RENDERED: MAY 12, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0380-MR

PAT DOYLE AND SHEILA DOYLE APPELLANTS 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE JERRY CROSBY, II, JUDGE

ACTION NO. 19-CI-00390

BLAKE-MOORE CONSTRUCTION, 

INC. APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Pat and Sheila Doyle (the “Doyles”) appeal from a judgment 

of the Oldham Circuit Court following a bench trial. Finding no error, we affirm. 

In 2018, the Doyles contacted Blake-Moore Construction, Inc. 

(“BMC”) about building an unattached garage on their property. BMC agreed to 

the project on a cost-plus management fee arrangement and produced a written 
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estimate for the project with itemized costs for permits, Builder’s Risk insurance, 

Workers’ Compensation insurance, materials, and labor for subcontractors totaling 

$72,530.08, including a 12% project management fee of $7,771.08. The Doyles 

rejected the estimate, believing it to be high, and agreed BMC would perform some 

of the construction with Mr. Doyle performing the rest. The details of this oral 

agreement were not reduced to writing.1

The project proceeded, although the parties disagreed on the nature of 

their arrangement. The Doyles believed the project would be billed on a cost-plus

12% management fee basis as in the original estimate while BMC understood that 

they were operating as a subcontractor with Mr. Doyle as the general contractor. 

In this scenario, BMC would send invoices to the Doyles as they would when 

acting as a subcontractor, including a fee for their services. 

On October 17, 2018, the Doyles paid a deposit of $8,500 and work 

on the garage began. At some point, the Doyles entered a second contract with 

BMC to construct a new deck on their house for $14,000. This agreement was 

never committed to writing and there was no discussion of a cost-plus fee 

arrangement. The Doyles made two more payments of $20,471.87 and 

1 While Mr. Doyle testified that he signed the original estimate and marked which items he 

intended to perform, BMC denied the existence of a signed agreement and no such document 

was entered into evidence.
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$21,033.90,

2

respectively, over the course of the projects for a total of $50,005.77, 

including $14,915.35 for the deck. 

By mid-January both projects were substantially3completed. The 

Doyles asked BMC for invoices and receipts from their contractors to verify the 

total cost of the project, believing it to be a cost-plus arrangement. BMC provided 

some invoices to the Doyles but not to their satisfaction and the parties’

relationship deteriorated, resulting in the Doyles removing BMC from the job. 

Following termination, BMC completed a final accounting. Its total costs for both 

projects were $44,580.28, which included $969.53 for fuel, Builder’s Risk 

insurance, Workers’ Compensation insurance, and $5,580.00 for BMC labor. 

The Doyles dispute this accounting, primarily taking issue with 

BMC’s charge for its own labor. By its own admission, BMC never discussed this 

cost with the Doyles. Further, the 124 hours BMC charged for labor were an 

estimate and there are no timesheets detailing these hours. According to the 

Doyles’ calculation, they overpaid on the project by $7,011.42. 

2 The December 12, 2018 invoice was for $28,971.87 and the December 31, 2018 invoice was 

for $21,033.90.

3 Work yet to be completed on the garage included: installing the garage doors, insulation, 

gutters, soffit, and downspouts, and brick work on the garage exterior; work remaining on the 

deck included installing the deck railing and steps.
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The Doyles filed a complaint in Oldham Circuit Court alleging breach 

of contract; fraud/misrepresentation; violations of the Kentucky Consumer 

Protection Act (“KCPA”), KRS4 367.170; unjust enrichment; bad faith; and

punitive damages.

5

 Following a bench trial, the trial court dismissed all claims. 

This appeal followed. 

Our standard of review of a trial court’s findings of fact after a bench 

trial is whether they are clearly erroneous. CR6 52.01. Factual findings are not

clearly erroneous if they are “supported by substantial evidence.” Gosney v. 

Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005) (citations omitted). “Substantial 

evidence is evidence, when taken alone or in light of all the evidence, has

sufficient probative value to induce conviction in the mind of a reasonable person.” 

Id. (citations omitted). The trial court’s conclusions of law are reviewed de novo. 

Id. 

The Doyles argue the trial court erred in dismissing their claims, 

specifically that its findings were clearly erroneous, and that it misapplied the law 

to the facts. Fundamentally, the Doyles’ allegations of error all center around the 

4 Kentucky Revised Statutes. 

5 The Doyles filed an amended complaint on June 29, 2020, adding additional claims. The 

original complaint stated claims for breach of contract and unjust enrichment while the amended 

complaint added claims for fraud/misrepresentation, violations of the Kentucky Consumer 

protection Act, bad faith, and punitive damages. 

6 Kentucky Rules of Civil Procedure.
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trial court’s construction of the parties’ agreement. The Doyles claim damages of 

$7,411.32 based upon their belief the parties were operating under a cost-plus 12% 

agreement. However, the trial court determined any such agreement ended when 

the Doyles rejected BMC’s original estimate. This finding was supported by 

substantial evidence. 

First, it is unclear the parties ever entered a cost-plus agreement. 

Terry Moore, BMC’s owner,

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testified the parties never reached a cost-plus 

agreement because the Doyles rejected their estimate. Had the Doyles accepted the 

estimate, BMC would have created a written contract using actual bids from 

suppliers and subcontractors. What is clear is that the original estimate contained a

12% management fee and that the Doyles rejected this estimate. 

Moore testified that once the Doyles rejected the estimate and asked 

BMC to perform only parts of the project, it considered itself a subcontractor of the 

Doyles. In this arrangement, it would submit invoices to the Doyles, like any other 

subcontractor, including a fee for its services. No evidence of any updated price 

agreement between the parties was ever introduced. 

In fact, the best evidence of the agreement existing between the 

parties once the Doyles rejected the original estimate is the two invoices, tendered 

to and paid by the Doyles, totaling $50.005.77, which represent the total cost the 

7 BMC is co-owned by Terry Moore and Bob Blakemore. 
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Doyles paid for the garage and deck, including the alleged overpayment of 

$7,411.32. These invoices contain itemized costs for the work BMC performed (or 

subcontracted) and specifically include a 15% management fee. The Doyles paid 

both invoices without objection, suggesting these numbers reflected the parties’

intentions, or at least were not disagreeable to the Doyles. Regardless, the Doyles 

cannot now complain of prices which were clearly set forth in the invoices and 

about which they did not object at the time. In sum, the trial court’s finding that 

the parties did not have a cost-plus 12% agreement once the Doyles rejected 

BMC’s original estimate was not clearly erroneous.

Based upon this finding, the trial court held the Doyles could not 

prove their claims for conversion, unjust enrichment, violation of the KCPA, 

fraud/misrepresentation, bad faith, or punitive damages. The Doyles’ claims were 

all premised on their understanding the parties were operating under a cost-plus 

12% agreement. We agree with the trial court’s conclusion but will address each 

claim briefly in turn. 

Turning first to the Doyles’ claim for conversion,8the trial court 

construed this claim as referring to their alleged overpayment of $7,411.32. 

Conversion is “the wrongful exercise of dominion and control over property of 

8 We would note that neither the original nor the amended complaint state a claim for 

conversion, however, because the trial court assumed and specifically considered the claim in its 

judgment, we will address it on the merits. 
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another[.]” State Auto. Mut. Ins. Co. v. Chrysler Credit Corp., 792 S.W.2d 626, 

627 (Ky. App. 1990). The elements of the tort of conversion are: (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. 

Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. App. 2014) (quoting

Ky. Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 

n.12 (Ky. 2005)).

The Doyles’ conversion claim fails because they cannot prove 

entitlement to the $7,411.32 they allege they overpaid. This alleged overpayment 

stems from the Doyles’ belief the parties had a cost-plus 12% agreement. 

However, as the trial court found, any such agreement ended when the Doyles 

rejected the original estimate. As held above, this finding was supported by 

substantial evidence. Therefore, the Doyles cannot prove the elements of 

conversion and the trial court did not err in dismissing this claim. 
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To recover on a claim of unjust enrichment a plaintiff is required to 

“prove three elements: (1) benefit conferred upon defendant at plaintiff’s expense; 

(2) a resulting appreciation of benefit by defendant; and (3) inequitable retention of 

[that] benefit without payment for its value.” Furlong Dev. Co. v. GeorgetownScott Cnty. Planning & Zoning Comm’n, 504 S.W.3d 34, 39-40 (Ky. 2016)

(internal quotation marks and citation omitted). We agree with the trial court that 

the Doyles’ claim for unjust enrichment fails because they cannot prove an 

inequitable overpayment to BMC. The Doyles’ alleged overpayment hinges on a 

cost-plus 12% agreement, which the trial court determined did not exist. 

Therefore, we find no error. 

Next, the KCPA prohibits “unfair, false, misleading, or deceptive acts 

or practices in the conduct of any trade or business[.]” The trial court held the 

Doyles’ payment of invoices clearly depicting BMC’s charges, including a 15% 

management fee, was persuasive evidence against claims of unfair, false, 

misleading, or deceptive billing practices. This finding was supported by 

substantial evidence. Absent any evidence of unfair, false, misleading, or 

deceptive acts, the Doyles’ claim for violations of the KCPA fails.9 The trial court 

did not err in dismissing this claim. 

9 We question whether the KCPA applies to the facts of this case. See Joiner v. Tran & P 

Properties, LLC, 526 S.W.3d 94, 99 (Ky. App. 2017) (citation omitted) (“[T]he KCPA does not 
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Fraud by misrepresentation requires proof that “(1) the defendant 

made a material representation to the plaintiff; (2) the representation was false; (3) 

the defendant knew the representation to be false or made it with reckless disregard 

for its truth or falsity; (4) the defendant intended to induce the plaintiff to act upon 

the misrepresentation; (5) the plaintiff reasonably relied upon the 

misrepresentation; and (6) the misrepresentation caused injury to the plaintiff.” 

Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, 747 (Ky. 

2011) (citations omitted). The trial court found no evidence of false or misleading 

statements by BMC designed to induce the Doyles into hiring BMC to construct 

the garage or deck. This finding was supported by substantial evidence. 

The Doyles’ fraud allegations all concern BMC’s purported

overcharging for its services, which, again, stems from the Doyles’ belief the 

parties had a cost-plus 12% agreement. The trial court found no such agreement to 

exist. Therefore, the trial court properly dismissed this claim. 

The trial court dismissed the Doyles’ bad faith claim, finding that 

common law bad faith claims arise only under insurance contracts. While we 

disagree with the trial court’s reasoning, we agree with its result. “Within every 

contract, there is an implied covenant of good faith and fair dealing, and contracts 

apply to single real estate transactions.”). However, because we affirm the trial court’s dismissal 

of this claim on other grounds, we decline to pursue the issue. 
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impose on the parties thereto a duty to do everything necessary to carry them out.” 

Farmers Bank and Tr. Co. of Georgetown, Kentucky v. Willmott Hardwoods, Inc., 

171 S.W.3d 4, 11 (Ky. 2005) (citation omitted). “An implied covenant of good 

faith and fair dealing does not prevent a party from exercising its contractual 

rights.” Id. (citation omitted). “In order to show a violation of the implied 

covenant of good faith and fair dealing . . . the party asserting the violation must 

‘provide evidence sufficient to support a conclusion that the party alleged to have 

acted in bad faith has engaged in some conduct that denied the benefit of the 

bargain originally intended by the parties.’” PBI Bank, Inc. v. Signature Point 

Condominiums LLC, 535 S.W.3d 700, 718 (Ky. App. 2016) (quoting 23 Williston 

on Contracts § 63:22 (4th ed. 2004)). As with its other claims, the Doyles’ bad 

faith claim primarily concerns its alleged overpayment for BMC’s services, which 

is, again, based off a cost-plus 12% agreement. The Doyles’ appellate brief 

claims:

the bad faith and unfair dealing of BMC is obvious and 

actionable. Again, it would not present invoices to show 

actual costs, it never gave a final accounting, it 

overcharged Doyle, it unilaterally changed the 

management fee from 12 to 15%, it falsely billed 124 

hours of labor, it created magical accounting, and it 

would not complete the job according to schedule.

Without a cost-plus 12% agreement, these allegations are not evidence 

of bad faith. Without a cost-plus 12% agreement, there is no evidence BMC 
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engaged in any conduct which denied the benefit of the bargain originally intended 

by the parties. Again, as noted above, the best evidence of the parties’ intentions 

after the Doyles rejected the original estimate is the invoices paid by the Doyles 

without objection, invoices which included the alleged overpayment the Doyles 

now seek to recover. The only claim not dependent on a cost-plus 12% agreement, 

that BMC failed to complete the job according to schedule, also fails because, as 

the trial court found, BMC stopped working at the Doyles’ request. This finding 

was supported by substantial evidence. Therefore, the trial court did not err in 

dismissing this claim.

Concerning punitive damages, KRS 411.184(2) provides: “A plaintiff 

shall recover punitive damages only upon proving, by clear and convincing 

evidence, that the defendant from whom such damages are sought acted toward the 

plaintiff with oppression, fraud or malice.” The trial court found insufficient 

evidence of oppression, fraud, or malice to award punitive damages. The Doyles’

“arguments” in opposition are merely conclusory. As such, we find no error. 

See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (“It is 

not our function as an appellate court to research and construct a party’s legal

arguments, and we decline to do so here.”). 

The Doyles additionally argue the trial court erred in failing to make 

further findings, or to amend its findings. Following entry of the trial court’s order 
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dismissing their claims, the Doyles moved pursuant to CR 52.02 for the court to 

amend its findings or make additional findings in their favor. In their appellate 

brief, they list numerous facts they allege the trial court failed to find. Once again, 

the Doyles simply disagree with the trial court’s interpretation of the evidence. 

However, “judging the credibility of witnesses and weighing evidence are tasks 

within the exclusive province of the trial court.” Vinson v. Sorrell, 136 S.W.3d 

465, 470 (Ky. 2004) (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). 

Without addressing them individually, these alleged missed findings are all 

dependent upon a cost-plus 12% agreement. As the trial court found, this 

agreement ended when the Doyles rejected the original estimate. We find no error. 

Lastly, the Doyles argue the trial court erred in failing to grant their 

CR 50.02 motion for judgment notwithstanding the verdict and motion for a new 

trial, CR 59.05 motion to alter, amend, or vacate, and CR 60.02 motion for relief 

from the final judgment. The Doyles’ arguments, again, are based upon their 

different interpretation of the parties’ agreement and are conclusory. We therefore 

decline to address them and find no error.

Based upon the foregoing, the judgment of the Oldham Circuit Court 

is affirmed. 

ALL CONCUR.
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BRIEFS FOR APPELLANTS:

Gregg Y. Neal

Shelbyville, Kentucky

BRIEF FOR APPELLEE:

Chelsey S. Brammell

New Castle, Kentucky