IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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ACTION.
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RENDERED: SEPTEMBER 24, 2020

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0501-DG

KAY SHELTON, INDIVIDUALLY AND AS 

ADMINISTRATRIX OF THE ESTATE OF 

JERRY SMITH

APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2017-CA-002007

ROCKCASTLE CIRCUIT COURT NO. 2016-CR-00112

AMY HOLTKAMP APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Kentucky Rule of Civil Procedure (CR) 56.03 requires at least ten days’ 

notice to the adverse party before the time fixed for the hearing on a motion for 

summary judgment. At a hearing upon less than the required ten-day notice, 

the trial court granted Amy Holtkamp’s partial summary judgment motion and 

awarded her compensatory damages against Kay Shelton. Shelton appealed 

and the Court of Appeals affirmed, holding that Shelton’s failure to respond to 

the motion, attend the hearing, or otherwise make her objections known 

constituted a waiver of the ten-day notice requirement. The Court of Appeals 

further held that the trial court had sufficient evidence to support the damages 

awarded. On discretionary review, we affirm the Court of Appeals’ decision.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Jerry Smith died with a will that made dispositions to his only child, 

Holtkamp, and his girlfriend, Shelton, who were also appointed coadministrators of his estate. At the time of his death, Smith owned or had an 

interest in several pieces of real estate. Some of the properties, including an 

84-acre farm devised to Holtkamp, were owned solely by Smith. Others he 

owned with Shelton in joint tenancy with right of survivorship. All the 

properties were encumbered by a $200,000 mortgage to Citizens Bank.

While serving as co-administrator of Smith’s estate, Shelton negotiated 

on her own behalf with Citizens Bank to pay $90,000 to the bank in exchange 

for a release on all the property she owned with Smith or inherited from him. 

Upon doing so, the 84-acre farm, the only real property Holtkamp received 

under the will, was left to secure the debt to the bank. The bank subsequently 

foreclosed its mortgage on the farm to collect its debt.

The present case arises out of Holtkamp’s suit against Shelton for a 

breach of a fiduciary duty for alleged self-dealing as co-administrator of Smith’s 

estate. During the pendency of the case, Shelton’s lawyers withdrew as her 

counsel of record. Several months later, Holtkamp served Shelton with 

requests for admission in which Shelton was asked to admit that she owed a 

fiduciary duty to Holtkamp that she breached by negotiating her own separate 

release from the mortgage secured by the property she owned with Smith or 
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inherited under the will.1 Shelton apparently never responded to the requests 

for admission.

Holtkamp ultimately moved for partial summary judgment, contending in 

her motion that Shelton’s failure to respond to the requests for admission 

eliminated all factual issues of liability.2 Holtkamp submitted with her motion 

an affidavit in which she stated that she suffered compensatory damages of 

$80,000 based upon the local PVA’s valuation of the lost farm. Holtkamp 

indisputably failed to give at least ten days’ notice of this hearing as required 

by CR 56.03. Shelton did not appear for the hearing, and the trial court 

granted partial summary judgment and damages of $80,000. Holtkamp’s claim 

for punitive damages remained unresolved by the trial court, but the trial court 

designated the partial summary judgment as “final and appealable,” noting no 

just reason to delay.3

A month after entry of the partial summary judgment, Shelton retained 

new counsel who did not move the trial court to set aside the judgment. 

Instead, Shelton filed a notice of appeal arguing that the trial court erred by 

failing to comply with the ten-day notice requirement and awarding damages 

on insufficient evidence. The Court of Appeals affirmed the judgment.

 

1 CR 36.01(1).

2 CR 36.01(2).

3 In an apparent allusion to CR 56.04, Shelton mentions in the Introduction to 

her brief to this Court that the partial summary judgment was “improperly designated 

as final and appealable.” But we consider that argument abandoned on appeal 

because it is not addressed in the brief.
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II. ANALYSIS

A. Standard of Review

Because the grant or denial of summary judgment is a legal question, 

involving no factual findings by the trial court, this Court reviews the trial 

court’s decision de novo.4 Therefore, “the standard of review on appeal of 

summary judgment is whether the trial court correctly found that there was no 

issue as to any material fact and that the moving party is entitled to summary 

judgment as a matter of law.”5

1. Shelton waived her right to claim insufficient notice of the 

summary judgment hearing.

We agree with the Court of Appeals’ holding that Shelton waived her right 

to claim insufficient notice. A hearing for summary judgment requires the 

moving party to provide at least ten-days’ notice of the hearing to the 

nonmoving party.6 If notice is insufficient, the opposing party must make the 

trial court aware either before or at the hearing.7 But if summary judgment is 

nonetheless granted, a party may within a reasonable time seek relief from the 

final judgment for insufficient notice.8

Whether waiver results from a party’s failure to object to insufficient 

notice is circumstantial. Waiver is an intentional relinquishment of a right, but 

 

4 Cmty. Fin. Serv. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).

5 Scrifes v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

6 CR 56.03 (“[T]he motion shall be served at least ten days before the time fixed 

for the motion.”).

7 Equitable Coal Sales, Inc. v. Duncan Mach. Movers, Inc., 649 S.W.2d 415, 416 

(Ky. App. 1983). 

8 CR 60.02. 
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waiver may be inferred from the party’s conduct.9 For example, in Equitable 

Coal Sales, Inc. v. Duncan Machinery Movers, Inc., the non-moving party’s 

failure to object to the hearing date or make other objections constituted a 

waiver of the right to contest insufficient notice.10 But a showing that the party 

was prejudiced because he had less than ten-days’ notice may direct the court 

to find the issue has not been waived.11 Similarly, this Court has long held 

that the complete failure to appear or respond will not result in a default 

judgment being vacated on appeal absent a showing of good cause.12

Here, the parties do not dispute that less than ten-days’ notice was given 

to Shelton. Holtkamp’s counsel’s certificate of record shows that he mailed the 

motion and notice of hearing to Shelton only a few days before the hearing was 

scheduled. But Shelton has never contended she failed to receive the motion 

before the scheduled hearing. She failed to raise deficiency of notice before the 

hearing, she failed to appear at the hearing, and she failed to request relief 

from the trial court after the hearing. This conduct is like that in Equitable 

Coal Sales in which the right to contest insufficient notice was waived.

13 So 

absent a showing of prejudice, Shelton’s right to contest the adequacy of notice 

was waived. 

 

9 Bates v. Grain Dealers Nat’l Mut. Fire Ins. Co., 283 S.W.2d 3, 5 (Ky. 1955).

10 Equitable Coal Sales, at 416. 

11 Id. at 416.

12 Ryan v. Collins, 481 S.W.2d 85, 89 (Ky. 1972) (upholding default judgment

despite procedural irregularities, such as lack of certification that process had not 

been served, because they did not result in prejudice). 

13 Equitable Coal Sales, at 416.
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Importantly, Shelton, has not provided evidence that she was prejudiced 

by the insufficient notice. She does not contend that she would have been able 

to offer any dispute of material fact at the hearing. Rather, Shelton contends 

that a failure to appear cannot be an “intentional relinquishment of a right.”14 

We disagree. A failure to appear without a showing that it was because of 

insufficient notice, accompanied by no proper objection at any time results in 

waiver.15

Further, as Shelton acknowledges, waiver can be inferred from 

conduct.16 While Shelton’s original attorneys withdrew from representation 

after Shelton’s Answer was filed, she did not retain new counsel until roughly 

six months later. Further, she did not respond to discovery requests, 

specifically the requests for admission. It was only after summary judgment 

was entered that Shelton retained her current attorney. These actions create a 

strong inference of an intentional relinquishment of the right to contest the 

sufficiency of notice. Therefore, because Shelton failed to make objections 

before the hearing, attend the hearing, or request relief from the final judgment 

after its entry, the sufficiency of notice required by CR 56.03 was waived on 

appeal. 

2. There was sufficient evidence to conclude that no issue of material 

fact existed in the case. 

We also affirm the Court of Appeals’ holding that the motion for 

summary judgement was properly granted. Summary judgment will be granted 

 

14 Id. at 416.

15 Id.; Collins, 481 S.W.2d at 89.

16 Equitable Coal Sales, at 416.
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when the moving party puts forth evidence through pleadings, interrogatories, 

stipulations, admissions, and affidavits that no material issue of fact exists in 

the case.17 To survive summary judgment, the opposing party must put forth 

similarly admissible evidence that there is a disputed material fact.18 The 

evidence will be viewed in a light most favorable to the opposing party and the 

movant must show that the opposing party is extremely unlikely to prevail.19

A plaintiff moving for summary judgment for breach of fiduciary duty 

would need to show that there is no dispute that the defendant owed her a 

fiduciary duty, that the duty was breached, and caused her injury resulting in 

damages.20 When damages are awarded at the summary judgment stage, they 

are fixed by the evidence provided in support of the motion.21 Damages cannot 

be speculative, but significantly, “where it is reasonably certain that damage 

 

17 CR 56.03; Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 482 (Ky. 

2001) (“Finally, under both the Kentucky and the federal approach, a party opposing a 

properly supported summary judgment motion cannot defeat it without presenting at 

least some affirmative evidence showing that there is a genuine issue of material fact 

for trial.”).

18 Id. at 482 (“The trial judge must examine the evidence, not to decide any 

issue of fact, but to discover if a real issue exists. It clearly is not the purpose of the 

summary judgment rule, as we have often declared, to cut litigants off from their right 

of trial if they have issues to try.”).

19 Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). 

20 Baptist Physicians Lexington, Inc. v. New Lexington Clinic, P.S.C., 436 S.W.3d 

189, 192 (Ky. 2013).

21 CR 56. 03; Spencer v. Woods, 282 S.W.2d 851, 852 (Ky. 1955) (“ . . . While 

damages in this type of case may be difficult to prove, nevertheless they are not 

conjectural and speculative as a matter of law. If, on a trial, Spencer should be able to 

prove, beyond the realm of speculation, that had the crop been properly tended, as 

agreed, it would have had a greater value than was realized from it, he would be 

entitled to a recovery.”).
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has resulted, mere uncertainty as to the amount does not preclude one's right 

of recovery . . . . ” 22

In the current case, Holtkamp filed a motion for summary judgment 

against Shelton for breach of fiduciary duty. Her motion was based primarily 

on Shelton’s failure to respond to the request for admissions. Because 

unanswered admissions are deemed admitted, Holtkamp’s motion provided 

evidence that Shelton owed her a fiduciary duty as co-administrator and cobeneficiary of Smith’s estate, and that Shelton breached that duty by serving a 

release of Citizens Bank’s interest in the jointly owned property in partial 

satisfaction of Smith’s debt. The admissions established that Shelton’s breach 

of her fiduciary duty caused Holtkamp’s inheritance to be the only security for 

the remaining debt owed to the bank. 

Additionally, in an attached affidavit Holtkamp alleged her damages to be 

$80,000 based on the county’s Property Valuation Administrator’s valuation of 

the 84-acre farm. Shelton, on the other hand, did not dispute any of these 

allegations. The Court of Appeals did not err in its holding that Holtkamp’s 

affidavit containing the PVA’s valuation was sufficient proof of damages for the 

trial court to award damages. As previously stated, a court in considering a 

motion for summary judgment may consider the pleadings, interrogatories, 

stipulations, admissions, and affidavits provided by the moving party.23 The 

 

22 Curry v. Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009) (citing Roadway 

Express. Inc. v. Don Stohlman & Assocs., Inc., 436 S.W.2d 63, 65 (Ky. 1968)).

23 CR 56.03.
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evidence of damages must be admissible, but it cannot be speculative.24 So 

while Shelton correctly argues that the PVA’s valuations are not conclusive 

proof and are to be considered in light of contrary evidence, the opposing party 

must dispute the evidence with her own, or at the least, contest it as incorrect. 

Shelton did not provide evidence that the estimate was an incorrect evaluation 

of Holtkamp’s damages, and still does not contest the PVA’s estimation. 

Finally, summary judgment was appropriate because it was reasonably 

certain that Holtkamp had been injured. Damages cannot be speculative, but 

“where it is reasonably certain that damage has resulted, mere uncertainty as 

to the amount does not preclude one's right of recovery or prevent a jury 

decision awarding damages.”25 Here, Holtkamp provided evidence of her claim 

through Shelton’s admissions. These admissions provided the basis for 

damages, as they established a fiduciary duty owed to Holtkamp by Shelton, a 

breach of that duty, and resulting damages. Therefore, it was reasonably 

certain that damage to Holtkamp had resulted. The damages cannot be said to 

be arbitrary. 

III. CONCLUSION

For the reasons discussed above, we affirm the decision of the Court of 

Appeals.

Minton, CJ, Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting. 

 

24 Steelvest, 807 S.W.2d 482–83 (“Under the present practice of Kentucky 

courts, the movant must convince the court, by the evidence of record, of the 

nonexistence of an issue of material fact . . . . As declared in Paintsville Hospital, it 

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.’”) (citations omitted). 

25 Curry, 301 S.W.3d at 506.
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Lambert, J., not sitting. All concur.

COUNSEL FOR APPELLANTS:

Jerry William Gilbert

Coy, Gilbert Shepherd & Wilson

COUNSEL FOR APPELLEE: 

Michael Scott Fore

Simons & Fore, PSC