LOWELL WORKMAN, ET AL. V. J. P. HAMM, IN HIS OFFICIAL CAPACITY AS THE APPOINTING AUTHORITY FOR THE CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
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AND PAUL F. FAURI
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2008-CA-001767-MR
FRANKLIN CIRCUIT COURT NO . 07-CI-00110
J. P. HAMM, IN HIS OFFICIAL CAPACITY
AS THE APPOINTING AUTHORITY FOR
THE CABINET FOR HEALTH AND FAMILY
SERVICES AND KENTUCKY PERSONNEL
MEMORANDUM OPINION OF THE COURT
This appeal concerns a Court of Appeals decision to reverse an order of
the Franklin Circuit Court awarding Paul Fauri an attorney fee for postjudgment and appellate work performed on behalf of his client, Lowell
Workman. The work involved defending the attorney fee awarded in a civil
action brought by the Cabinet for Health and Family Services for review of a
Personnel Board decision that favored Workman and filing a motion to request
an additional fee for doing so.
The Court of Appeals held that the circuit court abused its discretion by
awarding the additional fee because the Cabinet's appeal of the initial award
was dismissed for a jurisdictional defect and did not constitute a final
adjudication in his favor on the . merits, which KRS 18A.095(24) 1 and KRS
453 .260 required for an attorney fee to be awarded. The court also determined
that KRS 18A.095(24) did not allow an additional attorney fee to be awarded as
an extension of the initial award.
We affirm the Court of Appeals' decision to reverse the award although
our reasons differ . Regardless of whether the relevant statutes authorize an
award for postjudgment and appellate work, the circuit court lacked
jurisdiction to do so in this case .
Lowell Workman brought an action before the Personnel Board in which
he challenged the Cabinet's failure to promote him to the position of
Environmental Health Inspector in the Milk Safety Branch of the Division of
Public Health and Safety. In a final order rendered and mailed on December
19, 2006 the Board rejected a hearing officer's recommendation to dismiss the
appeal; found certain irregularities in the selection process; and found that the
Cabinet failed to give appropriate consideration to the five criteria listed in 101
KAR 1 :400 when selecting the other candidate for the position. Unable to
determine from the record whether Workman would have been selected had the
Cabinet conducted the process properly, the Board sustained his appeal to the
extent of ordering the Cabinet to set aside its decision and redo the selection
process in accordance with KRS 18A.0751(4) (fl and 101 KAR 1 :400.
1 Now KRS 18A.095(23) .
The Cabinet filed a petition appealing the Board's decision to the
Franklin Circuit Court on January 18, 2007 .2 The Cabinet then filed a motion
requesting a stay with respect to the Board's order, which the court denied
after a hearing on January 31, 2007. On February 1, 2007, the Cabinet filed a
notice of dismissal in accordance with CR 41 .01(1) . Workman had not filed an
answer to the petition at the time and failed to object.
On February 6, 2007 Workman requested the circuit court to award an
attorney fee for the work that Fauri performed in defending the Board's
decision . He based the request on KRS 18A.095(24), presently numbered KRS
18A.095(23), which states as follows:
If a final order of the board is appealed, a court shall
award reasonable attorney fees to an employee who
prevails by a final adjudication on the merits as
provided by KRS 453.260. This award shall not
include attorney fees attributable to the hearing before
the Board .
The Cabinet objected to the motion, asserting that the statutes did not
authorize an attorney fee because the voluntary dismissal of an appeal under
Rule 41 . 01(1) is procedural and not an adjudication on the merits. 3 The
Cabinet also relied on Martin v. Personnel Board, 4 in which the court
determined that a final decision to reverse the procedural dismissal of Martin's
KRS 18A.100 and KRS 453.260 operate together to permit a final decision of the
Board to be appealed by filing a petition for review in circuit court within 30 days
after the decision is mailed or delivered by personal service.
3 Philpot v. Minton, 370 S.W .2d 402, 403 (Ky. 1963); Hays v. Sturgill, 302 Ky . 31, 33,
193 S .W .2d 648, 649 (Ky. 1946).
781 (Ky. App. 1997)
(ordered published upon denial of discretionary
claim and to remand the claim to the Personnel Board for a hearing was not a
final adjudication on the merits for the purpose of authorizing an attorney fee
under KRS 18A.095(24) and KRS 453.260. The court reasoned that an
adjudication of her claim that she was improperly dismissed had yet to occur.
Workman argued that the dismissal of the Cabinet's appeal, though
voluntary, was equivalent to a dismissal with prejudice and had the effect of a
final adjudication on the merits . He reasoned that the Cabinet took action on
its petition for review by placing the motion for a stay before the court, which
required him to incur legal expenses. He argued that the subsequent dismissal
operated to render the Board's decision a final adjudication on the merits
because it occurred after the period for taking an appeal had expired and
denied the Cabinet the relief that it sought on appeal. The circuit court agreed
and awarded Fauri an attorney fee of $472 .50 on March 15, 2007.
The Cabinet appealed the award to the Court of Appeals, but Workman
moved to dismiss on the ground that the Cabinet's notice of appeal failed to
join Fauri as a party. The court passed the motion to a consideration of the
merits, after which the parties submitted briefs . An opinion and order entered
on June 20, 2008 granted Workman's motion and dismissed the appeal,
holding that Fauri was an indispensable party because the appeal concerned
his fees and the fee was awarded directly to him rather than to Workman.
5 Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326 (Ky. 1993); Braden v. Republic-
Vanguard Life Insurance Company, 657 S.W.2d 241, 243 (Ky. 1983) (court must
examine to whom an attorney fee was awarded and the authority for the award
before dismissing an appeal concerning the fee for failure to name the attorney as a
This appeal concerns the ruling on Workman's July 7, 2008 motion
requesting the circuit court to award the fees and costs incurred for postjudgment and appellate legal representation. A circuit court order entered on
August 11, 2008 granted the motion over the Cabinet's objection and awarded
a fee in the amount of $1,706 .25. The order noted that the Cabinet's action in
appealing the award required Workman to obtain further legal representation
and that the Court of Appeals did not dismiss the case until after it was
submitted on briefs. The Cabinet appealed following the entry of a subsequent
circuit court order that denied its motion to alter, amend or vacate the award .
The Court of Appeals reversed, holding that the circuit court abused its
discretion by awarding the additional attorney fee. The court reasoned that its
earlier decision to dismiss the Cabinet's appeal based on a jurisdictional defect
did not constitute a "final adjudication on the merits" as required by KRS
18A.095(24) and KRS 453 .260. The court also rejected Workman's argument
that the statutes allowed the award because he prevailed by an adjudication on
the merits before the Board and the fees incurred for defending the appeal
represented an extension of the initial award . He appeals .
Workman asserts that the Court of Appeals erred by construing KRS
18A.095(24) and KRS 453 .260 to preclude an award of additional attorney fees
because it determined incorrectly that the statutes required "a final ruling on
6 The court noted that the circuit court erred under KRS 18A.095(24) by awarding the
fee directly to Fauri rather than Workman but that the Cabinet failed to bring the
error to its attention .
7 Martin, 959 S.W. 2d at 781 .
the merits at the Court of Appeals for attorney fees to be awarded." He asserts
that when the procedural dismissal of the Cabinet's appeal occurred at the
Court of Appeals "there had already been a final ruling on the merits from the
final order of the Personnel Board," which resulted in the initial attorney fee
award of March 2007.
Workman argues that the circuit court awarded the March 2007 attorney
fee after he prevailed by a final adjudication on the merits, which occurred at
the Personnel Board. He reasons that the Cabinet dismissed its appeal of the
Board's decision to circuit court, which rendered the Board's decision in his
favor final. He reasons that the March 2007 attorney fee award became final
and enforceable when the Court of Appeals dismissed the Cabinet's appeal of
the award for failure to name a necessary party. Workman supports his
argument that the additional fee is simply an extension of the initial fee by
relying on Moorhead v. Dodd8 for the proposition that a party who appeals an
attorney fee award is liable for the further costs and attorney fees incurred in
defending the award successfully . He interprets Moorhead too broadly.
In Moorhead a business owned by J. William and Hazel Manning entered
into a lease /purchase agreement with Moorhead for certain real property. The
Mannings entered into a separate but related agreement in which they
personally guaranteed the prompt payment of all amounts due Moorhead
8 265 S.W.3d 201 (Ky. 2008) (res judicata doctrine and rule against splitting causes of
action did not preclude postjudgment and appellate attorney fees from being
awarded in actionunder guaranty agreement because circuit court had not
addressed the issue when awarding fees for services performed up to and including
the date ofjudgment in related contract action and because the fees at issue
accrued after the judgment) .
under the contract as well as "all costs and charges of any nature whatsoever,
including without limitation, reasonable attorney's fees" that Moorhead was
required to pay in order to enforce her rights under the lease/purchase
agreement. Moorhead brought a civil action for breach of contract when the
sale fell through and received a judgment awarding damages that included the
attorney fees and costs related to bringing the action .
Mr. Manning appealed the judgment, causing Moorhead to incur
additional costs and attorney fees. She filed a motion to recover them, but the
circuit court determined that its jurisdiction to alter or amend the judgment
had expired . A divided Court of Appeals affirmed the decision.
Moorhead then filed a separate circuit court action under the guaranty
agreement, seeking. postjudgment and appellate attorney fees . The circuit
court determined that the doctrine of res judicata barred the action. A divided
Court of Appeals agreed and affirmed .
We reversed. Noting Moorhead's clear entitlement to attorney fees under
the guaranty agreement, we held that neither the doctrine of res judicata nor
the prohibition against splitting a cause of action imposed a procedural bar to
their recovery. We reasoned that Moorhead's present claim related to attorney
fees incurred after entry of the judgment in the underlying contract action and
sought in "a distinct and separate cause of action" from the action in which she
had been awarded attorney fees previously.9 We found no policy reason to bar
a recovery, noting that the present action arose from Manning's own conduct in
9 265 S.W. 3d at 204 .
appealing the trial court's judgment despite his clear obligation to pay
Moorhead's legal expenses. We also declined to impose a duty to reserve in a
circuit court action the issue of postjudgment and appellate fees and costs,
noting that a party could request an appellate court to remand a case for that
purpose upon rendering its decision, thereby reviving the circuit court's
jurisdiction. t o
We disagree with Workman's argument that the circuit court had
jurisdiction to award an additional fee in this case and that the fee was simply
a continuation of the initial attorney fee, his entitlement to which was final and
enforceable . Moorhead did not alter the fact that a circuit court must not only
have jurisdiction to award an attorney fee (i.e., subject matter jurisdiction) but
must also have jurisdiction to award an attorney fee in the particular case in
which the fee is sought."
Unlike Moorhead this case involved but one civil action, the Cabinet's
appeal to circuit court. Although the circuit court had jurisdiction to award an
attorney fee, its jurisdiction over the civil action had expired when the court
awarded the additional fee. We find it unnecessary under the circumstances to
consider the remaining issues.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
See Nordike v. Nordike, 231 S.W.3d 733, 738 (Ky. 2007) . See also Whaley v.
Whitaker Bank, Inc., 254 S.W.3d 825, 829 (Ky. App. 2008) .
COUNSEL FOR APPELLANTS,
AND PAUL F. FAURI:
Paul F. Fauri
232 St: Clair Street
P.O. Box 1304
Frankfort, KY 40602
COUNSEL FOR APPELLEE,
J. P. HAMM, IN HIS OFFICIAL CAPACITY
AS THE APPOINTING AUTHORITY FOR
THE CABINET FOR HEALTH AND FAMILY
Alea Amber Arnett
Cabinet for Health and Family Services
Office of Legal Services
275 East Main Street, 5W-B
Frankfort, KY 40621
COUNSEL FOR APPELLEE,
Mark A. Sipek
28 Fountain Place
Frankfort, KY 40601