RENDERED: NOVEMBER 6, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1292-MR

ON PREMISES SERVICES, INC.,

AND ALBERT H. GRUNEISEN, III APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

ACTION NO. 16-CI-005564 

STOCK YARDS BANK & TRUST CO. APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: COMBS, DIXON, AND MAZE, JUDGES.

DIXON, JUDGE: On Premises Services, Inc. (“OPS”) and Albert H. Gruneisen, 

III, appeal from the order granting summary judgment in favor of Stock Yards 

Bank & Trust Co. (“SYB”) entered on June 11, 2019, and the order denying their

motion to alter, amend, or vacate same, entered on August 5, 2019, by the 

Jefferson Circuit Court. Following a careful review of the briefs, record, and 

applicable law, we reverse.
-2-

FACTS AND PROCEDURAL BACKGROUND

This case concerns the repayment of a commercial loan. On April 21, 

2005, SYB lent OPS $141,015 for a term of five years, as documented by its

promissory note (“the Note”) of that date. This loan was guaranteed by Gruneisen, 

documented in a commercial guaranty also entered on that date. OPS made most 

of the payments on the loan but, after experiencing financial difficulty, eventually 

stopped making payments. The last payment on the loan was made on January 19, 

2010.

On March 5, 2010, Dennis Shaughnessy—on behalf of SYB—

emailed Gruneisen advising that he was three payments behind on the loan and 

asking when payment would be made. Gruneisen replied the same day, “We are in 

a bit of trouble at OPS . . . I don’t have a very good plan for making payments 

today. I don’t know if I could even make interest payments.” Consequently, on 

March 31, 2010, SYB charged off the principal ($43,615.34). 

On April 2, 2010, Shaughnessy emailed Gruneisen again asking what 

he was going to do about making payments. Gruneisen responded, “[B]usiness is 

still in a pall . . . I bumped into David Heintzman the other evening coming out of a 

meeting with a bankruptcy attorney.” Heintzman is Chairman of the Board and 

Chief Executive Officer of SYB. 
-3-

More than eight months later, on December 10, 2010, Shaughnessy 

emailed Gruneisen yet again to see if he could make any payments on the OPS 

loan, stating, “I have been instructed by my Loan Committee to begin repossessing 

all the collateral pledged on you[r] loan. Please let me know where you stand[.]” 

Gruneisen replied, “[T]alked to Paul Palmer this morning and we are going to get 

back together on January 1st. Repossessing collateral will only cause bankruptcies 

and not amount to much for your efforts; in my opinion.” Palmer is a commercial 

real estate relationship manager for SYB. No plan or promise to pay was made by 

Gruneisen. 

Nearly six years later, Gruneisen and Heintzman saw each other at a 

restaurant, following which a renewed effort by SYB to collect repayment of the 

OPS loan ensued. On August 25, 2016, Shaughnessy emailed Gruneisen stating, “I 

have not been able to get approval for a reduced amount of your loan[.] Present 

payoff is $82,687.07 and interest daily at $14.24[.] Please let me know how you 

want to proceed with paying back the Bank[.]” Gruneisen responded, “Seems a 

little harsh considering the amount of business I have sent to you guys, personally 

and through the startups? At least forgive the interest as a finder[’]s fee? Who can 

I talk to? David? Would have been nice if we were having this conversation 6 

years ago.” Shaughnessy replied and asked Gruneisen to make him an offer to take 

to the Committee. Gruneisen responded that he would “get one back to you 
-4-

tomorrow morning. I do not have the ability to [do] lump sum but maybe chunks.” 

The following day Gruneisen emailed Shaughnessy stating:

While I am embarrassed to be having this discussion with 

you; in my defense, I thought the OPS loan had been 

written off back in the bad days. In fact, I think one of 

your executives said as much to me back in 2012ish so I 

did not address the outstanding balance that has now 

almost doubled in 6 years. Once again, in my defense, 

why did somebody not mention something sooner? Like 

when I was dragging $3-4 Million worth of investor 

funding into Stockyards from my startups (LiQ and Poly 

Group)?

During those periods, I was making 2 salaries and I 

would not have left a liability like your loan sitting 

around to bite me in the backside. Today, the patents 

have run out at OPS and its/my income is inconsequential 

comparatively. 

In summation:

1. I thought the loan had been written off

2. No one has mentioned it in 7 years

3. My actions, directions and friends have brought a lot 

of business to Stockyards Bank

So I would ask your indulgence please.

One plan to consider:

1. Forgive the interest and penalties, if any, in 

recognition of the amount of business I have sent your 

way since 1980.

2. Allow me to pay off the balance to the tune of $4,000 

per quarter starting October 1, 2016
-5-

3. Make it a personal loan to me[.]

Later that day, Gruneisen asked Shaughnessy for a copy of the loan documents and 

for the total principal amount. He informed Shaughnessy that he was “going to 

have to look at financing the lump sum.” Instead, SYB filed the instant action 

against OPS and Gruneisen on November 9, 2016. 

Shortly after this action was filed, all parties moved the trial court for 

summary judgment. On April 23, 2018, after a hearing on the matter, the trial 

court granted SYB’s summary judgment on the issue of waiver, finding SYB had 

not waived its claims because there was no written waiver. It denied the 

countermotion for summary judgment, citing to genuine issues of material fact 

regarding the collection efforts between 2010 and 2016, which would preclude 

same. Nevertheless, in its order, the trial court remarked, “Laches may bar SYB 

from recovering all, or at least part, of the six years of accumulated interest if the 

delay was unreasonable.” The parties later renewed their motions for summary 

judgment with SYB dropping its claim for interest and OPS asserting that the 

statute of limitations and doctrine of laches bar SYB’s claims. The trial court 

ultimately granted SYB’s motion for summary judgment, finding there was no 

longer a genuine issue of material fact as to the applicability of laches. OPS and 

Gruneisen moved the trial court to alter, amend, or vacate its order, but their

request was denied. This appeal followed. 
-6-

STANDARD OF REVIEW

Summary judgment is appropriate “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.” CR1 56.03. An 

appellate court’s role in reviewing a summary judgment is to determine whether 

the trial court erred in finding no genuine issue of material fact exists and the 

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 

S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de 

novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.

Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).

STATUTE OF LIMITATIONS

OPS and Gruneisen argue SYB’s claims are barred by the statute of 

limitations found in KRS2 355.3-118, under Kentucky’s Uniform Commercial 

Code (“UCC”). KRS 355.3-118(1) provides, “an action to enforce the obligation 

of a party to pay a note payable at a definite time must be commenced within six 

(6) years after the due date or dates stated in the note or, if a due date is 

accelerated, within six (6) years after the accelerated due date.”

 

1

 Kentucky Rules of Civil Procedure.

2

 Kentucky Revised Statutes. 
-7-

OPS and Gruneisen claim the UCC applies to the Note because it is a 

negotiable instrument. KRS 355.3-104 defines negotiable instruments under the 

UCC:

(1) Except as provided in subsections (3) and (4) of this 

section, “negotiable instrument” means an unconditional 

promise or order to pay a fixed amount of money, with or 

without interest or other charges described in the promise 

or order, if it:

(a) Is payable to bearer or to order at the time it is 

issued or first comes into possession of a holder;

(b) Is payable on demand or at a definite time; and

(c) Does not state any other undertaking or 

instruction by the person promising or ordering 

payment to do any act in addition to the payment 

of money, but the promise or order may contain:

1. An undertaking or power to give, 

maintain, or protect collateral to secure 

payment;

2. An authorization or power to the holder 

to confess judgment or realize on or dispose 

of collateral; or

3. A waiver of the benefit of any law 

intended for the advantage or protection of 

an obligor.

It is undisputed that the Note was a promise to pay a fixed amount of money to 

SYB with a definite due date of April 21, 2010.
-8-

OPS and Gruneisen assert that their case is like Community Financial 

Services Bank v. Stamper, 586 S.W.3d 737 (Ky. 2019), which held that “[a]s a 

negotiable instrument, the promissory note is subject to the six-year statute of 

limitations of KRS 355.3-118.” Id. at 744. In Stamper, the Court observed:

[T]he Bank filed suit to recover on the Note on January 

25, 2016. If the cause of action accrued on the Note’s 

stated due date of April 25, 2002, as the Bank argues, the 

suit was untimely. If the cause of action accrued on 

September 15, 2000, as Stamper argues, the suit was 

untimely. Accordingly, we need not determine whether 

the Bank’s August 2000 letter effectively accelerated the 

due date of the Note, as this suit was barred by the 

applicable statute of limitations.

Id. Here, since the due date of the Note was April 21, 2010, the six-year statute of 

limitations was set to expire on or before April 21, 2016, unless an event 

prolonging this period occurred prior to that date. This means that the suit herein

was untimely if the limitations period was not extended.

3

 

SYB contends that Gruneisen extended the statute of limitations by 

acknowledging the debt and promising to pay same. It is well-established:

A promise, made before a debt is barred, serves to 

suspend the running of the statute or to prolong the 

statutory limitation by cutting off the antecedent time, 

and the action to recover must be brought on the original 

obligation. If, however, the debt is barred at the time of 

the new promise, it must be brought on the new promise. 

 

3

 Like Stamper, we need not determine whether the Note was accelerated. 
-9-

The promise to pay must be clear, absolute, and 

unconditional, and proven to have been made within the 

time prescribed by the statute. 

An unqualified acknowledgment of a debt as a 

subsisting demand is sufficient to prolong the statutory 

limitation, and an express promise to pay it is 

unnecessary. 

The acknowledgment will operate to take the case 

out of the statute when it admits the debt continues due at 

the time of the acknowledgment. The debtor’s mere 

admission of the justice of the debt is sufficient to 

suspend, or take it out of, the statute of limitations. 

City of Louisa v. Horton, 263 Ky. 739, 93 S.W.2d 620, 623 (1935) (citations

omitted). However, here, the only written communication by Gruneisen to SYB 

within the applicable statute of limitations—between the date the Note was due 

and six years thereafter—was his email dated December 10, 2010, in which 

Gruneisen only stated that he “talked to Paul Palmer this morning and we are going 

to get back together on January 1st” and “[r]epossessing collateral will only cause 

bankruptcies and not amount to much for your efforts; in my opinion.” This 

communication was neither a promise to pay the debt, an unqualified 

acknowledgment of the debt, nor an admission of the justice of the debt. As such, 

it did not serve to extend the statute of limitations. 

Nevertheless, the trial court’s first order concerning the parties’ 

summary judgment motions may still be correct in that there may exist genuine 

issues of material fact regarding the collection efforts between 2010 and 2016. 
-10-

Should SYB produce evidence of either an acknowledgment and/or promise to pay 

the debt by Gruneisen, such might form a basis to extend the statute of limitations 

thereby rendering the suit timely filed. Therefore, it was improper for the trial 

court to grant summary judgment for SYB in its second order concerning the 

parties’ renewed summary judgment motions.

LACHES

OPS and Gruneisen also contend the trial court erred in finding the 

doctrine of laches to be inapplicable to the case herein simply because SYB 

dropped its claim for interest. It is well-settled:

“Laches” in its general definition is laxness; an 

unreasonable delay in asserting a right. In its legal 

significance, it is not merely delay, but delay that results 

in injury or works a disadvantage to the adverse party. 

Thus there are two elements to be considered. As to what 

is unreasonable delay is a question always dependent on 

the facts in the particular case. Where the resulting harm 

or disadvantage is great, a relative brief period of delay 

may constitute a defense while a similar period under 

other circumstances may not. What is the equity of the 

case is the controlling question. Courts of chancery will 

not become active except on the call of conscience, good 

faith, and reasonable diligence. The doctrine of laches is, 

in part, based on the injustice that might or will result 

from the enforcement of a neglected right. 

City of Paducah v. Gillispie, 273 Ky. 101, 115 S.W.2d 574, 575 (1938) (emphasis 

added) (citations omitted). Laches is “a mixed question of law and fact[.]” Crady 

v. Hubrich, 299 Ky. 461, 185 S.W.2d 949, 951 (1945). 
-11-

The trial court relied on SYB’s decision to no longer pursue interest 

against OPS and Gruneisen in entering its final judgment. The court determined 

that decision eliminated the factual issues about whether the delay was 

unreasonable. However, there are still genuine issues of material fact pertaining to 

whether SYB’s claims were barred by the statute of limitations that make the trial 

court’s grant of summary judgment inappropriate. If SYB’s claims are barred by 

the statute of limitations, the issue of whether the doctrine of laches applies is 

moot. 

CONCLUSION

Therefore, and for the foregoing reasons, the order entered by the 

Jefferson Circuit Court is REVERSED, and the matter is remanded to the court for

further proceedings consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

John Valentine

Louisville, Kentucky

BRIEF FOR APPELLEE:

W. Scott Stinnett

Louisville, Kentucky