RENDERED: FEBRUARY 4, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0721-MR

LOUISVILLE/JEFFERSON COUNTY 

METRO GOVERNMENT 

APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BARRY WILLETT, JUDGE

ACTION NO. 12-CI-006579 

KEVIN ISHAM; ABNEY LAW 

OFFICE, PLLC; DAVID HEADY; 

DAVID SPENCER; GARY HOEFLER; 

JOSEPH MILLER; JOSEPH VOZZO; 

LARRY KISER; P. STEWART 

ABNEY; RONALD PARRISH; 

STANLEY BAIN; STANLEY 

CISSELL; TRAVIS SIMMONS; 

WILLIAM HUDSPETH; AND 

WILLIAM SPONTAK APPELLEES 

OPINION

REVERSING AND 

REMANDING

**   **  **

BEFORE: COMBS, LAMBERT, AND McNEILL, JUDGES.
-2-

McNEILL, JUDGE: Louisville/Jefferson County Metro Government (“appellant”) 

appeals from a final judgment of the Jefferson Circuit Court awarding appellees 

unpaid wages, liquidated damages, attorney fees and costs, and prejudgment 

interest. After careful review, we reverse and remand. 

Appellees are current and former employees of the Towing and 

Impound Division of appellant’s Public Works and Assets Department and 

members of Teamsters Local Union 783 (“Union”). On January 29, 2007,

appellant and the Union entered into a collective bargaining agreement (“CBA”) 

governing the terms and conditions of union members’ employment with appellant. 

Relevant to the appeal, Addendum B to the agreement, pertaining to members of 

the public works department, provides in relevant part:

D. WORKDAY AND WORKWEEK

1. The workday shall consist of a guarantee of eight 

(8) consecutive hours . . . . The workweek shall consist 

of four (4) or five (5) consecutive days Monday through 

Friday and forty (40) hours per week . . . . 

2. Members in the Towing and Impound Division 

shall have a regular work week of six (6) consecutive 

days Sunday through Saturday and Members shall be 

guaranteed forty-eight hours per week . . . .

E. OVERTIME PAY

One and one half (1 1⁄2) times the regular hourly 

rate (which shall include shift premium if any) shall be 

paid for all hours worked in excess of eight (8) hours in a 

day or forty (40) hours in a week. One and one half (1 

1⁄2) times the regular hourly rate (which includes shift 

premium if any) shall be paid for all hours worked on the 
-3-

sixth (6th) day of any work week for Members on a 5 day 

workweek and the fifth (5th) day of any workweek for 

Members on a 4 day workweek. Two (2) times the 

regular hourly rate (which shall include shift premium if 

any) shall be paid for all hours worked on a holiday or on 

the seventh (7th) day of any workweek for Members on a 

6 day workweek or a 5 day workweek and the sixth (6th) 

day of any workweek for Members on a 4 day workweek. 

. . .

On July 10, 2007, the CBA was amended pursuant to a “Letter 

Agreement” between appellant and the Union. The section concerning overtime 

pay for public works employees was amended in its entirety to read:

E. OVERTIME PAY

For Members on a 5-day or 6-day schedule, one 

and one half (1 1⁄2) times the regular hourly rate (which 

shall include shift premium if any) shall be paid for all 

hours worked in excess of eight (8) hours in a day or 

forty (40) hours in a week. One and one half (1 1⁄2) times 

the regular hourly rate (which shall include shift 

premium if any) shall be paid for all hours worked on 

Saturday. Two (2) times the regular hourly rate (which 

shall include shift premium if any) shall be paid for all 

hours worked on Sunday or a Holiday. . . .

For Members on a 4-day schedule, one and one 

half (1 1⁄2) times the regular hourly rate (which shall 

include shift premium if any) shall be paid for all hours 

worked in excess of ten (10) hours in a day or forty (40) 

hours in a week. One and one half (1 1⁄2) times the 

regular hourly rate (which includes shift premium if any) 

shall be paid for all hours worked on Saturday. Two (2) 

times the regular hourly rate (which shall include shift 

premium if any) shall be paid for all hours worked on 

Sunday or a Holiday. . . . 
-4-

Based upon the amendment, appellees sought double pay for working 

on Sundays, which according to the CBA, was part of their regular work schedule. 

On December 28, 2009, appellees filed a labor grievance which was denied. Then, 

on December 12, 2012, they filed a civil action against appellant in Jefferson 

Circuit Court alleging violation of the Kentucky Wage and Hour Act, KRS1

337.010 et seq. and breach of contract. 

Appellant filed an answer to the complaint, alleging, among other 

things, mutual mistake in the formation of the Letter Agreement. On April 1, 

2016, appellant moved for summary dismissal of the appellees’ claims, 

accompanied by an affidavit from Union President John Stovall and a 

“Memorandum of Understanding” signed by the Chief of Police Steve Conrad2and 

Union Business Representative Durie Downey. Both the affidavit and 

Memorandum of Understanding state that neither appellant nor the Union intended 

for employees of the Towing and Impound Division to receive double pay for 

working on Sundays, unless Sunday was the seventh day of the week they worked. 

The affidavit further clarifies that the Letter Agreement was to ensure that 

employees who worked forty-hour workweeks were paid double time for working 

 

1 Kentucky Revised Statutes.

2 According to appellant’s brief, the towing and impound division had become part of the 

Louisville Metro Police Department at the time the Memorandum of Understanding was drafted 

in 2015.
-5-

on Sundays. The Memorandum of Understanding explains that tow lot employees 

are treated differently because they have a different work schedule and they are 

guaranteed a forty-eight-hour workweek. 

On January 31, 2017, the trial court denied appellant’s motion for 

summary judgment, finding that the CBA was “unambiguous in granting workers 

in the Towing and Impound Division the right to receive double pay for work they 

perform on Sundays.” It further found no mutual mistake, noting 

Though the extrinsic evidence on which Defendant relies 

does contain general, conclusory statements that the 

Letter Agreement was drafted contrary to the parties’ 

intentions, it does not provide specific facts from which 

the court could determine that the modification was the 

result of a mistake, such as if the parties were laboring 

under a faulty assumption as to the facts existing at the 

time they modified the collective bargaining agreement 

or if a clerical error had occurred in drafting the 

modification. As a result, Defendant is not entitled to a 

reformation of the contract on the grounds of mistake.

In denying appellant’s motion for summary judgment, the trial court 

granted judgment in favor of appellees as to appellant’s liability for violating 

Kentucky’s Wage and Hour Act.3 Subsequently, the trial court entered an order 

ruling that appellees were entitled to recover liquidated damages pursuant to KRS 

337.385(1). A final judgment was entered on April 10, 2020 awarding appellees 

 

3 The trial court did not explicitly address the employees’ claim for breach of contract in its order 

denying summary judgment. However, we will proceed as if the trial court’s judgment implicitly 

included this claim. 
-6-

$788,368.86 in unpaid wages, liquidated damages, attorney fees, costs and 

prejudgment interest. This appeal followed. 

Our standard of review on appeal of a 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). The trial court must view the 

record “in a light most favorable to the party opposing the motion for summary 

judgment and all doubts are to be resolved in his favor.” Steelvest v. Scansteel 

Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is 

proper only “where the movant shows that the adverse party could not prevail 

under any circumstances.” Id.

As an initial matter, we must address the deficiency of appellant’s 

brief. Its argument section fails to make “reference to the record showing whether 

the issue was properly preserved for review and, if so, in what manner” as required 

by CR4 76.12(4)(c)(v). We require a statement of preservation: 

so that we, the reviewing Court, can be confident the 

issue was properly presented to the trial court and 

therefore, is appropriate for our consideration. It also has 

a bearing on whether we employ the recognized standard 

of review, or in the case of an unpreserved error, whether 

palpable error review is being requested and may be 

granted. 

 

4 Kentucky Rules of Civil Procedure.
-7-

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).

“Our options when an appellate advocate fails to abide by the rules 

are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief 

or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the 

brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. 

App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Because 

the record is small, and we have been able to determine appellant’s arguments 

were properly preserved, we will ignore the deficiency and proceed with the 

review. 

We note that appellant has not challenged the trial court’s 

interpretation of the CBA on appeal. Instead it argues it was entitled to summary 

judgment and reformation of the CBA based upon the doctrine of mutual mistake. 

It also argues it was error for the trial court to sua sponte grant summary judgment 

in favor of appellees. Appellant relies on the affidavit of Union President John 

Stovall, which states that the “Sunday double-time language . . . was never 

intended by the Union or Metro to apply to the Towing and Impoundment 

Division.” Therefore, the question before us is whether the trial court erred in 

failing to grant summary judgment based upon the doctrine of mutual mistake. 

To reform a written contract upon the equitable 

grounds of mutual mistake, the proponent of the 

reformation must satisfy these three elements: First, it 

must show that the mistake was mutual, not unilateral. 
-8-

Second, [t]he mutual mistake must be proven beyond a 

reasonable controversy by clear and convincing 

evidence. Third, it must be shown that the parties had 

actually agreed upon terms different from those 

expressed in the written instrument.

Nichols v. Zurich Am. Ins. Co., 423 S.W.3d 698, 702–03 (Ky. 2014) (internal 

quotation marks and citation omitted). 

Appellant contends that Stovall’s affidavit satisfies all three elements 

of mutual mistake, and because it was unrebutted, the trial court erred in denying 

its motion for summary judgment. Appellees respond that Stovall was not the 

Union president when the Letter Agreement was drafted and was not involved in 

negotiating or drafting the CBA or Letter Agreement; therefore, Stovall had no 

personal knowledge as required by CR 56.05 and the affidavit cannot be relied 

upon as evidence of the parties’ intent. 

CR 56.05 requires that affidavits in support of summary judgment be 

“made on personal knowledge, . . . set forth such facts as would be admissible in 

evidence, and . . . show affirmatively that the affiant is competent to testify to the 

matters stated therein.” Any information Stovall would have concerning the 

parties’ intent in drafting the CBA or Letter Agreement would be hearsay and 

inadmissible. 

However, appellant also relies on a Memorandum of Understanding, 

signed in 2015 by a city representative and Union representative Durie Downey. 
-9-

The Memorandum states that the parties “never intended for the employees of the 

tow lot to qualify for double pay on Sunday unless Sunday is the seventh day of 

the week they worked.” It further asserts that tow lot employees were treated 

differently from other employees because their schedule is different, and they were 

guaranteed a forty-eight-hour workweek. Appellees argue that the city 

representative, Chief of Police Steve Conrad, was not employed by the city until 

2012 and thus has no first-hand knowledge of the parties’ intent at the time the 

Letter Agreement was drafted. 

In addition to the Memorandum of Understanding, Downey testified 

in his deposition that he worked for the Union as a business agent from 2004 to 

2015 and would have been involved in negotiating the 2007 CBA and Letter 

Agreement. Downey did not specifically remember negotiating the Agreement or 

its terms; however, he testified that it was not the parties’ intention that tow lot 

employees be paid double on Sunday unless Sunday was the seventh day worked. 

We find no error in the trial court’s denial of appellant’s motion for 

summary judgment. Here, appellant presented evidence that the mistake was 

mutual in the form of the Memorandum of Understanding, signed by a city 

representative and a member of the Union. However, the document was not 

entered into until 2015, long after the Letter Agreement was drafted. Both the 

Memorandum and Downey’s testimony were some evidence that the parties had 
-10-

agreed upon terms different than in the Letter Agreement, but, as mentioned above, 

the Memorandum was retrospective, and Downey did not remember specifically 

negotiating the Letter Agreement, or its individual terms. “To reform a written 

contract upon the equitable grounds of mutual mistake . . . [t]he mutual mistake 

must be proven beyond a reasonable controversy by clear and convincing 

evidence.” Nichols, 423 S.W.3d at 702-03 (internal quotation marks and citation 

omitted). On summary judgment, “the record must be viewed in the light most 

favorable to the party opposing the motion and all doubts must be resolved in that 

party’s favor.” Toyota Motor Mfg., U.S.A., Inc. v. Epperson, 945 S.W.2d 413, 414 

(Ky. 1996) (citation omitted).

However, the court went beyond denying appellant’s motion for 

summary judgment, and sua sponte granted summary judgment in favor of 

appellees, determining that appellant was not entitled to reformation of the CBA 

because it did “not provide specific facts from which the court could determine that 

the modification was the result of a mistake[.]” On a motion for summary 

judgment, the trial court’s “primary directive . . . is to determine whether 

a genuine issue of material fact exists; if so, summary judgment is improper[.]” 

Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016) (citation omitted). “The trial 

court must review the evidence, not to resolve any issue of fact, but to discover 

whether a real fact issue exists.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 
-11-

S.W.3d 901, 905 (Ky. 2013) (citations omitted). Despite their weaknesses, the 

Memorandum of Understanding and Durie Downey’s testimony create a genuine 

issue of material fact concerning mutual mistake and therefore summary judgment 

for appellees was error. 

Accordingly, the judgment of the Jefferson Circuit Court is reversed, 

and this matter is remanded for further proceedings consistent with this opinion. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Michael J. O’Connell

I. Joel Frockt

J. Daniel Landrum

Paul V. Guagliardo

Louisville, Kentucky

BRIEF FOR APPELLEES:

P. Stewart Abney

Louisville, Kentucky