GERALD PARKS v. GARY WALDEN
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001243-MR
GERALD PARKS
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 99-CI-00630
v.
GARY WALDEN
APPELLEE
OPINION
AFFIRMING IN PART,
AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
BUCKINGHAM, SCHRODER, AND VANMETER, JUDGES.
VANMETER, JUDGE:
This is an appeal from a judgment entered by
the Whitley Circuit Court ordering appellant, Gerald Parks, to
pay appellee, Gary Walden, $7,010.84 for Walden’s efforts in
repairing Parks’ truck, and further ordering Parks to pay Walden
$5,000 for attorneys’ fees.
On appeal, Parks asserts that the
trial court erred in entering a directed verdict against him
regarding his claims, in instructing the jury on a claim for
punitive damages based on fraud, and in awarding Walden
attorneys’ fees.
For the reasons stated hereafter, we affirm in
part and reverse and remand in part.
Parks owns a 1992 Dodge 350 truck which he uses on his
farm.
After one of his employees wrecked the truck in November
1998, Parks sought a repair estimate from Walden.
Walden
inspected the truck at least twice and told Parks that it was
not worth repairing.
According to Walden, when Parks expressed
that he nevertheless wanted to continue to use the truck on his
farm, Walden informed Parks that the truck had some mechanical
problems, that there might be other hidden problems, and that he
could not determine the full extent of the damage to the motor.
Moreover, Walden testified that he told Parks that he did not do
mechanical or frame work but that he could complete the body
work for approximately $6,500 to $7,000.
Parks, on the other
hand, testified that he told Walden that he wanted his truck “on
the road,” and that Walden informed him that the truck could be
repaired for $6,500 to $7,000, or maybe a little more.
The
terms of the estimate were not reduced to writing, and Parks
testified that he never consented to amend this original
agreement.
Walden began repairing the truck in January 1999, and
Parks paid Walden a down payment of $4,000 in mid-February 1999.
Walden personally worked on the truck during time off from his
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job and also hired several other people to perform work on the
truck.
Walden demanded an additional payment of $4,000 from
Parks, which Parks paid in July 1999.
Walden completed
repairing the truck in November 1999 and requested that Parks
pay an additional $7,010.84.
Parks refused to pay this amount,
so Walden kept the truck and placed a mechanic’s lien on it.
Parks filed a complaint on November 30, 1999, in the
Whitley Circuit Court, alleging breach of contract, fraud, and
violation of the Kentucky Consumer Protection Act.
Further,
Parks requested compensatory and punitive damages and a
determination of the reasonable value of the work Walden
performed.
On December 16, 1999, Walden’s attorney notified
Parks that Walden was going to publicly sell the truck in order
to satisfy the lien.
Upon Parks’ motion, the court ordered
Walden not to sell the truck.
Walden then counterclaimed,
seeking to collect the additional amount and alleging slander.
Walden also alleged that Parks had failed to disclose that the
truck had been wrecked on two prior occasions.
The matter proceeded to trial on October 17, 2003.
At
the close of his case, Parks requested that the court allow him
to amend his complaint to eliminate his request for a
determination of the reasonable value of the work performed.
The court denied this motion as well as Parks’ motion to direct
a verdict in his favor regarding his other claims.
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Instead, the
circuit court entered a directed verdict in favor of Walden as
to all of Parks’ claims, as well as a directed verdict in favor
of Parks as to Walden’s slander claim.
The court then
instructed the jury on a claim for punitive damages based on
fraud, as well as on Walden’s counterclaim for the balance of
Parks’ account.
In accordance with the jury’s verdict, the
circuit court entered a judgment for Walden in the amount of
$7,010.84 plus an additional $5,000 for attorneys’ fees.
punitive damages were awarded.
No
Parks’ motion seeking a new
trial, or to alter, amend or vacate, and requesting the court to
strike the attorneys’ fee award, was denied on June 2, 2004.
This appeal followed.
I.
Directed Verdict on Parks’ Claims
During his cross-examination, Parks admitted that he
had no evidence to contradict Walden’s claim as to the work
performed on Parks’ truck, as shown in Walden’s bills and
mechanic’s lien.
Based on this admission, Walden sought and was
granted a directed verdict against Parks on all of Parks’
claims.
The circuit court based its decision on the fact that
Parks had presented no evidence of any damages to the jury.
On
appeal, Parks contends that the trial court erred in directing a
verdict against him.
We agree.
“Generally, a trial judge cannot enter a directed
verdict unless there is a complete absence of proof on a
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material issue or if no disputed issues of fact exist upon which
reasonable minds could differ.” 1
When ruling on a motion for
directed verdict, “the trial court must consider the evidence in
its strongest light in favor of the party against whom the
motion was made and must give him the advantage of every fair
and reasonable intendment that the evidence can justify.
On
appeal the appellate court considers the evidence in the same
light.” 2
Moreover, the appellate “court cannot substitute its
judgment for that of the trial judge unless the trial judge is
clearly erroneous.” 3
The evidence showed that the terms of the oral
agreement were disputed.
Parks testified that Walden agreed to
put the truck “on the road” for $6,500 to $7,000, or maybe a
little more.
Walden, on the other hand, testified that he
agreed only to complete the body work for that amount, hired
others to perform the mechanical and frame work, and then
presented Parks with bills totaling $15,010.84 after the truck
was repaired.
Since there was probative evidence to support
both claims, reasonable minds could differ as to the terms of
the parties’ oral agreement and, ultimately, as to whether that
agreement was breached.
If a jury believed Parks’ testimony, it
1
Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998).
2
Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).
3
Bierman, 967 S.W.2d at 18.
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could also conclude that Parks incurred damages amounting to the
difference between the agreed price of $6,500 to $7,000 or maybe
a little more, and the price Walden ultimately charged. 4
Parks’ admission that he had no proof to dispute the
fact that Walden’s services were performed does not alter our
analysis.
Even if this admission may have warranted a directed
verdict as to the performance of those services, it does not
affect the issue of whether there was a breach of an oral
contract to repair the truck for a lesser price.
Thus, the
circuit court’s entry of a directed verdict on the breach of
contract claim was clearly erroneous.
II.
Instruction on Walden’s Fraud Claim
Next, Parks contends that the trial court erred in
instructing the jury on Walden’s fraud claim, or in the
alternative, that the fraud instruction set forth an incorrect
burden of proof.
However, Parks prevailed on the fraud claim
below and Walden did not cross-appeal as to the issue of fraud.
Since this matter is being reversed and remanded on appeal for
retrial on the breach of contract claim, the jury’s finding as
to fraud stands and shall not be considered on retrial.
4
Parks contends further that he was damaged when Walden placed a mechanic’s
lien on his truck, tried to sell the truck, and delayed fixing the truck,
thereby depriving Parks of use of the truck for an entire growing season.
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III. Attorneys’ Fees
Finally, Parks asserts that the trial court erred
in awarding Walden $5,000 for attorneys’ fees.
In the
alternative, Parks contends that the trial court’s award should
be set aside as an arbitrary and baseless amount, because the
trial court did not conduct a hearing or hear any evidence
regarding the appropriate amount to be awarded.
We agree.
Generally, “in the absence of contractual or statutory
liability, attorneys' fees are not recoverable as an item of
damages.” 5
In the matter now before us, although the trial court
purported to award attorneys’ fees “in accordance with statute”
it did not specify under which statute.
Walden proffers for the
first time on appeal, however, that Parks’ complaint was
frivolous and that the fees were awarded as sanctions pursuant
to CR 11.
As this court has stated, “[c]onsidering the punitive
nature of sanctions and the impact sanctions may have on a party
or an attorney's career and personal well-being, a trial court
should not impose sanctions without a hearing and without
rendering findings of fact.” 6
In the matter now before us, the
trial court did not characterize the attorneys’ fees as
sanctions, conduct such a hearing, or render findings of fact.
5
Lyon v. Whitsell, 245 S.W.2d 926, 926 (Ky. 1952).
6
Clark Equipment Co. v. Bowman, 762 S.W.2d 417, 420-21 (Ky.App. 1988)
(internal citation omitted).
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We therefore decline to accept Walden’s proffered rationale.
In
any event, CR 11 is not “a vehicle to obtain relief by one who
has suffered damages by simple negligence in the filing of a
lawsuit or by the filing of a meritless lawsuit.” 7
In the
absence of any other statutory or contractual authorization of
the circuit court’s order awarding Walden attorneys’ fees, we
must conclude that the trial court erred by awarding such fees.
The judgment of the Whitley Circuit Court is affirmed
in part and reversed in part, and this matter is remanded to
that court for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harold F. Dyche II
Jason E. Williams
London, Kentucky
K. David Kersey
Corbin, Kentucky
7
Id. at 420.
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