IDELLA WARREN v. RICE JOHNSON, JR.; DORIS JOHNSON; DANIEL DUNAWAY; JACKIE DUNAWAY; IMOGENE WARREN; LLOYD CARSON; BONNIE CARSON; JAMES PINION; THELMA PINION; JOHN WARREN; AND LOLA WARREN
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RENDERED:
January 7, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000032-MR
IDELLA WARREN
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 02-CI-00116
RICE JOHNSON, JR.; DORIS JOHNSON;
DANIEL DUNAWAY; JACKIE DUNAWAY;
IMOGENE WARREN; LLOYD CARSON; BONNIE
CARSON; JAMES PINION; THELMA
PINION; JOHN WARREN; AND LOLA WARREN
APPELLEE
OPINION
AFFIRMING IN PART;
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, and MINTON, JUDGES.
McANULTY, JUDGE:
Idella Warren (appellant) appeals from a
judgment from the Bell Circuit Court entered October 30, 2002.
The appellant is also appealing from the Order denying her
Motion to Vacate entered December 2, 2002.
The appellant
asserts (1) she is not liable under Ky. Rev. Stat. (KRS)
364.130(1) since she did not cut or saw down any timber and it
was up to the timber cutter to determine who had true legal
ownership, and (2) the award of attorney’s fees was not
supported by the record.
The appellees in this case are the heirs of Nealey
Warren.
They are the owners in fee of 50 acres of land,
referred to as the Ivory Grove property, which they inherited
from their father under his Last Will and Testament in 1982.
The appellant is the surviving spouse of Nealey Warren.
She,
along with one of the appellees, was a co-executor of the
estate.
The trial court found that on July 27, 2000, Jeff
Warren, Jr., who had no relationship to the parties, entered
into a contract with the appellant to remove timber from the
Ivory Grove property.
This was done without the consent or
knowledge of the appellees.
Jeff Warren, Jr. was a co-defendant
at the trial level, but is not a party in this appeal.
Pursuant
to the contract and the removal of the timber, the appellant
received two checks totaling $6,796.40.
The trial court granted a Partial Summary Judgment,
entered on August 27, 2002, against the Appellant in the amount
of $6,796.40, the amount the Appellant received from Jeff
Warren, Jr. for the timber.
At trial, relying on the
depositions of Matthew Cox, the logger, and Donnie Simpson, the
timber purchaser, the court ruled that the Appellant had signed
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the contract and that she was subject to the treble damages
provision under KRS 364.130(1).
In the Judgment entered October
30, 2002, the Court awarded the Appellees the sum of $22,592.80
plus pre-judgment interest of 8% per annum from July 19, 2000,
until the date of judgment and post-judgment interest of 12% per
annum from the date of judgment until paid, court costs of
$230.50 and attorney fees of $9,796.40 (1/3 of the gross amount
awarded).1
The central issue in this case is whether KRS
364.130(1) applies to the appellant.
Our standard of review of
construction and application of statutes is de novo.
Wheeler &
Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky.
2004).
The relevant part of KRS 364.130 provides as follows:
(1) Except as provided in subsection (2) of
this section, any person who cuts or saws
down, or causes to be cut or sawed down with
intent to convert to his own use timber
growing upon the land of another without
legal right or without color of title in
himself to the timber or to the land upon
which the timber was growing shall pay to
the rightful owner of the timber three (3)
times the stumpage value of the timber and
shall pay to the rightful owner of the
property three (3) times the cost of any
damages to the property as well as any legal
costs incurred by the owner of the timber.
1
There was a Partial Summary Judgment entered against the appellant on August
27, 2002, which awarded the appellees $6,796.40 with interest at the rate of
8% per annum from July 19, 2000, until August 27, 2002, and thereafter at the
rate of 12% per annum until paid, and taxable costs in the amount of $256.00.
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The appellant asserts that she is not liable for damages from
cutting timber under this statute.
She claims the record shows
she was not the one who actually cut or sawed down the timber.
She claims there is nothing in the record which shows she caused
the timber to be cut or sawed down with the intent to convert
the timber to her own use.
The appellant also claims the
statute places the duty, not on her, but rather on the person
cutting the timber to determine the true legal owner of the
timber.
The appellant’s argument is meritless.
Despite claiming she never signed a contract with Jeff
Warren, Jr., the trial court found she did sign the contract,
visited the timber site at least twice, misrepresented her
ownership of the land and knew how to contact the appellees.
The trial court also found that she had accepted $6,796.40 in
timber royalties paid pursuant to the contract by Jeff Warren,
Jr.
The trial court emphasized how the appellant was liable
under the statute in its Order Denying Motion to Vacate, entered
December 2, 2002:
KRS 364.130 attaches liability to any person
without title in himself to the timber or
the land of another who causes to be cut
down timber to be converted to his own use.
The Court interprets this statute to mean
that if you don’t own it you can’t cut it or
let anyone else cut it, and if you do cut it
or cause it to be cut by someone else you
have to pay the rightful owners three times
the stump value.
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(emphasis added).
Although we do not have to give deference to
the trial court’s findings under a de novo review, we find the
trial court’s findings to be very insightful.
The appellant has admitted in the record that she has
no ownership interest in the timber.
However, according to the
depositions of both Donnie Simpson and Matthew Cox, the
appellant told them that she owned the property and timber, that
she had the deed to give them the book and page number, and that
she stated the children (appellees) had no interest in the
timber.
They also state they witnessed her signing the
contract.
Mr. Cox testified that the appellant even visited the
timber site at least twice while they were cutting the timber.
Despite the appellant’s assertion to the contrary, there was
sufficient evidence to find that she did in fact sign the
contract, and despite knowing she did not have ownership, she
accepted the money under the contract for the timber.
The
appellant asserts, regardless of those findings, she is still
not liable because she did not actually physically cut down the
timber nor convert the timber to her own use.
She claims it was
the responsibility of the timber cutter to find out who was the
true owner.
The statute states that anyone who “causes [timber]
to be cut or sawed down” is liable.
KRS 364.130(1).
The
appellant clearly “caused” the timber to be cut down by
misrepresenting she owned the timber and then selling the timber
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under a contract.
It does not matter that she, herself, did not
physically cut the timber because the statute specifically
provides for instances such as this where a person contracts
with someone else to do the cutting.
Appellant’s argument that
she did not convert the timber to her own use is also meritless.
Although she did not take the timber, she sold the timber.
By
selling the timber, she converted the timber into money, which
she used for her own use.
Since the statute clearly applies to
the appellant, we affirm the trial court’s award of everything
accept the attorney’s fees, discussed below.
The appellant also argues that the trial court’s award
of attorney fees of one-third the gross amount of the judgment
was not supported by the record.
The appellees argue that this
issue is not reviewable on appeal since the appellant failed to
name the appellees’ attorney as a party.
The appellees rely on
several Court of Appeals cases to support their argument,
however overlooks the most recent Supreme Court decisions which
address whether an attorney is a necessary party to an appeal.
In both Louisville Label, Inc. v. Hildesheim, 843 S.W.2d 321
(Ky. 1992) and Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326
(Ky. 1993), the appellee raised the argument that the award of
attorneys fees was not reviewable since the attorney was not
named in the appeal.
Although Louisville Label did not deal
with a fee-shifting statute, the reasoning behind the opinion is
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still applicable.
There, the court stated that the award of
attorney’s fees “would be by way of equitable reimbursement for
a debt which [appellee] is, himself, the primary obligor.
In
these circumstances [appellee], not his attorney, is the real
party in interest and the indispensable party to the appeal.”
Louisville Label, 843 S.W.2d at 326.
Knott, following this
case, applied the same rationale, focusing on the difference
between the award naming the attorney, himself, versus the
situations where the individual party awarded the fees, thereby
remaining the primary obligor.
Knott, 865 S.W.2d at 331.
“Absent an award of fees to an attorney by judgment in his or
her favor (thus allowing the attorney enforcement of the award
by execution), there is no reason for requiring the attorney to
be named on the appeal as a necessary party.
One of the
fundamental principles in the American legal system is that
parties are responsible for their own attorney’s fees.”
Id.
Knott distinguished Tyler v. Bryant, 394 S.W.2d 454 (Ky. 1965).
The court in Tyler focused on an attorney’s fees award under KRS
403.220.
The Knott court focused on the fact that KRS 403.220
applies in divorce cases, and divorce cases are different than
other legal matters.
The court found that divorce cases were
treated differently because of the “inherent likelihood of later
reconciliation between the parties, where an attorney’s client
may reunite with and join the opposition in challenging an award
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of attorney’s fees.”
Knott, 865 S.W.2d at 330, 331.
Thus, the
court found that KRS 403.220 permits a judgment to be made
directly in the attorney’s name and that “such legislation has
not been enacted as applicable to other types of legal action.”
Id. at 331.
Knott, went on to expand this rationale to some
situations where the statute itself underlies the obligation to
reimburse the attorney’s fees.
Id. at 330.
Pursuant to KRS 364.130, the Legislature allows a
person to recover their attorney fees if they are successful
under the statute.
However, this statute differs from KRS
403.220, the fee-shifting statute mentioned in Tyler and
distinguished in Knott.
KRS 403.220 states:
The court from time to time after
considering the financial resources of both
parties may order a party to pay a
reasonable amount for the cost to the other
party of maintaining or defending any
proceeding under this chapter and for
attorney’s fees, including sums for legal
services rendered and costs incurred prior
to the commencement of the proceeding or
after entry of judgment. The court may
order that the amount be paid directly to
the attorney who may enforce the order in
his name.
(emphasis added.)
KRS 364.130 differs because it merely says
the attorney’s fees shall be paid “to the rightful owner of the
timber.”
Since the award is not given directly to the attorney,
the attorney is only an indirect party to an appeal of an award
of attorney’s fees.
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Moreover, the trial court’s award awarded the fees to
the appellees, not the specific appellees’ attorney.
The Order
stated “The Plaintiffs are also entitled to recover attorney
fees equal to one-third of the gross amount awarded herein in
the sum of $9,796.40 . . .” (emphasis added).
Since the award
was not specifically to appellees’ counsel, the appellees remain
the primary obligor in reimbursing their attorney and thus, the
only indispensable party.
Therefore, the appellant has properly
appealed this issue.
The appellant claims the record lacks any testimony
regarding a fee agreement between the appellees and their
counsel, nor a motion for allowance of attorneys fees with
documentation reflecting expenses.
Based on this, the appellant
claims the appellees are not entitled to the award of attorney’s
fees.
In the Plaintiff’s Memorandum, submitted to the trial
court, the appellees state the attorney fee that was agreed upon
was one-third of any recovery.
They also rely on King which
found that attorney fees must be paid to the prevailing party
pursuant to the use of “shall” in KRS 364.130(1).
Grecco, 111 S.W.3d 877, 883 (Ky.App. 2002).
King v.
Based on that, the
trial court awarded the appellees recovery of attorney fees
equal to one-third of the gross amount of the judgment awarded.
Attorney’s fees cannot be awarded absent a statute or
contract expressly providing that the other party shall pay.
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Batson v. Clark, 980 S.W.2d 566, 577 (Ky.App. 1998).
Here, KRS
364.130(1) provides that “any legal costs incurred by the owner
of the timber” shall be paid “to the rightful owner.”
Since the
statute provides for the award of attorney’s fees, a contract is
not needed.
When reviewing the trial court’s award of
attorney’s fees, our standard of review is an abuse of
discretion standard.
King, 111 S.W.3d at 883, quoting Giacalone
v. Giacalone, 876 S.W.2d 616, 620 (Ky.App. 1994).
“[T]he only
requirement is that the court make a reasonable award.”
Id.
The court in King upheld an award of a one-third contingency fee
stating that such a fee was reasonable in the legal profession.
Id.
However, in that case, counsel had provided an itemization
of his time and efforts.
Although counsel was seeking a much
higher fee award, the trial court used the itemization to
determine that a one-third contingency fee was a more reasonable
award.
Id.
Here, the only thing appellees’ counsel has
submitted is (1) a paragraph on page 4 of the Plaintiff’s
Memorandum to the trial judge which states “the attorney fee
that the [P]laintiffs have agreed upon to pay in the case at bar
is one-third of any recovery,” and (2) a paragraph in it’s
appellate brief that the trial court took judicial notice that a
one-third contingency fee is a common legal arrangement and
therefore reasonable.
The record is devoid of any evidence of
how the trial judge found the requested fee to be reasonable or
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that he took judicial notice of such an arrangement being
reasonable in the legal profession.
There is nothing stated in
the trial judge’s award stating what he relied upon in order to
find that the attorney fees were reasonable, nor that he took
judicial notice of such a fee being a reasonable arrangement.
We are not saying that counsel need submit any particular
itemization in order to be awarded his fees, only that the
record should support a finding that such fees are reasonable.
We remand this action for the trial court to enter a finding
with regards to the reasonableness of the attorney’s fees.
For the foregoing reasons, the judgment of the Bell
Circuit Court is affirmed in part and vacated in part, remanding
for further findings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Kenneth M. Boggs
Barbourville, Kentucky
Gerald L. Greene
Greene & Lewis
Pineville, Kentucky
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