RENDERED: JULY 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES R. BOONE AND HIS
WIFE, RONNA S. BOONE
APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 05-CI-00082
TIMOTHY BLANTON AND HIS
WIFE, ERICA BLANTON; AND
HON. HARLAN E. JUDD, JR.
REVERSING AND REMANDING
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; ISAAC,1 SENIOR JUDGE.
NICKELL, JUDGE: James R. Boone and his wife, Ronna S. Boone (collectively
“Boone”), have appealed from the Cumberland Circuit Court’s June 15, 2009,
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
order establishing the location of the boundary line of their property and that of
Timothy Blanton and his wife, Erica Blanton (collectively “Blanton”). They
contend the trial court’s award of attorney’s fees to Blanton was without statutory
authority and violated the agreement entered into between the parties. We reverse
Boone and Blanton own neighboring parcels of land in Cumberland
County. A dispute arose over the location of the boundary line between the two
tracts after Boone constructed a pond, patio, retaining walls and a septic system
across what Blanton believed to be the boundary. On July 28, 2005, Blanton filed
a petition seeking a declaration of rights in and to the subject property. Blanton
also sought an award of damages resulting from the offending improvements, the
cost of their removal, the wrongful harvesting of trees from the property, the cost
of a survey, and their costs and attorney’s fees incurred in prosecuting the action.
Following extensive discovery, the parties executed an agreed order which was
entered on July 19, 2007. The agreement stated, in pertinent part,
[t]he parties having entered into settlement discussions, it
was agreed by and between the parties that the Court
would appoint an independent surveyor to survey the line
dividing the property of Timothy Blanton and his wife,
Erica Blanton, and the property of James R. Boone and
his wife, Ronna S. Boone, the subject of this litigation.
That the independent surveyor will locate the proper
location of the line between the parties; that if the
independent surveyor does not locate an overlap but can
locate the property line, the parties do by this order agree
that the line be determined to be the proper division line
between the parties and that a judgment locating the same
shall be entered. That the cost of the survey shall be
taxed as court costs and that each party does agree to the
above procedure by signing their names below.
The independent survey, completed on September 23, 2008, located the line
between the parties and found that Boone’s patio, retaining walls, septic system,
and pond encroached upon Blanton’s land. This finding was consistent with
Blanton’s position throughout the litigation. A docket order entered on December
11, 2008, directed Boone to remove the encroachments from Blanton’s land,
awarded costs to Blanton incurred for the removal, and awarded fees to Blanton’s
attorney. On December 19, 2008, Blanton’s attorney filed a bill of costs requesting
a fee of $4,000.00 for his services. On May 28, 2009, the trial court awarded
Blanton’s counsel a fee of $4,500.00 and directed that the encroachments be
removed no later than June 15, 2009. A subsequent order entered on June 15,
2009, amended the fee to $4,000.00 and the removal date to July 1, 2009.
Blanton filed a motion for post-judgment relief pursuant to CR2 60.02
seeking, inter alia, payment of $2,000.00 for Boone’s illegal harvesting of trees
from their land and for an award of their surveyor’s fees. The trial court entered an
order on July 6, 2009, finding no statutory authority existed for granting the
requested surveyor’s fees, denying entitlement to payment for the illegally
harvested trees as no proof on the matter had been produced, and confirming the
award of attorney’s fees. Three days later, the Court authorized Blanton to remove
Kentucky Rules of Civil Procedure.
the offending structures at Boone’s expense. The encroachments remain on
Blanton’s property. Boone filed an appeal from the trial court’s order entered on
June 15, 2009, challenging only the part of the order awarding attorney’s fees to
The sole issue presented in this appeal is whether the trial court erred in
awarding attorney’s fees in the absence of statutory authority. Boone contends the
only statutory provision potentially applicable to this case which allows an award
of attorney’s fees is KRS 364.130.3 As no liability was established under that
statute, Boone alleges the trial court’s award is infirm. Further, Boone contends
CR 54.04, which allows the trial court to award costs to the prevailing party,
contains no provision for awarding attorney’s fees. Thus, Boone urges reversal.
Conversely, Blanton argues that even in the absence of statutory authority, trial
courts are vested with the equitable power and discretion to award attorney’s fees
in appropriate cases, citing Kentucky State Bank v. AG Services, Inc., 663 S.W.2d
754 (Ky. App. 1984), and Lake Village Water Association, Inc. v. Sorrell, 815
S.W.2d 418 (Ky. App. 1991).4
In AG Services, Inc., a panel of this Court concisely addressed the issue
facing us today.
KRS 364.130 sets forth the liability and measure of damages for the unlawful harvesting of
timber from the lands of another. The legal costs incurred by the owner of the timber are
specifically included within the mandatory award of damages upon a finding of liability.
Blanton also relies upon an unpublished opinion of this Court.
Under our law, attorney’s fees are not allowable as costs
in absence of statute or contract expressly providing
therefore. See Holsclaw v. Stephens, Ky., 507 S.W.2d
462 (1973), and Dulworth & Burress Tobacco
Warehouse Company, Inc. v. Burress, Ky., 369 S.W.2d
129 (1963). However, this rule does not, we believe,
abolish the equitable rule that an award of counsel fees is
within the discretion of the court depending on the
circumstances of each particular case. See Dorman v.
Baumlisberger, 271 Ky. 806, 113 S.W.2d 432 (1938).
AG Services, Inc., 663 S.W.2d at 755. Thus, it is clear that both parties are
technically correct in their relative positions.
While we agree with Blanton that trial courts have the equitable authority to
award attorney’s fees in appropriate circumstances, nothing in the record before us
indicates the trial court was exercising such authority or discretion. The trial court
failed to indicate at any point in the record its reasoning for awarding fees to
Blanton’s attorney. Further, the facts of this case do not rise to the egregious
nature of the activities set forth in the cases Blanton cites in support of their
position. In Sorrell, attorney’s fees were awarded as a sanction for pursuing an
obviously frivolous appeal. In the unpublished decision Blanton relies upon, fees
were awarded as a sanction for the losing party’s bad faith and egregious conduct.
We discern nothing from the record in the instant case reasonably similar to either
of these fact patterns. “Moreover, we are constrained to believe that no equitable
doctrine supports the award of attorney’s fees in this situation. Both parties
appeared with counsel contesting superiority of their respective claims.” AG
Services, Inc., 663 S.W.2d at 755.
As correctly noted by Boone, no statutory authority exists which is
applicable to this case apart from KRS 364.130. The trial court specifically denied
relief under that statutory provision, thereby making an award of legal fees
inappropriate as such fees are awarded only to successful parties. Additionally, it
is not alleged that any contractual provision exists allowing for the recovery of
attorney’s fees in this case, and the agreed order executed by the parties contained
no agreement as to the payment of the prevailing party’s legal fees. Thus, as no
statutory authority or contractual provision exists expressly allowing for such a
recovery, we hold such fees were not allowable and the award therefor was
Therefore, for the foregoing reasons, that portion of the judgment of the
Cumberland Circuit Court which awarded attorney’s fees is reversed and the case
is remanded for entry of an order consistent with this opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gordon T. Germain
Lanna Martin Kilgore
Bowling Green, Kentucky
Harlan E. Judd, Jr.