFIRM the Final Order and Judgment of the Laurel Circuit Court.

FOOTNOTES

1.   Although the documents at issue were signed only by Sean Fitzgerald, we will refer to him and his wife Blanca collectively. The parties do not seek any determination of Sean's authority to bind Blanca in the circumstances of the claims to be addressed, and that is unnecessary given our resolution of the case.

2.   United Services Automobile Association.

3.   The correctness of this exclusion is not an issue. The circuit court (relying on Kentucky Rules of Evidence (KRE) 403) determined that the danger of undue prejudice, confusion, or waste of time outweighed the probative value of this otherwise relevant evidence.

4.   Corbin saddles three counties: Whitley, Laurel, and Knox.

5.   Kentucky Revised Statutes.

6.   Trial Record (TR) at 93.

7.   TR at 693.

8.   TR at 406-15. Incorporation by reference of materials on the internet is permissible. See University of Kentucky v. Regard, 670 S.W.3d 903, 912-13 (Ky. 2023). But there are limits. Incorporation of terms requires clear reference to the other document so that it can be ascertained beyond doubt (some ambiguous reference to a website might not suffice), and the incorporation cannot lead to surprise or hardship. See, e.g., State ex rel. U-Haul Co. of West Virginia v. Zakaib, 752 S.E.2d 586 597-98 (W. Va. 2013).

9.   It is telling that CRS did not seek arbitration under the Agreement but instead sued the Fitzgeralds. Whatever the reason for this decision, CRS proceeded with the case all the way to completion and thus waived any right to insist on arbitration. See Jackson v. Mackin, 277 S.W.3d 626 (Ky. App. 2009).

10.   TR at 1075-90.

11.   This amount represents $200,000 each in punitive damages, $1,985.73 for defective construction, $1.00 each for embarrassment and humiliation as well as $8,500 as attorney's fees.

12.   Kentucky Rules of Appellate Procedure.

13.   The Fitzgeralds made similar arguments in their Motion to Dismiss this appeal, which this Court denied by Order entered on September 25, 2025.

14.   TR at 11.

15.   TR at 201.

16.   TR at 207.

17.   Because this issue of discretion for any amendment is not presented in this case, we will not opine about whether the circuit court here could have or should have granted such an amendment.

18.   Litigants continue to refer to the pleading in response to a counterclaim as an “answer.” The drafters of the civil rules did not want confusion among pleadings. The response to a counterclaim is a “reply denominated as such.” CR 7.01.

19.   A golf term now accepted as a general reference to a second chance, probably named for a golfer with the last name Mulligan. Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/mulligan (last accessed Apr. 18, 2026).

20.   Attorney's fees could have been imposed because of the discovery conduct by CRS. CR 37.01(d) (consideration of attorney's fees on motions to compel is mandatory with the rule using the word “shall”). The record of this case is bloated to ten volumes and over 1,500 pages. Much of the activity was because of discovery tactics by CRS, including boilerplate objections when some simple questions asked clearly were calculated to lead to the discovery of admissible evidence and thus should have been answered without objection.

EASTON, JUDGE:

ALL CONCUR.