RENDERED: JULY 2, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1479-MR

JAY RAILTON MORGAN APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCH PERRY, JUDGE

ACTION NO. 17-CI-005772 

FORD MOTOR COMPANY; JAMES 

CARROLL; JAMES T. YOUNG; 

MARY CULLER; AND ZIAD OJAKLI APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

DIXON, JUDGE: Jay Railton Morgan appeals from the order dismissing his 

claims against Ford Motor Company (“Ford”), James Carroll, James T. Young,

Mary Culler, and Ziad Ojakli,

1

entered by the Jefferson Circuit Court on August 

28, 2019. Following a careful review of the record, briefs, and law, we affirm.

 

1

 Carroll, Young, Culler, and Ojakli were employees and agents of Ford at all times relevant 

herein. 
-2-

FACTS AND PROCEDURAL BACKGROUND

Morgan was employed by Ford for 23 years. In 2008, Morgan 

reported that Carroll and Young engaged in insider trading. In 2011, purportedly

in retaliation for his report, Morgan was transferred from his position in 

Washington, D.C., to another one in Louisville, Kentucky. On December 17, 

2012, Morgan was advised that Greg Fischer—mayor of Louisville, Kentucky—

made “‘very serious’ derogatory accusations about . . . Morgan’s work and conduct 

in Louisville as the Ford representative.” Morgan was given a three-month notice 

of termination and an offer of early retirement. On March 28, 2013, Morgan’s 

employment with Ford was terminated. 

On June 14, 2013, Morgan brought a whistleblower action under the 

Sarbanes-Oxley Act of 20022against Ford with the U.S. Department of Labor, 

Occupational Safety and Health Administration (OSHA), asserting he suffered 

adverse employment actions at Ford in retaliation for reporting insider trading.

3

Mediation was held in Washington, D.C. Ford asserted it had legitimate, nonretaliatory grounds to terminate Morgan because it had statements from Fischer 

and Dr. Kevin Cosby—President of Simmons College—that Morgan had 

 

2

 18 United States Code (U.S.C.) § 1514A. 

3

 Case No. 4-1510-13-043.
-3-

committed Ford funds to build a worker training facility in Louisville. Pursuant to 

Ford policies, unauthorized commitment of Ford funds is grounds for termination. 

Despite claims he did not authorize such funds, Morgan entered into a confidential 

settlement agreement with Ford on August 6, 2013, for less than he felt entitled. 

The settlement was approved by OSHA on August 29, 2013, and the case was 

closed. 

Morgan later filed an action against Fischer and Dr. Cosby4alleging 

they made false statements to Ford—the substance of which was that Morgan 

committed Ford funds without authorization—to get him fired. Ford intervened in 

the action, claiming Morgan improperly used confidential mediation 

communications—in breach of the settlement agreement—as the principal basis for 

his lawsuit. Both Fischer and Dr. Cosby stated in their respective affidavits that 

they did not make the statements, or similar statements, alleged by Morgan. 

Morgan did not provide any affirmative evidence to rebut the affidavits, nor did he

provide evidence that, even if the statements were made, they were made with 

malice. Consequently, the trial court granted summary judgment against Morgan, 

which was subsequently affirmed on appeal by another panel of our Court on 

March 24, 2017. 

 

4

 Jefferson Circuit Court, Case No. 13-CI-06576. 
-4-

Meanwhile, on November 10, 2015, Morgan requested his original 

whistleblower claim be reopened, alleging Ford misrepresented its possession of 

statements from Fischer and Dr. Cosby concerning the unauthorized commitment 

of Ford funds that provided a legitimate, non-retaliatory reason for termination. 

On January 4, 2016, OSHA dismissed Morgan’s complaint for lack of jurisdiction.5 

Morgan appealed to the Office of Administrative Law Judges. On June 9, 2017, 

that appeal was also dismissed for lack of jurisdiction.6

On October 31, 2017, Morgan filed his complaint in the case herein7 

seeking to undo his settlement with Ford, which he claimed was procured by fraud. 

Morgan asserts he was forced to accept a reduced settlement because “Ford” told 

him—at mediation—that Fischer and Dr. Cosby made statements to Ford that 

would constitute grounds for the termination of Morgan’s employment. Appellees 

moved the trial court to dismiss this action for lack of personal jurisdiction or, in 

the alternative, for failure to state a claim upon which relief may be granted. After 

the motion was briefed and arguments heard, the trial court entered its opinion and 

 

5

 Case No. 4-1221-16-001.

6

 Case No. 2016-SOX-00019.

7

 In his complaint, Morgan describes Culler as one of his supervisors at Ford who took adverse 

employment actions against him and Ojakli as one of his superiors at Ford who was very angry 

with him for reporting Ojakli’s friend, Young, for insider trading.
-5-

order granting the motion to dismiss the complaint with prejudice. This appeal 

followed. 

STANDARD OF REVIEW

Appellees moved the trial court to dismiss this action for lack of 

personal jurisdiction. “Jurisdiction is a question of law, and our review is de 

novo.” Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018) (citations 

omitted). “Furthermore, ‘[s]tatutory interpretation raises pure questions of law, so 

our review is [de] novo, meaning we afford no deference to the decisions below.’”

Id. 

In the alternative, Appellees moved the trial court to dismiss the 

complaint under CR8 12.02(f) for failure to state a claim upon which relief may be 

granted. Kentucky’s highest court has interpreted this standard, observing: 

A motion to dismiss for failure to state a claim upon 

which relief may be granted “admits as true the material 

facts of the complaint.” So a court should not grant such 

a motion “unless it appears the pleading party would not 

be entitled to relief under any set of facts which could be 

proved. . . .” Accordingly, “the pleadings should be 

liberally construed in the light most favorable to the 

plaintiff, all allegations being taken as true.” This 

exacting standard of review eliminates any need by the 

trial court to make findings of fact; “rather, the question 

is purely a matter of law. Stated another way, the court 

must ask if the facts alleged in the complaint can be 

proved, would the plaintiff be entitled to relief?” Since a 

motion to dismiss for failure to state a claim upon which 

 

8

 Kentucky Rules of Civil Procedure. 
-6-

relief may be granted is a pure question of law, a 

reviewing court owes no deference to a trial court’s 

determination; instead, an appellate court reviews the 

issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (footnotes omitted). 

JURISDICTION

Courts recognize three categories of jurisdiction: (1) subject matter 

jurisdiction involving authority over the nature of a case and the general type of 

controversy, (2) jurisdiction over a particular case involving authority to decide a 

specific case, and (3) personal jurisdiction involving authority over specific 

persons. Hisle v. Lexington-Fayette Urban Cty. Gov’t, 258 S.W.3d 422, 429 (Ky. 

App. 2008). Here, the trial court found it did not have personal jurisdiction over 

the Appellees—who are neither Kentucky citizens nor a Kentucky corporation—

under Kentucky’s long-arm statute.

In relevant part, Kentucky’s long-arm statute, KRS9 454.210, 

provides: 

(1) As used in this section, “person” includes an 

individual, his executor, administrator, or other personal 

representative, or a corporation, partnership, association, 

or any other legal or commercial entity, who is a 

nonresident of this Commonwealth.

(2) (a) A court may exercise personal jurisdiction over a 

person who acts directly or by an agent, as to a claim 

arising from the person’s: 

 

9

 Kentucky Revised Statutes. 
-7-

1. Transacting any business in this 

Commonwealth;

2. Contracting to supply services or goods in this 

Commonwealth;

3. Causing tortious injury by an act or omission in 

this Commonwealth;

4. Causing tortious injury in this Commonwealth 

by an act or omission outside this Commonwealth 

if he regularly does or solicits business, or engages 

in any other persistent course of conduct, or 

derives substantial revenue from goods used or 

consumed or services rendered in this 

Commonwealth, provided that the tortious injury 

occurring in this Commonwealth arises out of the 

doing or soliciting of business or a persistent 

course of conduct or derivation of substantial 

revenue within the Commonwealth;

. . .

(b) When jurisdiction over a person is based solely upon 

this section, only a claim arising from acts enumerated in 

this section may be asserted against him.

(Emphasis added.) Despite the lengthy factual allegations detailed in the 

complaint, this is a suit which hinges upon fraud, which Morgan alleges occurred 

at the mediation held in Washington, D.C.10 Morgan does not allege that any 

tortious conduct at issue in this suit occurred in Kentucky, nor does he allege his 

 

10

 Morgan’s complaint consists of more than 35 pages of factual allegations, but the fraud claim 

is pled in less than three pages.
-8-

claims arise from the Appellees’ performance of any of the acts listed under KRS 

454.210, in Kentucky, which would confer the court jurisdiction over them. 

Even so, Morgan asserts—for the first time on appeal—that KRS 

452.450 and Section 112 of the Kentucky Constitution provide the trial court 

jurisdiction. However, only issues fairly brought to the attention of the circuit

court are adequately preserved for appellate review. Elery v. Commonwealth, 368 

S.W.3d 78, 97 (Ky. 2012) (citing Richardson v. Commonwealth, 483 S.W.2d 105, 

106 (Ky. 1972); Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999); and 

Young v. Commonwealth, 50 S.W.3d 148, 168 (Ky. 2001)). Accordingly, Morgan 

waived his ability to raise arguments concerning jurisdiction under KRS 452.450 

and the Kentucky Constitution by failing to raise them before the trial court. 

SETTLEMENT AGREEMENT

The trial court further found that, even if it had jurisdiction over all 

the parties in the case herein, Morgan’s claims are barred by the terms of the 

settlement agreement. Settlement agreements are a type of contract governed by 

contract law. See Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 105 (Ky. 2003). “A 

fundamental rule of contract law holds that, absent fraud in the inducement, a 

written agreement duly executed by the party to be held, who had an opportunity to 

read it, will be enforced according to its terms.” Conseco Fin. Servicing Corp. v. 

Wilder, 47 S.W.3d 335, 341 (Ky. App. 2001). “‘[I]n the absence of ambiguity a 
-9-

written instrument will be enforced strictly according to its terms,’ and a court will 

interpret the contract’s terms by assigning language its ordinary meaning and 

without resort to extrinsic evidence.” Frear, 103 S.W.3d at 106 (citations 

omitted). It is also well-settled that “[t]he construction and interpretation of a 

contract, including questions regarding ambiguity, are questions of law to be 

decided by the court.” First Commonwealth Bank of Prestonsburg v. West, 55 

S.W.3d 829, 835 (Ky. App. 2000). Because the construction and interpretation of 

a contract is a matter of law, it is reviewed under the de novo standard. Nelson v. 

Ecklar, 588 S.W.3d 872, 878 (Ky. App. 2019), review denied (Dec. 13, 2019). 

Here, the terms of the contract were clear and unambiguous. The 

agreement provided a release of Morgan’s claims against Ford and its agents and 

employees. It specifically stated this release included, but was not limited to,

Morgan’s claims against Young, Culler, and Ojakli. This release also covered any 

and all of Morgan’s claims against Ford and its agents and employees, whether 

known or unknown, “from the beginning of the world through the Effective 

Date[.]”11 The agreement noted it “is intended to be broadly construed to release 

all claims arising up to the Effective Date[.]” It further recited that Morgan’s 

decision to sign the agreement “is knowing and voluntary and not induced by the 

Company [(Ford)] or any Associated Persons, or any agent or employee of the 

 

11

 The “Effective Date” is the eighth calendar day after Morgan executed the agreement. 
-10-

Company or any Associated Persons, through fraud, misrepresentation or a threat 

to withdraw or alter the Company’s offer to provide the consideration described in 

Section 2[.]” The agreement further stated, “No party has been or is being 

influenced to any extent or is relying upon any representation, covenant or 

statement by any other person unless set forth in this Agreement.” These 

provisions foreclose Morgan’s claims concerning fraudulent inducement to enter 

the agreement. All other claims contained in Morgan’s complaint in the case 

herein predate the effective date of the agreement. Thus, they are barred by the 

terms of the agreement. 

FRAUD

Nevertheless, the trial court opined that even if it had jurisdiction over 

the Appellees, and Morgan’s claims were not otherwise barred by the terms of the 

settlement agreement, Morgan still failed to meet the heightened pleading standard 

in setting forth his fraud claims against the Appellees. In United Parcel Service

Company v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999), Kentucky’s highest court 

set forth the elements of a fraud claim: 

the 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. Wahba v. Don Corlett Motors, Inc., [573 S.W.2d 

357, 359 (Ky. App. 1978)].
-11-

It is enough to plead the time, place, the substance of the false representations, the 

facts misrepresented, and the identification of what was obtained by the fraud. 

Scott v. Farmers State Bank, 410 S.W.2d 717 (Ky. 1966). This “does not require 

textbook pleading of all elements of fraud but requires merely that plaintiff set 

forth facts with sufficient particularity to apprise defendant fairly of charges 

against him.” Id. at 722. 

Yet, review of Morgan’s complaint—which he has neither amended 

nor moved to amend—reveals fatal flaws in his failure to specifically plead his 

fraud claims against the Appellees. CR 9.02 provides, “[i]n all averments of fraud 

or mistake, the circumstances constituting fraud or mistake shall be stated with 

particularity. Malice, intent, knowledge, and other condition of mind of a person 

may be averred generally.” “[A]t a minimum, Rule 9(b) requires that the plaintiff 

specify the who, what, when, where, and how of the alleged fraud.” Sanderson v. 

HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (internal quotation

marks and citation omitted) (discussing federal counterpart to CR 9.02). Morgan’s

complaint does not identify who made the alleged misrepresentations he claims to 

have relied upon during mediation. Absent this requirement, it is impossible to 

establish the elements from which a cause of action for fraud might arise.
-12-

CONFIDENTIALITY

The trial court found the alleged misrepresentations are inadmissible 

because they occurred at mediation and are protected from disclosure by the 

Uniform Mediation Act (UMA) adopted in Washington, D.C. The trial court 

further pointed out that, although the UMA has not been formally adopted in 

Kentucky, Jefferson Circuit Court Rules of Civil Procedure, Local Rule 1312 

mandates that mediation shall be considered as settlement negotiations for 

purposes of KRE12 408. However, we need not look beyond the agreement itself to 

determine that every allegation concerning the parties’ conduct prior to the 

effective date of the agreement was to be kept confidential. The agreement states 

Morgan “agrees to keep strictly confidential the existence of this Agreement, the 

allegations raised in or related to the Asserted Claims, and the existence or 

substance of the negotiations and mediation leading up to this Agreement.” To the 

extent Morgan’s claims concern any actions by the Appellees prior to mediation, 

they are still barred under the settlement agreement, for the reasons previously 

discussed. 

DAMAGES

The trial court further found that Morgan’s damages are not 

cognizable. Morgan failed to challenge this ruling. His failure to raise an 

 

12

 Kentucky Rules of Evidence. 
-13-

argument concerning this issue constitutes waiver. Johnson v. Commonwealth, 

450 S.W.3d 707, 713 (Ky. 2014). 

CONCLUSION

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

Circuit Court is AFFIRMED. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Thomas A. McAdam, III

Louisville, Kentucky 

BRIEF FOR APPELLEES:

R. Thad Keal

Prospect, Kentucky

Katherine V.A. Smith

Los Angeles, California

Amanda C. Machin

Jacob T. Spencer

Washington, D.C.