RENDERED: MAY 5, 2023; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0361-MR

FERGUSON ENTERPRISES, INC. APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 18-CI-004719

DREAMLAND HOSPITALITY, LLC APPELLEE 

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.

DIXON, JUDGE: Ferguson Enterprises, Inc. (Ferguson) appeals from the opinion 

and order granting summary judgment in favor of Dreamland Hospitality, LLC 

(Dreamland) entered by the Jefferson Circuit Court on March 8, 2022. Following a 

careful review of the record, briefs, and law, we vacate and remand.
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FACTS AND PROCEDURAL BACKGROUND

Dreamland hired Huhn Plumbing Co., LLC (Huhn) to perform 

construction work on a Home2Suites hotel on its real estate. Huhn contracted with 

Ferguson to provide materials for the project. Dreamland paid Huhn for the 

materials, but Huhn failed to pay Ferguson within the timeframe required under the 

contract. As a result, Ferguson notified Dreamland, its registered agent Mayank 

Patel, and member Alpesh Patel of its intent to file a lien in the amount of 

$133,583.73 against the real estate for materials supplied for the project. Ferguson 

then filed the lien. 

Dreamland advised Ferguson that it contested the lien because it paid 

Huhn for most of the materials. Ferguson responded, asserting its lien was valid. 

Later, Dan Henricks of Ferguson and Atul “Alex” Patel, purportedly on behalf of 

Dreamland – although he clearly stated he was not an owner – exchanged emails in 

an attempt to reach a settlement. (Alpesh testified via affidavit that Alex is not an 

employee or agent of Dreamland and had no authority to negotiate on its behalf.)

Ferguson ultimately sued Huhn and Dreamland, as well as other 

parties not at issue in this appeal, seeking $89,942.07 – an amount reflecting

credits for returned items and payments made after the lien was filed – plus 

prejudgment interest, costs, and attorney fees, from Dreamland and Alpesh. 
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Ferguson moved the trial court to enforce the settlement agreement 

between it and Dreamland (through Alex). The trial court entered an opinion and 

order denying the motion, finding no valid settlement agreement existed. 

Ferguson then moved the trial court for summary judgment. 

Dreamland moved to dismiss this case, which was treated as a cross-motion for 

summary judgment. After the matter was fully briefed, the trial court granted 

summary judgment in favor of Dreamland, finding the materialman’s lien was not 

perfected because it “was not the correct amount.” This appeal followed. 

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. 

“[T]he proper function of summary judgment is 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.” Steelvest, Inc. v. 

Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). 

An appellate court’s role in reviewing an award of summary judgment 

is to determine whether the trial court erred in finding no genuine issue of material 

1

 Kentucky Rules of Civil Procedure. 
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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) (citing

Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000)). 

Here, because the trial court granted summary judgment to 

Dreamland, we review the facts in a light most favorable to Ferguson and resolve 

all doubts in its favor. Applying the Steelvest standard, and based on the record, 

we cannot agree with the trial court that there was no genuine issue of material 

fact. Therefore, we conclude that summary judgment was improper.

LEGAL ANALYSIS

On appeal, Ferguson argues the trial court erred in: (1) granting 

summary judgment to Dreamland, (2) denying Ferguson summary judgment, (3) 

denying Ferguson’s motion to enforce settlement, and (4) denying Ferguson 

attorney fees. We will address each argument, in turn. 

First, Ferguson disagrees with the trial court’s determination that the 

amount of the materialman’s lien was incorrect at the time of filing. Under KRS2

376.080(1), the statement must include, “the amount due [the provider of the 

materials], with all just credits and set-offs known to [the provider.]” Neither the 

2

 Kentucky Revised Statutes.
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parties nor the court have pointed us to a requirement, and we know of none, that 

this amount must be updated after the lien is filed as payments and credits are 

made to reduce the balance. Even so, the amount must be correct with “all just 

credits and set-offs known to [the provider]” at the time of filing. 

The lien herein was for $133,583.73. Ferguson provided a document 

listing the dates and amounts of 27 invoices for the Home2Suites project, totaling 

exactly $133,583.73. Yet, on the date the materialman’s lien was filed, a credit of 

$1,142.26 was applied. While the lien was filed at 11:07:18 a.m., it is unclear from 

the record when the account was credited – whether before or after the filing of the 

lien – and whether Ferguson knew of the credit prior to filing its lien. Henricks’ 

second affidavit asserts the amount of the lien was correct at the time it was filed; 

yet, it does not specifically address the timing of the credit. The trial court must 

take his assertion as truth when considering summary judgment. Moreover, if 

there is a factual dispute concerning whether the amount of the lien was correct at 

the time it was filed, summary judgment is inappropriate.

Second, Ferguson contends the trial court should have granted it 

summary judgment. However, the same reason that makes summary judgment 

currently unavailable for Dreamland also precludes summary judgment in favor of 

Ferguson. Simply put: a genuine issue of material fact as to whether the amount 

listed in the lien was correct at the time it was filed prevents a determination of 
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whether Ferguson had a valid and enforceable lien as a matter of law. Thus, we 

need not address Ferguson’s further arguments concerning summary judgment. 

Third, Ferguson argues the trial court should have enforced its 

settlement with Dreamland. However, its contentions are not supported by the 

record. Most importantly, the supposed settlement was negotiated with Alex, who 

apparently had no authority to bind Dreamland. “An agreement to settle legal 

claims is essentially a contract subject to the rules of contract interpretation. It is 

valid if it satisfies the requirements associated with contracts generally, i.e., offer 

and acceptance, full and complete terms, and consideration.” Cantrell Supply, Inc. 

v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky. App. 2002). Since Alex had no 

authority to bind Dreamland, there was no acceptance and no valid settlement 

agreement. Accordingly, the trial court did not err in its determination that no 

settlement agreement had been created. 

Fourth, Ferguson asserts it is entitled to attorney fees for breach of 

contract/settlement agreement. Because there was no settlement agreement, for the 

reasons discussed herein, this argument necessarily fails. 

CONCLUSION

Therefore, and for the foregoing reasons, the order of the Jefferson 

Circuit Court is VACATED and REMANDED for further proceedings consistent 

with this Opinion.
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CETRULO, JUDGE, CONCURS.

EASTON, JUDGE, CONCURS IN RESULT AND FILES

SEPARATE OPINION.

EASTON, JUDGE, CONCURRING IN RESULT: Because the 

amount of “just credits and set-offs known to” Ferguson when it filed its lien was a 

disputed fact, I concur in the decision to vacate and remand the summary judgment 

against Ferguson and in favor of Dreamland. But it appears we are dealing, at least 

in part, with small amounts (approximately one percent of the claim) allegedly paid 

on the same day as the lien was filed. We could be looking at a matter of hours as 

to when Ferguson knew of the claimed credits.

 While strict compliance generally is required for a valid lien, we 

should acknowledge the precise amount owed is often disputed. The lien secures a 

“claim” not an established debt. What consists of a “just credit” or “set-off” may 

be debatable. Neither the parties nor this Court has located any precedents 

applying this phrase in KRS 376.080, which governs this specific dispute.

 Cases from Missouri establish a reasonable approach to the validity of 

the lien based upon the amount stated in the lien notice. “A lien statement may be 

regarded as just and true, so as not to vitiate the entire lien, if it contains mistakes, 

errors of omission, non-lienable items, or fails to give all of the credits to which the 

account is entitled, as long as the inaccuracies are unintentional and are the result 

of honest inadvertence, accident, or oversight, and do not result from deliberate 
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intention or design.” Almat Builders and Remodeling, Inc. v. Midwest Lodging 

LLC, 615 S.W.3d 70, 79 (Mo. App. 2020).

 The Missouri experience also provides a process for lien enforcement 

when the accuracy of the amount claimed in the lien statement is in question. The 

property owner first presents evidence that the claimed amount was inaccurate 

when the lien was filed. Then the claimant presents evidence addressing whether 

any error was intentional or an honest mistake. Id. 

BRIEFS FOR APPELLANT:

J. David Agnew

New Albany, Indiana

BRIEF FOR APPELLEE:

Mary E. Eade

Louisville, Kentucky