EDWIN SOLIS and CHED JENNINGS v. MONTGOMERY AUTOMOTIVE DEALERSHIP; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; and U'SELLIS & KITCHEN
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RENDERED:
SEPTEMBER 30, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001076-WC
EDWIN SOLIS and
CHED JENNINGS
v.
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-69410
MONTGOMERY AUTOMOTIVE DEALERSHIP;
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD; and
U'SELLIS & KITCHEN
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE AND SCHRODER, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Edwin Solis (Solis) and his counsel,
Ched Jennings (Jennings), have petitioned for review of an
opinion of the Workers' Compensation Board (Board) entered on
April 22, 2005, that affirmed and remanded an opinion and order
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
of the administrative law judge (ALJ) rendered November 18,
2004.
The Board affirmed the ALJ's dismissal of Solis's claims
against appellee Montgomery Automotive Dealership (Montgomery
Automotive), but upon further concluding that the appeal was
frivolous, remanded the matter to the ALJ for further
proceedings pursuant to Kentucky Revised Statutes (KRS)
342.310(1), specifically directing that upon certification of
Montgomery Automotive's expenses to defend the appeal, the ALJ
order counsel for Solis (Jennings) to issue payment to counsel
for Montgomery Automotive.
The sole issue before us is whether, pursuant to KRS
342.310(1), the Board erred in ordering Jennings, as counsel for
Solis, to pay the assessed costs.
Montgomery Automotive has
declined to take a position as to whether Solis or his counsel
is responsible for payment.
Our standard of review of a decision of the Board "is
to correct the Board only where the Court perceives the Board
has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice."
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's decision, we conclude that the Board committed error
in its application of KRS 342.310(1).
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KRS 342.310(1) provides that costs are assessed
against a party:
If any administrative law judge, the board,
or any court before whom any proceedings are
brought under this chapter determines that
such proceedings have been brought,
prosecuted, or defended without reasonable
ground, he or it may assess the whole cost
of the proceedings which shall include
actual expenses but not be limited to the
following: court costs, travel expenses,
deposition costs, physician expenses for
attendance fees at depositions, attorney
fees, and all other out-of-pocket expenses
upon the party who has so brought,
prosecuted, or defended them.
See generally Peabody Coal Company v. Goforth, 857 S.W.2d 167,
170 (Ky. 1993).
As this Court stated in Wilson v. SKW Alloys, Inc.,
893 S.W.2d 800, 801-02 (Ky.App. 1995), "(t)he interpretation to
be given a statute is a matter of law, and we are not required
to give deference to the decision of the Board," citing Newberg
v. Thomas Industries, 852 S.W.2d 339, 340 (Ky.App. 1993).
Pursuant to KRS 446.080(1), "(a)ll statutes of this state shall
be liberally construed with a view to promote their objects and
carry out the intent of the legislature . . ."
But, as stated
in Wilson, supra:
(A) statute should not be construed so as to
give it a meaning which the language of the
statute does not fairly and reasonably
support as 'it is neither the duty nor the
prerogative of the judiciary to breathe into
the statute that which the Legislature has
-3-
not put there.' Gateway Construction
Company v. Wallbaum, Ky., 356 S.W.2d 247,
248-249 (1962).
Statutes are to be construed according to the plain meaning of
the words contained therein.
Revenue Cabinet v. O'Daniel, 153
S.W.3d 815, 819 (Ky. 2005).
It is undisputed that Jennings, as
counsel for Solis, was not a party in the matter before the ALJ
or the Board.
The plain meaning of KRS 342.310(1) provides that
when costs are assessed, they are assessed against a party.
The
Board thus erred in directing the ALJ to require Jennings, as
counsel for Solis, to make payment of costs assessed.
For the foregoing reasons, the Board's opinion
instructing the ALJ to issue an order directing counsel for
Solis to issue payment is reversed, and this matter is remanded
to the Board for further proceedings consistent with this
Opinion.
SCHRODER, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
DYCHE, JUDGE, CONCURRING:
While I might agree with
the result reached by the majority in this case, I feel that a
more important ethical issue has been overlooked.
There is
without a doubt a conflict between the interests of Solis and
his attorney requiring the attorney to withdraw from
representation.
Rule 1.7 (2) (b) of the Kentucky Rules of
Professional Conduct (SCR 3.130) require withdrawal in such a
-4-
case absent full disclosure and consent by the client.
We have
no evidence of such disclosure and consent; the attorney is not
arguing against the imposition of sanctions altogether, but that
the sanctions should be imposed against his client instead of
him.
I would require evidence of disclosure and consent by the
client in the record, or allow the client an opportunity to
obtain other counsel following withdrawal by current counsel.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ched Jennings
Louisville, Kentucky
George T. T. Kitchen, III
Rodney J. Mayer
Louisville, Kentucky
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