Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1226-MR KENNETH BROWN APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JULIE KAELIN, JUDGE ACTION NO. 22-CI-003863 CHIEF ERIKA SHIELDS, IN HER OFFICIAL AND UNOFFICIAL CAPACITY; LOUISVILLE METRO POLICE DEPARTMENT; AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, ECKERLE, AND TAYLOR, JUDGES. COMBS, JUDGE: Kenneth Brown, a former patrol officer with the Louisville Metro Police Department (LMPD), appeals the summary judgment granted by the Jefferson Circuit Court on August 20, 2025, dismissing his claims of employment discrimination and breach of contract. Brown also seeks to appeal the circuit court’s order denying his motion to vacate the judgment filed pursuant to the Kentucky Rules of Civil Procedure (CR) CR 59.05. In that order, the court rejected Brown’s contention that he had not received adequate notice of his opponents’ motion for summary judgment. Having considered the arguments of counsel and the applicable law, we affirm both the judgment and the post-judgment order denying relief. In order to prepare an adequate summary of the facts and procedural history of this matter, we have reviewed the entirety of the trial court’s record. It has been necessary to do so because -- despite the clear requirements of the Kentucky Rules of Appellate Procedure (RAP) -- throughout his brief Brown cites a mere 6 lines of deposition testimony for which no page numbers have been provided. See RAP 32(A)(3) (requiring the statement-of-the-case section of an appellant’s opening brief to contain “ample references to the specific location in the record supporting each of the statements”). The circuit court’s record indicates that Brown graduated from Shawnee High School in 2001 and then earned a bachelor’s degree from Northwood University in Midland, Michigan. He began working as a patrol officer with LMPD in June 2012. In 2014, Brown served a thirty (30)-day suspension for violating LMPD standard operating procedures related to: his handling of evidence; -2- response to orders; obligation to make honest statements; and commitment to officer responsibilities. In 2015, he served a three (3)-day suspension for activity related to his improper use of a vehicle. In 2018, he received a written reprimand and was required to undergo driver’s training related to a vehicular accident. He received two more reprimands on different occasions in 2018 related to his duties and court attendance. At the time of his deposition in May 2025, Brown was serving another suspension based upon a Professional Standards Unit investigation. He is no longer employed by LMPD. In September 2018, Brown applied for promotion to a sergeant’s position with LMPD. In the Spring of 2019, by virtue of having successfully completed the oral and written sergeant’s exam, Brown became eligible for promotion. However, with respect to his exam performance, Brown ranked 81 out of the 84 eligible candidates. According to LMPD Merit Board rules and the collective bargaining agreement between Louisville/Jefferson County Metro Government and River City Fraternal Order of Police (FOP) governing the promotion of officers, department vacancies were to be filled from the eligibility list within sixty (60) days of a vacancy. The eligibility list expired on March 21, 2021. Despite three reviews, Brown was skipped over for promotion by at least two prior department chiefs before the eligibility list expired. After the list expired, but while two vacancies -3- remained unfilled, then LMPD Chief Erika Shields promoted two officers to sergeant. Brown interviewed for one of these positions in mid-2021, but he was not selected for promotion by Chief Shields. Chief Shields testified at her deposition that she did not believe that Brown was qualified for the promotion -- in part -- because he had been passed over on three earlier occasions by at least two previous chiefs. In her deposition, the next LMPD Chief Jacquelyn Gwinn-Villaroel testified that as Chief Shields’s deputy chief, she met with Brown and former FOP President Ryan Nichols to discuss Chief Shields’s decision not to select Brown for promotion. Gwinn-Villaroel testified that she told Brown that she did not believe that his past infractions would continue to impact his opportunities for promotion if he were to requalify for the eligibility list. She encouraged him to remain engaged with his work and optimistic about his opportunities for promotion. There is no suggestion that FOP ever filed a grievance on Brown’s behalf regarding LMPD’s decision not to promote him. In July 2022, pursuant to the Kentucky Civil Rights Act, Kentucky Revised Statutes (KRS) Chapter 344, Brown (Brown is African-American) filed a complaint in Jefferson Circuit Court against LMPD, former Chief Shields, and Louisville-Jefferson County Metro Government. He alleged that three white officers with “far more egregious violations” had been promoted in 2018, 2019, -4- and 2022. He also alleged that LMPD’s failure to promote him violated portions of the collective bargaining agreement. Finally, Brown alleged that the thirty-day suspension he served with respect to his mishandling of evidence (retention of wallets taken from arrestees) was unlawful because the investigator (a white female) kept the evidence in her desk once the wallets were retrieved from his (Brown’s) patrol car. He sought compensatory and punitive damages. In August 2022, LMPD and former Chief Shields, in her official capacity, filed a motion to dismiss the claims asserted against them. LMPD contended “that it was not an entity capable being sued”; Chief Shields asserted the defense of sovereign immunity to the claims asserted against her in her official capacity. (Appellee brief, p. 3.) The circuit court granted the motion in November 2024, and no appeal was taken. On July 16, 2025, LMPD and former Chief Shields, in her individual capacity, filed a well-supported motion for summary judgment. They argued that they were entitled to judgment as a matter of law because there was no evidence to support Brown’s claim that he had been discriminated against based upon his race; that his claim of sex discrimination was time-barred; and that provisions of the collective bargaining agreement had not been materially breached. Additionally, former Chief Shields argued that she was entitled to qualified immunity with respect to her decision not to promote Brown during her tenure. -5- Brown did not respond to the motion. Instead, on July 23, 2025, he filed a motion asking the court to order mediation. In response to the motion, the trial court instructed the parties that mediation could be scheduled but only “AFTER summary judgment briefing and order has ended.” On August 5, 2025, soon after the court’s order denying his motion for mediation was entered, Brown filed a document entitled “Plaintiff’s Memorandum of Law and Fact.” Thereafter, on August 20, 2025, the trial court’s order granting summary judgment was entered. In its order, the court observed that Brown’s two- paragraph response “makes zero legal arguments” and only “cites a single case” without explaining how it applies. The court concluded that Brown’s response failed to present affirmative evidence to show that any genuine issue of material fact remained for trial and that LMPD and former Chief Shields had shown that they were entitled to judgment as a matter of law. On August 29, 2025, Brown filed a motion to “alter, reconsider, or vacte (sic) pursuant to CR 59.05,” in which Brown’s counsel contended that he was unable to respond to the motion for summary judgment because he did not receive adequate notice of it. However, counsel did not suggest that electronic notice of the motion was improperly served through the court’s e-filing system. Instead, he represented that the notice and motion went to his “spam” folder. Counsel explained that his email account was “set up to not provide notification of -6- spam messages.” He explained that the memorandum he filed August 5, 2025, was not intended as a response to the motion for summary judgment. Instead, while “admittedly incomplete,” it was “meant to satisfy the Court’s Trial Order deadline.” Counsel argued that to avoid manifest injustice, the summary judgment “should be reconsidered and revised on the facts alleged in this case.” In an order entered a few days later, the trial court denied the motion. The court concluded that the deficiency of counsel’s email settings did not justify his failure to respond to the motion -- especially where Brown’s counsel was fully aware of this very problem. The court observed that the motion had also been served on counsel through conventional post and that the court’s order of July 24, 2025, made specific reference to the outstanding motion for summary judgment. The circuit court concluded that a review of the record made it clear that LMPD and former Chief Shields were entitled to judgment as a matter of law. The court observed that it would not permit “this lack of diligence” to serve as the basis to continue litigation of claims that had been shown to be meritless. Brown filed a timely notice of appeal on September 26, 2025. On appeal, Brown argues that the trial court abused its discretion by granting summary judgment. He states that the court erred: because he presented a prima facie case of employment discrimination; that genuine issues of material fact remain outstanding; and that he was not afforded a fair opportunity to prove that -7- Chief Shields’s stated reasons for deciding not to promote him were pretextual. Additionally, he argues that the summary judgment motion was “improperly noticed due to the failure of the e-service delivery which sent the motion to [counsel’s] email spam folder” and that for that reason the circuit court abused its discretion by failing to grant relief pursuant to his post-judgment motion for relief. Because the merits of the case had been demonstrated through the “[c]omplaint and subsequent case filings and activities,” Brown contends that the trial court’s decision should be reversed. We consider these issues in reverse order. Our case law is clear that there is no appeal from the denial of a CR 59.05 motion. Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). The denial does not alter the judgment; consequently, the appeal is taken from the underlying judgment -- not the denial of the motion for relief. Nevertheless, the post- judgment issue that Brown presented to the circuit court concerning counsel’s failure to respond to the summary judgment motion based upon characteristics of his email system appears to be more properly suited to a CR 60.02 motion for relief. While CR 59.01 orders necessarily involve substantive issues related to the proceedings that are generally intertwined with the merits of the appeal, relief sought pursuant to the provisions of CR 60.02 usually involves issues extraneous to the merits of the case. Younger v. Evergreen Group, Inc., 363 -8- S.W.3d 337, 339–40 (Ky. 2012). Moreover, the denial of relief under CR 60.02 itself is appealable. See Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App. 2005). Therefore, we analyze the court’s decision as if the issue had been properly presented by Brown pursuant to the provisions of CR 60.02. CR 60.02 provides that a court may, upon motion and such terms as are just, relieve a party or his legal representative from its final judgment on numerous grounds -- including mistake, inadvertence, surprise or excusable neglect, and any other reason of an extraordinary nature justifying relief. The rule acts as a “safety valve, error correcting device for trial courts.” Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). It is designed to allow trial courts a measure of flexibility to achieve just results; it provides the trial court with extensive power to correct its judgment. Id. Accordingly, a motion filed pursuant to CR 60.02 addresses itself to the broad discretion of the trial court. Id. A trial court abuses its discretion only where its decision is deemed arbitrary, unreasonable, unfair, or unsupported by sound legal principles. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The trial court did not abuse its discretion by denying Brown’s request for post-judgment relief in this case. Counsel gave his consent to electronic service of documents. Transmission of an email generated by the court’s e-filing system constitutes service under our civil rules. CR 5. Brown’s counsel does not -9- dispute that he did actually receive an email from the court’s e-filing system alerting him that the motion for summary judgment motion had been filed. A screen shot clearly shows that it was timely delivered to his email address. Moreover, counsel admitted that he was aware that e-filing notices went to his spam folder. Counsel acknowledged that he checked the spam folder periodically for this reason. In fact, when counsel checked the folder, he discovered the notice of filing and link to the motion. These facts do not describe a failure of computer technology justifying extraordinary relief from the trial court. Additionally, there is no evidence to suggest that opposing counsel knew or had reason to know that Brown’s counsel was unaware that the summary judgment motion had been filed. Under the circumstances, the circuit court did not abuse its discretion by rejecting Brown’s request for post-judgment relief. Next, we consider Brown’s specific arguments with respect to the circuit court’s decision to grant summary judgment. Summary judgment is properly granted only where “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.” CR 56.03. While the party seeking disposition by summary judgment bears the initial burden of establishing that no genuine issue of material fact exists, the burden shifts to the party opposing -10- the motion to present “at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citing Steelvest Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991)). The trial court “must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” Steelvest, 807 S.W.2d at 480. Because we consider only legal questions and determine whether there were material facts genuinely at issue, our review is characterized as de novo. Lewis, 56 S.W.3d at 436. We do not defer to the circuit court’s legal conclusions. Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky. 2003) (citing First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky. App. 2000)). In his appellate brief, Brown offers no argument with respect to the trial court’s ruling that former Chief Shields is entitled to summary judgment based upon her qualified immunity for the decision not to promote Brown in 2021/2022. His only reference to that issue is contained in a heading outlining the contents of the brief. An argument on the merits does not appear anywhere in the brief. Consequently, we decline to address the issue. See Bradley v. Commonwealth ex rel. Cameron, 653 S.W.3d 870, 876 (Ky. 2022) (The court is not obligated to discover arguments that a party might advance on appeal, legal authority to support those arguments, or a factual basis underlying them). -11- Similarly, Brown fails to develop an argument that the trial court erred by granting summary judgment with respect to his claim for employment discrimination. Instead, Brown merely asserts that “he has presented material facts against the Defendants for race and gender discrimination.” He identifies assertions contained in his complaint indicating that he became eligible for promotion based upon his performance on the “promotional examination, disciplinary record, and professional achievements” and argues that he presented a prima facie case of discrimination. Again, a party presented with a motion for summary judgment has the burden of presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial. Steelvest, Inc., 807 S.W.2d at 482. Reliance upon “claims [and] arguments without significant evidence” is improper, Wymer v. J.H. Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001), and “speculation and supposition are insufficient to justify a submission of a case to the jury. . . .” Goodman v. Goldberg & Simpson, P.S.C., 323 S.W.3d 740, 744 (Ky. App. 2009) (quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). Without identifying any genuine issues of material fact, Brown contends that the trial court’s decision to grant summary judgment is clearly erroneous. However, he submitted nothing to refute LMPD’s evidence indicating that the decision not to promote him was based upon his character and ability -- -12- and not upon his race or gender. The assertions included in Brown’s complaint did not create genuine issues of material fact precluding summary judgment. Nor are his feelings that he was unfairly treated sufficient to establish a genuine issue of material fact. Finally, we consider Brown’s contention that the trial court erred by granting summary judgment with respect to his claim that LMPD and former Chief Shields violated provisions of the collective bargaining agreement governing the promotions process. He contends that evidence of record establishes that Chief Shields violated the terms of the agreement by failing to make necessary promotions before the eligibility list expired. However, the terms of the agreement expressly provide that the exclusive means of resolving disputes arising thereunder is through the agreement’s grievance procedure. Nothing in the record indicates that Brown followed this procedure; he does not argue in his brief that he did so. We decline to construct an argument or look for support for one. Thus, we are persuaded that the trial court did not err by concluding that no genuine issue of material fact exists regarding Brown’s claims. Therefore, summary judgment was proper. We affirm the judgment of the Jefferson Circuit Court. ALL CONCUR. -13- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Aubrey Williams Kathryn Goodwin Louisville, Kentucky Whitney Meagher Louisville, Kentucky -14-