Corpus: 543,223 opinions ·
3,177 judges ·
newest 2026-06-23 · expanding
Coverage ↗
Opinion
govinfo:USCOURTS-kywd-1_23-cv-00125-0
1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:23-CV-00125-GNS-HBB
COLE BUILDERS, LLC PLAINTIFF
v.
MICHAEL MILLER DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Partial Summary Judgment (DN
50) and Defendant’s Motion for Summary Judg ment (DN 51). The motions are ripe for
adjudication.
I. STATEMENT OF FACTS AND CLAIMS
This action concerns the proposed construction of storage units in Evansville, Indiana,
(“the Evansville job”) and in Lewisburg, Kentucky (“the Lewisburg job”). (Compl. ¶ 6, DN 1;
Answer & Countercl. 7-8, DN 6). Defendant Michael Miller (“Miller”), a self-employed real estate
broker, has worked with Plaintiff Cole Builders, LLC (“Cole Builders”) on multiple construction
projects. (Miller Dep. 11:6 -11, 50:15-51:23, May 1, 2024, DN 50 -5). T o begin a project, Cole
Builders typically provides the customer with a quote, and if the customer wants to accept and
form a contract, the customer signs the quote and pays a down payment. (Kennington Dep. 24:1-
20, June 30, 2025, DN 50 -2). For the Lewisburg job, Miller signed a price quotation and paid a
down payment.1 (Miller Dep. 58:12-15; Cole Dep. 65:4-6, May 1, 2024, DN 50-1). Cole Builders
1 The first quote for the Lewisburg job was issued on February 15, 2022, and signed by Miller on
April 12, 2022. (Miller Dep. Ex. 7, at 248, 251, DN 50-5). Cole Builders issued an updated quote
on April 15, 2022, because the price of steel had increased. (Miller Dep. Ex. 8, at 255, DN 50 -5;
Miller Dep. 58:1 -8). The updated quote listed the project’s location as Springfield, Tennessee,
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 1 of 18 PageID #:
<pageID>
2
also provided Miller with two price quotations for the Evansville job, but Miller never signed either
quote. (Miller Dep. Ex. 12, at 282, DN 50 -5; Miller Dep. Ex. 13, at 289, DN 50 -5 [hereinafter
Revised Evansville Quote]). After sending Miller the Revised Evansville Quote , Cole Builders
alleges that Miller verbally instructed Cole Builders’ project manager, Larry Cole Jr. (“Cole”), to
go ahead with the job, so Cole Builders ordered the materials from its supplier. (Cole Dep. 84:12-
86:7). Cole and Miller continued communicating about the Evansville and Lewisburg jobs through
texts and calls. ( Cole Dep. 106:7-107:8; Miller Dep. Ex. 6, DN 50 -5 [hereinafter Cole & Miller
Texts]).
When Cole informed Miller that his crew was at the Evansville job site to unload the
building materials, Miller told Cole to cancel any more deliveries. (Cole & Miller Texts 243-244).
Miller claims that he never authorized Cole to order any materials or otherwise accepted Cole
Builders’ price quotation for the Evansville job ; he had elected not to move forward with the
Evansville job for financial reasons . (Miller Dep. 97:16 -22). Miller asserts that he believed he
and Cole were texting about preparation s for the Lewisburg job and any references to “Indiana”
by Cole were a mistake. (Miller Dep. 91:7 -21). Even though Miller believed he was not
contractually bound, he attempted to find a financial partner for the Evansville job after he learned
the materials had been ordered, though he was ultimately unsuccessful. (Miller 102:1-13). After
the Evansville job fell apart, Cole Builders cancelled its order for the Lewisburg job materials.
(Richter Dep. Ex. 11, at 201 , July 2, 2025, DN 50 -4). Cole Builders has not performed the
Lewisburg job but has retained Miller’s down payment because it claims Millers owes it even more
for the materials from the Evansville job. (Cole Dep. 66:10-18).
apparently by mistake, and was never signed by Miller. (Miller Dep. Ex. 8, at 255, 258 ; Miller
Dep. 59:5-20, 60:1-61:2).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 2 of 18 PageID #:
<pageID>
3
Cole Builders then brought this action against Miller for breach of contract and promissory
estoppel. (Compl. 4-7). In response, Miller asserted counterclaims for breach of contract, fraud,
and unjust enrichment. (Answer & Countercl. 9 -11). Miller now moves for summary j udgment
on Cole Builders’ claims and Cole Builders moves for partial summary judgment on Miller’s
counterclaim for fraud. (Def.’s Mot. Summ. J., DN 51; Pl.’s Mot. Partial Summ. J., DN 50).
II. JURISDICTION
The Court has subject -matter jurisdiction over this action through diversity jurisdiction
because there is complete diversity between the parties and the amount in controversy exceeds
$75,000.00. See 28 U.S.C. § 1332.
III. STANDARD OF REVIEW
In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of material fact that would preclude entry of judgment for the moving party as
a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the init ial burden of stating the
basis for the motion and identifying the evidence demonstrating an absence of a genuine dispute
of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). If the moving party
satisfies its burden, the nonmoving pa rty must then produce specific evidence proving the
existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).
While the Court must view the evidence in the light most favorable for the nonmoving
party, the nonmoving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citation omitted). Rather, the nonmoving party must present facts proving that a
genuine factual dispute exists by “citing to particular parts of materials in the record” or by
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 3 of 18 PageID #:
<pageID>
4
“showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” Fed.
R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.
IV. DISCUSSION
A. Defendant’s Motion
Miller moves for summary judgment on Cole Builders’ breach of contract and promissory
estoppel claims. (Def.’s Mot. Summ. J. 1).
1. Breach of Contract
Under Kentucky law, “[t] he elements of a breach of contract are: (1) the existence of a
valid contract; (2) breach of the contract; and (3) damages or loss to plaintiff. Sudamax Industria
e Comercio de Cigarros, Ltda v. Buttes & Ashes, Inc., 516 F. Supp. 2d 841, 845 (W.D. Ky. 2007).
Miller disputes the first and third elements in his motion. (See Def.’s Mot. Summ. J. 3-6, 8-9).
a. Existence of a Valid Contract
Issues regarding contract formation are questions of law. Britt v. Univ. of Louisville, 628
S.W.3d 1, 5 (Ky. 2021). “The essential elements of a valid contract are an offer and unequivocal
acceptance, a certain and complete recitation of the material terms, and consideration. ” Univ. of
Ky. v. Regard, 670 S.W.3d 903, 912 (Ky. 2023) (citation omitted).2 Miller does n ot raise any
arguments relating to consideration.
2 The parties presume that the Uniform Commercial Code does not apply, as the contract is
primarily for Cole Builders’ services. Wehr Constructors, Inc. v. Steel Fabricators, Inc. , 769
S.W.2d 51, 54 (Ky. App. 1988) (“[W]hether or not Article II of the Code applies is determined by
analyzing whether the predominant factor and purpose of the contract is the rendition of service,
with goods incidentally involved, or whether the contract is for the sale of goods with labor
incidentally involved.” (citation omitted)).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 4 of 18 PageID #:
<pageID>
5
i. Offer
“An offer is the manifestation of willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain is invited and will conclude it. ”
Restatement (Second) of Contracts § 24 (A.L.I. 1981).3 A price quotation is typically considered
an invitation for an offer, rather than an offer itself. Dyno Constr. Co. v. McWane, Inc., 198 F.3d
567, 572 (6th Cir. 1999) (citations omitted). “However, a price quotation may suffice for an offer
if it is sufficiently detailed and it ‘reasonably appear[s] from the price quotation that assent to that
quotation is all that is needed to ripen the offer into a contract. ’” Id. (alteration in original)
(citations omitted).
Courts look at “ all of the surrounding facts and circumstances ” to determine whether a
price quote is an offer, including whether the quote includes descriptions of the product, price,
quantity, and terms of payment , but primarily the intent of the person proffering the price
quotation. Id. (citations omitted). For example, a letter that included the term “price quotation”
and lacked “language indicating an offer was being made” and “terms regarding quantity, time of
delivery, or payment” was not intended as an offer. Id. (citing Interstate Indus., Inc. v. Barclay
Indus., Inc., 540 F.2d 868 (7th Cir. 1976)). “Thus, to constitute an offer, a price quotation must
‘be made under circumstances evidencing the express or implied intent of the offeror that its
acceptance shall constitute a binding contract.’” Id. (citation omitted).
In th is instance, the price quotation for the Evansville job is sufficiently detailed to
constitute an offer. In the quote, Cole Builders “proposes to furnish material & labor as per” the
3 “Kentucky courts have not formally adopted the Second Restatement of Contracts.” VanDeraa
v. Bruce , No. 2 :20-CV-177-WOB-CJS, 2022 WL 3093735, at *2 (E.D. Ky. Aug. 3, 2022) .
Nonetheless, Kentucky courts look to the Restatement for guidance. See, e.g., Regard, 670 S.W.3d
at 912.
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 5 of 18 PageID #:
<pageID>
6
specifications included in the quote, which includes descriptions of the general requirements, site
work, concrete, and metal buildings for the job. (Revised Evansville Quote 285). The total price—
$2,202,107, which is later broken down in a chart —is provided along with payment terms: 10%
of the total price is due upon execution of the contract, 35% upon completion of concrete, 45%
upon delivery of materials, and remaining bala nce upon completion of the building. ( Revised
Evansville Quote 289, 291). The quote also specifies that “[t]he above price is subject to revision
if not accepted within 15 days of the above date.” (Revised Evansville Quote 289).4
Moreover, it is clear from the language of the price quotation that it was intended to
function as a contact once accepted. There is a space for the owner and Cole Builders to sign and
date. ( Revised Evansville Quote 289). The price quotation also includes a page of additional
contractual terms. Term 4, for example, states that “[t]his contract contains erection and concrete,
such factors such as weather, availability of crews, availability of materials does not allow Cole
Builders to guarantee a [n] exact time frame for delivery and completion of work.” ( Revised
Evansville Quote 290 (emphasis added)). There are other references throughout the page to “this
contract” and “the contract price,” referring to the price set out in the quote. (Revised Evansville
Quote 290). A choice of law clause is also included. (Revised Evansville Quote 290). This aligns
with how a contractor for Cole Builders described the relationship between the price quotation and
the contract. (Kennington Dep. 21:15 -16 (“[The contract is] a part of the estimate.”)). Because
all Miller needed to do was accept the price quotation, it was an offer.
4 A term later states that “[t]he above price is subject to revision if not accepted within 30 days of
the above date.” (Revised Evansville Quote 290).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 6 of 18 PageID #:
<pageID>
7
ii. Acceptance
“Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree
in a manner invited or required by the offer. ” Restatement (Second) of Contracts § 50 (A.L.I.
1981). “In the absence of a statute requiring a signature or an agreement that the contract shall not
be binding until it is signed, parties may become bound by the terms of a contract, even though
they do not sign it, where their assent is otherwise indicated .” Energy Home, Div. of S. Energy
Homes, Inc. v. Peay , 406 S.W.3d 828, 837 (Ky. 2013) (quoting Cowden Mfg. Co. v. Sys. Equip.
Lessors, Inc., 608 S.W.2d 58, 61 (Ky. App. 1980)); SMA Portfolio Owner, LLC v. Corporex Realty
& Inv., LLC, 112 F. Supp. 3d 555, 576 (E.D. Ky. 2015) (“[W]hile parties can accept a contract by
signing it, that is not the only means .” (citing Cowden Mfg. Co., Inc. , 608 S.W.2d at 61)) , aff’d
sub nom. Bank of Am., N.A. v. Corporex Realty & Inv. Corp. , 661 F. App’x 305 (6th Cir. 2016) .
Verbal agreements are no less binding than written agreements. Motorists Mut. Ins. Co. v. Glass,
996 S.W.2d 437, 445 (Ky. 1997), as modified (Feb. 18, 1999). “Furthermore, if a dispute exists
as to whether an oral agreement was reached, the issue is to be resolved by a jury. ” Id. (citation
omitted).
Miller argues that the statute of frauds applies here. The statute of frauds provides, in
relevant part:
No action shall be brought to charge any person . . . [u]pon any agreement that is
not to be performed within one year from the making thereof . . . unless the promise,
contract, agreement, representation, assurance, or ratification, or some
memorandum or note thereof, be in writing and signed by the party to be charged
therewith, or by his authorized agent.
KRS 371.010. “Under Kentucky law, the applicable yardstick for the enforceability of an oral
contract is not whether performance actually takes more than a year, but whether it could occur
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 7 of 18 PageID #:
<pageID>
8
within a year.” Lalonde v. MMR Enters., LLC, No. CV 07-139-JMH, 2008 WL 11464838, at *3
(E.D. Ky. Aug. 19, 2008).
In this instance, it is uncontested that Miller did not sign a contract for the Evansville job.
(See Cole Dep. 88:20-89:7; Pl.’s Resp. Def.’s Mot. Summ. J. 2, DN 54). The alleged agreement
between Cole Builders and Miller , however, could be performed within one year : Cole testified
that larger projects could take more or less than a year to complete, and another Cole Builders
employee specifically testified that the Evansville job could have been completed in less than a
year, weather permitting. (Cole Dep. 46:6-24; White Dep. 119:12-24, July 31, 2025, DN 50 -8).
Thus, the statute of frauds does not apply, and Miller’s signature is not required for an agreement
with Cole Builders to be enforceable.
Cole Builders asserts that Miller verbally accepted the contract during a phone call between
April 25 and May 12. (Pl.’s Resp. Def.’s Mot. Summ. J. 2-3; Cole Dep. 84:2-86:7). Miller argues
that Cole Builders has not proven that Miller made such an instruction. (Def.’s Mot. Summ. J. 5-
6). Cole Builders has, however, met its burden on summary judgment: the Kentucky Supreme
Court has held that “ testimony alone was sufficient to create a jury issue ” regarding whether a
verbal agreement made. Glass, 996 S .W.2d at 445. It is evident that Cole Builders has
demonstrated a genuine dispute of material fact from Cole’s testimony alone.5
5 Miller argues that his “failure to object” cannot be construed as acceptance because there was no
meeting of the minds. (Def.’s Mot. Summ. J. 6). That is not what Cole Builders has alleged; Cole
Builders asserts that Miller affirmatively agreed to the contract . (Pl.’s Resp. Def.’s Mot. Summ.
J. 8). Miller also argues that, even if there was acceptance, it was not unequivocal, and that his
acceptance was not a mirror image of the offer. (Def.’s Mot. Summ. J. 6). Cole’s testimony, if
true, however, would defeat both arguments because his testimony demonstrates that Miller’s
acceptance was unequivocal and did not alter the terms of the offer. (Cole Dep. 86:2-7).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 8 of 18 PageID #:
<pageID>
9
iii. Material Terms
“Under Kentucky law, a valid contract must include the parties’ obligations in sufficiently
‘definite and certain terms.’” First Tech. Cap., Inc. v. JPMorgan Chase Bank, N.A. , 53 F. Supp.
3d 972, 984 (E.D. Ky. 2014) (quoting Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky. 1997)).
“Kentucky takes an all or nothing approach to contracting. . . . Kentucky treats a preliminary
agreement—even one evincing intent to be bound —as unenforceable if material terms remain
subject to future or further negotiation.” Id. (citations omitted). A valid contract may contain an
open material term, however, if there is an “agreed key by which to fill an otherwise open essential
provision . . . .” Id. at 985.
“Material terms are those terms essential to the enforcement of a contract.” C.A.F. &
Assocs., LLC v. Portage, Inc. , 913 F. Supp. 2d 333, 343 (W.D. Ky. 2012) ; see Warren v. Cary -
Glendon Coal Co., 230 S.W.2d 638, 640 ( Ky. 1950) (“[I]t is essential that the contract itself be
specific and the certainty required must extend to all particulars essential to the enforcement of the
contract, such as the subject matter and purpose of the contract, the parties, the consideration, the
time and place of performance, terms of payment and duration of the contract.”); Mitts & Pettit,
Inc. v. Burger Brewing Co. , 317 S.W.2d 865, 866 (Ky. 1958) (“The terms of a contract must be
complete and sufficiently definite to enable the court to determine the measure of damages in the
event of a breach.”). “What specific terms are ‘material’ may vary by contract . . . .” Ky. Indus.
Hemp, LLC v. Teterboro Partners, LLC, No. 5:19-496-KKC, 2021 WL 4993481, at *3 (E.D. Ky.
Oct. 27, 2021) (citations omitted).
Miller argues that the parties did not agree on all material terms. (Def.’s Reply Mot. Summ.
J. 3-5, DN 55). Specifically, Miller asserts that “[n]o timetable was discussed, no definite layouts
were selected, and no dollar figures were agreed to, either verbally or in writing.” (Def.’s Reply
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 9 of 18 PageID #:
<pageID>
10
Mot. Summ. J. 4). These terms, however, are contained in the price quotation, which Cole Builders
alleges that Miller accepted. As to the timetable, the price quotation states that:
This contract contains erection and concrete, such factors as weather, availability
of crews, availability of materials does not allow Cole Builders to guarantee a [n]
exact time frame for delivery and completion of work. Cole Builders strives to
complete every project in a reasonable time frame and will coordinate with owner
to try and deliver on a schedule that does this.
(Revised Evansville Quote 290 (emphasis added)). Regardless, “[v]alid contracts are often made
which do not specify the time for performance. Where the contract calls for a single performance
such as the rendering of a service or the delivery of goods, the time for performance is a ‘reasonable
time.’” Restatement (Second) of Contracts § 33 (A.L.I. 1981); see 1 Williston on Contracts § 4:23
(4th ed. May 2025 update) (“This same rule applies when work is to be done and the promise fixes
no time for its com pletion. In such a case, a reasonable time is generally intended .”). Next, a
layout is provided by reference, as the price quotation states that Cole Builders will “furnish and
erect nine (9) buildings in accordance with drawings provided by Michael Miller (Stahl Road -
Central Kentucky Design, Inc dated 08-02-21).” (Revised Evansville Quote 285); 1 Williston on
Contracts § 4:38 (4th ed.) (“An offer or agreement may also refer to and incorporate another
agreement for essential terms or for other purposes . . . .”). Finally, the price and payment terms
are also included in the quote. ( Revised Evansville Quote 289). Though the price is subject to
certain conditions,6 that does not make any resulting contract unenforceable. See 1 Williston on
6 For example, the contract states that the price is subject to revision if not accepted within a certain
timeframe (either 15 or 30 days). ( Revised Evansville Quote 289-90). The terms also provide
that, “in the event Cole Builders receives notifications of price increases from its suppliers between
the signing of this contract and the delivery of building materials[, Cole Builders] reserves the
right to increase the contract price to cover the amount specified by said supplier.” (Revised
Evansville Quote 290). Finally, the terms also provide that the contract price may be adjusted if
there are any variances from Miller’s description or unknown conditions on the construction site.
(Revised Evansville Quote 290).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 10 of 18 PageID #:
<pageID>
11
Contracts § 4:38 (“The principle applies as well to a promise to sell at certain posted prices or at a
price based upon the bona fide offer of a third party, or at an unstated agreed price easily
ascertainable by reference to some extrinsic standard, or to deduct from an agreed price a specific
amount to be determined by resort to an accounting or formula.”).
Thus, the terms are “definite and certain” because they “set forth the ‘promises of
performances to be rendered by each party.’” Frankfort Med. Invs., LLC v. Thomas by & through
Thomas, 577 S.W.3d 484, 488 (Ky. App. 2019) (quoting Energy Home, Div. of S. Energy Homes,
Inc., 406 S.W.3d at 834); see U St. Music Hall, LLC v. JRC Standard Props., LLC, 285 A.3d 1250,
1256 (D.C. 2022) (“At the same time, ‘[t]he requirement of definiteness cannot be pushed to
extreme limits,’ and inherent in all agreements is ‘some degree of indefiniteness and some degree
of uncertainty. ’” (quoting Rosenthal v. Nat’l Produce Co. , 573 A.2d 365, 370 (D.C. 1990 )).
Accordingly, because the existence of a valid contract hinges on a genuine question of material
fact—whether Miller orally accepted Cole Builder s’ offer—summary judgment on this claim is
denied.
b. Damages
“The measure of damages for breach of contract is ‘that sum which will put the injured
party into the same position he would have been in had the contract been performed .’” Hogan v.
Long, 922 S.W.2d 368, 371 (Ky. 1995 ) (quoting Perkins Motors, Inc. v. Autotruck Fed . Credit
Union, 607 S.W.2d 429, 430 (Ky. App. 1980)). “Damages are not recoverable for loss beyond an
amount that the evidence permits to be established with reasonable certainty.” Pauline’s Chicken
Villa, Inc. v. KFC Corp. , 701 S.W.2d 399, 40 1 (Ky. 1985) (quoting Restatement (Second) of
Contracts, § 352 (A.L.I. 1981)).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 11 of 18 PageID #:
<pageID>
12
In this instance, Miller argues that Cole Builders cannot demonstrate the amount of lost
profits to a reasonable degree of certainty because Cole Builders cannot prove the existence of the
contract or any details of any alleged agreement. (Def.’s Mot. Summ. J. 9). As discussed above,
the price quotation contains the material contractual terms, and whether the quote was accepted by
Miller turns on a question of fact that must be decided by a jur y. Miller’s motion for summary
judgment will therefore be denied on this basis.
2. Promissory Estoppel
“[B]ecause promissory estoppel is not intended to provide an alternative to a breach of
contract claim, where a contract exists on the subject matter of the alleged promise sought to be
enforced, a claim for promissory estoppel is not cognizable.” Derby City Cap., LLC v. Trinity HR
Servs., 949 F. Supp. 2d 712, 729 (W.D. Ky. 2013) (quoting Jan Rubin Assocs., Inc. v. Hous. Auth.
of Newport , No. 03 -CV-160-DLB, 2007 WL 1035016, at *14 (E.D. Ky. Mar. 30, 2007)).
“Therefore, where there is a written contract, the enforceability of which is not in question, this
Court has consistently dismissed promissory estoppel claims that are based on the same
performance as is contemplated by the written agreement.” Id. (citations omitted). In this instance,
the existence of an enforceable contract depends on genuine issues of material fact, as discussed
above, so summary judgment on Cole Builders’ promissory estoppel claim on this basis would be
premature.
Under Kentucky law, promissory estoppel has four elements: “(1) a promise; ( 2) which
the promisor should reasonably expect to induce action or forbearance on the part of the promise;
(3) which does induce such action or forbearance; and (4) injustice can be avoided only by
enforcement of the promise.” C.A.F. & Assocs., LLC, 913 F. Supp. 2d at 350 (quoting Bergman
v. Baptist Healthcare Sys., Inc., 344 F. Supp. 2d 998, 1003 (W.D. Ky. 2004)). “Additionally, the
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 12 of 18 PageID #:
<pageID>
13
promisee’s reliance on the promise must be justified.” Id. (citations omitted). Miller contests the
first and second elements. (Def.’s Mot. Summ. J. 7-8).
a. Promise
“A ‘promise,’ in this context, is a manifestation of intention to act or refrain from acting in
a specified way, so made as to justify a promisee in understanding that a commitment has been
made.” 4 Williston on Contracts § 8:4 (4th ed.). Miller argues that there is insufficient evidence
to prove that Miller made any promise to Cole Builders. (Def.’s Mot. Summ. J. 8). As discussed
above, whether Miller orally accepted Cole Builders’ quote and authorized it to order materials is
a genuine question of material fact and must be decided by a jury.
b. Reasonable Reliance
The Supreme Court of Kentucky has noted that “ whether reliance is justified (or as
sometimes stated, reasonable) is a question of fact in all but the rarest of instances.” Yung v. Grant
Thornton, LLP , 563 S.W.3d 22, 47 (Ky. 2018) (citations omitted) (analyzing fraud by
misrepresentation claim); see Restatement (Second) of Contracts § 90 ( A.L.I. 1981) (internal
citations omitted) ( “Reliance is also a significant feature of numerous rules in the law of
negligence, deceit and restitution. In some cases those rules and [promissory estoppel] overlap; in
others they provide analogies useful in determining the extent to which enforcement is necessary
to avoid injustice.”). “As with any other factual question, though, we may rule for [the defendant]
as a matter of law if no reasonable jury could find [the plaintiff’s] reliance reasonable.” Hall v.
Rag-O-Rama, LLC , No. 20 -6059, 2021 WL 578 2381, at *6 (6th Cir. Dec. 7, 2021) (citation
omitted) (analyzing fraud by misrepresentation claim).
Miller argues that Cole Builder s’ reliance on any alleged promise was not reasonable.
(Def.’s Mot. Summ. J. 7 -8). Again, though Miller disputes making any promise, Cole Builders
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 13 of 18 PageID #:
<pageID>
14
alleges that Miller explicitly told Cole to order the buildings for the Evansville job. See Kasuri v.
St. Elizabeth Hosp. Med. Ctr. , 897 F.2d 845, 853 (6th Cir. 1990) (applying Ohio law) (“A clear
and unambiguous promise is just the type of representation that a reasonable promisor would
expect to induce reliance.”).
The parties also discussed the Lewisburg job and Evansville job through text and phone
calls. (Cole & Miller Texts ; Miller Dep. 64: 7-11). On July 13, Cole texted Miller, “They are
wanting to deliver some buildings to Indiana first week of August.” ( Cole & Miller Texts 240
(emphasis added)). Miller did not reply via text to this message. (Cole & Miller Texts 240). On
August 17, Cole texted, “We have first building coming a week from tomorrow in Indiana. Do
you have a gravel lot to store them on.” ( Cole & Miller Texts 241 (emphasis added)). Miller
responded, “I will check. Should be ready. I will check with contractor.” ( Cole & Miller Texts
241). Miller then sent a picture and indicated that the Lewisburg site was ready, which Cole
affirmed. (Cole & Miller Texts 241-2).
Miller argues that he never mentioned Evansville and believed they were both referring to
the Lewisburg job, but Cole responds that if Miller had not agreed to the Evansville job , Miller
would have corrected him when he mentioned Indiana, rather than Kentucky, as the location for
the job. (Def.’s Mot. Summ. J. 7-8; Pl.’s Resp. Def.’s Mot. Summ. J. 11). Construing the evidence
in Cole Builders’ favor, a jury could reasonably infer that Miller continued to represent to Cole
Builders that he wanted move forward with the job in Evansville, Indiana, and knew Cole Builders
had relied on his promise. See Budget Mktg., Inc. v. Centronics Corp., 927 F.2d 421, 427 (8th Cir.
1991) (“We conclude that the evidence of [the defendant’s] oral assurances, coupled with [the
plaintiff’s] alleged reliance and [the defendant’s] awareness of [the plaintiff’s] reliance, is
substantial enough to establish a triable claim under Iowa ’s promissory estoppel doctrine. ”);
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 14 of 18 PageID #:
<pageID>
15
Restatement (Second) of Contracts § 90 (A.L.I. 1981) (citing Trifiro v. N.Y. Life Ins. Co., 845 F.2d
30, 31 (1st Cir. 1988)) (relying on oral statement was unreasonable because the statement was
followed by letters that expressly contradicted it).
Especially given that the evidence must be viewed in the most favorable light for Cole
Builders, a jury could find that it was reasonable for Cole Builders to rely on Miller’s promise. 7
Thus, genuine disputes of material fact preclude summary judgment on Cole Builders’ promissory
estoppel claim.
B. Plaintiff’s Motion
Cole Builders moves for partial summary judgment on Miller’s counterclaim for fraud.
(Pl.’s Mot. Summ. J. 1). To succe ed on a claim for fraud through misrepresentation under
Kentucky law, the following six elements must be proven:
(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.
Helm v. Ratterman, 778 F. App’x 359, 371 (6th Cir. 2019) (citing Flegles, Inc. v. TruServ Corp.,
289 S.W.3d 544, 549 (Ky. 2009)). Fraud claims may be established with circumstantial evidence,
but “mere conjecture or speculation is insufficient.” PBI Bank, Inc. , 535 S.W.3d at 714.
“Circumstantial evidence is evidence of a definite nature that points to something being more
7 Though not raised by the parties, Miller and Cole Builders’ prior business relationship may also
support reasonable reliance. (Cole Dep. 90:24-25 (“that’s just the level of trust you built up with
a bunch of repeat customers”)); PBI Bank, Inc. v. Signature Point Condos. LLC, 535 S.W.3d 700,
715 (Ky. App. 2016) (analyzing fraudulent misrepresentation claim) (“[W]e believe there was
ample evidence from which the jury could determine that [the plaintiff] acted reasonably in relying
on [the defendant] . This is especially true given the long -standing relationship between [the
parties].” (citing PCR Contractors, Inc. v. Danial, 354 S.W.3d 610, 616 (Ky. App. 2011); Cline
v. Allis-Chalmers Corp., 690 S.W.2d 764, 767 (Ky. App. 1985)).
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 15 of 18 PageID #:
<pageID>
16
likely than not, while speculation invites only the consideration of the thing being possible. ”
Stanley v. Smith, No. 2018-CA-001720-MR, 2019 WL 6817586, at *6 (Ky. App. Dec. 13, 2019).
Miller argues that Cole Builders made material misrepresentations that it could conduct the
Lewisburg job . (Def.’s Resp. Pl.’s Mot. Partial Summ. J. 4 , DN 53 ). Specifically, Miller
contended in his deposition that Cole Builders falsely represented that it would complete the
Lewisburg job, as well as the timeline and status of the materials order for the job. (Miller Dep.
71:5-74:11; see Pl.’s Mot. Partial Summ. J. 10-11).
Cole Builders argues that breach of contract, not fraudulent misrepresentation, is the
appropriate claim. (Pl.’s Mot. Partial Summ. J. 13-14). “ Kentucky law has not recognized a
fraudulent misrepresentation claim where a contract is involved unless the fraud induced the
contract.” Thomas v. Brooks, No. 2005-CA-001983-MR, 2007 WL 1378510, at *2 (Ky. App. May
11, 2007) (citation omitted). Miller asserts that there was a contract for the Lewisburg job. (Def.’s
Resp. Pl.’s Mot. Partial Summ. J. 4). Miller seems to argue that because Cole Builders ordered
materials for the Evansville job, which he asserts there was no contract for, this somehow proves
that Cole Builders lied when it agreed to the Lewisburg job. (Def.’s Resp. Pl.’s Mot. Partial Summ.
J. 4). The Court does not follow this line of reasoning; any deviation from the parties’ course of
dealing regarding the Evansville job does not tend to prove that Cole Builders fraudulently
misrepresented its intentions regarding the Lewisburg job. Indeed, Miller cites no evidence —
circumstantial or otherwise—that indicates Cole Builders intended to abandon the Lewisburg job.
The fact that Cole Builders ultimately did not complete the Lewisburg job does not mean that it
made any fraudulent misrepresentations to Miller. See RQSI Glob. Asset Allocation Master Fund,
Ltd v. Apercu Int’l PR LLC, 683 F. App’x 497, 503 (6th Cir. 2017) (“Mere statements of opinion
and forward-looking recommendations are not actionable, even if misguided or overly optimistic,
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 16 of 18 PageID #:
<pageID>
17
unless the opinion ‘either incorporates falsified past or present facts or is so contrary to the true
current state of affairs that the purported prediction is an obvious sham. ’” (quoting Flegles, Inc.,
289 S.W.3d at 549)). Because Miller provides no evidence that the Lewisburg contract was
fraudulently induced, breach of contract, rather than fraudulent misrepresentation, is the
appropriate claim.
Alternatively, Cole Builders asserts that Miller’s fraudulent misrepresentation is barred by
the economic loss doctrine. (Pl.’s Mot. Partial Summ. J. 14). “ [T]he economic loss doctrine
‘requires a purchaser to recover in contract for purely economic loss due to disappointed
expectations, unless he can demonstrate harm above and beyond a broken contractual promise. ’”
Nami Res. Co. v. Asher Land & Min., Ltd., 554 S.W.3d 323, 335 (Ky. 2018) (alteration in original)
(citation omitted). Cole Builder argues that Miller has not done so. (Pl.’s Mot. Partial Summ. J.
15). Because Miller does not respond to this argument, this is an additional ground for summary
judgment. Morrison v. Trulock, No. 1:19-CV-00004-GNS, 2020 WL 2090525, at *6 (W.D. Ky.
Apr. 30, 2020) (“[W]hen a party responds to some but not all a rguments raised on a Motion for
Summary Judgment, a court may fairly view the unacknowledged arguments as conceded.”
(quoting Sykes v. Dudas, 573 F. Supp. 2d 191, 202 (D.D.C. 2008))).
Moreover, even if Miller could bring a fraudulent misrepresentation claim, Cole Builders
contends that all representations it made were either true or believed to be true. (Pl.’s Mot. Partial
Summ. J. 11-12). Miller does not point to any evidence in the record demonstrating Cole Builders
intentionally or recklessly made false representations, before or after entering into the Lewisburg
contract. Additionally, Cole Builders provided testimony and documents suggesting that an order
for materials was in fact placed with ACI Building Systems, Inc. (“ACI”) , contrary to Miller’s
contention. (Pl.’s Mot. Partial Summ. J. 11). Miller’s only response is that any communication
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 17 of 18 PageID #:
<pageID>
18
with ACI, which is the materials supplier for Cole Builders, cannot prove the parties’ intentions or
knowledge; however, Cole Builders’ evidence indicates that an order was placed, so no false
representation was made, which is a necessary element of Miller’s claim. (Def.’s Resp. Pl.’s Mot.
Partial Summ. J. 5). Miller provides no evidence or argument explaining how Cole Builders’
representation regarding the materials order was false. See Fed. R. Civ. P. 56(c)(1).
Accordingly, Cole Builders is entitled to summary judgment on Miller’s counterclaim.
IV. CONCLUSION
For the foregoing reasons, IT IS HERE BY ORDERED that Defendant’s Motion for
Summary Judgment (DN 51) is DENIED. Plaintiff’s Motion for Partial Summary Judgment (DN
50) is GRANTED, and Count II of Defendant’s Answer & Counterclaim (DN 6) is DISMISSED
WITH PREJUDICE.
cc: counsel of record
March 25, 2026
Case 1:23-cv-00125-GNS-HBB Document 57 Filed 03/25/26 Page 18 of 18 PageID #:
<pageID>