FROM MARSHALL CIRCUIT COURT HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 13-CI-00518
IN PART, REVERSING IN PART, AND REMANDING.
FOR APPELLANT: Alan Pritchard Memphis, Tennessee.
FOR APPELLEES: Amy Harwood-Jackson Gilbertsville, Kentucky.
BEFORE: ACREE, MAZE, AND TAYLOR, JUDGES.
Enterprises, LLC (hereinafter "Hazel") appeals from
an order of the Marshall Circuit Court denying its motion for
summary judgment and granting summary judgment in favor of
Appellees, Wendy and Marty Mitchuson (hereinafter, "the
Mitchusons"). Hazel argues that the trial court erred as
a matter and litigation fees for work performed in its role
as third-party purchaser of a tax bill the Mitchusons owed
agree with Hazel as to interest; however, we see no error in
the trial court's refusal to award attorneys' fees
and costs under the particular circumstances of this case.
Therefore, we affirm in part, reverse in part, and remand.
facts of this case are undisputed. On May 31, 2011, for the
sum of $234.22, Hazel purchased a 2002 tax bill on property
the Mitchusons owned. Twenty-three months later, following
two notice letters and the statutory forty-five day tolling
period, Hazel sent a letter to the Mitchusons demanding
payment of $1, 926.50. This sum included the purchase price
of the certificate of delinquency, interest, an
administrative fee, prelitigation attorney's fees, and
litigation attorney's fees and costs of $1, 299.50.
Litigation had not ensued as of the date of this letter. In
response to Hazel's demand letter, the Mitchusons
tendered a check to Hazel in the amount of
$627.00 along with a letter dated
November 15, 2013. Hazel rejected and returned this check to
the Mitchusons, and it filed the present action in Marshall
Circuit Court on December 20, 2013.
Complaint, Hazel demanded the cost of the certificate of
delinquency, interest from the date of purchase, an
administrative fee, prelitigation attorneys' fees of
$234.22, and litigation attorneys' fees and costs. In an
affidavit Hazel filed with the trial court, counsel for Hazel
stated its litigation attorney's fees and costs now
totaled $4, 157.74. With their
Answer, the Mitchusons asked the trial court to grant summary
judgment in their favor. Specifically, the Mitchusons asked
the court to set their debt to Hazel at either $627.00 or
$648.06 (the same amount plus interest from May 2013 to
April 24, 2015, Hazel also filed a motion for summary
judgment seeking an order of sale and the interest, fees, and
costs listed in its Complaint and subsequent affidavit. In a
May 8, 2015 order, the trial court entered judgment in
Hazel's favor in the amount of $627.00, and it granted
the Mitchusons' motion for summary judgment on the
subject of litigation attorney's fees. The trial court
asserted its belief that Hazel's demand of nearly $1,
300.00 in litigation fees was unsupported in the record,
"unconscionable, " and "not a legitimate claim
under KRS 134.452." The trial
court further held that Hazel's suit to settle the tax
lien was "unnecessary." Hazel now appeals from this
of Review and the Summary Judgment Standard
review of an appeal from summary judgment is well-settled. As
a summary judgment involves no fact finding, this Court's
review is de novo, in the sense that we owe no
deference to the conclusions of the trial court. Blevins
v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
proper function of summary judgment is to terminate
litigation when, as a matter of law, it appears that it would
be impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor."
Steelvest, Inc. v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480 (Ky. 1991). Therefore, we will find
summary judgment appropriate only "if the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." CR 56.03. We look to whether the Mitchusons
met their burden of ...