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Hazel Enterprises, LLC v. Mitchuson

Court of Appeals of Kentucky

July 7, 2017

HAZEL ENTERPRISES, LLC APPELLANT
v.
WENDY TREAS MITCHUSON AND MARTY LEE MITCHUSON APPELLEES

         APPEAL FROM MARSHALL CIRCUIT COURT HONORABLE DENNIS R. FOUST, JUDGE ACTION NO. 13-CI-00518

         AFFIRMING IN PART, REVERSING IN PART, AND REMANDING.

          BRIEF FOR APPELLANT: Alan Pritchard Memphis, Tennessee.

          BRIEF FOR APPELLEES: Amy Harwood-Jackson Gilbertsville, Kentucky.

          BEFORE: ACREE, MAZE, AND TAYLOR, JUDGES.

          OPINION

          MAZE, JUDGE.

         Hazel 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 from 2002.

         We 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.

         Background

         The 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[1] 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.

         In its 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.[2] 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 January 2014).

         On 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[3] 134.452." The trial court further held that Hazel's suit to settle the tax lien was "unnecessary." Hazel now appeals from this order.

         Standard of Review and the Summary Judgment Standard

         Our 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).

         "The 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[4] 56.03. We look to whether the Mitchusons met their burden of ...


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