STANLEY K. SPEES V. KENTUCKY LEGAL AID, ET AL.
Annotate this Case
Download PDF
L
RENDERED : JANUARY 22, 2009
TO BE PUBLISHED
suprrmr C~jaurf of
2006-SC-000506-DG
STANLEY K. SPEES
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2005-CA-000510-MR
MCCRACKEN CIRCUIT COURT NO . 04-CI-01109
KENTUCKY LEGAL AID ;
ESMERALDA MARIE VASQUEZ-OROSCO
APPELLEES
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING IN PART AND REVERSING IN PART AND REMANDING
This is an appeal from a decision of the Court of Appeals which affirmed
the denial of a warning order attorney fee . Because we agree that the Court of
Appeals properly dismissed Appellant's claim against Kentucky Legal Aid, we
affirm that portion of its decision . With respect to the award of a warning order
'attorney fee, we reverse the decision of the Court of Appeals and remand the
matter to the trial court for further consideration .
Appellant, Stanley K . Spees, is an attorney, who in October of 2004 was
appointed warning order attorney in a divorce action brought in the McCracken
Family Court by Appellee, Esmeralda Marie Vasquez-Orosco . Appellee was
deemed to be indigent and permitted to file her case in forma pauperis.
Appellant fulfilled his responsibility as warning order attorney and moved the
court for an allowance of a fee of $150 .00, to be paid by Appellee or her
attorney's employer, Kentucky Legal Aid . The McCracken Family Court denied
Appellant's request for a warning order attorney fee, on the grounds that
Appellee was indigent and had been granted in forma pauperis status. The trial
court did not address the liability of Kentucky Legal Aid for the warning order
attorney fee . Its order, however, did note that the Commonwealth of Kentucky
Finance and Administration Cabinet did not have funds available to pay the
warning order attorney fee requested by Appellant. Shortly thereafter, a final
judgment was entered granting Appellee's divorce . The respondent in that
action, her husband, never entered an appearance or responded in any way.
Appellant appealed the denial of his motion for a warning order attorney fee .
The Court of Appeals dismissed Appellant's claim against Kentucky Legal
Aid on the ground that Kentucky Legal Aid had not been properly made a party
in the action . The Court of Appeals affirmed the denial of Appellant's claim for
a warning order attorney fee . We now review the Court of Appeals' decision
with respect to its dismissal of Kentucky Legal Aid as a party and on the larger
question of the allowance of warning order attorney fees in cases where a
plaintiff is proceeding in forma pauperis.
I. Kentucky Legal Aid was Properly Dismissed as
a Party
Appellant argues that Kentucky Legal Aid should be viewed as an
appropriate party against whom judgment may be entered for the warning
order attorney fees claimed by Appellant. The Court of Appeals cited White v.
England , 348 S.W.2d 936, 937 (Ky. 1961), for the principle that an appeal may
not be taken against one who is not a party to the proceedings in which the
judgment was rendered . Kentucky Legal Aid was not a party in this action.
Appellee was represented in the trial court by an attorney employed by
Kentucky Legal Aid . Its role as employer of the attorney does not make it a
party in the action. An attorney acts as an agent of his client. Clark v.
Burden , 917 S.W.2d 574, 575 (Ky. 1996) . Generally, an agent of a disclosed
principal is not liable for his own authorized acts or for dealings between a
third person and the principal . Young v. Vista Homes , 243 S .W.3d 352, 364
(Ky. App. 2007) . Appellant presents no theory by which it may reasonably
argue that liability for the warning order attorney fee would have passed to
Kentucky Legal Aid, even if it had been properly made a party to the action.
We therefore affirm the Court of Appeals in its dismissal of the appeal
against Kentucky Legal Aid.
II. The Trial Court Erred in its Failure to Award a Warning Order
Attorney Fee to Appellant
We now turn to the issue which lies at the heart of this matter :
Appellant's right to a warning order attorney fee and the rights of Appellee, as
an indigent person, to free access to the courts . KRS 453 .190(1) provides :
A court shall allow a poor person residing in this state to file
or defend any action or appeal therein without paying cost,
whereupon he shall have any counsel that the court assigns
him and shall have from all officers all needful services and
process, including the preparation of necessary transcripts
for appeal, without any fees, except such as are included in
the costs recovered from the adverse party, and shall not be
required to post any bond except in an amount and manner
reasonable under the circumstances of his poverty.
No question is presented with respect to Appellee's qualification as a "poor
person."
KRS 453 .060(2) provides :
A guardian ad litem or warning order attorney shall be
allowed by the court a reasonable fee for his services, to be
paid by the plaintiff and taxed as costs.
No argument is presented with respect to the sufficiency of Appellant's service
as the warning order attorney.
Appellee argues that her rights under KRS 453 .190(1) as an indigent
litigant and her constitutional due process right of access to the courts under
Boddie v. Connecticut, 401 U.S. 371 (1971) and Francis v. Taylor , 593 S .W.2d
514 (Ky. 1980) trumps Appellant's right under KRS 453 .060(2) and his
constitutional right to just compensation for his services. We disagree .
At the outset, we emphasize the "long-observed principle" that
Constitutional adjudication should be avoided unless strictly necessary for a
decision in the case. Stephenson v. Woodward , 182 S.W .3d 162, 168 (Ky.
2005) . We heed Justice Brandeis's concurring comment in Ashwander v.
Tennessee Valley Authority, 297 U .S . 288, 347 (1936), "Thus, if a case can be
decided on either of two grounds, one involving a constitutional question, the
other a question of statutory construction or general law, the court will decide
only the latter."
Appellee relies upon the decision of the United States Supreme Court in
Boddie, supra, and our decision in Francis, supra , as support for her claim
that an assessment of costs, including a warning order attorney fee, against
her as an indigent person, violates her right of access to the courts . Both
Boddie and Francis, like the instant case, were divorce cases involving poor
persons. In Boddie, a litigant challenged a state procedure that required the
payment of court costs at the initiation of a case as a condition precedent to
adjudicating the cause . Id. at 372 . In Francis, a trial judge held the
adjudication of a divorce in abeyance until an indigent litigant paid the warning
order attorney fee. Id . at 515. Both cases stand as authority that the inability
to pay a fee may not bar the adjudication of a claim or prevent the initiation of
a claim. Boddie , 401 U .S. at 381 ; Francis , 593 S.W . 2d at 516. The critical
distinction between the instant case and Boddie and Francis is that Appellee
has never been denied access to the court, nor has the adjudication of her
divorce case been impeded or impaired by a demand for payment of fees .
Appellant did not demand, and the court did not require, any payment of fees
from Appellee before processing her case to its conclusion . She has at no time
suffered a deprivation of a constitutional right of access to the court, and thus
she has no constitutional claim. Francis, does not hold that a poor person is
exempt from paying a warning order attorney fee. It simply holds that nonpayment of the fee cannot result in an abatement of the case . Id. at 516 . The
Court of Appeals erred when it concluded otherwise.
Because her case has been fully and completely adjudicated, Appellee's
right to not have a fee assessed against her arises solely from KRS 453.190(2),
and its relationship to KRS 453.060(l) . The former statute provides that she
"shall have from all officers all needful services and process . . . without any
fees, except such as are included in the costs recovered from the adverse
party." In Cummins v . Cox, 763 S.W .2d 135, 136 (Ky . App. 1988), it was held
that KRS 453 .190 refers to costs "which are necessary to allow indigent
persons access to the courts . Traditionally those have been interpreted as
costs payable to court officials and necessary in order to prosecute or defend a
claim ." The interest which KRS 453 .190(2) is designed to protect is the right of
access to the courts, with the assurance that indigent persons are not, on
account of their indigency, deprived of access to the courts that would
otherwise be available. For Appellee, that interest has been served .
On the other hand, KRS 453 .060(1) directly addresses the subject of fees
for a warning order attorney. It mandates that "a fee shall be allowed," and
that the fee is to be "paid by the plaintiff and taxed as costs." When the
application of two statutes leads to apparent conflict, we have a duty to
harmonize them so as to give effect to both, if possible. Kentucky Off-Track
Betting, Inc. v. McBurney, 993 S.W .2d 946 (Ky. 1999) . In resolving apparent
conflict between two statutes, a primary rule of construction requires that
precedence be given to the specific statutory provision over the more general.
Commonwealth v. Crum, 250 S .W.3d 347, 351 (Ky . App . 2008) .
Both statutes before us involve the payment of costs and fees necessarily
incurred in the prosecution or defense of a legal claim. KRS 453 .060(2) deals
specifically with fees of a guardian ad litem and a warning order attorney.
Unlike sheriffs, clerks, and other court officials, guardians ad litem and
warning order attorneys are used on a case-by-case basis, and do not perform
such services as a regular part of employment for which they are otherwise
compensated . Specifically, a warning order attorney must be an attorney who
regularly practices before that court . CR 4 .07(1) . The direct mandate of KRS
453 .060 with respect to payments of warning order attorney fees is more
specific than the general reference of KRS 453 .190(1) to "all needful services
and process" and "all officers ." We conclude therefore that the more specific
KRS 453 .060 takes precedence over the more general language of KRS
453 .190(1) . By clear directive of KRS 453 .060(2) the General Assembly has
mandated that a warning order attorney shall be granted a reasonable fee, and
that the fee shall be paid by the "plaintiff."
Thus, we conclude that the trial court erred when it declined to allow
Appellant a fee for his services and that it erred when it failed to direct the
payment of same by Appellee. The trial court could have done so with no
detriment to the interest served by KRS 453 .190 because Appellee had been
granted necessary access to the court and the adjudication of her case was
virtually complete . Our interpretation of the statute harmonizes all of the
interests concerned . In so doing, we note that KRS 453 .060(2) does not require
payment of the warning order fee in advance, and its application to indigent
persons does not limit access to the court or to legal process .
We also note that, just as the trial court has discretion in determining
the amount of the fee to be awarded to the warning order attorney, the trial
court has discretion in setting reasonable terms for the payment of same, and
discretion to allocate the burden of the fees to other parties by its allocation of
court costs . Because we conclude that KRS 453 .190(2) adequately provides for
a reasonable fee for Appellant's services, we decline to address his argument
that a constitutional right to compensation arises from an order of
appointment as warning order attorney.
Conclusions
For reasons set forth above, we affirm the portion of the decision of the
Court of Appeals that dismissed Kentucky Legal Aid as a party to the case but
reverse the decision insofar as it affirmed the trial court's denial of Appellant's
motion for a warning order attorney fee . Accordingly, we remand the matter to
the McCracken Family Court for further proceedings consistent with this
opinion .
Abramson, Cunningham, Noble, Schroder and Scott, J .J ., sitting.
All concur. Minton, C .J ., not sitting.
COUNSEL FOR APPELLANT:
Stanley K. Spees
330 North 9th Street
P O Box 2806
Paducah, Kentucky 42002-2806
COUNSEL FOR KENTUCKY LEGAL AID :
Allison Inez Connelly
Associate Professor of Law
University of Kentucky
College of Law
209 Law Building
Lexington, Kentucky 40506-0048
Anne Marie Regan
Kentucky Equal Justice Center
1139 East Broadway
Louisville, Kentucky 40204
COUNSEL FOR ESMERALDA MARIE VASQUEZ-OROSCO
Natalie Gayle Bash
Kentucky Legal Aid
1122 Jefferson Street
Paducah, Kentucky 42001
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.