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ACTION.APPELLANT

KAY SHELTON, INDIVIDUALLY AND AS

ADMINISTRATRIX OF THE ESTATE OF

JERRY SMITH

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2017-CA-002007

ROCKCASTLE CIRCUIT COURT NO. 2016-CR-001 12

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.

1I. 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

2inherited 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.

3II. 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).

s 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.

4waiver 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.

5Importantly, 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.

6when 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 Lexinqton, Inc. v. Ne w Lexinqton 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. ” ).

7has 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 co

beneficiary 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.

8evidence 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.

9



### ALambert, J., not sitting. All concur.

COUNSEL FOR APPELLANTS:

Jerry William Gilbert

Coy, Gilbert Shepherd & Wilson

COUNSEL FOR APPELLEE:

Michael Scott Fore

Simons & Fore, PSC

10