RENDERED: FEBRUARY 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0307-MR

FREEDOM DAY HEALTHCARE 

CENTER LIMITED LIABILITY 

COMPANY, AS GUARDIAN FOR

DOROTHY GARDNER, A DISABLED 

ADULT APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 20-CI-007099

MELINDA BURROUGHS; 

BRITTANY BURROUGHS; AND 

FIFTH THIRD BANK, N.A. APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.

CETRULO, JUDGE: This is an appeal from a ruling of the Jefferson Circuit Court 

which denied Appellant, Freedom Day Healthcare Center LLC, as Guardian for 
-2-

Dorothy Gardner, (“Freedom Day”) leave to file an amended complaint against 

Appellee Fifth Third Bank, N.A. (“Fifth Third”). Upon our review, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Dorothy Gardner (“Dorothy”) is a single woman in her 80s who 

previously resided in Jefferson County and had no children, but did have 

substantial assets. In 2019, Dorothy lived next door to Melinda and Brittany 

Burroughs (“the Burroughs”). During that time, Dorothy executed a Living Trust 

in which all of her assets were placed (the “Trust”) and named a family member of 

the Burroughs as the sole heir. The Burroughs established accounts for the Trust at 

Fifth Third.

In November 2020, Dorothy moved to an assisted living center, 

Freedom Day. That month, the Jefferson District Court appointed Freedom Day as 

an emergency guardian of Dorothy, specifically finding that she had been deemed 

disabled – Dorothy had been diagnosed with dementia – and directing any third 

party in possession of assets to turn over same to the guardian. The newly-named 

guardian, Freedom Day, was also specifically empowered to take legal action as 

necessary to preserve or recover assets of the estate. Freedom Day filed the 

underlying action within weeks of that order. The complaint asserted the 

Burroughs were financially exploiting Dorothy. Further, it alleged that Fifth Third 

had possession of certain assets, and it sought injunctive relief enjoining Fifth 
-3-

Third from disposing of any assets and directing transfer of the accounts to 

Freedom Day.

Fifth Third timely filed an answer and reportedly froze the accounts. 

The record does not reflect any action by any party to this appeal until May 2021.1 

At that point, Freedom Day filed a motion for access to the bank accounts on 

behalf of Dorothy. Fifth Third responded and asserted that it had already agreed to 

transfer the accounts to Freedom Day. Fifth Third further asserted that counsel for 

Freedom Day had initially agreed to dismiss Fifth Third with prejudice, but then 

rescinded that agreement and requested a dismissal without prejudice. Therefore, 

Fifth Third moved the trial court to dismiss the claims against it. In response, 

Freedom Day filed a motion for leave to file an amended complaint pursuant to 

Kentucky Rule of Civil Procedure (“CR”) 15.01.

The tendered amended complaint asserted that Fifth Third had 

continued to deny possession of the accounts and that such conduct was 

obstructive and amounted to a “conversion” of the accounts, entitling Freedom 

Day to compensatory and punitive damages. Fifth Third again responded that it 

had unequivocally agreed to refrain from disposing of any assets and to 

immediately deliver possession of the accounts, but that it also still sought the trial 

1 The parties exchanged some written discovery during this time, but there is nothing filed with 

the Court reflecting the extent of that discovery.
-4-

court’s dismissal of the claims against it and denial of the motion to amend the

complaint.

The trial court heard both motions, and entered an order on 

October 27, 2021, requiring Fifth Third to transfer the funds and further ordering 

that upon transfer of the funds, Fifth Third would be dismissed with prejudice. A 

separate order denied Freedom Day’s motion to amend the complaint. Ultimately, 

the court entered a subsequent order adding language that the dismissal of Fifth 

Third was final and appealable and that there was no just cause for delay.2 This 

appeal followed.

STANDARD OF REVIEW

An appellate court reviews a trial court’s ruling on whether to allow 

leave to amend under an abuse of discretion standard. Kenney v. Hanger 

Prosthetics and Orthotics, Inc., 269 S.W.3d 866, 869-70 (Ky. App. 2007) (citing 

Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 779 (Ky. App. 2000)). The 

test for abuse of discretion is whether the decision of the trial judge “was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire 

and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted).

2 Although the notice of appeal lists the Burroughs as appellees, they were not affected by the 

trial court’s rulings as to the claims against Fifth Third and have filed no pleadings or briefs on 

these issues.
-5-

To amend the pleading at this stage, after Fifth Third’s responsive 

pleading and more than 20 days had passed, Freedom Day was required to seek 

leave of court. While it is true that CR 15.01 provides that leave “shall be freely 

given when justice so requires[,]” it is still discretionary with the trial court, and 

that decision will not be disturbed absent an abuse of that discretion. Nami Res. 

Co., L.L.C. v. Asher Land & Min., Ltd., 554 S.W.3d 323, 343 (Ky. 2018) (citation 

omitted).

Moreover, we have previously held that the trial court has wide 

discretion in such matters and “may consider such factors as the failure to cure 

deficiencies by amendment or the futility of the amendment itself.” Kenney, 269 

S.W.3d at 869 (quoting First Nat’l Bank of Cincinnati v. Hartman, 747 S.W.2d 

614, 616 (Ky. App. 1988)); Swearingen v. Hagyard Davidson McGee Assocs.,

PLLC, 641 S.W.3d 186, 194 (Ky. App. 2022).

ANALYSIS

Based upon the facts presented at the hearing in this matter, we do not 

agree that the trial court abused its discretion in denying the filing of the amended 

complaint. Furthermore, we do not believe that the interests of justice would have 

been served had the court below allowed the amended complaint to be filed. The 

parties, through counsel, both agreed on the record that there had been several 

offers by Fifth Third to relinquish the funds and that the “sticking point” became 
-6-

Fifth Third’s request for a corresponding dismissal “with prejudice” of the sole 

claim against it, i.e., injunctive relief ordering Fifth Third to relinquish the funds to 

Freedom Day. The record reflects that Freedom Day was willing to dismiss Fifth 

Third, but simply wanted the dismissal to be “without prejudice.” As counsel for 

Freedom Day put it, he did not want to agree to dismissal “with prejudice” on the 

“one in a million” chance that further discovery of the Burroughs might show some 

actionable conduct by Fifth Third.

While we applaud zealous representation by counsel, the complaint 

did not assert any claim against Fifth Third, other than that it should be ordered to 

release the funds. The record clearly confirms the willingness of Fifth Third to do 

so and when counsel for Freedom Day would not agree to dismissal, Fifth Third 

moved the trial court to order that dismissal. The court then did so, in conjunction 

with the order directing the funds to be transferred.

The proposed amendment asserted a claim for conversion which 

appears from the record to have been based solely on the fact that Fifth Third had 

sought to be dismissed with prejudice, having satisfied the allegations of the 

complaint. It is difficult to understand how the actions of Fifth Third, through 

counsel, could support a claim for conversion. The elements for a claim of

conversion were set forth in Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 

(Ky. App. 2014), as follows: 
-7-

(1) the plaintiff had legal title to the converted property;

(2) the plaintiff had possession of the property or the 

right to possess it at the time of the conversion;

(3) the defendant exercised dominion over the property in 

a manner which denied the plaintiff’s rights to use and 

enjoy the property and which was to the defendant’s own 

use and beneficial enjoyment;

(4) the defendant intended to interfere with the plaintiff’s 

possession;

(5) the plaintiff made some demand for the property’s 

return which the defendant refused;

(6) the defendant’s act was the legal cause of the 

plaintiff’s loss of the property; and

(7) the plaintiff suffered damage by the loss of the 

property.

(Citation omitted.) It does not appear that any of the elements of a conversion 

claim were alleged in the proposed amended complaint, nor that the facts would 

have warranted that claim.

A trial court may deny the right to amend a pleading based on the 

futility of the amendment itself. Kenney, 269 S.W.3d at 869 (citation omitted). 

This essentially amounts to a failure to state a claim upon which relief could be 

granted. Insight Kentucky Partners II, L.P. v. Preferred Automotive Services, Inc.,

514 S.W.3d 537, 555 (Ky. App. 2016) (internal quotation marks and citation 

omitted). The trial court saw the proposed amendment was futile and denied that 
-8-

relief. Since there were no further claims asserted in the original complaint, the 

court below properly and within its discretion dismissed Fifth Third as a party.

Fifth Third further argues that the appeal of Freedom Day identified 

only the order dismissing the complaint as to Fifth Third and, thus, our review 

should be limited to whether that dismissal was proper. Fifth Third asserts we 

should not even address the issue as stated by Freedom Day, i.e., that the court 

abused its discretion in denying leave to amend. We find no abuse of the trial 

court’s discretion in either regard. Accordingly, we affirm the order of the 

Jefferson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Brian Schuette

Amanda L. Blakeman

Bowling Green, Kentucky

BRIEF FOR APPELLEE FIFTH 

THIRD:

J. Tanner Watkins

Philip E. Cecil

Louisville, Kentucky