JOHNSTONE, Justice.
The issue presented in each of these cases involves a question of first impression concerning the award of attorney fees under the Kentucky Consumer Protection Act (KCPA), KRS 367.220(3). We granted discretionary review to resolve a split of authority in the Kentucky Court of Appeals. We hold that the award of attorney fees under the statute is discretionary with the trial court.
We begin with a brief discussion of the pertinent facts of each case.
ALEXANDER V. S & M MOTORS, INC.
On November 29, 1993, Jeffery Alexander purchased a vehicle from S & M Motors, which represented that, the vehicle had not been damaged, that it only had one prior owner, and that it was a “Certified Lexus Pre-Owned Car.” Approximately one year later, Alexander discovered that the vehicle had sustained heavy damage prior to the date of purchase. Alexander subsequently filed suit against S & M alleging that he was defrauded. In the suit, he sought recovery of his purchase price and punitive damages. The matter proceeded to trial, and a unanimous jury awarded Alexander $6,000 in compensatory damages and $75,000 in punitive damages. However, the trial court denied Alexander’s motion for attorney fees under the KCPA, and Alexander appealed this ruling. The Court of Appeals affirmed the trial court.
KEN-RAY MOTORS V. CHILDERS
Wanda Childers purchased a used vehicle from Ken-Ray Motors in May, 1994. Childers began having problems with the vehicle within the first hour of purchase. She continued to have problems with the vehicle and ultimately filed a claim against Ken-Ray in November, 1994. In the complaint she alleged, inter alia, fraudulent misrepresentation and violation of the Kentucky Consumer Protection Act (KCPA), KRS 367.010 et seq. A jury trial was held concerning these two issues on January 27, 1997. The trial resulted in a unanimous jury verdict which awarded Childers $6,748.89 in compensatory damages and $25,000 in punitive damages. The award of damages was based on the jury’s finding that Ken-Ray committed fraud upon Childers, violated the KCPA, and acted with fraud, malice or oppression.
Ken-Ray filed a number of post-judgment motions and Childers filed a motion for attorney fees pursuant to KRS 367.220(3). Childers subsequently filed further motions for additional attorney fees as would be generated from the post-judgment proceedings. The trial court denied all of Ken-Ray’s post-judgment motions, and eventually entered an order awarding Childers: (1) the costs necessary [305]*305to prepare and bring her cause of action to trial; (2) $128.60 in post-judgment costs; (3) nothing for attorney fees generated in preparation for trial or incurred during trial; and (4) $600 in post-judgment attorney fees. The trial court further ordered that Childers not be awarded “any other (additional) costs or attorney fees, as mov-ant has failed to persuade the Court that the additional fees and expenses claimed were necessary.” Childers appealed from the portions of this order denying her any award of attorney fees incurred either in preparation for trial or during the course of the trial. The Court of Appeals reversed and remanded to the trial court for reconsideration of the issue of attorney fees and litigation costs.
DISCUSSION
The issue presented in both Alexander and Childers is whether the trial court abused its discretion in denying attorney fees and costs under KRS 367.220(3), which provides:
In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney’s fees and costs.
(Emphasis added).
Not only have Kentucky courts long construed “may” to be a permissive word, rather than a mandatory word, but our legislature has given guidance in this regard. When considering the construction of statutes, KRS 446.010(20) provides that “may” is permissive, and “shall” is mandatory.
Chief Justice Lambert recently noted in White v. Check Holders, Inc., Ky., 996 S.W.2d 496, 497 (1999):
This Court’s duty in construing statutes is to ascertain and give effect to the intent of the General Assembly. Beckham v. Board of Education, Ky., 873 S.W.2d 575, 577 (1994). When the words of a statute “are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written.” McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307, 309 (1994). We, therefore, read the statute to autho-
rize, but not mandate, an award of attorney fees and costs in an action brought under the Kentucky Consumer Protection Act. Of course, whether to award such is a decision subject to the sound discretion of the trial judge.
When a trial court is considering whether to award attorney fees and costs and/or how much to award, the trial court’s decision should be guided by the purpose and the intent of providing an award of attorney fees and costs under the act. As Judge Knox, writing for the appellate panel in Childers, ably explained:
Permitting an additional recovery of attorney fees and litigation costs is intended to compensate the prevailing party for the expense of bringing an action under the statute. A further aim is to provide attorneys with incentive for representing litigants who assert claims which serve an ultimate public purpose (ie., a deterrent to conduct resulting in unfair trade practices which perpetrate fraud and deception upon the public).
In many, if not most, consumer protection cases, the monetary value [of the underlying claim] is typically low. Should the court focus strictly on the dollar value of the ultimate award when considering attorney fees and costs, the intended remedial goal of the statute would be thwarted, if not entirely defeated. Simply put, if, in these cases, attorney fees and costs do not provide a reasonable return, it will be economically impossible for attorneys to represent likely litigants. Thus, practically speaking, the door to the courthouse will be closed to all potential parties excepting those with either a strong probability of substantial damages, or those with sufficient economic resources to personally afford financing the expense of litigation.
[306]*306Such a situation would indeed be ironic, since it is precisely those with ordinary consumer complaints, who cannot afford to pay attorney fees, for whom these remedial acts are designed.
Childers v. Ken-Ray Motors,
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSTONE, Justice.
The issue presented in each of these cases involves a question of first impression concerning the award of attorney fees under the Kentucky Consumer Protection Act (KCPA), KRS 367.220(3). We granted discretionary review to resolve a split of authority in the Kentucky Court of Appeals. We hold that the award of attorney fees under the statute is discretionary with the trial court.
We begin with a brief discussion of the pertinent facts of each case.
ALEXANDER V. S & M MOTORS, INC.
On November 29, 1993, Jeffery Alexander purchased a vehicle from S & M Motors, which represented that, the vehicle had not been damaged, that it only had one prior owner, and that it was a “Certified Lexus Pre-Owned Car.” Approximately one year later, Alexander discovered that the vehicle had sustained heavy damage prior to the date of purchase. Alexander subsequently filed suit against S & M alleging that he was defrauded. In the suit, he sought recovery of his purchase price and punitive damages. The matter proceeded to trial, and a unanimous jury awarded Alexander $6,000 in compensatory damages and $75,000 in punitive damages. However, the trial court denied Alexander’s motion for attorney fees under the KCPA, and Alexander appealed this ruling. The Court of Appeals affirmed the trial court.
KEN-RAY MOTORS V. CHILDERS
Wanda Childers purchased a used vehicle from Ken-Ray Motors in May, 1994. Childers began having problems with the vehicle within the first hour of purchase. She continued to have problems with the vehicle and ultimately filed a claim against Ken-Ray in November, 1994. In the complaint she alleged, inter alia, fraudulent misrepresentation and violation of the Kentucky Consumer Protection Act (KCPA), KRS 367.010 et seq. A jury trial was held concerning these two issues on January 27, 1997. The trial resulted in a unanimous jury verdict which awarded Childers $6,748.89 in compensatory damages and $25,000 in punitive damages. The award of damages was based on the jury’s finding that Ken-Ray committed fraud upon Childers, violated the KCPA, and acted with fraud, malice or oppression.
Ken-Ray filed a number of post-judgment motions and Childers filed a motion for attorney fees pursuant to KRS 367.220(3). Childers subsequently filed further motions for additional attorney fees as would be generated from the post-judgment proceedings. The trial court denied all of Ken-Ray’s post-judgment motions, and eventually entered an order awarding Childers: (1) the costs necessary [305]*305to prepare and bring her cause of action to trial; (2) $128.60 in post-judgment costs; (3) nothing for attorney fees generated in preparation for trial or incurred during trial; and (4) $600 in post-judgment attorney fees. The trial court further ordered that Childers not be awarded “any other (additional) costs or attorney fees, as mov-ant has failed to persuade the Court that the additional fees and expenses claimed were necessary.” Childers appealed from the portions of this order denying her any award of attorney fees incurred either in preparation for trial or during the course of the trial. The Court of Appeals reversed and remanded to the trial court for reconsideration of the issue of attorney fees and litigation costs.
DISCUSSION
The issue presented in both Alexander and Childers is whether the trial court abused its discretion in denying attorney fees and costs under KRS 367.220(3), which provides:
In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney’s fees and costs.
(Emphasis added).
Not only have Kentucky courts long construed “may” to be a permissive word, rather than a mandatory word, but our legislature has given guidance in this regard. When considering the construction of statutes, KRS 446.010(20) provides that “may” is permissive, and “shall” is mandatory.
Chief Justice Lambert recently noted in White v. Check Holders, Inc., Ky., 996 S.W.2d 496, 497 (1999):
This Court’s duty in construing statutes is to ascertain and give effect to the intent of the General Assembly. Beckham v. Board of Education, Ky., 873 S.W.2d 575, 577 (1994). When the words of a statute “are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written.” McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307, 309 (1994). We, therefore, read the statute to autho-
rize, but not mandate, an award of attorney fees and costs in an action brought under the Kentucky Consumer Protection Act. Of course, whether to award such is a decision subject to the sound discretion of the trial judge.
When a trial court is considering whether to award attorney fees and costs and/or how much to award, the trial court’s decision should be guided by the purpose and the intent of providing an award of attorney fees and costs under the act. As Judge Knox, writing for the appellate panel in Childers, ably explained:
Permitting an additional recovery of attorney fees and litigation costs is intended to compensate the prevailing party for the expense of bringing an action under the statute. A further aim is to provide attorneys with incentive for representing litigants who assert claims which serve an ultimate public purpose (ie., a deterrent to conduct resulting in unfair trade practices which perpetrate fraud and deception upon the public).
In many, if not most, consumer protection cases, the monetary value [of the underlying claim] is typically low. Should the court focus strictly on the dollar value of the ultimate award when considering attorney fees and costs, the intended remedial goal of the statute would be thwarted, if not entirely defeated. Simply put, if, in these cases, attorney fees and costs do not provide a reasonable return, it will be economically impossible for attorneys to represent likely litigants. Thus, practically speaking, the door to the courthouse will be closed to all potential parties excepting those with either a strong probability of substantial damages, or those with sufficient economic resources to personally afford financing the expense of litigation.
[306]*306Such a situation would indeed be ironic, since it is precisely those with ordinary consumer complaints, who cannot afford to pay attorney fees, for whom these remedial acts are designed.
Childers v. Ken-Ray Motors, Ky.App., 1998 WL 381342, 97-CA-1496-MR, July 10,1998.
Thus, a trial court’s polar star when considering a motion for attorney fees under the KCPA is keeping the courthouse door open for those aggrieved by violations of the act. In both cases at bar, neither trial courts’ ruling concerning attorney fees penalized either plaintiff for bringing a claim under the act. Nor does either ruling establish a precedent which closes the courthouse for future plaintiffs or makes the door more difficult to open.
The jury awarded Childers $6,748.89 in compensatory damages and $25,000 in punitive damages. The compensatory damages represented the maximum amount that could be awarded under the instructions. Childers’ attorney submitted an affidavit in support of Childers’ motion for attorney fees. According to the affidavit, the amount of attorney fees due as a result of the representation of Childers was $24,965.23 based on a rate of $120 an hour, which, consequently, was just a few dollars less than the punitive damage award. The punitive damage award prevented Child-ers’ favorable judgment from being turned into a Pyrrhic victory. That is, even after factoring in attorney fees and litigation costs, Childers was not made less than whole by the jury’s verdict. Further, the denial of an award for attorney fees in this case did not prevent Childers’ attorney from making a reasonable return on his efforts. Finally, we do not believe that the denial of attorney fees in Childers’ case will deter others aggrieved by violations of the KCPA from bringing suit in the future or attorneys from representing them.
The jury awarded Alexander $6,000 in compensatory damages and $75,000 in punitive damages. Alexander’s counsel sought $26,594.50 in attorney fees, which the trial court found to be reasonable. The argument that the trial court abused its discretion in denying attorney fees and costs to Alexander is less compelling under the relevant facts of his case than under the felevant facts of Childers’ case.
For the reasons set forth above, we hereby affirm the Court of Appeals in Alexander v. S & M Motors, Inc. (1998-SC-0896-DG) and reverse the Court of Appeals in Ken-Ray Motors v. Childers (1998-SC-0951-DG).
LAMBERT, C.J.; COOPER and WINTERSHEIMER, JJ., concur.
STUMBO, J., concurs in part and dissents in part by separate opinion, in which GRAVES and KELLER, JJ., join.