R.F.D. v. Commonwealth of Kentucky, Cabinet for Health and Family Services ( 2024 )

RENDERED: NOVEMBER 1, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0549-ME
R.F.D. APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ROSS EWING, JUDGE
ACTION NO. 21-AD-00154
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
COMBS, JUDGE: This case comes before us on remand after the trial court
entered an order awarding a fee to a warning order attorney, who again in this
second appeal disputes the amount of the fee.
The Appellant is a Lexington attorney who was appointed as a
warning order attorney in a proceeding in Fayette Circuit Court. Facts relevant to
the issue before us are summarized in the prior appeal, Dawahare v. Cabinet for
Health and Family Services, 662 S.W.3d 745 (Ky. App. 2023),1 as follows in
relevant part:
On January 13, 2022, the Cabinet for Health and
Family Services (CHFS) filed an Affidavit for
Appointment of Warning Order Attorney to effect service
on the respondent in its underlying action and, therein,
provided her last known address. Dawahare was
appointed on the same day. In April 2022, Dawahare
filed a report stating that his attempt to reach the
respondent by certified mail at the address provided by
CHFS had been unsuccessful and he was unable to make
a defense on her behalf.
Thereafter, the parties agree that Dawahare
contacted CHFS seeking payment for his services in the
amount of $100, plus costs, the customary fee in Fayette
County. However, after being informed he was required
to seek a payment order from the court, Dawahare
asserted he would require additional compensation and
filed a motion seeking $500 in fees plus $7.38 in costs.
In support of his request, Dawahare attached a timesheet
documenting that he spent 2.5 hours communicating with
CHFS, reviewing the 19-page file, drafting
correspondence to the respondent, posting the letter,
retrieving the certified mail form from the post office,
performing miscellaneous clerical functions, and
preparing and filing his report. . . .
CHFS objected, arguing that the requested sum
exceeded the longstanding general order of the Fayette
Circuit Court and was generally unreasonable.
Ultimately, the [circuit] court denied the motion, stating
that “[t]he amount of fees requested is excessive; per the
longstanding General Term Order dated April 22, 2014[,]
1
As this Court explained in the prior appeal, “[t]he underlying case is a confidential termination
of parental rights action; however, as the privacy interests of the family are not implicated by this
appeal, we forgo our usual custom of substituting initials for litigants’ names.” Id. at n.1.
-2-
the maximum order for Warning Order Attorney fees are
[sic] capped at $100.”
Id. at 746-47 (footnote omitted). In its Order denying Dawahare’s motion, the
circuit court “encouraged [Counsel] to file an Agreed Order of payment for
$107.38 (or $132.38 if they are so inclined to consider the recent General Order of
June 16, 2022.” The court noted that “[a]s of June 16, 2022[,] A General Order for
Warning Order Attorney Fee was entered raising the maximum fee to $125.00.”
Dawahare appealed to this Court which reversed and remanded,
concluding as follows:
[The] threshold issue is whether the [circuit] court
abdicated its discretion in favor of a mechanical
application of the general order, and if so, whether this
was in error.
...
[A]s a statutory limit of $100 on warning order attorney
fees has not been established, we are . . . unpersuaded
that the court’s reliance on the general order should be
affirmed solely on this basis. . . .
A court’s failure to exercise discretion is itself an
abuse of discretion. . . . As the order on appeal fails to
demonstrate that the court exercised independent
judgment and considered the facts of this case, we
conclude the court’s decision is arbitrary and remand for
further proceedings.
To clarify, this Opinion does not hold that
general orders are not permissible or even that this
particular general order is void. Further, our holding
should not be construed as a determination that $100
-3-
is or is not reasonable under these facts. Rather, our
holding is merely that a general order cannot replace the
court’s discretion, though the court is free to consider
its wisdom as a guideline of what is reasonable in that
jurisdiction for a typical appointment in conjunction
with its assessment of the facts at hand.
Id. at 747-48 (emphasis added) (footnotes omitted).
Upon remand, on April 23, 2024, the circuit court meticulously
followed the direction of our Court, duly exercised its discretion, and entered an
Order awarding Dawahare a fee in the amount of $125.00 plus $7.38 for
reimbursement of postage costs. It announced its analysis as follows:
The Court regularly reviews and awards fees to
duly appointed warning order attorneys. The Court has
judicial knowledge of the work that is typically
performed and the fee that is typically awarded for that
work. See Pettingill v. Pettingill, 480 S.W.3d 920 (Ky.
2015) (regarding use of judicial knowledge). By far the
most commonly awarded fee is the one “set” by General
Order of the Fayette Circuit Court entered June 16, 2022
-- $125. Most attorneys also seek and awarded [sic]
reimbursement of any out-of-pocket expenses. The
Court notes that the General Order “set[s]” and does not
cap warning order attorney fees. Warning order
attorneys remain free to move for any fee they believe is
reasonable under the circumstances. In this way, the
Order operates much like the procedure and local rules
cited by the Court of Appeals. This Court remains “free
to consider its wisdom as a guideline of what is
reasonable in [this] jurisdiction for a typical appointment
in conjunction with its assessment of the facts at hand.”
Dawahare v. Cabinet for Health & Fam. Servs., 662
S.W.3d 745, 748 (Ky. App. 2023).
-4-
The Court finds that the affidavit submitted by Mr.
Dawahare is credible -- the Court it believes that he spent
the time stated performing the activities described.
However nothing in CR[2] 4.07(6), the Court of Appeals
opinion herein, or the cases cited by counsel requires that
warning order attorneys be compensated on an hourly
basis. Some attorney fees are determined on an hourly
basis; some are not. Moreover many of the tasks
performed by Mr. Dawahare -- driving to the post office,
for example -- require no legal training or specialized
knowledge.
Most importantly, the efforts made by Mr.
Dawahare to locate and notify [the defendant] were not
extraordinary. They were at best typical and in line with
the work completed by other warning order attorneys
who are awarded a reasonable fee of $125. Mr.
Dawahare did not, for example, attempt to locate [the
defendant] using social media, or search other court
records or public records for any other addresses for her.
The Court is aware that many warning order attorneys
use these and other modern electronic tools to attempt to
effectuate actual notice. To be clear, those efforts are not
required by CR 4.07 and the Court is not finding that Mr.
Dawahare’s good faith efforts did not constitute effective
service of process by warning order attorney in this case.
See Unknown Person on Behalf of Englert v Whittmgton,
737 S.W.2d 676 (Ky. 1987). However, for the purpose
of determining a reasonable fee, the Court finds that the
work performed by Mr. Dawahare was at best ordinary
and typical. A typical fee is reasonable for typical work.
In light of the work Mr. Dawahare has credibly
verified under oath that he performed in this case, the
Court finds it reasonable to award him a fee of $125, plus
reimbursement of postage costs of $7.38. To the extent
the parties have briefed other arguments that are not
2
Kentucky Rules of Civil Procedure.
-5-
addressed above the Court finds them to have little or no
weight to the question at hand . . . .
(Italics original.)
Dawahare has again appealed. He essentially argues once more that
the circuit court abused its discretion because $125 is not a reasonable fee for his
services.
KRS3 453.060(2) authorizes the court to allow the warning order
attorney “a reasonable fee for his services, to be paid by the plaintiff and taxed as
costs.” CR 4.07(6) similarly provides that “[t]he court shall allow the warning
order attorney a reasonable fee for his services, to be taxed as costs.”
What constitutes a reasonable fee is within the
discretion of the court. Accordingly, we review for an
abuse of discretion. An abuse of discretion occurs if the
court’s ruling is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.
Dawahare, supra at 747 (internal quotation marks and citations omitted).
In the case before us, the circuit court scrupulously complied
with this Court’s instruction on remand. We agree with the Cabinet that the
court provided a “thoughtful analysis” as to why it determined a fee of
$125.00 to be reasonable. Based upon the record before us, we cannot
3
Kentucky Revised Statutes.
-6-
conclude that the trial court abused its discretion in awarding an attorney fee
of $125.
Accordingly, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Richard F. Dawahare Jessica M. Crockett
Lexington, Kentucky Lexington, Kentucky
-7-