RENDERED: JUNE 4, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0361-MR

KEITH HERRON APPELLANT 

v. 

APPEAL FROM CAMPBELL CIRCUIT COURT

HONORABLE DANIEL J. ZALLA, JUDGE

ACTION NO. 19-CI-00072 

CATHERINE L. SPECHT APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND KRAMER, 

JUDGES.

CALDWELL, JUDGE: Keith Herron appeals the judgment of the Campbell 

Circuit Court denying his claim for an equitable interest in real property owned by 

his former girlfriend, Catherine Specht. We affirm the trial court.

FACTS

Keith Herron (Herron) and Catherine Specht (Specht) were in a 

relationship for some years and moved in together in 2009. In 2013, Specht 
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purchased a home in her name solely and the couple continued to reside together in 

that home. The parties split household expenses; every month Herron would 

deposit into Specht’s bank account an amount equal to the mortgage payment, 

which represented about one-half the total monthly household expenses. From that 

account, Specht would pay the household bills, including the mortgage which was 

solely in her name, and the utilities and other expenses of a home. 

In the summer of 2018, Herron and Specht ended their romantic 

relationship but remained roommates, still residing in the home. The parties 

executed a handwritten contract wherein they agreed that Herron would continue 

living at the home and would repair certain conditions in the home in anticipation 

of Specht listing the home for sale. Once sold, Specht agreed all net proceeds of 

the sale would be split equally between the two parties. 

The plan to continue to live together following the end of their 

relationship was unsuccessful and, a short time later, Specht served Herron with 

notice to quit the residence. In January of 2019, Specht obtained an Emergency 

Protective Order (EPO) against Herron following an altercation which became 

physical. As part of the EPO, Herron was ordered to remain away from the 

residence. 

Soon after the issuance of the EPO and his expulsion from the home, 

Herron filed suit seeking enforcement of the contract the two had executed. After 
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a bench trial, the trial court entered a judgment in favor of Specht finding that 

Herron had failed to perform per the contract in that he did not fix the conditions 

enumerated in the contract so that the home could be listed for sale. Such failure 

excused Specht’s duty under the contract to list the property and split any net 

proceeds with Herron. Herron appealed, and we affirm the trial court.

STANDARD OF REVIEW

The standard of review of a trial court’s findings of fact is “clearly 

erroneous” when acting as a trier of fact and the court’s conclusions of law are 

reviewed de novo. 

Because this is an appeal from a bench trial without a 

jury, the trial court’s findings of fact are “not [to] be set 

aside unless clearly erroneous with due regard being 

given to the opportunity of the trial judge to consider the 

credibility of the witnesses.” Lawson v. Loid, 896 

S.W.2d 1, 3 (Ky. 1995) (citing CR1 52.01). Factual 

findings are not considered clearly erroneous if they are 

“supported by substantial evidence.” Gosney v. Glenn, 

163 S.W.3d 894, 898 (Ky. App. 2005) (citations 

omitted). Appellate review of legal determinations and 

conclusions from a bench trial is de novo. Id. (citations 

omitted).

Goshorn v. Wilson, 372 S.W.3d 436, 439 (Ky. App. 2012).

Our review of a circuit court’s findings of fact following 

a bench trial is to determine whether those findings are 

clearly erroneous. CR 52.01. This rule applies with 

equal force to matters involving boundary disputes. 

Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). 

 

1 Kentucky Rules of Civil Procedure.
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Factual findings are clearly erroneous if unsupported by 

substantial evidence. Moore v. Asente, 110 S.W.3d 336, 

354 (Ky. 2003). Substantial evidence is defined as “that 

which, when taken alone or in light of all the evidence, 

has sufficient probative value to induce conviction in the 

mind of a reasonable person.” Bowling v. Natural 

Resources and Environmental Protection Cabinet, 891 

S.W.2d 406, 409 (Ky. App. 1994) (citations omitted).

Bishop v. Brock, 610 S.W.3d 347, 350 (Ky. App. 2020).

ANALYSIS

The trial court found that the parties had entered into a valid, 

enforceable contract. Commonwealth v. Morseman, 379 S.W.3d 144, 149 (Ky. 

2012) (“The requirements generally associated with contracts are ‘offer and 

acceptance, full and complete terms, and consideration.’”). Under the terms of the 

contract executed after they had ended their relationship and dated September 8, 

2018, both parties were obligated to perform certain duties. The court found that 

under the terms of the agreement Herron was to pay the electric and water bills and 

tender to Specht an amount equal to the monthly mortgage payment, as well as 

perform repairs to a front wall and the bathroom, clean out the garage, hook up 

radiant heating, and replace the cover on the electric meter box. Once those repairs 

were completed, Specht agreed to list the home for sale and agreed to split the 

proceeds after paying off the mortgage with Herron, as long as the parties agreed 

on the sale price. 
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The court found that Herron failed to perform under the contract when 

he stopped paying the electric and water bills, stopped remitting to Specht the 

amount of the monthly mortgage payment and did not complete the repairs 

enumerated in the contract. While the court acknowledged that the entry of the 

EPO and his resultant ouster from the residence made his compliance with the 

contract terms related to the repairs challenging, he sought no relief from the terms 

of the EPO which would have perhaps allowed for his performance of his 

contractual duties. 

When a party to a contract abandons the agreement, the other party is 

released from any duty to perform. 

In Dalton [v. Mullins, 293 S.W.2d 470, 476 (Ky. 1956)], 

the court noted that when one party refused to perform

under a written contract, the other party “had the right to

treat this action as a breach, to abandon the contract, and 

to depart from further performance on his own part and 

finally demand damages.” That is exactly the procedure 

TMG employed. Each party to a contract is entitled to 

the benefit of his bargain. Mostert’s breach excused 

TMG’s obligation to further perform under the 

Contribution Agreement, and therefore, Mostert was not 

entitled to summary judgment granting him judgment for 

the last scheduled installment payment on the Note.

Mostert v. Mostert Grp., LLC, 606 S.W.3d 87, 94 (Ky. 2020).

Herron was in breach of the contract when he stopped paying the bills 

he was contractually obligated to pay and failed wholly to conduct any repairs,

which he contracted to undertake. Therefore, Specht was free to abandon the 
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contract, including her agreement to place the home for sale and split the proceeds 

with Herron. Herron did not provide consideration and so is not due the benefits 

he bargained for under the contract. 

If he had failed to substantially comply with the 

provisions of his agreement, when the company was not 

in default, the breach was the plaintiff’s, and the 

defendant was justified in treating it as a discharge. Page 

on Contracts, § 1434; Johnson v. Tackitt, 173 Ky. 406, 

191 S.W. 117 [(1917)].

Blue Diamond Coal Co. v. Robertson, 235 Ky. 425, 31 S.W.2d 701, 703 (1930).

Had Herron completed any of the work, he may well have been 

entitled to compensation for the accretion in value of the property attributable to 

his efforts. However, the evidence provided to the trial court indicates Herron 

completed none of the items he agreed to perform per the contract. “Although the 

court reversed the judgment for the plaintiff, it recognized that under a different set 

of facts sufficient to show the contract had been abandoned, recovery in quantum 

meruit for all of the work performed would be appropriate.” L.K. Comstock & Co., 

Inc. v. Becon Const. Co., 932 F. Supp. 906, 932 (E.D. Ky. 1993). 

Herron is under the misapprehension that he “owned” the home 

because he paid bills while cohabitating in the residence for years before the 

execution of the contract. However, Specht was the sole legal owner. Only her 

name appears on the deed and only her name appears on the mortgage. Doubtless 

there are reasons that Herron’s name appears nowhere on any legal documents 
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related to the home, but such is fatal to any argument that he has an ownership 

interest in the property. Rather, he attempts to rely upon the legal doctrine of 

“equitable estoppel” to establish an equitable interest in the realty. One must 

establish an equitable interest by establishing the following elements:

In Sebastian-Voor Properties, LLC v. LexingtonFayette Urban County Government, 265 S.W.3d 190 

(Ky. 2008), our Supreme Court set forth the following 

elements of equitable estoppel:

(1) conduct which amounts to a false 

representation or concealment of material facts, or, 

at least, which is calculated to convey the 

impression that the facts are otherwise than, and 

inconsistent with, those which the party 

subsequently attempts to assert; (2) the intention, 

or at least the expectation, that such conduct shall 

be acted upon by, or influence the other party or 

other persons; and (3) knowledge, actual or 

constructive, of the real facts. And, broadly 

speaking, as related to the party claiming the 

estoppel, the essential elements are (1) lack of 

knowledge and of the means of knowledge of the 

truth as to the facts in question; (2) reliance, in 

good faith, upon the conduct or statements of the 

party to be estopped; and (3) action or inaction 

based thereon of such a character as to change the 

position or status of the party claiming the 

estoppel, to his injury, detriment, or prejudice.

Id. at 194-95 (quoting Weiand v. Board of Trustees of 

Kentucky Retirement Systems, 25 S.W.3d 88, 91 (Ky. 

2000) (quoting Electric and Water Plant Bd. of City of 

Frankfort v. Suburban Acres Dev., Inc., 513 S.W.2d 489, 

491 (Ky. 1974))). 

Cinque v. Lexington Vill., LLC, 609 S.W.3d 30, 38 (Ky. App. 2020).
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Herron has made no attempt to establish the above; rather, seeking to 

avoid the requirements of Kentucky caselaw by resorting to citing Florida caselaw.

Apparently, Florida has less-stringent requirements for establishment of equitable 

interests. However, the realty concerned here is located in the Commonwealth, not 

the State of Florida, so the law of Florida is wholly inapplicable. See New Domain 

Oil & Gas Co. v. McKinney, 188 Ky. 183, 221 S.W. 245, 248 (1920) (“In that case 

all of the authorities, so far as we are aware (and no case to the contrary has been 

cited), hold that all matters concerning the title to and disposition of real estate are 

to be governed by the lex loci rei sitae[.]”). We hold that Herron has wholly failed 

to establish an equitable interest in the realty.

CONCLUSION

We agree with the Campbell Circuit Court that Herron abandoned the 

contract when he wholly failed to perform as required in the bargained-for contract 

terms. Herron has also failed to forward a cognizable claim for any equitable 

interest in the property. For the foregoing reasons, we affirm the Campbell Circuit 

Court. 

ALL CONCUR.
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BRIEF FOR APPELLANT:

Mark Harris Woloshin

Newport, Kentucky

BRIEF FOR APPELLEE:

Robert E. Bathalter

Alexandria, Kentucky