RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-001334-MR

MOHAMMED LEMINE OULD AHMED APPELLANT

APPEAL FROM BOONE CIRCUIT COURT

v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE

ACTION NO. 17-CI-00285

EL HASSEN OULD MOHAMED APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, 

JUDGES.

CLAYTON, CHIEF JUDGE: Appellant, Mohammed Lemine Ould Ahmed

(“Ahmed”), appeals the Boone Circuit Court’s summary judgment order 

dismissing his case against Appellee, El Hassen Ould Mohamed (“Mohamed”). 

For the following reasons, we affirm.
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BACKGROUND

This case involves a business dispute between Ahmed and Mohamed. 

On February 27, 2017, Ahmed filed a complaint against Mohamed alleging breach 

of contract, wrongful termination, loss of profits, assault, battery, fraud, 

conversion, and punitive damages. Ahmed alleged that he and Mohamed entered 

into contracts in December 2015 and June 2016 relating to three businesses: 

H.I.S., LLC (“the LLC”), Dixie Meat Market, and Dixie Tires. Ahmed claimed 

Mohamed breached the contracts by failing to give him the agreed-upon salary and 

a certain percentage of the profits. Also, despite his investment in the companies

as a part-owner, Ahmed claimed that Mohamed treated him like an employee by 

sending him a letter terminating their Operating Agreement. Ahmed further 

alleged that he was injured on October 3, 2016, after being physically removed 

from the business location of the LLC.

In his answer, Mohamed denied that Ahmed had a partnership interest 

in any of the businesses and claimed he did not owe Ahmed any salary or 

percentage of the profits. In addition, he claimed the police removed Ahmed from 

the business location because he destroyed property after learning of his 

termination. 

On June 15, 2017, pursuant to Kentucky Rules of Civil Procedure 

(CR) 24.01, the LLC moved to intervene in the case because of its interest in 
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Ahmed’s termination from the company and to assert claims against Ahmed for 

theft by unlawful taking, conversion, and fraud. According to the intervening 

complaint, Ahmed was an employee/manager of Airport Yellow Cab, an assumed 

name of the LLC. The LLC claimed that Ahmed used company checks, totaling 

$56,000, to pay his personal creditors. Also, Ahmed purchased $80,000 worth of 

metal detectors with company funds and was supposed to sell them for a profit in 

Mauritania, the home country of both Ahmed and Mohamed. However, the LLC 

alleged Ahmed only returned with $9,000 and kept the rest of the proceeds for 

himself. As a result, the LLC terminated its agreement with Ahmed. Ahmed then 

damaged a computer and office equipment, which precipitated his arrest for 

criminal mischief, assault, and terroristic threatening. 

On June 27, 2017, the trial court granted the LLC’s motion for leave 

and entered the intervening complaint of record. The trial court also ordered 

Ahmed to file an answer or otherwise respond to the intervening complaint within 

twenty days, which Ahmed did not do. 

One year later, because no pretrial steps had been taken, the Boone 

Circuit Court Clerk issued a notice to dismiss for lack of prosecution pursuant to 

CR 77.02(2). The parties were ordered to appear for a show cause hearing on 

August 31, 2018.
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Two days before the hearing, Ahmed filed a motion to keep the case 

on the trial court’s active docket along with an affidavit from his attorney

explaining that Ahmed had been dealing with the underlying criminal case. He

also notified the trial court that mediation was scheduled for September 2018. As a 

result, the trial court continued the show cause hearing until December 14, 2018.

On November 28, 2018, Ahmed filed another motion to keep the case 

on the trial court’s active docket. Ahmed claimed Mohamed refused to participate 

in the previous mediation but had now agreed to participate. Thus, the trial court 

continued the show cause hearing until April 26, 2019.

Before the April 2019 show cause hearing, Mohamed filed a motion 

for summary judgment claiming the parties had no contract, so Ahmed’s claim for 

breach of contract must fail. Mohamed also claimed that Ahmed failed to answer 

discovery requesting him to identify facts, documents, or witnesses to support his 

claims for assault, battery, fraud, and conversion, so those claims must fail.

1

 

Finally, he claimed that Ahmed failed to prove oppression, fraud, or malice, so 

Ahmed’s punitive damages claim must fail.

 

1 Mohamed attached the requests for admission, interrogatories, and requests for production of 

documents he propounded to Ahmed on June 9, 2017 but did not attach Ahmed’s answers to the

requests for admission, which were served on June 29, 2017. If Ahmed answered Mohamed’s

interrogatories and requests for production of documents, they are not in the record and Ahmed 

did not attach those to his summary judgment response.
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In his response to Mohamed’s summary judgment motion, Ahmed 

submitted various documents to the trial court trying to establish he had a 

contractual relationship with Mohamed. He also filed a motion for leave to 

respond to “Defendant’s Counterclaim/Complaint,” which the trial court took as a 

motion for leave to file an answer to the LLC’s intervening complaint.

2

On April 16, 2019, the trial court heard Mohamed’s motion for 

summary judgment and Ahmed’s motion for leave to file a “response to 

Defendant’s Counterclaim/Complaint.” Based on the video record, Ahmed’s 

attorney apparently notified the trial court’s secretary he would be late for the 9:00

a.m. motion hour and requested the motions be called after 9:30 a.m. Around 9:45 

a.m., at the foot of the docket, the trial court called the case. Ahmed’s attorney 

was still not present. The trial court entered an order denying Ahmed’s motion. 

The trial court then ordered Mohamed to submit a reply in support of his motion 

for summary judgment and stated the motion would then be taken under 

submission. The trial court also remanded the case from the April 26, 2019 show 

cause docket.

On April 26, 2019, Ahmed’s attorney filed a motion to withdraw

stating that Ahmed was going to obtain another attorney and requested that Ahmed 

 

2 Ahmed tendered an answer to the LLC’s intervening complaint a few days after filing his 

motion for leave.
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be given thirty days to retain other counsel. In addition, Ahmed filed a “renewed 

motion for leave to file response to defendant’s counterclaim/complaint.” In 

support of this motion, Ahmed’s attorney claimed that he missed the April 16, 

2019 hearing because of a “criminal case emergency” in another county and, 

because no prejudice occurred, requested he be allowed to file an answer to the 

intervening complaint.

At the May 7, 2019 hearing of Ahmed’s two motions, the trial court 

told Ahmed’s attorney that the motion to withdraw was not compliant with the 

Local Rules because his client had not signed the motion and no substitute attorney 

was present for Ahmed.3 Therefore, the trial court deemed the motion to withdraw 

as “withdrawn.”4 As for Ahmed’s “renewed motion for leave,” the trial court

stated that Ahmed could not renew a motion that was already denied but agreed to 

treat the “renewed motion” as a motion to reconsider and took it under submission.

 

3 Pursuant to the Boone Gallatin Local Rules, Rule 4C, “Withdrawal of Attorney of Record,” an 

attorney “shall move for permission to withdraw as counsel for a party only: (1) [u]pon his or 

her written request with the written consent of his or her client and the entry of appearance of a 

substitute attorney of record, or (2) [u]pon his or her written request with notice to the client and 

a showing of good cause with the consent of the court and upon such terms as the court shall 

impose.”

4

In its June 20, 2019 order, the trial court stated it denied Ahmed’s attorney’s motion to 

withdraw due to non-compliance with the Local Rules and because the motion “was contingent 

upon (Ahmed) obtaining other counsel.” Ahmed raises no issue on appeal regarding his 

attorney’s motion to withdraw.
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Subsequently, Ahmed filed three more motions: (1) motion 

requesting the trial court to stay its ruling on the summary judgment motion; (2)

motion for leave to file an amended complaint to add a defamation claim; and (3) 

motion for a hearing to take testimony under CR 9. In response, Mohamed stated 

that Ahmed’s motions failed to include supporting memorandums in violation of 

the Local Rules, Ahmed’s proposed amended complaint was futile to his claims, 

and CR 9 does not authorize hearings to take testimony. 

At the June 18, 2019 hearing of Ahmed’s motions, Ahmed argued that 

he was still unearthing details of the case, while Mohamed urged the trial court to 

grant his pending summary judgment motion. The trial court expressed concern 

that “too little” had been done in the case and it may be “too late,” but made no 

ruling that day. 

On June 20, 2019, the trial court entered an order addressing the

various pending motions. First, the trial court denied Ahmed’s motions to stay, for 

leave to file an amended complaint to add a defamation claim, and for a hearing to 

take testimony under CR 9. Second, the trial court granted Ahmed’s motion for 

leave to file an answer to the LLC’s intervening complaint and ordered him to file 

an answer within fifteen days. Third, the trial court granted Mohamed’s summary 

judgment motion. In its ruling, the trial court held that the purported contracts, 

although signed by Mohamed, were signed in his capacity as owner of the LLC. 
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Therefore, Ahmed’s breach of contract claim against Mohamed failed. For the 

remaining claims, the trial court found that Ahmed failed to set forth the required 

elements of the claims in his complaint. And, even if it ignored this deficiency

under the notice pleading standard, the trial court found Ahmed failed to respond 

to discovery with a factual basis to prove his claims. While acknowledging that

Ahmed presented some evidence with his summary judgment response, Ahmed 

failed to explain how these exhibits established his claims. Finally, the trial court

ordered that, unless trial was scheduled or some other resolution was pending, the 

case would be on its show cause docket for August 16, 2019, to explain why the 

case should not be dismissed in its entirety for lack of prosecution.

Despite the order permitting Ahmed to file an answer out-of-time, 

Ahmed did not file his answer to the LLC’s intervening complaint. Subsequently, 

on August 5, 2019, the LLC filed a CR 41.01 notice of voluntary dismissal of its 

intervening claims against Ahmed. And, at the August 16, 2019 show cause 

hearing, the parties agreed that the case had been dismissed in its entirety with the 

voluntary dismissal of the LLC.

5

 This appeal followed.

 

5 The trial court did not enter a formal dismissal order, although the trial court and parties agreed 

the case was dismissed at the August 16, 2019 hearing. Also, because Ahmed never filed an 

answer to the LLC’s intervening complaint, pursuant to CR 41.01, the LLC could dismiss its 

claims “without order of court” and, thus, no dismissal order was needed.
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ANALYSIS 

Before addressing the merits of the appeal, we discuss Mohamed’s 

argument that Ahmed violated CR 76.12(4)(c) by failing to cite to the record in the 

Appellant’s brief. Under this Rule, an appellant must provide “ample references to 

the specific pages of the record” in his “Statement of the Case” and in his 

“Argument.” When a party fails to comply with CR 76.12, the Court may ignore 

the flaws and grant review; strike the brief or its offending portions; or review the 

issues for manifest injustice only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 

2010). 

Failing to comply with CR 76.12 is “an unnecessary risk the appellate 

advocate should not chance.” Smothers v. Baptist Hospital East, 468 S.W.3d 878, 

881 (Ky. App. 2015). “Although noncompliance with CR 76.12 is not 

automatically fatal, we would be well within our discretion to strike the brief or 

dismiss the appeal” for Ahmed’s failure to comply with the rules. Id. at 882. 

However, when Mohamed called the CR 76.12 deficiency to Ahmed’s attention in 

the Appellee’s brief, Ahmed corrected the deficiency in his reply brief by 

providing post hoc citations to the record. Because Ahmed made a “good faith 

effort” to rectify the deficiency and comply with CR 76.12, we will not impose a 

harsh sanction, but remind counsel that such latitude may not be extended in the 
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future. Daugherty v. Commonwealth, 467 S.W.3d 222, 233-34 (Ky. 2015). With

that said, we turn to the summary judgment order at issue in this case.

Under CR 56.03, summary judgment is authorized “if the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” To be granted summary judgment, the movant must prove no genuine issue 

of material fact exists, and he “should not succeed unless his right to judgment is 

shown with such clarity that there is no room left for controversy.” Steelvest, Inc.

v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). Also, the trial 

court must view the evidence in favor of the party opposing the motion. City of

Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). “The party

opposing a properly presented summary judgment motion cannot defeat it without 

presenting at least some affirmative evidence showing the existence of a genuine 

issue of material fact for trial.” Id.

On appeal, our standard of review 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). Furthermore, because summary judgments involve no 

fact finding, our review is de novo and we owe no deference to the conclusions of
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the trial court. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 

188, 189 (Ky. App. 2006).

We recognize that summary judgment is a “delicate matter” because it 

“takes the case away from the trier of fact before the evidence is actually 

heard.” Steelvest, Inc., 807 S.W.2d at 482. Yet, as stated in Neal v. Welker, 426 

S.W.2d 476, 479 (Ky. 1968), “[t]he curtain must fall at some time upon the right of 

a litigant to make a showing that a genuine issue as to a material fact does exist.” 

Although Ahmed argued he was still unearthing details of his case, we carefully 

outlined the procedural history of this litigation to illustrate that “[t]he hope or bare 

belief . . . that something will ‘turn up,’ cannot be made basis for showing that a 

genuine issue as to a material fact exists.” Id. at 479-80. “The purpose of

summary judgment procedure is to expedite disposition of civil cases and to avoid

unnecessary trials where no genuine issues of fact are raised.” Continental Cas.

Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). With this

in mind, we turn to the issues in this case. 

Breach of contract/wrongful termination/loss of profits

In Count I of his complaint, Ahmed alleged breach of contract, 

wrongful termination, and loss of profits. According to Ahmed, those claims are 

based on two documents: the December 2015 purported contract and the June 

2016 Operating Agreement. The December 2015 document states that Mohamed 
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is owner of the LLC and “by signing this document I am stating that (Ahmed) 

owns 33%” of the LLC. The document is signed by both Ahmed and Mohamed. 

The document is also witnessed and notarized to make it “binding and legal.” 

Meanwhile, the June 2016 Operating Agreement states that Ahmed is the Operator 

of the LLC while Mohamed is the Owner. Under this Operating Agreement, 

Ahmed was to manage the taxi business and be compensated $800 per week, plus 

25% of the Owner’s net profits. This Agreement clearly states that it is between 

the LLC and Ahmed. This Agreement also states that it “supercedes (sic) and 

controls the actions of the parties and nullifies any other oral agreements or 

understandings entered into by the parties.” Furthermore, the Agreement 

recognizes Ahmed’s “investment in time and professional services performed for 

Owner” and states Ahmed will receive 20% of the sale price if the LLC is sold. 

This Agreement is signed by Ahmed and Mohamed, as the Owner, Member, and 

Officer of the LLC, and is notarized. 

Under Kentucky law, to recover under a breach of contract claim, 

plaintiff must show the existence and breach of a contractually imposed duty. 

Kentucky Farm Bureau Mut. Ins. Co. v. Blevins, 268 S.W.3d 368, 374 (Ky. App. 

2008) (citing Strong v. Louisville & N. R. Co., 240 Ky. 781, 43 S.W.2d 11, 13 

(1931)). Further, contract interpretation is a question of law. Cantrell Supply, Inc. 

v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). 
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Here, the trial court granted summary judgment on Count I because 

the two purported contracts appeared to be signed by Mohamed “as owner” of the 

LLC. Although the trial court does not specify, its stated reasoning implies that the 

contracts were between Ahmed and the LLC, not between Ahmed and Mohamed. 

Because Ahmed did not sue the LLC, his breach of contract claim against 

Mohamed failed. 

We agree with the trial court’s decision. While the December 2015 

document is arguably between Ahmed and Mohamed, as an individual, we agree 

that the June 2016 Agreement clearly states that it is between Ahmed and the LLC. 

Moreover, the June 2016 Agreement specifically states that it supersedes any 

previous agreements or understandings between the parties, so that Agreement 

controls. See Menefee v. Rankins, 158 Ky. 78, 164 S.W. 365, 367 (1914) (holding 

a written contract complete in itself will be conclusively presumed to supersede a 

prior one related to the same subject matter). Ahmed’s breach of contract claim 

against Mohamed fails because he had a contract with the LLC, not Mohamed.

Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 579 (Ky. 

2004) (“obligations arising out of a contract are due only to those with whom it is 

made; a contract cannot be enforced by a person who is not a party to it or in 

privity with it”). Therefore, we affirm summary judgment as to Count I.
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Assault and battery/vicarious liability; fraud/conversion; and punitive 

damages

For Counts II, III, and IV6 of his complaint, Ahmed alleged assault 

and battery and vicarious liability, fraud/conversion, and punitive damages, 

respectively. We briefly review the elements of these claims.

For Count II, Ahmed had to prove “the threat of unwanted touching of 

the victim, while battery requires an actual unwanted touching.” Banks v. Fritsch, 

39 S.W.3d 474, 480 (Ky. App. 2001). And, for “vicarious liability,” Ahmed had to 

prove the tortious acts of Mohamed’s unnamed “associates,” in physically 

removing him from the LLC’s location as stated in Ahmed’s complaint, could be 

imputed to Mohamed. American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 

688, 692 (Ky. 2002). 

For Count III, to establish fraud, Ahmed had to prove: (1) Mohamed 

made a material representation to Ahmed; (2) which was false; (3) which was 

known by Mohamed to be false or made recklessly; (4) that Mohamed intended 

Ahmed to act upon the misrepresentation; (5) that Ahmed reasonably relied upon 

the misrepresentation; and (6) the misrepresentation caused injury to Ahmed. 

Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, 747 (Ky. 

2011). For conversion, Ahmed had to prove: (1) he had legal title to converted 

 

6 Ahmed’s complaint and amended complaint mistakenly label Count IV as a duplicate “Count 

III.”
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property; (2) he had the right to possess the property at the time of conversion; (3) 

Mohamed exercised dominion over Ahmed’s property; (4) Mohamed intended to 

interfere with Ahmed’s possession; (5) Ahmed demanded return of the property 

and Mohamed refused; (6) Mohamed’s act was the legal cause of Ahmed’s loss of 

the property; and (7) Ahmed suffered damages from the loss of the property. Jones 

v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. App. 2014). 

Finally, for Count IV, to prove punitive damages, Ahmed had to prove 

that Mohamed acted toward him with oppression, fraud, or malice. Kentucky 

Revised Statutes (KRS) 411.184(2).

In its order, the trial court addressed these foregoing claims 

collectively and stated that, although Ahmed provided several exhibits in response 

to Mohamed’s summary judgment motion, he failed to explain how the exhibits 

established the various elements of these claims. The trial court cited 

Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) for the proposition that it 

should not have to comb through the exhibits to determine if there is support of a 

party’s generic assertions.

Once again, we agree with the trial court. In responding to a summary 

judgment motion, Ahmed had a duty to put forth affirmative evidence showing the 

existence of a genuine issue of material fact regarding his claims. While Ahmed 

put forth evidence in the form of exhibits, he failed to show how this evidence 
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created a genuine issue of material fact. Instead, Ahmed’s summary judgment 

response and his appellate briefs focus on why his case should not be dismissed for 

failure to prosecute. Although Ahmed’s case was on the trial court’s show cause 

docket multiple times, the trial court ultimately dismissed the case on summary 

judgment grounds, not pursuant to CR 41.01 or CR 77.02. 

To be fair, the Court examined the exhibits Ahmed presented to the 

trial court. Aside from the December 2015 and June 2016 documents we discussed 

above, Ahmed submitted an October 3, 2016 hospital document where he was 

diagnosed with injuries “due to physical assault.” Ahmed also submitted an 

October 4, 2016 letter from a law firm representing the LLC, which terminated the 

Operating Agreement because Ahmed “repeatedly failed to perform (his) duties” 

and was in material breach by “failing to show up for work for weeks at a time.” 

In addition, Ahmed submitted a cell phone agreement, documents relating to Dixie 

Meat Market, LLC listing both Ahmed and Mohamed as members of that LLC, 

copies of H.I.S., LLC checks payable to unexplained persons and entities, his 

responses to Mohamed’s requests for admission, and some of Mohamed’s 

discovery responses. None of the exhibits were accompanied by an affidavit or 

other type of authenticating documentation. And, Ahmed failed to explain the 

significance of the exhibits in his pleadings and briefs. The exhibits were simply 

“dumped” in the record without explanation. 
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Without affirmative evidence showing a genuine issue of material 

fact, we conclude that the trial court properly held that Ahmed’s remaining claims

in Counts II-IV must fail. Mohamed was entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s order granting 

summary judgment to Mohamed.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Erik J. Wilbekin

Covington, Kentucky

BRIEF FOR APPELLEE:

Todd V. McMurtry

Justin Whittaker

Fort Mitchell, Kentucky