Robert Figa v. Woods of St. Thomas Homeowners Association, Inc. ( 2022 )

RENDERED: JANUARY 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1331-MR
ROBERT FIGA AND GAYLE FIGA APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CI-006071
WOODS OF ST. THOMAS
HOMEOWNERS ASSOCIATION,
INC.; DAN NAFZIGER; JOYCE
WEICK; RAY DOWNS; SETH OWEN;
SHERRY HUMPHREY; AND SUSAN
STEWART APPELLEES
OPINION
AFFIRMING
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BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Robert and Gayle Figa (the Figas) appeal from the Jefferson
Circuit Court’s orders granting summary judgment to the Woods of St. Thomas
Homeowners Association, Inc. (the Woods or HOA), and its Board of Directors.
We affirm.
In 2012, the Figas became property owners in the Woods, and in
March 2015, pursuant to the HOA’s amended restrictions, they sought to construct
a wrought iron fence on their lot by filing an application with the HOA’s
architectural committee. The chairman of the committee (Ray Downs) denied the
Figas’ application but invited them to present their request to the full Board of
Directors. The Board likewise denied the request,1 and the Figas initiated, in
December of that year, their complaint in the Jefferson Circuit Court against the
HOA and its Board (collectively, the defendants or the appellees). The Figas
sought equitable relief for the ability to construct the fence, asserting that the
Board’s action was arbitrary since the proposed fence was in conformity with the
deed restrictions and was necessary to contain their pet (a requirement of the deed
restrictions); they also requested attorney fees and costs. The defendants answered
that the denial of the Figas’ application was within their designated discretionary
authority and that they should be compensated for attorney fees and costs
expended in defending the lawsuit.
1
The stated reason for the architectural committee’s denial of the Figas’ proposed fence was
that, since its inception, the HOA had never allowed fencing “along the wood[s]” because of the
desire “to maintain the beauty of the subdivision” and that it would be unfair to other owners
whose prior applications had been denied. The full Board’s subsequent denial stated similar
reasons, more specifically that the Figas’ lot enjoyed an unobstructed view of the woods and
“any fence would impact the uninterrupted view of the woods that flows consistently behind the
houses on [their] side of Wood Briar Road.”
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In July 2019, while the litigation continued in the circuit court, the
Figas submitted another application with the HOA, and this time they were granted
permission to construct their desired fence. The Figas then sought leave to file an
amended complaint and attached as an exhibit an appraisal of their property in
support of their claim that they suffered monetary damages. The circuit court held
that motion in abeyance by agreement of the parties. Meanwhile, the defendants
filed a motion for summary judgment, arguing that the issues before the circuit
court were deemed moot by the Board’s approval for the Figas to construct the
fence. The circuit court agreed, and it entered its order granting the defendants’
motion on June 18, 2020. The Figas filed a timely motion, pursuant to Kentucky
Rules of Civil Procedure (CR) 59.05, 52.02, 60.01, and 60.02, for the circuit court
to reconsider its ruling. The motion was denied on September 22, 2020, and the
Figas filed this appeal.
We begin by stating our standard of review of an order granting a
motion for summary judgment:
Summary judgment is a device utilized by the courts to
expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330
(Ky. 2006). It is deemed to be a “delicate matter”
because it “takes the case away from the trier of fact
before the evidence is actually heard.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.
1991). In Kentucky, the movant must prove no genuine
issue of material fact exists, and he “should not succeed
unless his right to judgment is shown with such clarity
that there is no room left for controversy.” Id. The trial
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court must view the evidence in favor of the non-moving
party. City of Florence v. Chipman, 38 S.W.3d 387, 390
(Ky. 2001). The non-moving party must present “at least
some affirmative evidence showing the existence of a
genuine issue of material fact[.]” Id. On appeal, our
standard of review is “whether the trial court correctly
found that there were no genuine issues as to any
material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). Furthermore, because
summary judgments do not involve fact-finding, our
review is de novo. Pinkston v. Audubon Area Community
Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).
Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 542 (Ky. App.
2013). See also Western Surety Company v. City of Nicholasville, 552 S.W.3d
101, 108 (Ky. App. 2018).
We next enunciate the standard applied to reviewing whether an issue
is moot: “It has been long established that judicial power may constitutionally
extend to only justiciable controversies. Therefore, an appellate court is generally
without jurisdiction to reach the merits where no ‘present, ongoing controversy’ or
case in controversy exists as the court is unable to grant meaningful relief to either
party.” Cabinet for Health & Family Servs. v. Courier-Journal, Inc., 493 S.W.3d
375, 382 (Ky. App. 2016) (citations omitted) (quoting Dep’t of Corr. v. Engle, 302
S.W.3d 60, 63 (Ky. 2010)).
However, as with nearly all other principles,
mootness is not absolute. Instead, Kentucky courts have
recognized that in instances when issues are “capable of
repetition, yet evading review” or when there exists a
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strong “public interest” in the substantive resolution of a
matter that we may decide the merits of the case despite a
party’s lack of standing.
Commonwealth v. Collinsworth, 628 S.W.3d 82, 86 (Ky. 2021).
The Figas assert that summary judgment was improper because issues
of material fact existed (namely, their claims of bad faith and misconduct by the
Board members as well as the matter of damages, attorney fees, and costs, with the
latter allegation addressed by their abated motion to amend the complaint).
We disagree. The circuit court found that, because the Figas sought in
their complaint a court order to permit installation of their fence, and such
permission has since been granted, it was without jurisdiction to rule on a matter
which was no longer justiciable. Courier-Journal, 493 S.W.3d at 382. Nor do any
of the exceptions listed in Collinsworth, supra, apply.
Although we appreciate the Figas’ frustration in the lengthy road to
fence construction (which included their witnessing 111 fences in the 282-
residence neighborhood), they acknowledged the Board’s discretionary authority to
grant or deny approval when they became homeowners in the Woods. The
Board’s explanation that it had never granted permission to place a fence on
properties bordering the woodlands was not an abuse of discretion. The record
indicates that a certain amount of the four-year delay was attributable to the Figas.
Most importantly, the fact that approval by the Board was granted resolved the
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issue and removed it from the circuit court’s ability to rule on the merits of the
Figas’ claim for equitable relief. Engle, 302 S.W.3d at 63.
Regarding damages, we agree with the circuit court that there was
nothing in the record put forth by the Figas to substantiate that claim. The
“appraisal” they submitted was not evidence in support of damages but mere
speculation of what their property might have sold for had the fence been
constructed. The Figas at no time alleged that they had attempted to sell or
refinance their property during the litigation. And, although the addition of a fence
could have arguably increased the value of their home, the lack of a fenced yard
did not decrease the value. Therefore, the appraisal was irrelevant, and the circuit
court properly declined to consider it.2
We lastly address the issue of attorney fees and costs. The Figas insist
that the circuit court’s failure to rule on whether they should be granted an award
requires reversal. The appellees contend that the Figas did not properly plead this
issue under CR 8.01 which states, in pertinent part, that “[a] pleading which sets
forth a claim for relief . . . shall contain (a) a short and plain statement of the claim
2
The order granting summary judgment did not speak to damages, but the circuit court’s order
concerning the Figas’ post-judgment motion discussed their position on the market value of their
property and concluded thusly: “There is no evidence of record, even when viewed in the light
most favorable to the Figas, to support this position.”
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showing that the pleader is entitled to relief and (b) a demand for judgment for the
relief to which he deems himself entitled.”
The Figas’ claims were based in equity. The Kentucky Supreme
Court had this to say about the award of attorney fees and costs in such cases:
However, in Bell v. Commonwealth, this Court
determined an equitable award of attorneys’ fees was
inappropriate. See 423 S.W.3d 742, 750 (Ky. 2014).
“Historically, courts ruled based on the common
law, code or statutory law, and equity.” Id. at 747.
However, “[e]ventually, at least in most states, the courts
of equity and law were combined . . .” Id. As courts are
now empowered by statutory and rule-based law, “those
rules are also binding. Equity practice, in general, is
merged with law, or the statutory provisions. Only when
there is no law or precedent does a court have the
authority to exercise pure equity.” Id. (citing Vittitow v.
Keene, 265 Ky. 66, 95 S.W.2d 1083, 1084 (1936)).
Thus, “[l]aw trumps equity.” Bell, 423 S.W.3d at 748.
Under the American rule, “attorney’s fees in Kentucky
are not awarded as costs to the prevailing party unless
there is a statute permitting it or as a term of a contractual
agreement between the parties.” Id. While attorneys’
fees are awardable as a sanction “when the very integrity
of the court is in issue,” id. at 749 (emphasis original),
“trial courts may not award attorney’s fees just because
they think it is the right thing to do in a given case.” Id.
at 750.
Thus, we take this opportunity to clarify that,
without a sound basis in contract or statute, a trial
court may not award attorneys’ fees. The trial court
is still empowered to order a party to pay attorneys’
fees as a sanction, but only when the integrity of the
court is at stake.
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Seeger v. Lanham, 542 S.W.3d 286, 294-95 (Ky. 2018) (emphasis added).
Accordingly, the lack of a ruling on this issue did not render the judgment infirm.
The orders of the Jefferson Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Richard V. Hornung Jason C. Vaughn
William A. Merrifield Louisville, Kentucky
Louisville, Kentucky
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