RENDERED: APRIL 1, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1774-MR

PIONEER PLAZA OF 

GEORGETOWN, LLC N/K/A 

AUGUST PROPERTIES, LLC APPELLANT 

v. 

APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE JEREMY M. MATTOX, JUDGE

ACTION NO. 18-CI-00235 

GEORGETOWN APOTHECARY, 

PLLC D/B/A GEORGETOWN 

PHARMACY; BRITTANY COX; AND 

JUSTIN BELL APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Pioneer Plaza of Georgetown, LLC (Pioneer) appeals 

an order of the Scott Circuit Court granting in part and denying in part its motion 

for summary judgment against Georgetown Apothecary, PLLC d/b/a Georgetown 
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Pharmacy, Brittany Cox, and Justin Bell (collectively Georgetown). We affirm

because Pioneer has failed to establish it is entitled to any further rent.

The underlying facts are not in dispute. Pioneer and Georgetown 

entered into a commercial lease agreement on or about May 22, 2013. The lease 

expired after three years, but prior to expiration, the parties entered into a one-year 

extension from June 30, 2016 through June 30, 2017. The extension agreement

contained a clause allowing Georgetown to terminate the lease extension at six 

months with three months’ notice and payment of the remaining six months’ rent. 

Georgetown gave the required three-month notice and vacated the premises on 

either December 31, 2016, or January 1, 2017. It paid Pioneer for the remaining 

rent balance through June 30, 2017. 

Soon after Georgetown moved out of the space, it informed Pioneer 

that one of the keys had been lost. The parties emailed back and forth regarding

both the keys and repairs to the space that remained incomplete, but they could not 

agree on an amount for the repairs. In January 2018, Pioneer leased half of the 

space to a new tenant at $700.00 per month (half the amount of rent Georgetown 

had previously paid). 

Pioneer filed the underlying complaint in the Scott Circuit Court on 

May 9, 2018. It sought: (1) unpaid rent in the amount of $16,800.00 ($1,400.00 

per month from January 1, 2017 – December 1, 2017); (2) $700.00 per month 
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unpaid rent from January 1, 2018, continuing until repairs are completed and keys 

returned; (3) common area maintenance fees through 2017, and the half of the fees 

from 2018 forward; (4) $3,250.00 for repairs to the space; and (5) return of the 

keys or the value of the keys. 

Georgetown admitted it owed for repairs to the property, but disputed 

the amount owed. Georgetown also admitted it owed common area maintenance 

fees through 2017 and further offered to re-key the premises due to the lost key. 

Georgetown filed an offer of judgment on December 13, 2018, in the 

amount of $2,500.00. The offer was apparently rejected by Pioneer, who filed a 

motion for summary judgment on July 19, 2019.1 The motion for summary 

judgment sought relief for all claims contained in the complaint, but Pioneer also, 

for the first time, claimed it was due “a 500% charge on the amount of the rents 

due and owing[.]” This was due, according to Pioneer, because by failing to return 

the key and pay for repairs, Georgetown became a holdover tenant.

On September 13, 2019, an order was entered granting the motion for 

summary judgment in part. The circuit court awarded Pioneer common area 

maintenance fees through 2017 and $3250.00 for repairs to the space. It also 

1 Pioneer argues tangentially that the circuit court entered an order granting its motion for 

summary judgment on the eve of trial and that “[h]ad the Court not proceeded in this manner, the 

parties likely would have resolved the case as a negotiated settlement was imminent.” However, 

Pioneer never withdrew its motion for summary judgment or otherwise informed the circuit court 

that the parties were in settlement negotiations.
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ordered Georgetown to rekey, using Lewis Locksmith (the locksmith designated in 

the lease), at Georgetown’s expense. 

However, the circuit court rejected Pioneer’s claims for additional 

rent. The circuit court held that, under the unambiguous terms of the lease, Pioneer 

was not entitled to rent after June 30, 2017, and Pioneer was not entitled to any 

further rent as Georgetown had already paid the rent due for the prior period. 

Apparently believing this had sufficiently disposed of Pioneer’s claims for 

additional damages, the circuit court did not address Pioneer’s claim regarding its 

right to a surcharge for a holdover tenant. 

Pioneer filed a motion to alter, amend, or vacate the order, again 

claiming that, not only was it due additional rent, but also an additional 500% 

surcharge on each month of rent. The circuit court denied the motion to alter, 

amend, or vacate, explaining that for Pioneer “[t]o argue that a lost set of keys 

merits five times the base monthly rent until the lost keys are returned is irrational 

and contrary to the agreement.” The circuit court also determined that “[Pioneer] 

cannot refuse to make the repairs and continue to charge the rent at five hundred 

percent.” 
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Pioneer’s arguments on appeal focus on its contention that it is due 

additional rent.2 Pioneer argues that Georgetown owes 500% of the monthly rent 

due each month because by failing to repair and return the key, it became a 

holdover tenant, or alternatively it argues that Georgetown owes the regular cost of 

ongoing rent for these failures. Pioneer also argues that additional rent is due 

because the payment of rent due through June 30, 2017 was not rent but instead a 

fee to vacate, with additional rent still due.

“The 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). Summary judgment “should only 

be used ‘to terminate litigation when, as a matter of law, it appears that it would be 

impossible for the respondent to produce evidence at the trial warranting a 

judgment in his favor and against the movant.’” Steelvest, Inc. v. Scansteel Service 

2 We note that Pioneer’s arguments are largely unpreserved pursuant to Kentucky Rules of Civil 

Procedure (CR) 76.12(4)(c)(v). CR 76.12(4)(c)(v) “requires appellate briefs to contain 

references to the record showing that an issue was preserved for review and in what manner, this 

Court has previously noted the importance of the firmly established rule that the trial court 

should first be given the opportunity to rule on questions before they are available for appellate 

review[.]” Keco v. Ayala, 592 S.W.3d 753, 757 (Ky.App. 2019) (internal quotation marks and 

citation omitted). We nevertheless proceed with review. See 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)).
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Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hospital Co. v. 

Rose, 683 S.W.2d 255, 256 (Ky. 1985)).

Because summary judgments involve no fact-finding, we review the 

circuit court’s decision de novo. 3D Enters. Contr. Corp. v. Louisville & Jefferson

County Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005). Further, this appeal 

involves the interpretation of a commercial lease agreement, i.e., a contract. The 

construction and interpretation of a contract is also a matter of law subject to de

novo review. Community Trust Bancorp, Inc. v. Mussetter, 242 S.W.3d 690, 692 

(Ky.App. 2007); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998).

We start by disposing of Pioneer’s assertion that it is due 500% of the 

base rent, or $7,000.00 per month from January 1, 2017 until the keys are returned 

and necessary repairs are made. CR 8.01(1) states: 

A pleading which sets forth a claim for relief, whether an 

original claim, counterclaim, cross-claim, or third-party 

claim, shall contain (a) a short and plain statement of the 

claim showing that the pleader is entitled to relief and (b) 

a demand for judgment for the relief to which he deems 

himself entitled. Relief in the alternative or of several 

different types may be demanded.

 We acknowledge that our highest Court has interpreted the 

requirements of CR 8.01 liberally, holding “[i]t is not necessary to state a claim 

with technical precision under this rule, as long as a complaint gives a defendant 

fair notice and identifies the claim.” Grand Aerie Fraternal Order of Eagles v.
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Carneyhan, 169 S.W.3d 840, 844 (Ky. 2005). However, Pioneer’s complaint gave 

Georgetown no notice whatsoever that it claimed it was owed $7,000.00 per month 

from January 2017 forward. Pioneer never requested permission to amend its 

complaint to include this claim pursuant to CR 15.01. Indeed, the first time 

Pioneer mentioned it was in a two-sentence paragraph in the middle of its 

memorandum in support of its motion for summary judgment. 

As a matter of law, liability could not be found, and damages could 

not be awarded on a claim that was never pled. See Belcher v. Hunt, 248 S.W.2d 

717, 719 (Ky. 1952) (explaining that judgments “must conform to the pleadings” 

or they will be “void as to the excessive relief granted”). 

Additionally, we believe this claim lacks all merit. The basis of 

Pioneer’s reasoning for charging 500% rent is found in Article VI, Section 6.09 of 

the lease. It states, in relevant part:

At the termination of the Lease, [Georgetown] shall 

surrender the demised premises in good condition and 

repair, and shall surrender all keys for the Leased 

Premises to [Pioneer] and shall inform [Pioneer] of all 

combinations on locks, safes and vaults, if any, in the 

Leased Premises. Should [Georgetown] hold over 

without [Pioneer’s] written consent, [Georgetown] agrees 

to pay five (5) times the base monthly rent for each 

month or partial month in holdover. 

Although the same paragraph in the lease discusses Georgetown’s 

duties upon surrendering the lease and what will occur if Georgetown holds over, 
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we do not believe Georgetown’s failure to repair or surrender all keys makes it a 

holdover tenant. The term holdover is not defined in the lease, so we will give it 

its ordinary definition. As defined in Black’s Law Dictionary (11th ed. 2019), 

under tenant, a “holdover tenant” is “[s]omeone who remains in possession of real 

property after a previous tenancy (esp. one under a lease) expires, thus giving rise 

to a tenancy at sufferance.” 

This is consistent with the how a “hold over” tenant is contextually 

defined in the landlord-tenant holdover statute. See Kentucky Revised Statutes 

(KRS) 383.160 (explaining that if a tenant does not secure the right by express 

contract “the right to remain longer” after the expiration of the lease that the tenant 

“hold[s] over” and certain consequences follow).

It is undisputed that Georgetown vacated the premises. Additionally, 

Pioneer failed to make any argument that it was precluded from accessing the 

property, rekeying, and making repairs itself so that it could rent out the other half 

of the space. 

There is nothing in the language of the lease, besides the proximity of 

the sentences related to Georgetown’s duties upon the termination of the lease to 

the provisions of what will happen should Georgetown hold over, to make us 

interpret the lease as Pioneer has. There is no basis for concluding that a holdover 

tenant includes a tenant who has vacated the space but has not returned a key 
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and/or has failed to pay for repairs. If Pioneer wished to redefine the term 

holdover tenant to include a tenant who failed to satisfy these requirements, it 

needed to specifically define the term holdover to include these actions. 

As we have rejected that Georgetown is a holdover tenant, we agree 

with the circuit court that no additional rent could be due based on Georgetown

failing to return all the keys and failing to make repairs. We agree that the circuit 

court properly determined that the appropriate remedy for the lost key was for 

Georgetown to rekey the premises at its own expense with the locksmith specified 

in the lease. 

As to the failure to repair, Article V, Sections 5.01 and 5.02 both state 

that, in relation to fixtures installed and alterations to the space, respectively, 

“[Pioneer] may restore and repair unit to original condition with the cost to be paid 

by [Georgetown].” Nowhere does the lease indicate that rent will continue to 

accumulate if Pioneer puts off making any such repairs. Although Pioneer 

attempted to reach an agreement with Georgetown regarding the cost of repairs 

before filing a lawsuit, the terms of the lease do not require that Georgetown agree 

to the cost of the repairs, only that it pay the costs incurred by Pioneer. The circuit 

court awarded Pioneer the cost of said repairs pursuant to the terms of the lease and 

we discern no reason for disturbing its order. 
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Pioneer finally argues that the money which Georgetown paid to 

vacate the property early, which was equivalent to the rent due for six months, was 

not applicable to any rent owed by Georgetown, but rather, is “for the privilege of 

exercising the right to cancel the lease early.” We disagree. 

Although the same terms of the original lease applied, when the 

parties extended the lease, they additionally agreed that

[Georgetown] shall have the one time right to vacate the 

property at six months, with a three month notice, of their 

intent to exercise this option. The remaining balance of 

six months shall be due and payable, including the 

remaining common area charges based on the last 

amount paid for this charge.

Nowhere in the agreement does it state that the remaining balance 

paid by Georgetown is applicable to anything other than rent. We agree with the 

circuit court that Georgetown paid rent through June 30, 2017, and Pioneer cannot, 

under the terms in the original lease or the agreement to extend the lease, collect an 

additional $1,400/month in rent from January – June, 2017.

For the foregoing reasons, the judgment of the Scott Circuit Court is 

affirmed. 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Noel Mark Botts

Harrodsburg, Kentucky

BRIEF FOR APPELLEES:

Richard M. Rawdon, Jr.

Georgetown, Kentucky