RENDERED: JULY 22, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0279-MR

KEVIN REBER AND BEVERLY REBER APPELLANTS

APPEAL FROM SCOTT CIRCUIT COURT

v. HONORABLE BRIAN K. PRIVETT, JUDGE

ACTION NO. 16-CI-00416

PRISCILLA WALLS AND JEFF GREEN APPELLEES

OPINION

AFFRIMING

**   **  **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

MAZE, JUDGE: Kevin and Beverly Reber (the Rebers) appeal from a summary 

judgment by the Scott Circuit Court dismissing their claims against Priscilla Walls 

(Walls) and Jeff Green (Green). The Rebers’ claims in this case arise from Walls’

and Green’s alleged failure to disclose repairs to real property as part of the Sales 

and Purchase Contract. We agree with the trial court that the Rebers failed to show 
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that there were genuine issues of material fact on essential elements of their claims 

against Walls and Green for negligence, negligent misrepresentation, fraud and 

fraudulent misrepresentation, breach of contract, and violation of the Kentucky 

Consumer Protection Act (KCPA). Hence, we affirm. 

I. Facts and Procedural History

Except where noted, the underlying facts of this matter are not in 

dispute. In 2005, Walls purchased a home and land located at 606 Woodduck 

Lane in Georgetown, Scott County, Kentucky. The property was situated on a 

hillside. In 2007, Walls contracted with United Structural Systems (USS), an 

engineering firm, to install twenty steel piers at points around the back wall of the 

house. In her deposition, Walls stated that there had been no structural issues with 

the foundation. Rather, she had the piers installed to prevent any future structural 

instability due to the house’s location on a steep slope.

In 2013, Walls retained Green, a licensed real estate agent, to list and 

sell the property. In her initial Seller’s Disclosure Statement, dated April 15, 2013, 

Walls checked “Yes” next to the question “Any defects or problems, current or 

past, to the foundation of slab?” She also included the handwritten notation, 

“Fixed” next to the question. Thereafter, on May 27, 2013, Walls prepared a 

second Disclosure Statement which checked “No” to the question. Walls states 

that she altered the disclosure because the initial answer was not accurate, as there 
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had been no prior issues with the foundation. However, the Rebers allege that 

Walls had told a prior potential purchaser that “[d]oors were sticking due to house 

settling[,]” and that the piers were installed “to correct and prevent future settling.”

On July 31, 2013, the Rebers entered into a real estate purchase 

contract to purchase the property from Walls for $210,000.00. The Rebers were 

represented by Paige Brown, a licensed real estate agent affiliated with BMR 

Realty Group. Prior to the closing, the Rebers hired JDG Home Inspections to 

conduct the home inspection. The inspection report did not note the presence of 

the piers or indicate any foundation issues.

Following the closing, the Rebers took possession of the property. 

Over the next several years, the Rebers made numerous improvements. They 

removed trees from the front yard, removed and replaced the driveway, installed a 

retaining wall and concrete pad, installed concrete steps from the garage down the 

side of the house to the backyard, and installed concrete steps from the concrete 

pad to the front door. 

In February 2016, the Rebers discovered a leak in the front right 

portion of the basement. In the process of investigating the leak, the Rebers 

learned of the piers that Walls had installed. The Rebers hired USS to fix the leak 

and paid USS to extend the warranty on the piers.
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Thereafter, on July 18, 2016, the Rebers filed the current complaint 

against Walls, Green, and JDG Home Inspections. In pertinent part, the Rebers 

asserted claims against Walls and Green for negligence, negligent 

misrepresentation, fraud and fraudulent misrepresentation, breach of contract, 

breach of duties of good faith and fair dealing, and violations of the KCPA. Their 

complaint sought compensatory damages for the cost of the repairs, costs of future 

repairs, and the diminution of the value of the property. The Rebers also sought 

punitive damages for the misrepresentation, fraud, good faith and fair dealing, and 

KCPA claims.

Following a period of discovery, Walls and Green moved for 

summary judgment. The Rebers responded with a cross-motion for summary 

judgment. Thereafter, on February 8, 2021, the trial court granted Walls’ and 

Green’s motions for summary judgment. The court found that there were genuine 

issues of material fact on whether Walls and Green misrepresented the existence of 

prior repairs to the foundation. However, the Court noted that the Rebers failed to 

present any expert witness stating that the installation of the piers caused the leak. 

Consequently, the court concluded that the Rebers had failed to establish an 

essential element of their negligence claims. The trial court separately found that a 

claim for negligent misrepresentation is only available in matters involving 

business transactions, not in a private sale of residential property. 
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Next, the court concluded that the Rebers’ claims for fraud and 

fraudulent misrepresentation must fail because there was no evidence that Walls 

installed the piers to correct any existing foundation issues. Consequently, the 

court held that Rebers failed to establish that the representations in the Seller’s

Disclosure were materially false at the time they were made. Likewise, the court 

found that the Rebers failed to establish that any misrepresentations about the piers 

caused the injury. The court also determined that these factors precluded the 

contract claims. Finally, the trial court held that the Rebers could not recover 

compensatory damages given the absence of any evidence of actionable fraud or 

gross negligence. The trial court designated its order granting summary judgment 

to Walls and Green as final and appealable pursuant to CR1 54.02. This appeal 

followed.

II. Standard of Review

The issues on appeal concern whether the trial court properly granted 

summary judgment dismissing the Rebers’ claims against Walls and Green. 

“[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). Summary judgment is 

1 Kentucky Rules of Civil Procedure.
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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.” CR 56.03.

“The record must be viewed in a light most favorable to the party 

opposing the motion for summary judgment and all doubts are to be resolved in his 

favor.” Steelvest, 807 S.W.2d at 480. “The trial [court] must examine the 

evidence, not to decide any issue of fact, but to discover if a real issue exists.” Id. 

On the other hand, “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.” Id. at 481. Since a 

summary judgment involves no fact-finding, this Court’s review is de novo, in the 

sense that we owe no deference to the conclusions of the trial court. Scifres v. 

Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

III. Negligence Claims

As the trial court correctly noted, the Rebers were required to show 

four elements to establish their claims for negligence: the existence of a duty, 

breach thereof, proximate causation, and damages. Boland-Maloney Lumber Co., 

Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citing Illinois Central R.R. 

v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); Mullins v. Commonwealth Life Ins. 
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Co., 839 S.W.2d 245, 247 (Ky. 1992)). The existence of a duty is a question of 

law for the court, while breach and injury are questions of fact for the jury. 

Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). Causation presents a 

mixed question of law and fact. Id.

The Rebers argue that Walls and Green had a duty to disclose the 

piers installed by USS and that they breached that duty by negligently failing to 

disclose the prior repairs to the foundation. The trial court found there was a 

genuine issue of material fact whether Walls actually disclosed the existence of the 

piers. Specifically, the court noted Walls’ testimony that she left the materials 

from USS in the house during the showings and that she discussed USS’s warranty 

on the piers with the Rebers prior to the closing. Since the Rebers deny ever being 

informed about the piers, the trial court concluded that summary judgment was not 

appropriate on this issue.

However, the trial court further noted that the Rebers declined to 

consult with a structural engineer. Consequently, there was no evidence that the 

piers played any role in causing the leak in the foundation. The Rebers respond 

that they were not seeking damages caused by the leak. Rather, they state that they 

were seeking either the difference in the fair market values of the property as it was 

disclosed at the time of sale and with the undisclosed prior foundation work. In the 
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alternative, the Rebers contend that they may be entitled to rescission of the 

contract.

But as the trial court held, expert testimony is typically required to 

prove both the breach of a duty and proximate causation of damages. Blankenship 

v. Collier, 302 S.W.3d 665, 671 (Ky 2010) (citing Perkins v. Hausladen, 828 

S.W.2d 652, 655-56 (Ky. 1992)). Expert testimony is not required where “the jury 

may reasonably infer both negligence and causation from the mere occurrence of 

the event and the defendant’s relation to it.” Perkins, 828 S.W.2d at 656 (quoting

RESTATEMENT (SECOND) OF TORTS cmt. b, p. 157)). See also Celina Mut. Ins. Co. 

v. Harbor Ins. Agency, 332 S.W.3d 107, 109-10 (Ky. 2010). In this case, the 

Rebers rely only on the existence of a general statutory duty to disclose “other 

matters the [Kentucky Real Estate] Commission deems appropriate.” KRS2

324.360(3)(f). The Rebers did not offer any expert testimony that the mere 

installation of the piers is the type of repair which the Commission would require 

to be disclosed.

Moreover, the Rebers do not identify any expert testimony stating that 

their claimed damages were caused by the failure to disclose. Even assuming that 

Walls and Green had a duty to disclose the piers and that they violated that duty, 

the Rebers do not identify any expert testimony that the fair market value of the 

2 Kentucky Revised Statutes.
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property was diminished as a result. We agree with the trial court that these are 

matters which are outside of the scope of lay knowledge and therefore require 

expert testimony. 

The Rebers assert that they “intended to retain an expert to compare 

the fair market value[.]” However, a party “cannot complain of the lack of a 

complete factual record when it can be shown that the respondent has had an 

adequate opportunity to undertake discovery.” Leeds v. City of Muldraugh, 329 

S.W.3d 341, 344 (Ky. App. 2010) (quoting Cargill v. Greater Salem Baptist 

Church, 215 S.W.3d 63, 69 (Ky. App. 2006)). In addition, the Rebers did not 

request additional time to obtain an expert. Celina Mut. Ins. Co. v. Harbor Ins. 

Agency, 332 S.W.3d at 113. Since the Rebers do not contend that they were 

deprived of a reasonable opportunity to obtain further discovery on this issue, we 

must conclude that the absence of expert testimony is fatal to their claims.

In the alternative, the Rebers argue that expert testimony is not 

necessary to support their claim for rescission of the contract. The Rebers concede 

that their original complaint did not seek rescission and the trial court did not rule 

on their motion to file an amended complaint seeking that remedy. The Rebers do 

not appeal from the trial court’s failure to rule on that motion. Consequently, the 

rescission claim is not before this Court on appeal. In any event, rescission is a 
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remedy under the contract, not for negligence. Therefore, we will address that 

issue below.

IV. Negligent Misrepresentation

In Presnell Construction Managers, Inc. v. Eh Construction, LLC, 134 

S.W.3d 575, 580 (Ky. 2004), the Kentucky Supreme Court adopted the 

RESTATEMENT (SECOND) OF TORTS § 552, which outlines the elements of negligent 

misrepresentation as follows:

(1) One who, in the course of his business, profession or 

employment, or in any other transaction in which he has 

a pecuniary interest, supplies false information for the 

guidance of others in their business transactions, is 

subject to liability for pecuniary loss caused to them by 

their justifiable reliance upon the information, 

if he fails to exercise reasonable care or competence in 

obtaining or communicating the information.

(2) Except as stated in Subsection (3), the liability stated 

in Subsection (1) is limited to loss suffered

(a) by the person or one of a limited group of 

persons for whose benefit and guidance he intends 

to supply the information or knows that the 

recipient intends to supply it; and

(b) through reliance upon it in a transaction that he 

intends the information to influence or knows that 

the recipient so intends or in a substantially similar 

transaction.

(3) The liability of one who is under a public duty to give 

the information extends to loss suffered by any of the 

class of persons for whose benefit the duty is created, in 

any of the transactions in which it is intended to protect 
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them.

In Kentucky Farm Bureau Mutual Insurance, Company v. Blevins, 

268 S.W.3d 368, 372 (Ky. App. 2008), this Court focused on the phrase, “for the 

guidance of others in their business transactions” in Subsection (1). Based on this 

language, the Court held that private sale of residential property from one set of 

homeowners to another is not the type of transaction covered by the tort of 

negligent misrepresentation as set forth in Section 552. Id. at 373. The Rebers 

take issue with this interpretation, noting that Section 552(3) extends liability to a 

“person who is under a public duty to give the information.” However, Blevins

remains the controlling authority concerning the scope of Section 552. 

The Rebers also point to Waldridge v. Homeservices of Kentucky, 

Inc., 384 S.W.3d 165 (Ky. App. 2011), as imposing liability on a real estate agent 

for failure to disclose known defects in listed property. However, Waldridge is 

clearly distinguishable, as it was based upon claims for fraudulent 

misrepresentation and breach of fiduciary duties, not claims for negligent 

misrepresentation under Section 552. Id. at 171. Therefore, we must agree with 

the trial court that summary judgment was appropriate on the Rebers’ claims for 

negligent misrepresentation.
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V. Fraud and Fraudulent Misrepresentation 

Under Kentucky law, a party claiming harm “must establish six 

elements of fraud by clear and convincing evidence as follows: a) material 

representation b) which is false c) known to be false or made recklessly d) made 

with inducement to be acted upon e) acted in reliance thereon and f) causing 

injury.” United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999). 

As previously noted, there is a genuine issue of material fact whether the 

installation of the piers constituted a repair to the foundation. However, the trial 

court concluded that the Rebers could not prove that the representation was false at 

the time it was made because they had no expert testimony so showing. For 

similar reasons, the trial court found that the Rebers could not prove that their 

claimed injury was caused by the failure to disclose the piers. Finally, the trial 

court also found that the Rebers had not shown reliance on the representation 

because they hired their own expert to inspect the property prior to the closing. 

Under the circumstances presented in this case, we agree with the trial court’s 

analysis.

As previously discussed, expert testimony is typically required to 

establish both breach of a duty and causation of damages. The Rebers contend that 

expert testimony was not required to establish that the statement was false because 

Walls had previously disclosed the piers as a repair in her first Seller’s Disclosure 
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Statement. But even if there is a genuine issue of material fact on this issue, the 

Rebers presented no expert testimony that their claimed damages were caused by 

the failure to disclose the installation of the piers. As noted, there was no 

testimony that the leak was caused by the installation of the piers or that the fair 

market value of the property was reduced as a result. Likewise, there was no 

testimony supporting the Rebers’ claim for rescission of the contract. Therefore, 

the trial court properly found that the Rebers failed to establish an essential 

element of their claim for fraudulent misrepresentation.

On the reliance issue, the trial court found the analysis in Ross v. 

Powell, 206 S.W.3d 327 (Ky. 2006), to be controlling. In that case, the sellers of a 

home disclosed the existence of prior termite damage but failed to disclose the 

extent of the damage or the treatments. However, the buyers paid for an 

independent whole house inspection and a separate specialized professional termite 

inspection prior to the closing. The buyers also admitted they had carefully 

examined the premises and had relied completely on their own judgment and the 

judgment of their inspectors. Id. at 331. Consequently, the Supreme Court found 

that the buyers could not establish their reliance on the seller’s statements. Id. 

The Rebers argue that Ross is distinguishable because the repairs to 

the foundation were latent and were actively concealed by Walls and Green. We 

agree with the Rebers that their hiring of an independent home inspector would not 
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preclude a finding that they relied on the representations in the Seller’s Disclosure 

Form. In Ross, the inspection report obtained by the buyers revealed the existence 

of prior insect damage. In contrast, the inspection report obtained by the Rebers 

did not identify the existence of the piers or any foundation damages. But since 

the Rebers failed to establish other essential elements of fraudulent 

misrepresentation, the trial court’s holding on this issue did not affect the outcome 

of the motion for summary judgment. And in the absence of any viable claims for 

negligence or fraud, the trial court properly dismissed the Rebers’ claims for 

punitive damages.

VI. Breach of Sales and Purchase Contract

The Rebers next argue that the trial court erred by dismissing their 

claims for breach of the Sales and Purchase Contract because Walls’ failure to 

disclose the installation of the piers constitutes a breach of the contractual duty to 

disclose repairs. Walls and Green argue that the purchase contract merged with the 

deed upon delivery and acceptance of the deed. Harrodsburg Indus. Warehousing 

v. MIGS, LLC, 182 S.W.3d 529, 532 (Ky. App. 2005). However, that case also 

makes it clear that fraud claims are not merged into the deed. Id. (citing 77 Am. 

Jur. 2d Vendor and Purchaser § 286 (1997)).

But as the trial court noted, the essence of the claim is that the failure 

to disclose the installation of the piers to buttress the structures’ stability 
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constitutes a repair as contemplated by the contract and thus a breach. The trial 

court found that the Rebers failed to produce any evidence that the piers were 

actually a repair to the property subject to disclosure. There was no evidence of 

any prior leaks or damage to the foundation. At most, Walls had observed sticking 

doors. Other than Walls’ assumption, there was no evidence that the sticking doors 

were caused by a settling foundation. Thus, the Rebers failed to establish that 

Walls violated any specific contractual duty or general duty of good faith and fair 

dealing.

VII. Consumer Protection Act Claim

Finally, the Rebers argue that the trial court erred in dismissing their 

KCPA claim against Green. The Rebers note that the Act only protects “[a]ny 

person who purchases or leases goods or services primarily for personal, family or 

household purposes . . . .” KRS 367.220. As a result, the Rebers concede that

Walls is not subject to liability under the KCPA. On the other hand, the Rebers 

maintain that Green was providing a service, and that his actions may be the basis 

for a violation of the KCPA.

However, there is no authority holding that the KCPA is applicable to 

real estate transactions. Craig v. Keene, 32 S.W.3d 90, 91 (Ky. App. 2000). 

Furthermore, the language of KRS 367.170 only contemplates an action by a 

purchaser of goods or services against his or her immediate seller. Potter v. Bruce 
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Walters Ford Sales, Inc., 37 S.W.3d 210, 213 (Ky. App. 2000) (citing Skilcraft 

Sheetmetal v. Kentucky Machinery, Inc., 836 S.W.2d 907, 909 (Ky. App. 1992)). 

In the absence of privity of contract between the Rebers and Green, the trial court 

properly granted summary judgment on their CPA claims.

VIII. Conclusion

Based on the foregoing, we conclude that the trial court properly 

granted summary judgment on the Rebers’ claims against Walls and Green. 

Therefore, we affirm the judgment of the Scott Circuit Court.

ALL CONCUR. 

BRIEFS FOR APPELLANTS:

Matthew S. Goeing

Lexington, Kentucky

BRIEF FOR APPELLEE JEFF 

GREEN:

Virginia L. Lawson

Zachary C. Webster 

Lexington, Kentucky