SMITH RENTAL ENTERPRISES, INC. VS. STEWART (JEFF)Annotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SMITH RENTAL ENTERPRISES, INC.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 04-CI-00840
VACATING IN PART
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BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES.
DIXON, JUDGE: Smith Rental Enterprises, Inc. (“Smith”), appeals from a
judgment and order of the Whitley Circuit Court denying Smith’s motion for
attorney’s fees following a jury verdict in Smith’s favor. After reviewing the
record, we vacate in part and remand for further proceedings.
On May 17, 2004, Appellee, Jeff Stewart (“Stewart”) executed a lease
agreement to rent a home owned by Smith at 1000 Nile Street in Corbin,
Kentucky. In the following months, Smith learned that Stewart allowed a dog to
live inside the house, in violation of the lease agreement. On November 19, 2004,
Smith filed a complaint against Stewart in Whitley Circuit Court, alleging Stewart
breached the lease agreement and damaged the residence. Stewart filed an answer,
and the parties engaged in the discovery process.
A jury trial commenced on October 13, 2005. Smith sought damages
for painting, carpet cleaning, and carpet replacement. The jury unanimously found
that Stewart breached the lease agreement and awarded Smith damages of $273.60
for carpet cleaning. Thereafter, pursuant to the terms of the lease, Smith tendered a
motion requesting attorney’s fees for itemized services totaling $1,250.00.1 The
court summarily denied the motion without explanation. On July 20, 2006, the
court rendered a final judgment on the jury verdict. This appeal followed.
Smith contends the court abused its discretion by denying reasonable
attorney’s fees. We agree.
It is well-settled that “attorney fees are not allowable as costs, nor
recoverable as an item of damages” unless expressly provided by statute or
contract. Cummings v. Covey, 229 S.W.3d 59, 61 (Ky. App. 2007). In the case at
bar, the lease agreement provided a contractual basis for Smith to recover
The motion actually requested $1,450.00 in fees; however, Smith concedes that figure was a
19. ATTORNEY’S FEES: Should Lessor deem it
necessary or appropriate to retain an attorney for the
collection of rent, damages or to enforce or defend any
provision of this lease, Lessee agrees to pay, in addition
to his other obligations hereunder, all expenses, including
court and appellate costs and reasonable attorney’s fees,
in the event Lessor prevails in said litigation.
Smith contends that, since the jury found Stewart breached the lease
agreement, the court was obligated to award Smith reasonable attorney’s fees.
Stewart, on the other hand, contends it was within the court’s discretion to deny
The attorney’s fee provision of the lease is unambiguous, and Stewart
does not challenge the validity of the lease. Consequently, pursuant to the plain
language of the lease, once the jury found that Stewart breached the lease
agreement, Stewart became liable for Smith’s reasonable attorney’s fees. Cf. King
v. Grecco, 111 S.W.3d 877, 883 (Ky. App. 2002) (Where a statute mandated
attorney’s fees upon finding of liability, the court was obligated to award fees to
damaged party). In Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 293
(Ky. 1991), our Supreme Court stated:
The trial judge is generally in the best position to
consider all relevant factors and require proof of
reasonableness from parties moving for allowance of
attorney fees. In exercising its discretion, a trial court
should require parties seeking attorney fees to
demonstrate that the amount sought is not excessive and
accurately reflects the reasonable value of bona fide legal
“The test for abuse of discretion is whether the trial judge's decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (citation and internal quotation
marks omitted). After considering the arguments of the parties, we conclude that
Smith, as the prevailing party, was entitled to a reasonable award of attorney’s fees
pursuant to the agreed-upon terms of the lease. Consequently, the trial court
abused its discretion by arbitrarily denying Smith’s motion for attorney’s fees.
We vacate the order of the Whitley Circuit Court denying attorney’s
fees and remand for further proceedings consistent with this opinion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David O. Smith
Marcia A. Smith
K. David Kersey