Christopher P. Mays v. Benny Patrick

RENDERED: MAY 19, 2023; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2022-CA-0549-MR

CHRISTOPHER LEE MAYS APPELLANT

APPEAL FROM MENIFEE CIRCUIT COURT
v. HONORABLE DAVID A. BARBER, JUDGE
ACTION NO. 20-CI-90059

BENNY PATRICK;
JESSICA PATRICK; AND
ELIZABETH GRACE MAYS APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,
JUDGES.

ECKERLE, JUDGE: This case presents an underlying issue with well-settled law:

whether a Trial Court properly granted summary judgment and ordered specific

performance of a purchase agreement for residential real property. The underlying

issues are intermixed with allegations that the Trial Court was languishing under
an appearance of partiality. We affirm the order granting summary judgment

because the Trial Court has since recused from the case, the parties did not request

that the Trial Court retroactively vacate the summary judgment order, and we have

thoroughly examined the record and conducted a de novo review of the summary

judgment issues and find no error. We begin with a detailed history of the

underlying facts and proceedings, as there was significant confusion leading up to

the order being entered and appealed.

BACKGROUND

In March 2020 Christopher Lee Mays (Christopher) and Elizabeth

Grace Mays (Elizabeth) entered into a Divorce Contract while their marital

dissolution action was pending in Menifee Circuit Court. Pursuant to the terms of

the Divorce Contract, it was agreed that Christopher would receive all right, title,

and interest in the marital residence located in Frenchburg, Kentucky.1 On June

22, 2020, the Trial Court ordered the Decree for Dissolution of Marriage, which

adopted the terms of the Divorce Contract.

Between the Divorce Contract’s execution and the Decree for

Dissolution of Marriage’s entry, Christopher executed a purchase contract agreeing

1
Though Christopher and Elizabeth disagree about the legal effect of this Divorce Contract,
Christopher admitted this term of the Divorce Contract in his answer to the underlying
Complaint (as did Elizabeth in her answer as well, although it was ultimately stricken as
untimely).

-2-
to sell the aforementioned marital residence to Benny and Jessica Patrick (the

Patricks), with the Patricks also agreeing to purchase the same from Christopher.

The purchase contract used was a form prepared by the Lexington-Bluegrass

Association of REALTORS®, containing certain boilerplate terms with blanks for

conditions such as earnest money, financing, a closing date, and the like. The

majority of the blanks were filled in, and several boxes had been checked on the

form. It appears that Christopher and the Patricks executed the purchase

agreement with digital signatures. The purchase agreement stated that closing

“shall occur on or before 07/03/2020”; it did not include language indicating that

time was of the essence.

The closing, however, did not occur. The Patricks allege that this was

caused by a protest made by Elizabeth. According to the Patricks, on July 3, 2020,

they mailed to the Mays a demand letter seeking performance pursuant to the terms

of the purchase agreement. Neither Christopher nor Elizabeth honored the requests

of the demand letter.2

The Patricks filed a Complaint in Menifee Circuit Court on August

28, 2020. In their Complaint, the Patricks alleged the foregoing and prayed that

2
As shown below, Christopher later claimed that the Patricks had not yet secured financing and
were not prepared to close; the Patricks claimed their appraiser was not permitted access to the
residence’s interior for an appraisal, thus prohibiting the Patricks from securing financing.

-3-
the Trial Court would grant: (1) specific performance pursuant to the terms of the

purchase agreement; (2) attorney’s fees and costs related to the case; (3) damages

incurred in good faith reliance on the contract; and (4) any and all other relief to

which they may appear entitled.

The record from this point forward is replete with procedural

anomalies leading to much confusion. There appears to have been some issue with

service as both summonses are in the record and marked “unclaimed.” In spite of

the problems with service, the Patricks nonetheless moved for a final hearing in

November of 2020, serving the motion on whom they believed to be the attorneys

representing Christopher and Elizabeth. Christopher’s purported attorney then

filed a notice of nonrepresentation. In January of 2021, the Patricks then moved

for summary judgment against Christopher and Elizabeth. Almost a month later,

service of process was finally effected on Christopher.

On February 1, 2021, a few days after Christopher was served, the

Trial Court then sua sponte entered an order giving Christopher and Elizabeth ten

days to file motions for summary judgment and all parties five days to reply, as the

Trial Court recognized that the Patricks’ motion for summary judgment had been

sent to an unused e-mail address.

-4-
 Christopher then filed his Answer on February 24, 2021. Elizabeth

filed her Answer and Cross-Claim against Christopher on March 23, 2021. Three

days later, the Trial Court entered summary judgment in favor of the Patricks.

On April 1, 2021, Christopher moved to vacate the order granting

summary judgment. Christopher noted that the Patricks had filed for summary

judgment before Christopher had been served with process. An affidavit signed by

Christopher was attached to the motion. Additionally, Christopher noted that “[a]t

no point has Christopher Mays received a physical copy of the Motion for

Summary Judgment by any means whatsoever.” Christopher argued in his motion

to vacate that he had not been given proper notice of the motion, that there had

never been a hearing on the motion, and that there were genuine issues of material

fact that precluded granting summary judgment. Elizabeth likewise filed a motion

to vacate, incorporating Christopher’s reasons and also arguing that specific

performance should not be granted because the Patricks had not secured financing

by the closing date. Elizabeth further moved the Trial Court to recuse because the

Trial Court’s son-in-law was a first cousin to Jessica Patrick.

On April 13, 2021, the Trial Court vacated the summary judgment

against Christopher because he had not properly received service of process. The

Trial Court noted:

It is understandable that new counsel for Christopher
would be confused in simply looking at the record, with

-5-
 little to nothing having been filed, and much of the
confusion stemming from the representations made at
hearings and conference calls, one of which is not part of
the record, and the other requires digging deeper and
reviewing the recording of the hearing. Having said that,
Christopher is correct that Summary Judgment, as to him,
is inappropriate and, therefore, is VACATED.

The Trial Court denied Elizabeth’s motion to vacate, noting that her

Answer was almost 90 days late with no request for leave to file a late Answer, and

that her motion to vacate largely parrots Christopher’s. The Trial Court converted

the summary judgment order into a default judgment against Elizabeth and struck

Elizabeth’s late-filed Answer. The Trial Court appears to have denied the motion

to recuse, but, curiously, indicated that the Trial Court “will endeavor to obtain a

substitute Judge for the jury trial to be held in this matter . . . .”

Next, Christopher filed a response to the Patricks’ motion for

summary judgment, claiming a material issue of fact existed because the Patricks

allegedly had not secured the financing or appraisals necessary to close on July 3,

2020. Christopher’s newly-retained counsel also noted that he intended to conduct

discovery, and thus granting summary judgment was premature. Christopher

subsequently filed of record discovery requests he propounded on the Patricks; he

also conducted depositions of the Patricks’ real estate agents and appraiser and

filed those of record. Christopher purportedly deposed the Patricks’ loan agent,

but that deposition is not filed of record.

-6-
 In November of 2021, the Patricks filed an Amended Motion for

Summary Judgment against Christopher, requesting specific performance pursuant

to the terms of the purchase agreement, with a reservation of rights to seek

attorneys’ fees and damages.3 At a hearing on December 9, 2021, the Trial Court

granted counsel for Christopher the full 30 days he requested to file a response.

No response was filed because counsel for Christopher forgot to file a response.

On February 16, 2022, the Trial Court entered an Order granting

partial summary judgment in favor of the Patricks. The Trial Court held that the

Divorce Contract was a valid and enforceable contract, with no evidence that it

should be modified pursuant to CR4 60.02. Furthermore, as the Divorce Contract

had no legal restrictions against sale or alienation, it transferred full equitable title

to Christopher and left Elizabeth with only bare legal title pursuant to Nelson v.

Mahurin, 994 S.W.2d 10 (Ky. App. 1998) and Sebastian v. Floyd, 585 S.W.2d 381

(Ky. 1979). The Trial Court further held that the purchase agreement did not state

time was of the essence as to the closing date, and no evidence had been presented

that the closing date was vital to the terms of the purchase agreement. Thus,

pursuant to Bennett v. Stephens, 293 S.W.2d 879 (Ky. 1956), the Trial Court held

that the failure to close on or before the date did not vitiate the contract. Pursuant

3
Elizabeth never contested the default judgment.
4
Kentucky Rules of Civil Procedure.

-7-
to Billy Williams Builders and Developers Inc. v. Hillerich, 446 S.W.2d 280 (Ky.

1969), the Trial Court ordered specific performance and ordered that all proceeds

from the sale be held in escrow pending a determination of any damages to which

the Patricks may be entitled. The order was designated final and appealable.

On February 22, 2022, Christopher filed a motion pursuant to CR

59.05 and 60.02 to vacate the February 16, 2022, order granting partial summary

judgment. The only ground raised to vacate the order was that counsel for

Christopher forgot to file a timely response. On March 10, 2022, the Trial Court

held a hearing on the motion, wherein the Trial Court judge made the following

statement to counsel for Christopher:

Oddly enough, when this case first started one of the
bailiffs told me that your clients [sic] felt like they could
wear the Patricks out by delay, delay, delay, because the
Patricks had sold their house, as you know, in
anticipation of completing the transaction, and then the
wheels fell off the cart.

...

And after all this, all the digging in the weeds, you know
some representations were made, and I even went up and
looked at the divorce case, the file on the divorce case,
‘cause it was represented to me that [Christopher] had
conveyed an interest to [Elizabeth] before the signing of
the purchase agreement. Well, that wasn’t borne out by
the actual file itself, it to me was signed after
[Christopher] had equitable title to the property by virtue
of the property settlement agreement and signed the
purchase agreement. I would be glad to help you out, but
this case has gone on too long.

-8-
 In response, counsel for Christopher averred: (1) that the Patricks had

a contract to sell their house before entering the purchase agreement with

Christopher; and (2) whether the Patricks would be ready to close in a reasonable

amount of time was an outstanding question, as an appraisal was still needed, after

which the bank would need a few weeks to approve financing. The Trial Court

responded that it had already ruled on those issues.

Christopher filed a notice of appeal, and though “[a] notice of appeal,

when filed, transfers jurisdiction of the case from the circuit court to the appellate

court[,]” City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990),

Christopher nonetheless filed a motion5 pursuant to KRS6 26A.015 requesting the

Trial Court judge recuse himself. Christopher argued that recusal was mandated

due to statements the judge made at the March 10, 2022, hearing indicating he had

engaged in or overheard conversations with the bailiff about this case and further

indicating that the judge had conducted an independent investigation into the facts

by reviewing the file in the marital dissolution action between Christopher and

Elizabeth. Christopher did not request the Trial Court to vacate its previous order.

5
At the hearing on this motion, the Trial Court noted it had lost jurisdiction, but counsel for
Christopher argued that because the issue of damages remained, the case was still properly
before the Trial Court even though the summary judgment issue of specific performance was on
appeal.
6
Kentucky Revised Statutes.

-9-
The Trial Court clarified his previous statement regarding the communications

with the bailiff. The Trial Court indicated he made a “misstatement” regarding

having a conversation with the bailiff, but instead had overheard bailiffs talking:

I overheard a conversation leaving the courtroom that the
bailiffs were having. That conversation was reflected in
my comments that apparently they were right, because
two un-responded motions for summary judgment is
unusual and appeared to be a delaying tactic, but that’s
part of the case that’s on appeal.

Counsel for Christopher further argued that the Trial Court made a

factual misstatement at the previous hearing regarding the Patricks having already

sold their house anticipating a closing with Christopher. Counsel noted that the

requests for admissions, which had not been filed in the record, showed only that

the Patricks entered into a purchase agreement with another party to sell the

Patricks’ house prior to entering into a purchase agreement with Christopher.

Counsel for Christopher argued that the statements in toto showed at least an

appearance of partiality. The Trial Court then recused, not announcing any

reasoning from the bench. A subsequently entered order recusing was likewise

summary in nature. Christopher timely filed a second notice of appeal.7

Christopher also filed a supersedeas bond.

7
Christopher filed two notices of appeal, both timely, the first not naming all the parties and only
appealing from the March 18, 2022, order, and the second naming all the parties and additionally
appealing the order granting summary judgment. Between the two notices of appeal,
Christopher changed counsel, and thus each notice was filed by separate counsel. As the instant

-10-
 ANALYSIS

Christopher raises seven allegations of error regarding the proceedings

below. They can be grouped into two main issues: (1) substantive issues relating

to the grant of summary judgment; and (2) procedural ramifications of the Trial

Court’s recusal. We will address the recusal issues first after addressing the

briefing errors we encountered.

I. Briefing Errors.

Considering the confusion in the record below that was created by

actions undertaken by all parties involved in this case, it seems we could expect

Christopher’s brief in this Court to comply fully with our procedural rules and

bring about some measure of clarity. Unfortunately, his brief does not, and we

pause here briefly to discuss those errors. Principally, Christopher does not

include at the beginning of his Argument section and subsections any preservation

statements as were required by the former CR 76.12(4)(c)(v).8 For this violation

case involves only one case and one judgment, only one notice of appeal was necessary. Cf.
W.L.C. v. Commonwealth Cabinet for Health and Family Services, 484 S.W.3d 737, 745 (Ky.
App. 2016) (“Because there were two separate cases and two separate judgments, two separate
notices of appeal should have been filed.”). Regardless, both notices were timely filed, and thus
this procedural anomaly does not require us to create jurisdiction retroactively, see, e.g., City of
Devondale, 795 S.W.2d at 957. We nonetheless caution litigants in the future to be careful to
appeal from the judgment, and not the order denying the CR 59.05 relief, which is interlocutory,
and also to name all the requisite parties in the notice of appeal. See Ford v. Ford, 578 S.W.3d
356 (Ky. App. 2019).
8
As of January 1, 2023, this Rule and many others have been replaced by the Kentucky Rules of
Appellate Procedure (RAP). As the briefs in the instant case were filed prior to the effective date
of RAP, we utilize the prior rule.

-11-
alone we could dismiss the appeal, see, e.g., Krugman v. CMI, Inc., 437 S.W.3d

167 (Ky. App. 2014) (dismissing appeal when brief failed to include preservation

statements at the onset of each of nine argument sub-sections), or review only for

manifest injustice, see, e.g., Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky.

2021) (“the manifest injustice standard of review is reserved only for errors in

appellate briefing related to the statement of preservation”).

Additionally, Christopher claims in one of his argument sub-headings

that “palpable error” occurred below, and yet his brief neither cites to CR 61.02,9

the substantial error rule in civil cases, nor to RCr10 10.26, the criminal rule

counterpart, both of which have been interpreted “identically.” Nami Resources

Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky.

2018). Furthermore, other than in the heading to this argument, Christopher

neither utilizes the word “palpable” nor makes any argument regarding how this

alleged error amounts to palpable error or how said palpable error resulted in

manifest injustice. Christopher’s briefing error runs in the face of longstanding

jurisprudence that “[a]bsent extreme circumstances amounting to a substantial

9
CR 61.02 reads:

A palpable error which affects the substantial rights of a party may be considered
by the court on motion for a new trial or by an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the error.
10
Kentucky Rules of Criminal Procedure.

-12-
miscarriage of justice, an appellate court will not engage in palpable error review

pursuant to RCr 10.26 unless such a request is made and briefed by the appellant.”

Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) (emphasis added).

Though Christopher’s appellate briefing errors constitute substantial

deviations from our Rules, we nonetheless have conducted a de novo review of the

summary judgment issues and further “plumb[ed] the depths of the proceeding” to

determine whether there were any “defect[s] in the proceeding [that were]

shocking or jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d

1, 4 (Ky. 2006). In so doing, we have found no error warranting reversal. Counsel

is cautioned in future filings to comply fully with the RAP briefing requirements.

II. Issues relating to the Trial Court’s recusal.

Christopher presents multiple issues with the Trial Court’s recusal that

we address together. Christopher complains that the Trial Court considered ex

parte communications, conducted an independent investigation into the facts, made

unsupported statements of material fact pertaining to the case, and formulated an

opinion about the merits of the case before discovery was taken. When presented

with a motion to recuse on these bases, the Trial Court granted said motion and

recused from the case. Because Christopher has received the relief requested

below – namely the Trial Court’s recusal – and because Christopher did not file a

-13-
motion pursuant to CR 60.02 requesting that the Trial Court’s order be vacated due

to an appearance of impropriety, we decline to vacate the Trial Court’s order.

Both KRS 26A.015 and SCR11 4.300, Canon 2, Rule 2.11 require

judges to disqualify themselves in circumstances in which their impartiality might

reasonably be questioned. Pursuant to the statute, a judge shall disqualify himself

or herself in a proceeding for five enumerated reasons:

(a) Where he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary
facts concerning the proceedings, or has expressed an
opinion concerning the merits of the proceeding;

(b) Where in private practice or government service he
served as a lawyer or rendered a legal opinion in the
matter in controversy, or a lawyer with whom he
previously practiced law served during such association
as a lawyer concerning the matter in controversy, or the
judge, master commissioner or such lawyer has been a
material witness concerning the matter in controversy;

(c) Where he knows that he, individually or as a
fiduciary, or his spouse or minor child residing in his
household, has a pecuniary or proprietary interest in the
subject matter in controversy or in a party to the
proceeding;

(d) Where he or his spouse, or a person within the third
degree of relationship to either of them, or the spouse of
such a person:

1. Is a party to the proceeding, or an officer,
director, or trustee of a party;

11
Kentucky Supreme Court Rules.

-14-
 2. Is acting as a lawyer in the proceeding and the
disqualification is not waived by stipulation of
counsel in the proceeding filed therein;

3. Is known by the judge or master commissioner
to have an interest that could be substantially
affected by the outcome of the proceeding;

4. Is to the knowledge of the judge or master
commissioner likely to be a material witness in the
proceeding.

(e) Where he has knowledge of any other circumstances in
which his impartiality might reasonably be questioned.

KRS 26A.015(2)(a)-(e). The Rule is similar to the statute. As the Rule is broad

and requires disqualification when a judge’s impartiality might reasonably be

questioned, our Supreme Court notes “that the obligation to recuse may exist

whether any of the specific circumstances delineated [in the Rules] are met.”

Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 484-85 (Ky. 2021).

These dual provisions echo “the higher consideration that every

litigant is entitled to ‘nothing less than the cold neutrality of an impartial judge’

and should be able to feel that his cause has been tried by a judge who is ‘wholly

free, disinterested, impartial and independent.’” Dotson v. Burchett, 301 Ky. 28,

34, 190 S.W.2d 697, 700 (1945) (quoting Commonwealth v. Murphy, 295 Ky. 466,

174 S.W.2d 685 (1943), and 30 Am. Jur. Judges § 53). Analysis under the statute

and Rule seeks not to “impugn” a judge’s integrity or even to determine whether a

-15-
judge is truly impartial, but rather to determine whether the “impartiality might

reasonably be questioned.” Abbott, Inc., 626 S.W.3d at 485 (quoting and

abrogating on other grounds Sommers v. Commonwealth, 843 S.W.2d 879, 882

(Ky. 1992)).

In the instant case, we are not called upon to do either, as the Trial

Judge recused himself after the filing of a proper motion and consideration of the

appearance of impartiality. In fact, the Trial Court is in the “best position to

determine whether questions raised regarding his impartiality were reasonable.”

Jacobs v. Commonwealth, 947 S.W.2d 416, 417 (Ky. App. 1997). We need not

“second-guess his decision.” Id.

Moreover, “where an actual disqualifying condition is discovered

after entry of judgment, it does not follow automatically that the judgment must be

vacated.” Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 473 (Ky. 2010). To

make that determination, our Supreme Court requires the analysis of three risks:

(1) the risk of injustice to the parties in the particular case; (2) the risk that denial

of relief will produce injustice in other cases; and (3) the risk of undermining the

public’s confidence in the judicial process. Id. (adopting the test from Liljeberg v.

Health Services Acquisition Corporation, 486 U.S. 847, 108 S. Ct. 2194, 100 L.

Ed. 2d 855 (1988)).

-16-
 The analysis of those three risks is not before us, however, because

Christopher neither filed a motion to vacate the order nor requested such relief.

See Alred v. Commonwealth, Judicial Conduct Comm’n, 395 S.W.3d 417, 444

(Ky. 2012) (“Whether a defendant has properly preserved a disqualification issue

for review is a separate issue from whether a judge violated the mandatory

requirements of [the Rules] and KRS 26A.015.”). Petzold is illustrative. There,

the parties discovered after entry of a judgment and while that judgment was on

appeal that there existed a potentially disqualifying association between the trial

judge and one of the parties. 303 S.W.3d at 469. A motion pursuant to CR 60.02

was filed by one of the parties requesting that the previously-entered orders be

vacated. Id. The trial judge held a hearing and declined to vacate the orders. Id.

That order denying the CR 60.02 motion was appealed and consolidated with the

underlying orders already on appeal. Id. at 470. Accordingly, the issue of whether

to vacate the previously-entered judgment due to violations of the Rules or KRS

26A.015 was properly before the Petzold Court.

In the instant case, we have no such means to address this issue.

Because the motion to recuse was filed after the notice of appeal, Christopher had

to file a separate appeal and move to consolidate with the instant appeal to get the

issue before us. Christopher could not separately appeal, though, because his

motion was made pursuant to KRS 26A.015, and a ruling on a motion pursuant to

-17-
KRS 26A.015 is interlocutory and not appealable. Cassetty v. Commonwealth, 495

S.W.3d 129, 135 (Ky. 2016) (“Simply put, a notice of appeal naming only an order

denying a motion to recuse, and not a final judgment, is fatally defective.”). To

effectuate his appeal, Christopher should have filed his motion pursuant to CR

60.02 and requested the extraordinary relief that the summary judgment order be

vacated. Petzold, supra. Having failed to do so, we lack jurisdiction to entertain

such claims from an interlocutory order with no notice of appeal. Tax Ease Lien

Investments 1, L.L.C. v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (“First, we

note that this court is required to raise a jurisdictional issue on its own motion if

the underlying order lacks finality.”).

Second, Christopher prevailed on his own motion and received

exactly the relief requested. Christopher only asked the Trial Judge to recuse,

which he did. Christopher did not request the Trial Court to vacate its previous

order. “This Court has stated on numerous occasions that ‘appellants will not be

permitted to feed one can of worms to the trial judge and another to the appellate

court.’” Sneed v. University of Louisville Hospital, 600 S.W.3d 221, 228 (Ky.

2020) (quoting Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976),

overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.

2010)). Likewise, “[a] new theory of error cannot be raised for the first time on

appeal.” Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999).

-18-
Christopher received the relief he requested, and we will not review Christopher’s

new arguments and request for relief for the first time on appeal.

Finally, we have thoroughly reviewed the record and do not find that

structural error occurred in this case. See, e.g., Marchese v. Aebersold, 530

S.W.3d 441 (Ky. 2017) (finding structural error when trial court should have

recused for conducting independent investigation and obtaining extrajudicial

information that resulted in explicit bias and antagonism toward party and issuance

of DVO). Unlike the taking and weighing of evidence and entry of a DVO, the

underlying order is one of summary judgment, which we review de novo, and our

review is not tainted by any appearance of impartiality. Likewise, Christopher has

a procedural mechanism pursuant to Petzold for retroactive vacatur of the

underlying summary judgment order, which he could have used and may have

obtained relief from the Trial Court’s order had he used it. Christopher’s failure to

use the mechanisms available to him fall in line with cases in which we have found

waiver of recusal issues, not structural error. Compare, Bussell v. Commonwealth,

882 S.W.2d 111 (Ky. 1994) (waived recusal issue because motion to recuse not

timely made), with Marchese, supra.

III. Issues relating to the summary judgment order.

We now turn to the substantive issues raised relating to the order

granting summary judgment. Christopher claims: (1) the Patricks were not

-19-
entitled to specific performance because they were not prepared to close by the

closing date; (2) there exists a genuine issue of material fact regarding whether

time was of the essence in the contract; and (3) the order granting summary

judgment lacks any citations to the record. We discuss each issue seriatim.

A. Specific performance.

Christopher first argues that the Trial Court erred by entering

summary judgment and granting specific performance when the Patricks,

allegedly, did not strictly comply with the terms of the purchase agreement.

Christopher relies on the fact that the Patricks had not secured financing by the

closing date to support his claim. Having thoroughly reviewed the underlying

record, we find no such error.

CR 56.03 permits a trial court to enter summary judgment “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.” When a trial court grants summary judgment, the standard of review on

appeal is “whether the trial court correctly found that there were no genuine issues

as to any material fact and that the moving party was entitled to judgment as a

matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996), CR 56.03.

As “‘summary judgment does not require findings of fact but only an examination

-20-
of the record to determine whether material issues of fact exist, we generally

review the grant of summary judgment without deference to the trial court’s

assessment of the record or its legal conclusions.’” Foreman v. Auto Club

Property-Casualty Insurance Company, 617 S.W.3d 345, 349 (Ky. 2021) (quoting

Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010)).

Furthermore, “specific performance of a contract is not granted as a

matter of right, but is always addressed to the reasonable discretion of the court, to

be exercised according to the facts of each case. The discretion, however, is not an

arbitrary or capricious one.” West Ky. Coal Co. v. Nourse, 320 S.W.2d 311, 314

(Ky. 1959). Indeed, the discretion is tilted, as in weighing the equities, the court

must begin with an unbalanced scale. “It requires less strength of case on the side

of the defendant to resist than it does on the part of the plaintiff to invoke the right

of specific performance because if the court refuses to enforce specifically, the

party is still left to his remedy at law.” Id.

While weighing the equities of granting specific performance, a court

must determine if the party requesting specific performance is “entirely free from

fraud, illegal or inequitable conduct and . . . [the party has] strict[ly] compli[ed]

with all terms of the contract[.]” Nourse, 320 S.W.2d at 314-15 (citing Asher v.

Asher, 278 Ky. 802, 129 S.W.2d 552 (1939); Miller v. Prater, 267 Ky. 11, 100

S.W.2d 842 (1937); Bluegrass Realty Co. v. Shelton, 148 Ky. 666, 147 S.W. 33

-21-
(1912); and Williamson v. Ingram, 243 Ky. 749, 49 S.W.2d 1005 (1932)). If there

are breaches of the contract, the court must determine who was the first party to

breach, because “a party who commits the first breach of a contract is deprived of

the right to complain of a subsequent breach by the other party.” Nourse, 320

S.W.2d at 315.

Here, Christopher claims that the Patricks are not entitled to specific

performance because they had not obtained financing by the closing date. This

argument is unavailing and does not create a genuine issue of material fact because

it is clear from the record that the Patricks tried to obtain financing and were

otherwise prohibited from doing so due to their appraiser not being able to access

the inside of the residence. Tracy Trimble (Trimble), the appraiser, testified in his

deposition that “[t]he first request came in for an interior visit . . . I could not gain

entry to the property so I couldn’t complete the interior visit.” Trimble was later

asked to conduct an exterior visit and draft an appraisal, which he did. This

testimony indicates that the Patricks were actively attempting to obtain the

requisite financing and appraisals as required by the purchase agreement.

Moreover, Josh Brown, the buyer’s agent, testified, “Financing could

be completed by July 3rd very easily; it was not completed because of denial from

access from Chris[topher].” Mike Brown, the seller’s agent, likewise testified that

approximately two weeks before the closing date the appraiser attempted to get

-22-
into the house but “could not get in. . . . [F]inally, the lender just said do a[n]

exterior, and that’ll be fine. And he done that, and I don’t know when that was

completed.” Christopher claims this evidence is inadmissible hearsay and could

not be considered by the Trial Court.

This argument is unavailing. First, Christopher did not make this

argument to the Trial Court for consideration, and it is axiomatic that a party

cannot “feed one can of worms to the trial judge and another to the appellate

court.” Sneed, supra.

Furthermore, even had it been presented, there was no error because

the testimony was not offered for the truth of any of the matters asserted, KRE12

801(c), namely proving any fact about Christopher. Rather, the testimony went to

whether the Patricks had clean hands and complied with the terms of the contract.

Nourse, supra. The uncontroverted deposition testimony shows that the Patricks

complied with the terms of the purchase agreement and attempted to obtain the

requisite appraisal and financing in a timely fashion. They sought to obtain

financing, which led to Trimble being asked to conduct an appraisal. Trimble,

however, was not able to enter the house to conduct the appraisal. In other words,

the Patricks were “ready, able, and willing” to perform pursuant to the terms of the

contract as they were actively seeking financing. See Faulkner v. Denniston, 250

12
Kentucky Rules of Evidence.

-23-
Ky. 373, 63 S.W.2d 286, 288 (1933) (“It is also the general rule that a party

seeking specific performance must show that he has performed or offered to

perform or is ready, able, and willing to perform all the essential acts required by

the contract.”).

It is irrelevant who or what prohibited Trimble from conducting the

appraisal, sufficing only that it was not the actions of the Patricks. Accordingly,

there was no genuine issue of material fact regarding whether the Patricks had

clean hands and were not the ones to breach the contract by complying and/or

attempting to comply with the terms of the contract; thus, they were not precluded

from seeking specific performance. See, e.g., Bennett, 293 S.W.2d 879 (Ky. 1956)

(upholding specific performance where party seeking financing did so in good faith

and within a reasonable time after the contractual due date).

Additionally, it is uncontroverted that Christopher willfully breached

the terms by refusing to convey the property to the Patricks by the agreed-to

closing date; thus he is precluded from arguing that the Patricks are in breach.

Christopher’s Answer admits the allegations in Paragraph 7 of the Complaint, to

wit, “That on or about July 3, 2020, [the Patricks] were informed by Defendant

Christopher Lee Mays that he would not be selling the subject property due to

protest by Elizabeth Grace Mays.” Christopher also averred in his response to the

-24-
motion for summary judgment13 that he “agrees that on the closing date, the

Defendant [Christopher] informed the [Patricks] he would be unable to complete

the closing on the property due to developments in his divorce, with official notice

coming in the following days.” It was Christopher, not the Patricks, who

committed “the first breach of a contract” and thus was “deprived of the right to

complain of a subsequent breach by the other party.” Nourse, 320 S.W.2d at 315.

Accordingly, nothing about the Patricks’ actions precluded the Trial

Court from granting specific performance. The evidence in the record supported

that they had clean hands and attempted to fulfill the terms of the contract. It is

clear from the record that Christopher breached the terms of the purchase

agreement. The motion having been properly supported, if Christopher wished to

oppose the grant of summary judgment, he had to “present[] at least some

affirmative evidence showing that there [was] a genuine issue of material fact for

trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.

1991). Christopher failed to proffer any record evidence to show a genuine issue

of material fact. Accordingly, the Trial Court’s order granting specific

performance was not erroneous.

13
This response was filed on April 23, 2021, in response to an earlier motion for summary
judgment, which was granted. The Trial Court later vacated that order granting summary
judgment as to Christopher.

-25-
 B. Time is of the essence.

Next, Christopher argues that there was a genuine issue of material

fact that should have precluded entry of summary judgment, namely, whether time

was of the essence in the purchase agreement. As the argument goes, if time were

of the essence regarding the closing date, then the Patricks’ failure to obtain

financing by this date rendered the contract void. The Trial Court found that the

purchase agreement did not state that time was of the essence regarding the closing

date. Additionally, the Trial Court found that Christopher had not presented any

evidence that the closing date was vital to the terms of the contract. Having

reviewed the record and the arguments on appeal, we find no error with the Trial

Court’s order.

This Commonwealth has long held that for time to be of the essence,

the contract must expressly state the same:

Ordinarily time is not of the essence of the contract, but it
may be made so by express stipulations of the parties, or
it may be so by implication, because of the nature of the
property involved, or because of the avowed object of the
seller or purchaser, or from the nature of the contract
itself, or by one party giving the other notice that
performance must be made within a certain reasonable
time fixed in the notice.

Browning v. Huff, 204 Ky. 13, 263 S.W. 661, 662-63 (1924) (citations omitted).

We have reviewed the purchase agreement, and nothing within the

four corners shows that time was of the essence. “Whether time is of the essence

-26-
of the contract ‘is viewed from the standpoint of the parties as gathered from the

contract involved, under the rule that unless the intention to make time of the

essence is evidenced by expression, or implication, it may not be so regarded.’”

Farmers Bank and Trust Co. of Georgetown, Kentucky v. Wilmott Hardwoods,

Inc., 171 S.W.3d 4, 8 (Ky. 2005) (quoting Distillery Rectifying & Wine Workers

International Union of America v. Brown-Forman Distillers Corp., 308 Ky. 380,

213 S.W.2d 610, 612-13 (1948)).

Without a doubt, the terms of the purchase agreement never

specifically state that time was of the essence. The closing clause states as follows:

10. CLOSING AND TITLE: The closing shall occur
on or before 07/03/2020. At closing an unencumbered
marketable title to the property shall be conveyed to
BUYER by deed of general warranty with the usual
covenants such as any national title company shall insure,
free and clear of all liens and encumbrances except (a)
such liens and encumbrances as BUYER may
specifically approve and (b) easements of record and all
restrictions of record as to the use and improvements of
the property. Should the title to the property appear
defective, SELLER shall have 14 days after receipt of
notice from BUYER of such defect or defects within
which to correct same at the cost of the SELLER.
Should SELLER be unable to correct the defect, this
CONTRACT is voidable at option of BUYER and
earnest money shall be refunded to BUYER. If the
parties to this contract desire that any term of this
agreement survive the closing and transfer of deed to
BUYER, an agreement must be executed prior to closing
acknowledging such an intent.

-27-
This clause never states that time was of the essence; in fact, no clause in the

purchase agreement states that time is of the essence.

Because the four corners of the purchase agreement do not explicitly

state that time is of the essence, “we must consider if an intention to make time of

the essence may be implied from the words of the contract.” Farmers Bank, 171

S.W.3d at 9. Here, the contract’s terms imply that the closing date is not essential

to the agreement. In fact, the purchase agreement explicitly permits additional

time after the closing date should title to the property appear defective. Had

Christopher delivered title to the Patricks that the Patricks believed to be defective,

the purchase agreement would permit the Patricks to give notice of title defects to

Christopher on or before the day of closing, which would have extended the

closing date by 14 days to allow Christopher to cure such defects. Additionally,

the specific language of the purchase agreement implies that even defective title

delivered at closing is not essential even to the contract itself, as defective title

renders the purchase agreement only “voidable at the option of BUYER”

(emphasis added). Thus, by express and implied terms, time was not of the

essence for the closing date.

Moreover, and as it relates to Christopher’s argument that the Patricks

had not obtained financing, we note that the financing provisions likewise did not

-28-
explicitly or implicitly indicate that time was of the essence. The purchase

agreement stated in relevant part:

BUYER agrees to apply for and lock in the above-
mentioned loan within five (5) calendar days from the
date of acceptance of this CONTRACT and shall proceed
with due diligence to obtain financing. Should BUYER
be unable to obtain financing, this CONTRACT shall be
null and void, and the earnest money shall be refunded to
Buyer [sic].

Other than a time limit on the application for financing, the Patricks

were only responsible for proceeding “with due diligence” while seeking

financing; there was no date specific. As shown above, all evidence proffered

demonstrates that they were attempting to obtain the requisite appraisal for

financing. Again, the express and implied terms of the purchase agreement

support that time was not of the essence for the closing.

In strong contrast to the instant purchase agreement stands language in

other contracts that was held to make time of the essence. See, e.g., Farmers Bank,

171 S.W.3d at 9 (“If the loan is not closed by the specified closing date, this letter

and the Bank’s obligation to make a loan shall terminate without any further

liability or obligation to the Bank.”); Distillery Rectifying, 308 Ky. at 381, 213

S.W.2d at 611 (“This agreement shall be effective and shall remain in full force

and effect from the date of its execution, May 1, 1945 to May 1, 1946, and during

each year thereafter unless 90 days notice in writing is given by either party hereto

-29-
prior to the expiration date.”);14 Asher v. Roberts, 206 Ky. 186, 266 S.W. 1089,

1089 (1924) (“[I]t is agreed that the party of the first part doth hereby bind himself

to make or cause to be made a deed of conveyance to party of the second part . . .

provided, however, that party of the second part or any one for him pays . . . the

sum of $500 within 12 months from the date of this contract.”).

In the instant case, the purchase agreement contains no such

termination, “full force and effect,” or binding language as it relates to the closing

date. Quite the opposite, the closing language includes a 14-day extension period

for alleged title defects and specific language rendering the purchase agreement

voidable, not automatically void, due to title defects. By its express terms, the

purchase agreement made the closing date not of the essence.

And while Christopher now points to evidence in the depositions as

parol evidence supporting his argument that time was of the essence, we again note

that Christopher did not present these arguments to the Trial Court, and they are

not properly before us. Cf. Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky.

1999) (“A new theory of error cannot be raised for the first time on appeal.”).

14
The Court interpreted this clause as being of the essence because, “[w]hile not expressed in
exact words, it is to be gathered without difficulty that by strong implication the requirement of
90 days written notice was essential, because termination or continuation depended upon the
required notice.” Id. at 384, 213 S.W.2d at 613.

-30-
 Christopher attempts to argue away his own deficiencies by claiming

the Trial Court prohibited Christopher from responding to the motion for summary

judgment by denying the motion to vacate. The failure to respond, however, was

solely Christopher’s. Prior to entering its order granting summary judgment the

Trial Court did, in fact, give Christopher 30 days to respond to the summary

judgment motion, which was as much time as Christopher had requested.

Christopher failed to timely file a response. His argument on appeal is not

availing.

Nonetheless, we have reviewed the depositions and find they do not

alter the analysis. First, they are depositions of the realtors, not the parties, so they

are of limited value as to the intentions of the parties at the time they made the

contract. Second, though the realtors believed that the closing should have

occurred on the date specified, they nonetheless agreed that closing dates are

frequently amended for numerous reasons, including needing additional time for

inspections and financing.

While “a new agreement between the parties extending the time is

evidence that at the time of the making of the original contract time was regarded

as of its essence[,]” Browning, 204 Ky. 13, 263 S.W. at 663 (citation omitted), in

the instant case there was neither a new agreement extending the time nor an

amendment to the purchase agreement extending the time. Additionally, the

-31-
realtor’s testimony was not referring to the parties executing a “new agreement”

but rather to executing an “addendum” to the purchase agreement, with testimony

that such practice is common in residential real estate purchase agreements to

permit parties to obtain financing, inspections, and the like. Because such an

addendum or amendment to the purchase agreement is commonplace and

anticipated prior to signing the purchase agreement, this parol evidence serves to

bolster the fact that the parties did not intend the closing date to be essential to the

contract’s terms when they signed the purchase agreement.

Moreover, as has already been shown, it is apparent from the record

that even if the Patricks had not obtained financing by the closing date, they were

seeking to fulfill their terms of the contract in good faith. It is also apparent that

Christopher was not going to fulfill the terms of the contract by the closing date.

Such actions are sufficient to permit a trial court to grant specific performance,

even if the Patricks needed a few more days to obtain financing. Bennett, 293

S.W.2d at 880 (upholding specific performance where “Appellee in good faith

sought to consummate the contract within a reasonable time after the date

specified”). Accordingly, the Trial Court’s orders granting summary judgment and

ordering specific performance are not erroneous on the grounds raised by

Christopher.

-32-
 C. References or citations to the record.

Finally, Christopher argues that the Trial Court’s order is erroneous

because it does not contain references or citations to the record. Again,

Christopher did not raise this issue below, and it is not properly before us. Cf.

Springer, 998 S.W.2d at 446 (“A new theory of error cannot be raised for the first

time on appeal.”). More importantly, our appellate review of a summary judgment

is a de novo review of the issues presented below as it “involves only legal

questions and a determination of whether a disputed material issue of fact exists.”

Phelps v. Bluegrass Hospitality Management, LLC, 630 S.W.3d 623, 627 (Ky.

2021) (quoting Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017), and Shelton

v. Ky. Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky. 2013)). Accordingly, as

shown above, we have reviewed the order and the record below and find summary

judgment was properly entered.

CONCLUSION

This case involves one party’s failure to fulfill its obligations pursuant

to a residential, real estate purchase agreement while the other party was

proceeding in good faith to fulfill its obligations. The Trial Court granted

summary judgment and ordered specific performance. Neither of those decisions is

erroneous. Accordingly, we AFFIRM the orders granting summary judgment and

ordering specific performance.

-33-
 ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Joshua S. Harp Howard D. Stone
Frankfort, Kentucky Owingsville, Kentucky

-34-