Dmitriy Zilberman v. H.W. Lochner, Inc.
2020 CA 000331
| Ky. Ct. App. | Jul 15, 2021Background:
- The Zilbermans owned property in eastern Jefferson County targeted for an easement for the East End Bridge; negotiations (with Lochner acting as agent for the Kentucky Transportation Cabinet) resulted in an offer, rejection, and eventual withdrawal; later the Cabinet determined the property was no longer needed.
- The Zilbermans sued Lochner and the Cabinet (May 2012) alleging improper/negligent negotiations and related statutory and constitutional claims.
- The Cabinet was dismissed on sovereign immunity grounds (2015); Lochner initially obtained summary judgment (2015) based on qualified official immunity, but the Court of Appeals vacated and remanded to decide whether Lochner sufficiently pleaded the affirmative defense (fair-notice analysis).
- On remand the Zilbermans filed an amended complaint; Lochner answered and expressly pled qualified official immunity and disclosed-agency defenses, then renewed summary judgment (2019–2020).
- The circuit court granted summary judgment for Lochner on both qualified official immunity and disclosed-agency grounds; the Zilbermans appealed but largely failed to preserve or brief the disclosed-agency issue.
- The Court of Appeals affirmed the circuit court’s summary judgment on the alternate ground of disclosed agency and declined to resolve the other pleaded-waiver questions as moot.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lochner waived qualified official immunity by failing to specifically plead it in the original answer | Zilberman: Lochner waived because original answer did not specifically plead qualified official immunity | Lochner: original general “immunity” language gave fair notice; amended answer cured any defect | Not reviewed on merits; appellate court affirmed judgment on alternate disclosed-agency ground and treated the pleading dispute as moot (circuit court found fair notice and amendment cured any defect) |
| Whether a previously-waived defense can be revived by answering an amended complaint | Zilberman: revival not allowed; prior waiver persists | Lochner: filing an answer to the amended complaint that expressly pleads the defense revives/preserves it | Not decided by Court of Appeals (deemed moot because judgment sustainable on disclosed-agency ground); circuit court found revival via amended answer effective |
| Whether Lochner violated KRS licensing provisions when acting for the Cabinet (and 23 C.F.R. § 710.201) | Zilberman: Lochner violated real-estate licensing statutes and federal rule by taking fees without license | Lochner: statutes don’t apply to corporate agent in this context / defenses applicable | Not reached; Court of Appeals affirmed on alternate ground and did not address statutory claim |
| Whether Lochner is immune from liability under the disclosed-agency doctrine | Zilberman: Lochner acted beyond authority/bad faith, so agent liability should lie | Lochner: it acted as authorized, disclosed agent of the Cabinet; when agency is disclosed, liability rests with principal, not agent | Held for Lochner: circuit court found Lochner acted within scope of disclosed agency and no bad faith shown; Court of Appeals affirmed summary judgment on this alternate ground |
Key Cases Cited
- Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001) (qualified official immunity is an affirmative defense)
- Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636 (Ky. App. 2011) (same: affirmative-defense pleading requirement)
- Vogler v. Salem Primitive Baptist, 415 S.W.2d 72 (Ky. 1967) (fair-notice requirement for pleading affirmative defenses)
- Sheffer v. Chromalloy Mining, 578 S.W.2d 594 (Ky. App. 1979) (assessing whether general language in an answer gives fair notice)
- Pannell v. Shannon, 425 S.W.3d 58 (Ky. 2014) (disclosed-agency doctrine: agent not liable when acting with authority and agency is known to third party)