RENDERED: OCTOBER 6, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0081-MR

JAYNE KENDLE APPELLANT 

v. 

APPEAL FROM CHRISTIAN CIRCUIT COURT

HONORABLE JOHN L. ATKINS, JUDGE

ACTION NO. 21-CI-00439

CHAVDA MEDICAL SERVICES, 

PLLC; DR. GEETA CHAVDA; DR. 

SANJAY GEETA; GEETA S. 

CHAVDA, M.D., PLLC; AND THE 

BELL CLINIC, PLLC D/B/A BELL 

CLINIC APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, KAREM, AND MCNEILL, JUDGES.

CETRULO, JUDGE: Appellant Jayne Kendle (“Employee”) appeals the Christian 

Circuit Court’s November 2022 Order denying Employee’s pre-trial motion for 

summary judgment and its Final Trial Order and Judgment indicating its denial of

her motion for directed verdict.
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FACTUAL AND PROCEDURAL HISTORY

In February 2018, Employee, a pediatric nurse practitioner, entered a

five-year employment contract with Appellees Dr. Sanjay Chavda (“Dr. Sanjay”);

1

Dr. Geeta Chavda (“Dr. Geeta”); and their “practices,” including Chavda Medical 

Services, PLLC; Geeta S. Chavda, M.D., PLLC; and the Bell Clinic, PLLC, d/b/a, 

Bell Clinic (together, “Employer”). The employment contract was the Employer’s 

standard form and included, in pertinent part, that Employee’s salary was set for 

the five-year period and that she would receive 10 days of vacation time per year.

A year later, Employee informed Employer that she was searching for 

job opportunities at other clinics. In order to keep Employee, the parties negotiated 

an “Addendum to Contract Dated 2/14/2018” (the “Addendum”). The Addendum 

stated that its term ran through April 2023 and provided that Employee’s salary 

would increase five percent per year. Further, it stated Employee’s vacation time 

would “increase a total of 160hrs per year.” The Addendum detailed Employee’s 

work schedule – four 10-hour shifts per week unless a clinic opened in Cadiz and 

they needed her to work 8:00 a.m. to 5:00 p.m., Monday through Friday – and 

stated that Employer would purchase fluoride varnish, an ASQ Toolkit, visual 

screener, and hearing screener for Employee’s practice.

1 Occasionally, the record (as well as the case caption) refers to Dr. Sanjay Geeta, but he 

introduced himself as Dr. Sanjay Chavda at trial, so we use Dr. Sanjay Chavda here.
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In April 2020, Employee asked the Employer’s office administrator, 

Latisha Edmonds (“Administrator Edmonds”), when Employee’s next salary and 

vacation increases would take place, and Administrator Edmonds told her that the 

salary increase would begin on her first paycheck after April 24, 2020, but that 

Employee’s vacation time had already increased to 160 hours. However,

Employee explained that she had interpreted the Addendum to mean she would 

receive an additional 160 hours of vacation time every year – i.e., 160 the first 

year, 320 the second, 480 the third, etc. After confirming with Dr. Geeta, 

Administrator Edmonds informed Employee that her interpretation was incorrect. 

Employer had intended the vacation time to be set at 160 hours per year, increasing 

from the initial employment contract’s 10-day-provision, not increasing 160 hours 

every year.

Three months later, in July 2020, Administrator Edmonds sent a note

to Employee notifying her that “[d]ue to the need of availability we will be needing 

your hours to be changed to Monday-Friday 8am-5pm. Starting July 27th, 2020.” 

Administrator Edmonds and Dr. Geeta testified in their depositions that Employee 

had requested the scheduling change. According to them, Employee had trouble 

seeing at night and asked to work different hours so she could get home earlier, 

before it was too dark outside. Therefore, to accommodate Employee’s 

availability, Employer shifted her work schedule.
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The record indicated that the new schedule and the fixed 160-hour 

vacation time remained in place for the next eight months without issue. Then, in 

March 2021, Employee sent a letter to Dr. Geeta, Dr. Sanjay, and Administrator 

Edmonds recounting Employee’s conversations with Administrator Edmonds in 

April 2020 and July 2020, detailed above. Additionally, the letter indicated that 

Employee had been splitting her time between two clinic locations – Bell Clinic 

and Hopkinsville Clinic – even though the Cadiz clinic, referenced in the 

Addendum, had not opened. Employee explained that she had contacted an 

attorney regarding contract enforcement in Kentucky, and the attorney had told her 

contracts are binding. She then asked “that [Employer] honor the commitments 

you made to me in my contract addendum including the return to working four-ten 

hour shifts at Bell Clinic, the annual increases in paid vacation time, and the 

acquisition of an ASQ toolkit, a hearing screener, and vision screener.”

Four days later, Administrator Edmonds responded.2 The response 

again explained that Employee was incorrectly interpreting the vacation time 

provision. Administrator Edmonds stated that such an interpretation – increasing 

vacation time by an additional 160 hours every year – was unrealistic. As to 

2 Although Employee’s attorney submitted this response as an exhibit and noted that Employer 

had provided the response in discovery, Employee testified that she had not received that letter. 

She testified that the only response she had received was a letter from Dr. Sanjay. The attorneys 

agreed that both response letters were “very similar.” However, Dr. Sanjay’s letter stated that 

Employee did not have enough patient volume to justify purchasing the ASQ toolkit, hearing 

screener, and vision screener.
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Employee’s work schedule, Employer had not be able to open the Cadiz Clinic

“[d]ue to issues outside [their] control”; however, “[d]ue to the low patient 

count/not seeing enough patients as per [Employee’s] contract and [Employee]

hav[ing] requested several times to be closer to home to shorten [] driving distance, 

we accommodated you to take care [of] patients in our Hopkinsville office, which 

is closer to your home.” The response detailed the clinics’ operating hours –

8:00 a.m. to 5:00 p.m. at the Bell Clinic and 9:00 a.m. to 6:00 p.m. at the 

Hopkinsville Clinic – and concluded that Employee’s request to work 10-hour days 

at the Bell Clinic could not be accommodated by the clinics’ hours. Additionally, 

it stated that working Monday through Friday, 8:00 a.m. to 5:00 p.m., would help 

build her patient base, per her contract. Finally, it noted that Employee had not 

provided quotes for the equipment she was requesting.3

In April 2021, Employee submitted her letter of resignation and filed 

suit against Employer, claiming Employer had breached the Addendum. 

Employee requested a declaratory judgment stating Employer had violated the 

contract. Employee further claimed her resignation resulted in income loss she 

would have had during the remainder of the employment contract. Following 

discovery, in September 2022, Employee filed a motion for summary judgment, 

3 Administrator Edmonds, Dr. Geeta, and Dr. Sanjay testified that they had asked Employee to 

provide specific model numbers and pricing information to ensure they purchased the 

appropriate items.
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arguing that it was undisputed that Employee had a valid employment contract and 

Addendum and Employer had breached those terms. Specifically, Employee 

argued that Employer breached the Addendum when it failed “to procure any of 

the equipment specified in the Addendum[,]” scheduled Employee to work a 

schedule other than four 10-hour shifts, and did not increase her vacation time by 

160 hours every year. The trial court denied Employee’s motion in its November 

2022 Order, concluding that there were genuine issues of material fact regarding 

whether Employer breached the employment contract. The case proceeded to a 

two-day trial in January 2023.

At trial, Employee, Administrator Edmonds, Dr. Geeta, and Dr. 

Sanjay testified. As to the equipment requested, Employee testified that she 

received fluoride varnish but not the ASQ toolkit, vision screener, and hearing 

screener. She explained that she had been in contact with some equipment

representatives to find adequate items and had given Dr. Geeta’s phone number to 

them. Employee did not know whether the representatives had contacted Dr. 

Geeta or provided the requested details on equipment, but she assumed that 

because the representatives were “bugging” her, they were “bugging” Dr. Geeta as 

well.

As to the work schedule, Employee testified that she did not request a 

change in hours per day; that she wanted to remain working four 10-hour days per 
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week. However, she did testify that she did not express concern about the change 

in hours until months later, when she wrote the March 2021 letter. As to the 

increase in vacation time, Employee testified that she interpreted the Addendum to 

mean she would receive an additional 160 hours every year, not a total of 160 

hours. She then walked through all the Addendum items that Employer had 

provided, including an annual salary increase, the purchase of fluoride varnish, and 

additional payments toward Employee’s health insurance.

Next, Administrator Edmonds testified. Concerning Employee’s 

work schedule, Administrator Edmonds explained that Employee’s schedule varied 

generally, but when the schedule changed to eight-hour days, it was because 

Employee had expressed difficulty seeing at night, occasionally had her own 

medical appointments, or did not have patients at the end of the day and wanted to 

go home. Further, she testified that the clinics were not open 10 hours a day. As 

to vacation time, Administrator Edmonds testified that Employee had requested 

that her initial vacation time of 10 days be doubled to 20 days (160 hours), which 

Employer accommodated. Administrator Edmonds drafted the Addendum and 

stated that the vacation provision was not meant to increase by 20 days every year.

Likewise, Dr. Geeta testified that Employer tried to accommodate the 

four 10-hour day schedule, but the clinic was not open 10 hours a day and 

Employee often wanted to get off by 5:00 p.m. Additionally, Dr. Geeta testified 
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that she intended to double Employee’s vacation time from 10 days to 20 days

(160 hours), fixed. There was no intent to increase 20 extra days every year. 

Regarding the medical equipment, Dr. Geeta testified that she asked Employee to 

provide details on the equipment, including the specific screeners she wanted, the 

equipment company from which she wanted to purchase it, and a quote for the 

items. Employee never provided those details.

Finally, Dr. Sanjay testified. Dr. Sanjay acknowledged that Employer 

had agreed to buy the equipment in the Addendum; however, Employee had never 

provided the exact equipment, with prices, that she wanted. Dr. Sanjay confirmed 

testimony by Dr. Geeta and Administrator Edmonds that Employee resigned on 

good terms and made no mention of any alleged breaches of the contract and 

Addendum in her resignation letter. As such, Dr. Sanjay was not aware of any 

hostility from Employee until he received notice of the complaint.

As for vacation time, Dr. Sanjay testified that he had agreed to give 

Employee 20 days total, not to increase by 20 every year. He explained that such 

an interpretation would not be viable because after a few years, Employee could 

“vacation” all year and still get paid. Despite Dr. Sanjay’s letter to Employee 

stating that Employee did not have enough patient volume to justify the purchases 

of equipment, he also testified that Employee did not provide specific details and 

prices of the items she wanted. Dr. Sanjay clarified that, although the Hopkinsville 
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Clinic was open 8:00 a.m. to 6:00 p.m., which is 10 hours, they do not see patients 

the entire time, so Employee would not be able to work a full 10-hour shift there. 

The Bell Clinic is open only nine hours.

At the conclusion of testimony, Employee moved for a directed 

verdict, arguing that the evidence showed the parties had entered into an 

employment contract, then Addendum, and that the Employer failed to comply

with the terms. Employer emphasized that there were genuine questions of fact 

and “we need to let the jury do its job.” The trial court agreed with the Employer 

and denied the motion for directed verdict. The jury then returned a unanimous 

verdict in favor of Employer, resulting in the Final Trial Order and Judgment.

STANDARD OF REVIEW

When this Court reviews a trial court’s ruling on a motion for directed 

verdict, we “must ascribe to the evidence all reasonable inferences and deductions 

which support the claim of the prevailing party.” Morris v. Boerste, 641 S.W.3d 

688, 698 (Ky. App. 2022) (quoting Wright v. Carroll, 452 S.W.3d 127, 132 (Ky. 

2014)). This Court “cannot substitute its judgment for that of the trial judge unless 

the trial judge is clearly erroneous.” Id. (quoting Wright, 452 S.W.3d at 132).

Typically, a trial court

cannot enter a directed verdict unless there is a complete 

absence of proof on a material issue or if no disputed 

issues of fact exist upon which reasonable minds could 

differ. Where there is conflicting evidence, it is the 
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responsibility of the jury to determine and resolve such 

conflicts, as well as matters affecting the credibility of 

witnesses.

Id. (quoting Wright, 452 S.W.3d at 132).

Then, this Court must determine “whether the jury verdict was 

flagrantly against the evidence so as to indicate that it was reached as a result of 

passion or prejudice. If it was not, the jury verdict should be upheld.” Id. (quoting

Wright, 452 S.W.3d at 132).

ANALYSIS

Employee argues that the trial court erred when it denied her pre-trial 

motion for summary judgment and her motion for directed verdict at the 

conclusion of trial. Employee claims the evidence showed that Employer chose 

not to comply with the Addendum; therefore, the trial court should have granted 

her motions. Specifically, Employee takes issue with the Addendum’s provision of 

160 hours vacation time per year, her workweek split into four 10-hour days, and 

the acquisition of certain pieces of medical equipment.

4

4 Additionally, the parties discuss contract formation- and modification-specific issues, e.g., 

Employer argues that Employee’s inaction when her schedule changed showed that she 

“assented to a revision in her contract[,]” citing Kincaid v Johnson, True & Guarnieri, LLP, 538 

S.W.3d 901, 911 (Ky. App. 2017). While that may be true, on appeal from a denial of directed 

verdict, this Court’s scope of review is confined to whether the trial court clearly erred when it 

denied the motion and submitted the issues to the jury. Therefore, our review is limited to 

whether there was proof that a disputed issue of fact existed such that submission to the jury was 

proper. See Morris, 641 S.W.3d at 698 (quoting Wright, 452 S.W.3d at 132).
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A. Order Denying Motion for Summary Judgment

First, Employee claims that the trial court erred when it denied her 

motion for summary judgment because there were no genuine issues of material 

fact. However, Employer contends that the denial of Employee’s motion for 

summary judgment is not properly before this Court. We agree. The Kentucky 

Supreme Court has explained that pursuant to Gumm v. Combs, 302 S.W.2d 616

(Ky. 1957), “[a]n order denying a motion for summary judgment is not appealable.

Nor is such a denial reviewable on an appeal from a final order or judgment where 

the question considered is whether or not there exists a genuine issue of a material 

fact.” Auslander Properties, LLC v. Nalley, 558 S.W.3d 457, 462 (Ky. 2018)

(quoting Gumm, 302 S.W.2d at 616-17). There, the Kentucky Supreme Court 

noted that

[T]here is an exception to the general rule found in 

[Gumm] and subsequently approved in Loy v. Whitney[,

339 S.W.2d 164 (Ky. 1960)] and Beatty v. Root[, 415

S.W.2d 384 (Ky. 1967)]. The exception applies where: 

(1) the facts are not in dispute, (2) the only basis of the 

ruling is a matter of law, (3) there is a denial of the motion, 

and (4) there is an entry of a final judgment with an appeal 

therefrom. Then, and only then, is the motion for 

summary judgment properly reviewable on appeal under 

Gumm.

Id. (quoting Trans. Cabinet, Bureau of Highways v. Leneave, 751 S.W.2d 36, 37 

(Ky. App. 1988)).
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This case does not meet the requisite elements. Immediately, it fails:

the facts surrounding the change in work schedule, the purchase of medical 

equipment, and the increase in vacation time were all in genuine dispute. 

Employer argued that Employee requested the change in her work schedule so she 

could get home earlier in the day, before it was too dark; however, Employee 

claims she did not make such request and that Employer unilaterally mandated the 

change. Further, Employer argued it agreed to purchase the equipment for 

Employee, but was waiting to get detailed information and quotes from Employee; 

however, Employee testified that she put the equipment representatives in contact 

with Dr. Geeta to provide such information. Finally, Employer argued it agreed to 

double Employee’s vacation time just once, but Employee believed she should 

receive 160 additional hours of vacation time every year. As the exception to the 

rule does not apply, the trial court’s denial of Employee’s motion for summary 

judgment is not reviewable.

B. Order Denying Motion for Directed Verdict

Next, Employee argues that the trial court erred when it denied her 

motion for directed verdict because “the trial evidence demonstrated that the

[Employer] violated the Addendum[.]” As discussed, “a trial court should only 

grant a directed verdict when ‘there is a complete absence of proof on a material 

issue or if no disputed issues of fact exist upon which reasonable minds could 
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differ.’” Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014), as corrected

(Apr. 7, 2015) (citation omitted). Above, we explained that there were disputed 

issues of fact; therefore, the only question left is whether Employer presented proof 

on the issues.

It is Employee’s contention that the proof introduced by Employer –

that the written contract had been modified by subsequent oral agreements – was 

not sufficient to take the case to the jury, in light of the rule that such evidence 

must be clear and convincing. Thus, Employee asserts she was entitled to a 

directed verdict in her favor. The generally recognized rule is that a contract in 

writing may be modified by a subsequent parol agreement. McKinney v. Flanery, 

205 Ky. 766, 266 S.W. 629, 631 (1924); Hicks v. Oak’s Adm’r, 233 Ky. 27, 24 

S.W.2d 917, 921 (1930). “Clear and convincing,” in such circumstances, “does 

not mean that the oral contract should be established beyond a reasonable doubt.”

Glass v. Bryant, 302 Ky. 236, 194 S.W.2d 390, 393 (1946). Instead, “[i]t means 

that the evidence in support of the oral agreement is not vague, ambiguous or 

contradictory, and comes from a credible source. Proof that is clear and 

convincing . . . does not lose its character merely because it is disputed or 

contradicted by evidence introduced by the opposing party.” Id.

Employee emphasizes that Employer did not present any documents 

noting her alleged “request” to modify the Addendum because Employee never 
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made such request. However, Administrator Edmonds and Dr. Geeta both testified 

that Employee regularly asked to get home earlier, before it was too dark, and 

stated that she wanted to be off by 5:00 p.m., but explained that they did not write 

down every request from their employees. Further, Employee corroborated that 

when her work schedule changed, she worked the new schedule without objection 

for months before sending her letter asking to go back to four 10-hour days.

Similarly, as to vacation time, Employee argues that Employer 

“refused to follow the language of the Addendum by providing an increase of 160 

hours of vacation during each year of the Addendum[.]” Employee disagrees that 

her interpretation of the language was incorrect and points to Dr. Sanjay’s 

testimony that the vacation term was “not viable.” However, Administrator 

Edmonds, Dr. Geeta, and Dr. Sanjay all testified that they intended to double 

Employee’s vacation time from 10 days in the original employment contract to 20

days (160 hours) total. Further, Dr. Sanjay testified that increasing the vacation 

time indefinitely would result in Employee eventually having a full year’s worth of 

vacation time, which would not have made sense.

Regarding the purchase of equipment, Employee argues that Dr. 

Sanjay had testified that Employer did not make the purchases because “he found it 

unnecessary and not financially viable[,]” which is not an appropriate reason to 

“breach” a contract. While Dr. Sanjay did testify that he did not believe the 
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equipment was necessary, based on Employee’s low patient numbers, he 

acknowledged that regardless of his belief, he had agreed to buy it. Dr. Sanjay

then explained that the reason he did not buy it was because Employee had failed 

to provide the specific information and quote for the equipment.

While Employee presented evidence that Employer may have 

breached the Addendum, Employer clearly presented clear and convincing 

opposing proof.

5

 There was no “complete absence of proof on a material issue[.]” 

Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998). The Kentucky Supreme 

Court has noted that “[w]here there is conflicting evidence, it is the responsibility 

of the jury to determine and resolve such conflicts, as well as matters affecting the 

credibility of witnesses.” Id. at 19 (citation omitted). As such, the trial court did 

not err when it denied Employee’s motion for directed verdict.

Finally, this Court “must determine whether the verdict rendered 

[was] palpably or flagrantly against the evidence so as to indicate that it was 

reached as the result of passion or prejudice.” Id. at 18 (citing NCAA v. Hornung, 

754 S.W.2d 855 (Ky. 1988)). If the verdict was not, it should be upheld. Id.

(citation omitted). Here, after weighing the evidence discussed and the credibility 

of the witnesses, the jury unanimously agreed with Employer’s version of events. 

5 Again, clear and convincing proof “does not lose its character merely because it is disputed or 

contradicted by evidence introduced by the opposing party.” Glass, 194 S.W.2d at 393.
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Taking Employer’s evidence as true, as required by Hornung, there is no indication 

that the jury’s verdict was the result of passion or prejudice. Id. at 19. See also

Morris, 641 S.W.3d at 698. Therefore, the verdict must be upheld.

CONCLUSION

The trial court did not err when it denied Employee’s motion for 

directed verdict. As such, we AFFIRM the Final Trial Order and Judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT:

D. Wes Sullenger

Paducah, Kentucky

BRIEF FOR APPELLEES:

J. Michael Foster

Hopkinsville, Kentucky