Abbott v. Cunningham

377 S.W.3d 565, 2012 Ky. App. LEXIS 249, 2012 WL 1886477
CourtCourt of Appeals of Kentucky
DecidedMay 25, 2012
DocketNo. 2010-CA-000147-MR
StatusPublished
Cited by2 cases

This text of 377 S.W.3d 565 (Abbott v. Cunningham) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Cunningham, 377 S.W.3d 565, 2012 Ky. App. LEXIS 249, 2012 WL 1886477 (Ky. Ct. App. 2012).

Opinions

OPINION

CLAYTON, Judge:

This is an appeal from interlocutory orders of the Boone Circuit Court. For the foregoing reasons, we affirm in part, reverse in part and remand this action to the trial court for further findings consistent with this opinion.

BACKGROUND INFORMATION

The Appellants are former clients of Ap-pellees Shirley A. Cunningham, Jr., William J. Gallion and Melbourne Mills, Jr. (the “Judgment Debtors”). The Judgment Debtors were members of Tandy, LLC. The original judgment from which this action sprang was a 2007 money judgment in the amount of $42,000,000 against the Judgment Debtors. Appellees David E. Davidson and Stephen S. Dobson, III were attorneys for Cunningham with whom they had a written fiat fee agreement in a 2007 [567]*567criminal case in federal court (the “Criminal Case”).

Concurrent with the Criminal Case, the Judgment Debtors were involved in the case of Abbott, et al. v. Chelsey, et al. in Boone Circuit Court (the “Civil Case”). Some of the Appellees represented the Judgment Debtors in the Criminal Case, while others represented them in the Civil Case. It was from the Civil Case that the money judgment set forth above was entered.

Appellees Cors and Bassett, LLC were also attorneys for Cunningham and Gallion and were paid out of their client trust account on an hourly basis. Appellee Mary Meade-McKenzie was counsel for Gallion in the Civil Case. Appellee James A. Shuffett represented Mills in the Criminal Case and Civil Case matter pursuant to a flat fee agreement. Fulkerson & Kinkel represented Mills in a malpractice action. At the time the garnishment was received, the deductible that Mills had paid had been exhausted and Fulkerson & Kinkel were being paid by the malpractice insurance carrier.

0. Hale Almand, and W. Robert Lotz represented Gallion. Almand had a flat fee agreement to represent Gallion in the Criminal Case. Lotz had a retainer agreement with Gallion which was paid to Lotz as the work was performed. Lotz was contractually obligated to represent Gal-lion in the federal Criminal Case. Andre F. Regard represented Tandy, LLC and was paid by the interim receiver. The attorneys representing the Judgment Debtors will hereinafter be referred to collectively as the “Attorneys.”

In compensation for fees in both eases, the Judgment Debtors transferred monies to the Attorneys. Thereafter, the Appellants filed garnishments on the accounts of the Attorneys and eventually filed a petition in the Boone Circuit Court to enforce the garnishments through attachment of assets. The Attorneys fought the attachment, arguing that the transferred cash was payment for services they provided and would continue to provide in the Criminal Case and/or the Civil Case. The trial court denied the Appellants’ petition to attach garnished assets. After an in camera review of the fee, the trial court granted the Attorneys leave to apply the money they held in client trust accounts as legal fees accrued by the Judgment Debtors and gave the Appellants a lien on any monies which were not used as attorney’s fees.

Appellants now ask us to review the trial court’s denial of their petition, arguing that the trial court incorrectly found that the contents of an attorney’s client trust account either do not belong to the client or are not subject to garnishment.

STANDARD OF REVIEW

“The trial court’s interpretation of a garnishment or exemption statute is ... a question of law.” Brown v. Commonwealth, 40 S.W.3d 873, 875 (Ky.App.1999). As a reviewing court, we review questions of law de novo. Id. Thus, we will review the trial court’s decision in this case de novo.

DISCUSSION

The Appellants first argue that the trial court incorrectly concluded that the garnishments did not entitle them to immediately recover assets in the possession of the Attorneys. Kentucky Revised Statutes (KRS) 425.501 provides that:

(5) If the court finds that the garnishee was, at the time of service of the order upon him, possessed of any property of the judgment debtor, or was indebted to him, and the property or debt is not exempt from execution, the court shall [568]*568order the property or the proceeds of the debt applied upon the judgment.

Cors & Bassett, Fulkerson & Kink-el, and Regard had already applied all the funds that they held as retainers as fees in their escrow accounts prior to service of the garnishment. Consequently, we find there were no remaining fees upon which an attachment would stand against these Attorneys and affirm the decision of the trial court as to them.

Meade-McKenzie has filed no brief in the case nor has she had counsel appear on her behalf. The Appellants argue that funds to her were redirected by Tandy, LLC. They argue that it was a sham transaction and that Meade-McKenzie had the Judgment Debtors’ assets and not the assets of Tandy, LLC.

As to the remaining Attorneys, Appellants argue that since the garnishment statute does not provide an exception for garnishees that have been retained as counsel of the debtor, the money paid to the Attorneys and which remained in then-trust accounts at the time of their judgment was subject to garnishment. The Attorneys representing the Judgment Debtors in the Criminal Case, however, argue that their written flat fee agreement with the Judgment Debtors existed months before the Appellants obtained their judgment against them in August of 2007.

Appellants argue that funds held by a debtor’s attorney are not exempt from attachment even if they have been transferred to the attorney. In other words, they contend that they are entitled to recover the monies the Attorneys have in their escrow/client trust accounts. While the Appellants contend that there is no Kentucky caselaw on point, they argue that other jurisdictions have held that debtor assets held in these types of accounts may be attached by a judgment creditor.

Rules of the Supreme Court (SCR), Rules of Professional Conduct, 3.130, provides that the contents of an attorney’s escrow account belong to the clients for which they have been deposited. The Virginia case of Marcus, Santoro & Kozak, P.C. v. Hung-Lin Wu, 274 Va. 743, 652 S.E.2d 777, 782 (Va.2007), held that:

Clients’ funds deposited in an attorney’s trust account are funds held in trust. As such, the claim of such clients for return of funds is more than merely a personal claim against the attorney for the payment of the sum of money on deposit. The clients retain an equitable or beneficial ownership interest in the funds. The deposit of one client’s funds in an account with funds of other clients does not destroy the beneficial interest of the clients in the funds so deposited. Thus, the clients are entitled to those funds to the extent their equitable ownership interests can be traced. [Citations omitted].

In Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Frerichs, 671 N.W.2d 470

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Cite This Page — Counsel Stack

Bluebook (online)
377 S.W.3d 565, 2012 Ky. App. LEXIS 249, 2012 WL 1886477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-cunningham-kyctapp-2012.