Opinion
2022-CA-0841-ME
02-03-2023
RICHARD F. DAWAHARE [1] APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
BRIEFS FOR APPELLANT: Richard F. Dawahare, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jessica M. Crockett Leslie Laupp Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LUCINDA MASTERTON, JUDGE ACTION NO. 21-AD-00154
BRIEFS FOR APPELLANT: Richard F. Dawahare, pro se Lexington, Kentucky
BRIEF FOR APPELLEE: Jessica M. Crockett Leslie Laupp Lexington, Kentucky
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.
OPINION
DIXON, JUDGE
Richard F. Dawahare, who was appointed warning order attorney in the underlying action, appeals the order of the Fayette Circuit Court entered on June 21, 2022, overruling his motion for attorney fees. After careful review of the record, briefs, and law, we reverse and remand.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On January 13, 2022, the Cabinet for Health and Family Services (CHFS) filed an Affidavit for Appointment of Warning Order Attorney to effect service on the respondent in its underlying action and, therein, provided her last known address. Dawahare was appointed on the same day. In April 2022, Dawahare filed a report stating that his attempt to reach the respondent by certified mail at the address provided by CHFS had been unsuccessful and he was unable to make a defense on her behalf.
Thereafter, the parties agree that Dawahare contacted CHFS seeking payment for his services in the amount of $100, plus costs, the customary fee in Fayette County. However, after being informed he was required to seek a payment order from the court, Dawahare asserted he would require additional compensation and filed a motion seeking $500 in fees plus $7.38 in costs. In support of his request, Dawahare attached a timesheet documenting that he spent 2.5 hours communicating with CHFS, reviewing the 19-page file, drafting correspondence to the respondent, posting the letter, retrieving the certified mail form from the post office, performing miscellaneous clerical functions, and preparing and filing his report. Dawahare multiplied the time claimed by his usual hourly rate of $250 for a total of $625. He then reduced his fee to $500 in recognition that attorneys who are appointed to represent the interests of parties throughout termination of parental rights proceedings are statutorily capped at that sum. See KRS625.080(3).
Dawahare's timesheet indicates that he did not include the 1.55 hours he expended in seeking payment.
Kentucky Revised Statutes.
CHFS objected, arguing that the requested sum exceeded the longstanding general order of the Fayette Circuit Court and was generally unreasonable. Ultimately, the court denied the motion, stating that "[t]he amount of fees requested is excessive; per the longstanding General Term Order dated April 22, 2014[, the maximum order for Warning Order Attorney fees are capped at $100." This appeal timely followed.
The referenced order states, "IT IS HEREBY ORDERED, that pursuant to CR 4.07(6), Warning Order Attorney fees are set at $100, which shall be taxed as costs." The parties acknowledge that this amount was raised to $125 by a subsequent general order entered June 16, 2022. We note that the order on appeal does not conclusively establish a fee and, instead, the court encouraged the parties to come to an agreement on either $100 or $125, plus costs.
STANDARD OF REVIEW
CR 4.07(1) provides that warning order attorneys shall "make diligent efforts to inform the defendant, by mail, concerning the pendency and nature of the action against him, and must report the result of his efforts[.]" For these services, a warning order attorney is permitted a "reasonable fee" to be taxed as costs. CR 4.07(6); KRS 453.060.
Kentucky Rules of Civil Procedure.
What constitutes a reasonable fee is within the discretion of the court. Spees v. Kentucky Legal Aid, 274 S.W.3d 447, 451 (Ky. 2009); see also Neidlinger v. Neidlinger, 52 S.W.3d 513, 519-20 (Ky. 2001), overruled on other grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). Accordingly, we review for an abuse of discretion. An abuse of discretion occurs if the court's ruling is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
LEGAL ANALYSIS
Both Dawahare and CHFS devote much of their briefs to addressing whether the requested fee was reasonable, but a threshold issue is whether the court abdicated its discretion in favor of a mechanical application of the general order, and if so, whether this was in error.
On this issue, CHFS argues the court's statement that the requested fee was excessive, especially when coupled with discussions the court held in other cases about the reasonableness of $100, demonstrates that the court did not merely apply the general rule. Alternatively, CHFS asserts the court's reliance on the general order is not erroneous as limits to attorney fees are common in a number of different cases, such as termination of parental rights and tax debt collections. See KRS 625.080; KRS 620.100; KRS 134.452. And, finally, CHFS contends Dawahare is barred from seeking fees in excess of the general order because he voluntarily sought and accepted appointment as a warning order attorney with knowledge of the $100 cap. Addressing these arguments in reverse order, we disagree.
We reject the contention that anyone can consent to the court's abdication of its judicial obligations and, since CHFS has proffered no support for its position, decline to further address the claim. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) ("It is not our function as an appellate court to research and construct a party's legal arguments[.]"). Additionally, as a statutory limit of $100 on warning order attorney fees has not been established, we are similarly unpersuaded that the court's reliance on the general order should be affirmed solely on this basis. Finally, with regard to whether the court exercised discretion in this matter, discussions held in other cases are irrelevant as "[m]atters not disclosed by the record cannot be considered on appeal." Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky. 1952). Accordingly, our only reference point is the order on appeal where, in the very same sentence, the court explained the fee was excessive because it exceeded the cap set by the general order. Because we agree with Dawahare that this was erroneous, we need not address his other claims.
Though not specifically argued, we note that the general order is not the equivalent of a statute. In Abernathy v. Nicholson, 899 S.W.2d 85, 87 (Ky. 1995), the Court explained that an order which "is not limited to a particular case[,] but applies to all cases which fall within its confines[,]" and has an indefinite duration, is treated as a rule, and such rules cannot "contradict any substantive rule of law[.]" Consequently, the general order capping compensation does not supplant the statutory directive to award reasonable fees.
A court's failure to exercise discretion is itself an abuse of discretion. Knox v. Commonwealth, 361 S.W.3d 891 (Ky. 2012). In Knox, the Supreme Court of Kentucky reaffirmed that a trial court abuses its discretion when it acquiesces to the sentencing recommendation of a plea agreement without independent consideration of alternative sentences or the relevant facts, as required by statute. Though Knox is not directly on point, we conclude there are sufficient parallels when, in lieu of considering the applicable facts, a court applies a predetermined sentence set by a hammer clause in a plea or defers to a general order fixing an attorney fee despite a supported request for a different sum. As the order on appeal fails to demonstrate that the court exercised independent judgment and considered the facts of this case, we conclude the court's decision is arbitrary and remand for further proceedings.
See also T.R.W. v. Cabinet for Health and Family Services, 599 S.W.3d 455, 459 (Ky. App. 2019), wherein the Court reasserted that the wholesale adoption of a party's proposed findings of fact and conclusions of law constitutes an error if the trial court abdicated "its fact-finding and decision-making responsibilit[ies.]"
To clarify, this Opinion does not hold that general orders are not permissible or even that this particular general order is void. Further, our holding should not be construed as a determination that $100 is or is not reasonable under these facts. Rather, our holding is merely that a general order cannot replace the court's discretion, though the court is free to consider its wisdom as a guideline of what is reasonable in that jurisdiction for a typical appointment in conjunction with its assessment of the facts at hand.
Courts have an inherent power to prescribe rules for the orderly dispatch of litigation and to facilitate the administration of justice. Collins v. Combs, 320 S.W.3d 669, 675 (Ky. 2010).
We are cognizant that several judicial circuits have addressed the issue of warning order attorney fees by way of local rules, which must be passed with the approval of the Kentucky Supreme Court. Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 143 (Ky. App. 2009). Our cursory review of such rules demonstrates that at least some have adopted a procedure like that envisioned above where the rule establishes a baseline but preserves the discretion of the court if a contrary amount is requested. See Jefferson Circuit Court Rules of Practice 1001(a)-(b); Uniform Rules of Practice and Procedure of the Bullitt Circuit Court, Family Division 115.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Fayette Circuit Court is REVERSED and the matter is REMANDED for further proceedings consistent with this Opinion.
ALL CONCUR.