Opinion
NO. 2011-CA-001402-MR NO. 2011-CA-001449-MR
04-19-2013
LEONARD E. WALTHER AND SUSAN S. WALTHER APPELLANTS/CROSS-APPELLEES v. JONI MILLER AND MARY KATHYRN MILLER APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANTS/CROSS- APPELLEES: Fred G. Greene Russellville, Kentucky BRIEF FOR APPELLEES/CROSS- APPELLANTS: Matthew J. Baker Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL AND CROSS-APPPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 07-CI-00004
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Leonard E. Walther and his wife, Susan S. Walther, appeal from the June 21, 2011, order of the Logan Circuit Court, which disallowed the payment to them of a previously ordered $500 per week sum but awarded them attorney's fees. The genesis of this case is that the Walthers filed several motions for contempt and enforcement of an April 2008 judgment, which had determined that Joni and his wife, Mary Kathryn Miller, were in violation of certain deed restrictions on their property and ordered them to remedy these conditions. After approximately a year and three months following this judgment and extensions of the time period to comply with it, the trial court ordered the Millers to pay this sum to the Walthers until they brought their property into compliance. Additionally, the Millers cross-appeal from the trial court's order for them to pay attorney's fees to the Walthers. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Walthers and the Millers are neighboring landowners. The Millers purchased their property in December 1998, and the Walthers purchased their property in August 2006. In June 2007, the Walters filed suit in Logan Circuit Court for the enforcement of certain deed restrictions on the Millers' property. A bench trial was held on the matter on July 28, 2008, and on August 14, 2008, the trial court entered findings of facts, conclusions of law, and a judgment. In essence, the trial court held that the Millers violated certain deed restrictions, ordered them to remove various structures and to make improvements on their property within 180 days from the entry of the judgment.
Following the entry of this judgment, the Walthers made a series of motions for the enforcement of the judgment. Beginning on March 31, 2009, they moved to hold Mr. Miller in contempt for his failure to comply with the requirement in the August 2008 judgment to remove certain structures on his property. Thereafter, on April 17, 2009, the trial court, following a hearing, entered a calendar order that granted the Millers a 90-day extension to comply with the removal of all structures.
Subsequently, on July 16, 2009, the trial court entered an order related to the calendar order and hearing of April 17, 2009. The order apparently referenced the 90 additional days provided to the Millers on April 17, 2009, since it said "[t]he Defendants shall have 90 days from the date of this hearing to complete. . . ," apparently referencing the hearing held on April 17, 2009. The order stated that so that the Millers should complete the removal of "all vertical obstructions located within the 150-foot right-of-way." Significantly, the order also imposed a $500 per week sum to be paid by the Millers to the Walthers for failure to remove the violating structures within the time frame - 90 days after the April 17th order. It is in this specific order of July 16, 2009, that the trial court instructed that "[i]n the event the Defendants have not made a removal of all violating structures, the Defendants shall owe the Plaintiffs the sum of $500 per week until such time as they have completed the removal of all violating structures." Further, this order, as with the calendar order, had no finality language.
Next, the Millers, on July 22, 2009, filed a motion for the trial court to make an on-site visit and ascertain their compliance with the court order. A hearing was held as a result of the motion but it is unclear from the record whether it was held on August 6, 2009, at motion hour or on August 14, 2009. Regardless of the date, the Walthers argued that the Millers were not complying with the court's orders and listed five specific complaints and included photographs. In addition, counsel for both parties requested that the trial judge visit the site without counsel or parties.
After visiting the site, the trial court issued its September 4, 2009 order. The order synthesizes the previous orders and discusses the August 14, 2008 final judgment, the calendar order of April 17, 2009, and the July 16, 2009 order. One confusing issue is the trial court's discussion of the number of days that it extended the Millers to bring the property into compliance. As noted, the July 16, 2009 order states, without providing a date of the hearing, that "[t]he Defendants shall have 90 days from the date of this hearing to complete the removal of all vertical obstructions located within the 150 foot right-of-way area." The July 16, 2009 order, however, refers to the 90-day extension on April 17, 2009, plus another 90-day extension in the July 16, 2009 order. Thus, the record is not clear as to whether the trial court gave the Millers one or two 90-day extensions.
Moreover, in the order, the trial judge noted his observations about the property and wrote that "[n]o reasonable person could view these concrete structures as being in compliance with the orders of this Court." After discussing a long list of problems with the property and making the observation that "[t]he general appearance of the farm was poor," the trial court then delineated the tasks necessary for the Millers to complete. Again, the trial court's order contained no finality language.
Nothing occurred in the case for little over a year until the Walthers filed a motion on October 25, 2010, to hold Mr. Miller in contempt. Next, they filed a similar motion on November 17, 2010. In this motion, the Walthers again moved for Miller to comply with the court's orders to clean up the premises. They also moved for the trial court to order the Millers to pay $500 per week for noncomplance, claiming it was now approximately $30,000, and requested attorney's fees.
An evidentiary hearing regarding the motion was held on January 4, 2011, at which both parties testified. Mr. Walther complained that the Millers' barn was situated within 150 feet of the property line. Mr. Miller testified that he had recently, just after Christmas, moved the concrete watering trough and had been working on bringing the property into compliance late the night prior the hearing. Following the hearing, the trial judge and counsel went to view the property. With regard to the Miller's barn, the trial judge himself measured the distance from the fence to the barn and found that it was not within 150 feet of the property line.
In the resulting order, entered on January 21, 2011, the trial judge observed that the appearance of the property was "very much improved." The trial judge also commented that the watering trough was moved some time since December 25, 2010, and that Miller had been working until the night before the hearing.
The trial court also addressed the issue of whether its order of $500 per week should be charged to the Millers and/or whether attorney's fees should be imposed. The trial judge explained that the fact that Mr. Miller was still moving a concrete watering trough in December 2010 and working on the property on the evening before the hearing demonstrated that Mr. Miller did not believe that he was in compliance at the time of the motion. Still, the order noted that no evidence was presented as to precisely when the Millers performed the work to bring the property into compliance. Continuing, the trial judge reasoned that it would be unjust to charge the Millers $500 per week if almost all the work performed was done within the specified time of the court's September 4, 2009 order. The trial judge then goes on to state that the burden of proving the extent of the Millers' noncompliance at this time rests with the Walthers. Finally, the trial court states that a more just and clear result would be for the Millers to pay the Walthers' attorney's fees for pursuing the latest motion. Again, no finality language is attached to this order.
Notwithstanding the lack of any finality language in this order, the Walthers appealed from the trial court's order. Our Court, however, on May 3, 2011, entered an order dismissing the appeal because the order was not a final and appealable order. After the Court of Appeals' dismissal, on June 21, 2011, trial court ordered a specific amount of attorney's fees, $1,650, and included the language "[t]his is a final and appealable Order which encompasses the original Order of January 18, 2011, as fully as if set forth at length herein." (The date the order was entered was January 21, 2011.) The Walthers appealed from this order, and the Millers cross-appealed from it.
In the direct appeal, the Walthers argue that the trial court abused its discretion when its last order, made final in June 2011, was not consistent and ignored key provisions of its previous orders. Mainly, they argued that the trial court discounted its order for the Millers to pay $500 per week to them for failure to comply with the trial court's judgment. In response, the Millers maintain that the trial court's orders regarding compliance with the deed restrictions were interlocutory, and therefore, subject to change, modification, and revision by the trial court at any time. Thus, the trial court had authority to enter its January 2011 order. Additionally, in the cross-appeal, the Millers assert that the trial court erred in its award of attorney's fees to the Walthers since no statute or contract authorized such an award. Conversely, the Walthers proffer that the trial court has equitable powers to award attorney's fees even without an authorizing statute.
STANDARD OF REVIEW
Since, for the most part, the trial court's orders and action in this case are in response to motions for contempt and enforcement of a prior judgment, we observe that a trial court has inherent power to punish individuals for contempt, Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001), and nearly unfettered discretion in issuing contempt citations. Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986). Given the underlying discretion of the trial court, the appellate review of this case is based on an abuse of discretion standard.
Generally speaking, "[t]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Moreover, a court can also "abuse its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995)(citation omitted).
ANALYSIS
1. Trial courts' orders
With this standard of appellate review in mind, we turn to the facts of the case herein. First, we direct our attention to the Millers' argument that because the orders did not recite the necessary finality language, they were interlocutory, and therefore, subject to change, modification, and revision at any time by the trial court. They quote the language of Kentucky Rules of Civil Procedure (CR) 54.02 wherein it states that absence of a recital that the judgment is final, "the order or other form of decision is interlocutory and subject to revision at any time before the entry of the judgment."
We do not disagree with this analysis, but it is inapposite to the situation herein. While the court orders did not cite finality language, the first three orders were never set aside, and therefore, are outstanding. The trial court referred to its earlier order that imposed the $500 per week assessment in its final order entered January 21, 2011. Therefore the trial court did not revise its order.
What is clear from the language of the January 21, 2011 order is that the trial judge was aware of the $500 per week sum and also knew that Mr. Miller was working on compliance until the night before the trial court's January 4, 2011 hearing. Nonetheless, the trial court's discussion of the "penalty" suggests that it is unjust because it is impossible to determine between the September 4, 2009 order and January 2011 when the Millers were in substantial compliance. Then, the trial court assigns the burden of proof for the establishment of when the Millers were in substantial compliance to the Walthers. Arguendo, since the Walthers did not provide this information, the trial court maintains that this failure by the Walthers bolsters his reasoning that the imposition of the "penalty" would be unjust.
An appellate court reviews all legal issues de novo. Mt. Holly Nursing Center v. Crowdus, 281 S.W.3d 809, 813 (Ky. App. 2008). And a trial court abuses its discretion when it improperly applies the law or uses an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d at 615. In the case at bar, the trial court erred in assigning the burden of proof on the Walthers to show when the Millers were in substantial compliance.
When seeking civil contempt, the initial burden is on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order. Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011)(citing Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517 (Ky. 1932). If the party is seeking compensation it must also prove the amount. Ivy, p. 332. The trial court issued several orders over three years enforcing its judgment, and the Millers defied valid court orders. However, the Walthers did not prove the amount. After the moving party establishes a prima facie case, the burden of production shifts to the alleged contemnor to show, clearly and convincingly, that he or she was unable to comply with the court's order or was, for some other reason, justified in not complying. Id. (citing Clay v. Winn, 434 S.W.2d 650 (Ky.1968)). The trial court did not err when it refused to impose the $500 per week fee. Therefore we affirm the decision of the trial court.
2. Attorney's fees
Next, we consider the Millers' contention in the cross-appeal that the trial court erred by making an award of attorney's fees to the Walthers since neither statute nor contract authorized such an award. Indeed, the Commonwealth adheres to the "American Rule" which provides that "attorney's fees are not recoverable in the absence of a statutory or contractual provision to the contrary, or with certain equitable exceptions." Louisville Mall Associates, LP v. Wood Center Properties, LLC, 361 S.W.3d 323,336 (Ky. App. 2012)(quoting Gibson v. Kentucky Farm Bureau Mutual Ins. Co., 328 S.W.3d 195, 204 (Ky. App. 2010)).
The Walthers, however, point out that even though under Kentucky jurisprudence, attorney's fees are not allowable as costs in absence of statute or contract expressly providing, the rule, as noted in the quote above, this provision does not abolish the equitable rule that a court has discretion to make an award of attorney's fees depending on the circumstances of each particular case. See Dorman v. Baumlisberger, 271 Ky. 806, 113 S.W.2d 432 (1938); Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754 (Ky. App. 1984); and Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762 (Ky. App. 2005). Yet, the circumstances that justify an exception to the general rule have never been completely elucidated. Cummings v. Covey, 229 S.W.3d 59, 62 (Ky. App. 2007).
It is the responsibility of the trial court to determine the availability and amount of attorney's fees. See Inn-Group Management Services, Inc. v. Greer, 71 S.W.3d 125, 130 (Ky. App. 2002). Moreover, as highlighted above, it is an "equitable rule that an award of counsel fees is within the discretion of the court depending on the circumstances of each particular case." Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754, 755 (Ky. App. 1984). The trial court ordered the attorney's fee as an equitable remedy to the Miller's noncompliance. We believe the court did not abuse its discretion in ordering this payment.
CONCLUSION
For the foregoing reasons, the June 21, 2011 order of the Logan Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS/CROSS-
APPELLEES:
Fred G. Greene
Russellville, Kentucky
BRIEF FOR APPELLEES/CROSS-
APPELLANTS:
Matthew J. Baker
Bowling Green, Kentucky