RENDERED: FEBRUARY 25, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0165-MR

HAMBURG PROPERTIES, LLC APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JULIE M. GOODMAN, JUDGE

ACTION NO. 20-CI-03152

THE GIBSON COMPANY; 

ATLANTIC APPRAISAL COMPANY; 

AND BRADLEY KEAR APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.

CALDWELL, JUDGE: Hamburg Properties, LLC (“Hamburg”) appeals from the 

Fayette Circuit Court’s dismissal of its claims against The Gibson Company,

Atlantic Appraisal Company, and Bradley Kear. We affirm. 
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FACTS

Hamburg bought property in an office condominium building in 2006. 

On October 27, 2020, Hamburg filed a complaint against Atlantic Appraisal 

Company (“Atlantic”), appraiser Bradley Kear (“Kear”), and real estate agency 

The Gibson Company (“Gibson”).

1

 According to the complaint, Hamburg had 

discovered–based on a recent appraisal by Atlantic–on or shortly after October 29, 

2019, that it owned less square feet on the third floor of the office condominium

than it believed it had purchased in 2006. 

Hamburg alleged that Gibson negligently misrepresented that 

Hamburg would be buying the full 10,000 square-foot third floor of the office 

condominium building during negotiations for the 2006 purchase–so the purchase 

price was based on Hamburg’s acquiring 10,000 square feet of space on the third 

floor. Hamburg similarly alleged that Atlantic and Kear had negligently 

misrepresented that Hamburg owned the full 10,000 square footage of the third 

floor in a prior appraisal that had been prepared for purposes of securing a bank 

loan to improve the premises. According to Hamburg’s complaint, Hamburg

 

1 Hamburg filed a complaint solely against Gibson and Atlantic on October 20, 2020, and then 

filed an amended complaint adding Kear as a defendant on October 27, 2020. Nothing else was 

filed in the case between the filing of the original complaint and the filing of the amended 

complaint. 
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expended significant sums on improving the third-floor common areas it believed 

it owned in reliance on the defendants’ representations. 

Hamburg sought damages including the difference in value and 

appreciation loss “regarding the 1,913 square feet not purchased, plus expenses 

associated with renovating common areas, plus losses related to the ability to resell the Premises, plus interest and court costs.” 

Atlantic and Kear filed a motion to dismiss or, in the alternative, 

motion for summary judgment. They argued that Hamburg’s claim was barred by 

the one-year statute of limitations in KRS2 413.140(1)(f).3 They claimed Hamburg 

had constructive notice of the square footage of the premises from the date of its 

purchase in 2006, so that the one-year statute of limitations had run more than 

thirteen years prior to the filing of the complaint. They attached to their motion, 

inter alia, a copy of an appraisal performed by Kear as an agent of Atlantic in 2007 

which was prepared for a bank regarding a construction loan sought by Hamburg. 

Gibson also filed a motion to dismiss, arguing that Hamburg’s claim 

against it was barred by the one-year statute of limitations. Gibson contended that 

 

2 Kentucky Revised Statutes. 

3

In the alternative, Atlantic and Kear argued they were entitled to summary judgment based on 

Hamburg’s lack of privity with Atlantic and Kear. They attached to their motion an appraisal of 

the premises performed by Kear as an agent of Atlantic in 2007. They noted in their motion that 

the 2007 appraisal stated on its face that it was prepared solely for the benefit of Central Bank 

and Trust. So, they argued they owed no duties to Hamburg in preparing the appraisal. 
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Hamburg had constructive notice of the square footage of the premises based on 

items in the chain of title–including the deed in which Hamburg bought the 

property in 2006 and a plat of the condominium building which was referenced in 

the deed. It also argued constructive notice of the square footage from tax bills. 

Attached to Gibson’s motion were the deed wherein Hamburg obtained the 

premises, a plat recorded about the third floor of the condominium, and Property 

Valuation Administrator (“PVA”) records. (The deed, plat, and PVA records were 

also attached to Atlantic’s and Kear’s motion.) 

The 2006 deed stated that the seller conveyed to Hamburg in fee 

simple “2700 Old Rosebud Road, Units 310 & 350, condominium units of the 

2700 Old Rosebud Road Condominium, a horizontal property regime” described in 

the recorded master deed and “as shown on the floor plan for 2700 Old Rosebud 

Road” on a recorded plat “together with such Units’ undivided percentage interests 

in the common elements of 2700 Old Rosebud Road Condominium,” along with 

other rights and interests as described by the master deed. This 2006 deed 

provided deed book references with page numbers for the master deed and the plat.

The plat showed a floor plan of the third floor of the 2700 Old 

Rosebud Road condominium. It showed Unit 310 comprising 3,992 square feet 

and Unit 350 comprising 4,095 square feet. (3,992 added to 4,095 equals 8,087 
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square feet.) It also showed a “3rd floor common area” located between Unit 310 

and Unit 350 comprising 1,913 square feet. 

The PVA records described Unit 310 as being built in 2005 and 

having 3,992 square feet and Unit 350 as being built in 2005 and having 4,095 

square feet. The square footage of Unit 310 and the square footage of Unit 350 

would together total 8,087 square feet according to PVA records–though the PVA 

records recite that the PVA makes no warranties on the information provided, 

despite its efforts to provide accurate information.

Based on the deed and the plat, the defendants contended that 

Hamburg had constructive notice of the square footage purchased in 2006, thus 

making claims stemming from any misrepresentations of the square footage clearly 

time barred–since the complaint was filed in 2020. The defendants also contended 

that Hamburg received notice of the square footage of the condominium units via 

its tax bills each year. 

Hamburg filed a response. It argued that the plat was confusing and 

did not clearly show that it owned only 8,087 square feet rather than the full 10,000 

square feet of the building on the third floor–especially since 1,913 square feet on 

the plat was denoted as “third floor common area” so that one might believe this 

particular common area only belonged to the owner of the third floor. It also 

argued that the statute should not run until it received actual notice of the true 
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square footage because of a special or confidential relationship between the parties, 

and that the statute of limitations was tolled due to the defendants’ concealment. 

The trial court conducted a hearing on the motions to dismiss. Before 

addressing when any statute of limitations would have started to run, the trial court 

first clarified that the five-year statute of limitations for breach of fiduciary duty4

was not applicable because Hamburg did not assert breach of fiduciary duty claims 

in its complaint. Instead, a one-year statute of limitations for negligence was 

clearly applicable.5 

Next, the trial court explained that Hamburg had constructive notice 

of the nature of its ownership interests in the building since the date it signed the 

deed buying the premises in 2006. The trial court opined that Hamburg did have 

an ownership interest in all 10,000 square feet in the third floor of the office 

building–including having an undivided, percentage interest in the common areas–

based on the deed and general law concerning condominiums. The trial judge 

orally stated she would grant the motion to dismiss at the end of the hearing. 

After the hearing, the trial court entered a written order granting the 

defendants’ motions to dismiss. In its written order, it adjudged that upon signing 

 

4

See generally Ingram v. Cates, 74 S.W.3d 783, 787 (Ky. App. 2002) (“There is no specific 

statutory provision providing a statute of limitations [for breach of fiduciary duty claims], and 

we therefore agree with the trial court that KRS 413.120(7), providing a five-year limitation for 

actions not arising on contract and not otherwise enumerated, governs.”). 

5

See generally KRS 413.140(1)(f). 
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the 2006 deed, Hamburg had “constructive notice as to everything affecting the 

title to the commercial office condominiums it purchased, including the actual 

square footage of such commercial office condominiums as is set forth in the chain 

of title, see Charles v. Whitt, [187 Ky. 77,] 218 S.W. 994, 997 (Ky. 1920).” The 

trial court concluded that Hamburg’s claims were time barred under the statute of 

limitations: “Because Hamburg Properties, as a matter of law, was on notice in 

2006 of the actual square footage it purchased, the one-year statutes of limitations 

prescribed by KRS 413.140 ran, Hamburg Properties [sic] claims asserted herein 

are time barred . . . .” 

The trial court thus dismissed Hamburg’s claims with prejudice.6 

The order concluded by stating: “This is a final and appealable order, there being 

no just cause for delay.” 

STANDARD OF REVIEW

An appellate court must review a trial court’s granting a motion to 

dismiss for failure to state a claim pursuant to CR7 12.02(f)8 under the non-

 

6 As it dismissed the claims with prejudice due to the claims being time barred, the trial court 

determined that Atlantic’s and Kear’s argument about lack of privity was moot so it did not reach 

that issue.

7 Kentucky Rules of Civil Procedure. 

8 Although the trial court did not explicitly state it was granting the motions to dismiss for 

failure to state a claim in its written order, all parties seemingly interpret the order as

dismissing for failure to state a legally cognizable claim in their briefs. Generally, Kentucky 

precedent has recognized that granting a motion to dismiss based on the statute of limitations is 
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deferential de novo standard. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010); 

Kendall v. Community Cab Co., Inc., 610 S.W.3d 694, 695 (Ky. App. 2020). 

Similarly, a trial court’s grant of a summary judgment motion9is reviewed under 

the de novo standard. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016). 

ANALYSIS

“When a motion is made pursuant to CR 12.02(f) for dismissal 

for failure to state a claim upon which relief may be granted, ‘the pleadings should 

be liberally construed in a light most favorable to the plaintiff and all allegations 

taken in the complaint to be true.’” Kendall, 610 S.W.3d at 695 (citing Gall v. 

Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). 

 

proper where the claim being time barred is evident from “the face of the complaint” –meaning 

the allegations therein. See Rather v. Allen County War Memorial Hospital, 429 S.W.2d 860, 

861-62 (Ky. 1968). 

9 The trial court’s order granted the defendants’ motions to dismiss–which both cited CR 12.02. 

Atlantic’s and Kear’s motion also specifically referenced CR 12.02(f) – failure to state a claim –

but Gibson’s motion did not specifically mention CR 12.02(f) or failure to state a claim. 

Although neither the parties in their briefs nor the trial court in its written order characterized the 

dismissal as a summary judgment, CR 12.02 provides in pertinent part: “If, on a motion 

asserting the defense that the pleading fails to state a claim upon which relief can be granted, 

matters outside the pleading are presented to and not excluded by the court, the motion shall be 

treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall 

be given reasonable opportunity to present all material made pertinent to such a motion by Rule 

56.” To the extent that the trial court’s order of dismissal could be viewed as granting summary 

judgment under CR 56 rather than dismissing for failure to state a claim under CR 12.02(f), we 

would reach the same result applying the same de novo standard of review as it appears that the 

trial court properly determined that the defendants were entitled to judgment as a matter of law 

and though perhaps not expressed in the exact same words, that there were no genuine issues of 

material fact for trial. See generally CR 56.03; Steelvest, Inc. v. Scansteel Service Center, Inc., 

807 S.W.2d 476 (Ky. 1991). 
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Hamburg, in its complaint, alleged misrepresentation by the real estate 

professionals. Hamburg argues that accepting the allegations in its complaint as 

true and construing them in the light most favorable to Hamburg, there is no basis 

for concluding that Hamburg should have known of its cause of action prior to the 

2019 appraisal by Atlantic. But the trial court concluded that Hamburg had 

constructive notice of the nature and extent of its ownership interests in the 

premises based on public records in the chain of title since 2006. This constructive 

notice stands outside any implications as to the real estate professionals. 

The trial court’s consideration of public records–such as deeds and a 

recorded plat–attached to the defendants’ motion to dismiss in this instance did not 

convert the motion to dismiss to one for summary judgment.10 See Netherwood v. 

Fifth Third Bank, Inc., 514 S.W.3d 558, 563-64 (Ky. App. 2017) (ordinarily a trial 

court’s consideration of items outside the pleadings would convert the motion to 

dismiss to one for summary judgment; however, consideration of public records 

 

10 We recognize that the appraisal attached to Atlantic’s and Kear’s motion was not a public 

document–unlike deeds and plats. However, the trial court’s dismissal of the action did not 

appear to depend on anything in the appraisal itself but its conclusion that Hamburg had 

constructive notice in 2006, as matter of law, of the true nature of its ownership interests in the 

condominium based on the deed and plat in the record. So, as Hamburg should have known the 

nature of its ownership interests in 2006, the trial court concluded that the statute of limitations 

for any negligent misrepresentations about the extent of its ownership interests had certainly run 

long before the negligent misrepresentation claims were filed in 2020–regardless of the contents 

of the appraisal. In any event, as we have already explained, summary judgment would have 

been proper even if the motion to dismiss had been automatically converted into a motion for 

summary judgment.
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attached to pleadings does not convert a motion to dismiss for failure to state a 

claim to a motion for summary judgment). 

The trial court applied the one-year statute of limitations in KRS 

413.140(1)(f) for civil actions relating to professional services provided by real 

estate appraisers, real estate brokers, and real estate sales associates. Hamburg 

asserts that the discovery rule in KRS 413.140(3) undisputedly applies to the 

causes of action it asserted. See KRS 413.140(3) (“In respect to the action referred 

to in paragraph (f) [civil actions against real estate appraisers or real estate agents]

or (l) of subsection (1) of this section, the cause of action shall be deemed to accrue 

within one (1) year from the date of the occurrence or from the date when the 

cause of action was, or reasonably should have been, discovered by the party 

injured.”). 

Based on the deed and other matters of public record in the chain of 

title, the trial court concluded that Hamburg had constructive notice of the nature 

and extent of its ownership interests in the condominium building. This 

constructive notice materialized from the time Hamburg was conveyed its interest 

in the premises by the 2006 deed, based on precedent such as Whitt–which the trial 

court noted was still good law and had been relatively recently cited by a federal 

court applying Kentucky law. See Fuqua v. United States, 869 F.Supp.2d 814, 821 

(W.D. Ky. 2012). 
-11-

Hamburg contends that the trial court misapplied the law in 

determining that Hamburg had constructive notice of how much square footage it 

actually owned based on the 2006 deed. As well as pointing to the significant age 

of the Whitt case, Hamburg argues that Whitt is inapplicable to the facts of this 

case and that actual notice, rather than constructive, must be demonstrated for the 

statute of limitations to run, due to some sort of special relationship between the 

parties. And Hamburg argues that the statute of limitations should be considered 

tolled due to concealment. 

Trial Court Did Not Misapply Law in Determining that Hamburg had 

Constructive Notice of the Extent of its Ownership Interests in 2006

Hamburg argues that the trial court improperly relied on the centuryold case of Whitt, 218 S.W. 994, in which the Kentucky high court generally stated 

that one purchasing real property would have constructive notice of anything 

affecting the real property noted on the face of deeds in the chain of title:

A purchaser of lands is chargeable, as a general 

rule, with notice of everything affecting the lands, which 

appear on the face of any deed, which forms a necessary 

link in the chain of title under which he holds, and, 

further, with notice of every fact which he could have 

learned from inquiry, and which the things, recited in the 

deeds, made it his duty to inquire about.

A recitation in a deed of a judgment or an action at 

law, as a part of the chain of title, is constructive notice 

to the grantee of the things which are shown by the 

record of the action or the judgment; and hence, 

although Charles had no actual knowledge of anything 
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appearing upon the records or judgments in the action for 

the recovery of the land, if anything did appear thereon 

which would have put an ordinarily prudent man upon 

inquiry which by ordinary diligent pursuit would have 

developed to him the fact of the lien, he was chargeable 

with notice of it, and hence whatever facts appear upon 

such record will have to be treated as being within

Charles’ knowledge when he accepted a deed and paid 

for the land.

Id. at 997 (citations omitted). 

Hamburg argues that Whitt only recites a general rule, subject to 

exceptions, and only applies to cases about liens. But as pointed out in the 

appellees’ briefs, the rule charging owners with constructive knowledge about 

items noted in documents in the chain of title has been applied to cases not 

involving liens such as Blackburn v. Piney Oil & Gas Company, 278 Ky. 191, 128 

S.W.2d 192, 195 (1939); Seat v. Louisville & Jefferson County Land Company, 

219 Ky. 418, 293 S.W. 986, 989-91 (1927); and Parrish v. Newbury, 279 S.W.2d 

229, 232 (Ky. 1955). 

Hamburg further takes issue with the trial court’s determining it had 

constructive notice based in part on the plat, to which Hamburg contends a 

reference was “buried” in the deed’s property description. And Hamburg contends 

the plat description was vague and does not overcome the allegations in its 

complaint. Hamburg argues the plat was confusing and did not clearly indicate 

that it did not own (perhaps meaning exclusively) common areas on the third floor:
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The plat merely identifies the square footage of the two 

units as 8,087 and identifies the square footage of the 

“3RD FLOOR COMMON AREA” as 1,913, which could 

easily be interpreted as an area common to the third-floor 

units owned by Appellant–as opposed to an area common 

to the entire building not owned by Appellant. 

(Appellant’s brief, p. 5.) So, Hamburg asserts the plat does not prove as a matter 

of law that it should have known it had not obtained exclusive ownership of the 

entire 10,000 square foot third floor–especially given the defendants’ 

representations that Hamburg was buying or already owned the entire 10,000 

square-foot area on the third floor of the condominium building.

But even if the plat by itself did not clearly set forth Hamburg’s 

interests on the third floor, the deed and the plat together did. The deed of 

purchase clearly set forth that Hamburg was conveyed a fee simple interest in 

Units 310 and 350 (as shown on floor plan of plat) and an undivided percentage 

interest in all common areas of the condominium. And even if Hamburg’s 

representatives did not clearly understand the meaning of what Hamburg acquired 

via the deed, Hamburg (via its agents or representatives) had a duty to inquire 

further to ascertain the true nature of its ownership interests. Whitt, 218 S.W. at 

996-97. Moreover, despite its age,

11 Whitt has not been overruled and thus remains 

 

11 As Hamburg points out, Whitt predates the discovery rule established in KRS 413.140(3). But 

Hamburg cites no authority supporting its argument that the rule in Whitt that property owner has 

constructive knowledge of information provided in deeds or other documents in the chain of title 
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binding precedent. See SCR12 1.030(8)(a) (“The Court of Appeals is bound by and 

shall follow applicable precedents established in the opinions of the Supreme Court 

and its predecessor court.”). So, the trial court did not err in holding that Hamburg 

had constructive notice of the true nature of its ownership interests of the premises

since 2006 based on the deed and other documents in the chain of title. 

Hamburg also contends that it had a special or confidential 

relationship with the defendants so that due to their misrepresentations, the mere 

recording of the deed and/or plat would not suffice to begin running the statute of 

limitations. Hamburg asks us to consider McMurray v. McMurray, 410 S.W.2d

139 (Ky. 1966); and Johnson v. Mitchell, 192 Ky. 444, 233 S.W. 884 (1921). But 

McMurray provides that for actual notice to be required for the statute of 

limitations to run, there be both a confidential relationship and “fraud in the 

inception . . . .” 410 S.W.2d. at 141. Similarly, the Johnson case–which 

recognized a real estate agent’s duty of confidence and utmost good faith, but did 

not involve questions of a motion to dismiss or statutes of limitations on appeal–

proceeded to trial on allegations of fraud through taking advantage of confidential 

information and through actively concealing an offer and the existence and/or 

 

should not apply to determining “when the cause of action was, or reasonably should have been, 

discovered by the party injured.” KRS 413.140(3). 

12 Kentucky Supreme Court Rules. 
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identity of prospective purchasers. 233 S.W. at 885. Both of these cases cited by 

Hamburg involved allegations of fraud–unlike the instant case. 

As the trial court orally noted during the hearing on the motion to 

dismiss here, Hamburg did not allege fraud in the complaint but simply negligent 

misrepresentation claims. Thus, the trial court did not err in ruling that the statute 

of limitations commenced when Hamburg obtained constructive notice of his 

ownership interests in the premises since no fraud was alleged. 

Hamburg alleged intentional concealment of information by the 

appraisers. It contends on appeal that the trial court failed to address an argument 

it made that the statute of limitations was tolled due to this intentional concealment 

of information. In its response to the defendants’ motion to dismiss, Hamburg 

stated: “Defendants’ argument that Plaintiff should have known the truth in 2006 

is unbelievable, given that Defendants (as real estate professionals) either did not 

make such a discovery in 2006 or knew the truth and fraudulently concealed it.” 

(Record (“R.”) p. 224.) And Hamburg noted authority Lashlee v. Sumner, 570

F.2d 107, 110-11(6th Cir. 1978), indicating that concealment of a cause of action 

calls for tolling the statute of limitations. 

But despite these statements in its response to the motions to dismiss

(including one motion to dismiss for failure to state a claim), Hamburg did not 

explicitly allege fraudulent concealment in its complaint. As the trial court pointed 
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out orally in the hearing, Hamburg had not amended its complaint to assert claims 

of fraud in addition to negligence. And our rules require that fraud be pleaded with 

particularity. See generally CR 9.02. 

While perhaps the trial court did not explicitly discuss “concealment” 

orally at the hearing or in its written order, the trial court did explicitly discuss at 

the hearing that no fraud was alleged in the complaint–only negligent 

misrepresentation. And based upon our own review of the complaint in the written 

record, Hamburg makes no explicit allegations of active concealment by either 

defendant. 

Instead, Hamburg alleged only that the defendants negligently failed 

to act as reasonably prudent agents or appraisers and provided inaccurate or 

incomplete information–NOT that the defendants intentionally withheld 

information or intentionally provided information they knew to be false. Nor did 

Hamburg allege that the defendants intentionally took action to conceal any 

wrongful activity by them or to conceal the existence of a cause of action–unlike 

Lashlee, 570 F.2d at 110 (“The amended complaint charged that the defendant 

deliberately and fraudulently concealed the alleged libelous report from him. 

Deliberate concealment by a defendant of the plaintiff’s cause of action will toll 

the statute of limitations.”). 
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Thus, as there was no allegation of intentional concealment in the 

complaint, there was no need to address whether the statute of limitations should 

be considered tolled based on concealment in resolving a motion to dismiss for 

failure to state a claim. 

While we express no opinion on the merits of Hamburg’s claims13 had 

they been timely filed, we conclude that the trial court did not err in holding that 

these claims were barred by the statute of limitations due to Hamburg’s 

constructive notice of the true nature of his ownership interests in the premises 

beginning with the 2006 purchase deed. 

Further issues or arguments raised in the parties’ briefs which are not 

discussed in this Opinion have been determined to lack merit or relevancy to our 

resolution of this appeal. 

CONCLUSION

For the reasons stated herein, we AFFIRM the trial court’s judgment.

ALL CONCUR.

 

13 Frustration on Hamburg’s part about not being advised with more detail and sophistication by 

real estate professionals about its ownership interests in various parts of the third floor, such as 

its not having totally exclusive ownership of common areas on the third floor, may be 

understandable. Nonetheless, the trial court did not err in finding the claims asserted against the 

real estate professionals time barred as we discuss in the body of the Opinion. 
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BRIEFS FOR APPELLANT:

Joshua T. Rose

Louisville, Kentucky

BRIEF FOR APPELLEE THE 

GIBSON COMPANY:

Drake W. Staples

Lexington, Kentucky

BRIEF FOR APPELLEES 

ATLANTIC APPRAISAL 

COMPANY AND BRADLEY KEAR:

Thomas M. Todd

David A. Trevey

Lexington, Kentucky