Charles G. Middleton, III v. Commonwealth Bank & Trust Company in Its Capacity as Successor Trustee for the Lawrence L. Jones, Sr., Trust Under Agreement Dates December 28, 1933

• Court: Court of Appeals of Kentucky
• Decided: May 25, 2023
• Docket: 2021 CA 001035
• Status: Unknown

Opinion

RENDERED: MAY 26, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1035-MR

CHARLES G. MIDDLETON, III, INDIVIDUALLY AND IN HIS CAPACITY AS CO-EXECUTOR OF THE ESTATE OF LAWRENCE J. MIDDLETON, SR.; AND LAWRENCE J. MIDDLETON, JR., IN HIS CAPACITY AS CO-EXECUTOR OF THE ESTATE OF LAWRENCE J. MIDDLETON, SR. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 16-CI-002566

COMMONWEALTH BANK AND TRUST COMPANY, IN ITS CAPACITY AS SUCCESSOR TRUSTEE FOR THE LAWRENCE L. JONES, SR. TRUST UNDER AGREEMENT DATED DECEMBER 28, 1933; AND PNC BANK, N.A., IN ITS CAPACITY AS PREDECESSOR TRUSTEE FOR THE LAWRENCE L. JONES, SR. TRUST UNDER AGREEMENT DATED DECEMBER 28, 1933 APPELLEES

AND NO. 2022-CA-0675-MR

CHARLES G. MIDDLETON, III, INDIVIDUALLY AND IN HIS CAPACITY AS CO-EXECUTOR OF THE ESTATE OF LAWRENCE J. MIDDLETON, SR.; CHARLES G. MIDDLETON, III, IN HIS CAPACITY AS TRUSTEE OF THE KATHERINE JONES SMITH TRUST U/W; AND LAWRENCE J. MIDDLETON, JR., IN HIS CAPACITY AS CO-EXECUTOR OF THE ESTATE OF LAWRENCE J. MIDDLETON, SR. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 16-CI-002566

COMMONWEALTH BANK AND TRUST COMPANY, IN ITS CAPACITY AS SUCCESSOR TRUSTEE FOR THE LAWRENCE L. JONES, SR. TRUST UNDER AGREEMENT DATED DECEMBER 28, 1933; AND PNC BANK, N.A., IN ITS CAPACITY AS PREDECESSOR TRUSTEE FOR THE LAWRENCE L. JONES, SR. TRUST UNDER AGREEMENT DATED DECEMBER 28, 1933 APPELLEES

-2- OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE, JUDGES.

ECKERLE, JUDGE: These appeals arise from a judgment awarding attorney fees

and a post-judgment order allowing the judgment creditor to attach trust assets

belonging to the judgment debtor. In the first appeal, Charles G. Middleton, III

and the Estate of Lawrence J. Middleton (collectively, “the Middletons”) appeal

from an order of the Jefferson Circuit Court awarding contractual attorney fees to

Commonwealth Bank & Trust Company, in its capacity as successor trustee for the

Lawrence Jones Middleton, Sr. Trust under agreement dated December 28, 1933,

(“C.B.&T.”). In the second appeal, the Middletons appeal from a post-judgment

order of the Jefferson Circuit Court allowing C.B.&T. to attach assets of a separate

trust of which Charles Middleton is both trustee and lifetime beneficiary.

For the following reasons, we conclude that the Trial Court applied

the proper standard in determining the amount of reasonable attorney fees owed to

C.B.&T. We further conclude that the Trial Court did not err in allowing C.B.&T.

to attach Charles Middleton’s beneficial interest in the separate trust in order to

satisfy the judgment for attorney fees. Hence, we affirm in both appeals.

-3- I. Facts and Procedural History

For purposes of this appeal, the following facts are relevant: In 1933,

Lawrence Jones, Sr., created an inter vivos trust (“the Trust”) for the benefit of his

three daughters and their descendants. He established a similar trust for the benefit

of his son, Lawrence Jones, Jr., and his descendants. The Middletons are

descendants of Lawrence Jones, Jr., who predeceased his father.

Throughout the years, there were ongoing issues involving the

administration of the Trust. In 2004, PNC Bank, N.A. (“PNC”), as trustee,

instituted a declaratory judgment action in the Jefferson Circuit Court to determine,

among other things, whether the descendants of Lawrence Jones, Jr., were included

in the class of remainder beneficiaries under the Trust (“the 2004 Action”). The

Middletons, as potential remainder beneficiaries, were named as parties to that

action and eventually filed a counterclaim against PNC. After several years, the

parties entered into a Settlement Agreement and Release (“the Agreement”),

stipulating that the Middletons were remainder beneficiaries under the Trust.

As part of the Agreement, the Middletons accepted a series of

distributions in exchange for giving up their rights as potential remainder

beneficiaries upon termination of the Trust. In addition, the Middletons reserved

their rights to maintain individual claims against PNC as Trustee. As further

consideration, the Agreement contained the following provision:

-4- Charles G. Middleton, III and Lawrence J. Middleton hereby covenant and agree to hold harmless and indemnify . . . [the Trust] . . . from any and all claims, causes of action, demands or suits of any kind arising directly or indirectly from any damages and/or claims asserted in Middleton v. PNC, including but not limited to, any claims for attorneys’ fees and costs and any claims by other Defendants in Middleton v. PNC.

In 2007, the Middletons brought a separate action against PNC

asserting claims for breach of fiduciary duties arising from its delegation of

investment management and failure to supervise investments properly (“the 2007

Action”). The Middletons also asserted that PNC’s conduct while managing the

Trust amounted to other violations of Kentucky law, PNC’s internal policies, and

the requirements of the Trust itself. The Middletons contended that PNC’s actions

caused losses to the Trust’s investment portfolio during the period of July 2001

through October 2007.

After protracted litigation, the Trial Court granted summary judgment

to PNC on the claims raised in that action. On appeal, this Court affirmed,

concluding that the Middletons failed to establish that they suffered any non-

speculative injury caused by the alleged negligence of PNC and its investment

manager, Parthenon, L.L.C. (“Parthenon”). Middleton v. PNC Bank, NA, No.

2012-CA-002142-MR, 2014 WL 5510872 (Ky. App. Oct. 31, 2014) (unpublished).

During the pendency of the 2007 Action, C.B.&T. became successor

trustee of the Trust. In addition, while the 2007 Action was on appeal, Lawrence

-5- Jones Middleton, Sr. passed away. Charles Middleton and Lawrence Jones

Middleton, Jr., were appointed co-executors of the Estate of Lawrence Jones

Middleton, Sr. In 2015, C.B.&T. sent the Middletons a letter and supporting

affidavit setting forth the attorney fees and costs paid by the Trust in the 2007

Action, as provided under the Agreement. The Middletons thereafter denied any

obligation to indemnify the Trust.

In 2016, C.B.&T. filed the current action to enforce the indemnity

obligation. The matter proceeded to a motion for partial summary judgment on the

issue of the Middletons’ liability. The Trial Court granted the motion, concluding

that the Agreement clearly required the Middletons to reimburse the Trust for all

attorney fees, expenses, and costs paid on behalf of PNC in defending the 2007

Action. Because PNC prevailed, the Trial Court found that the Middletons were

obligated under the Agreement to pay those fees and costs. Subsequently, C.B.&T.

moved for summary judgment on damages, submitting affidavits showing that the

Trust had expended $1,081,293.61 in attorney fees and costs during the PNC

litigation and the indemnity action. The Middletons did not dispute the affidavits,

and the Trial Court thereafter entered judgment in that amount with prejudgment

interest.

On appeal, this Court affirmed the Trial Court’s substantive rulings,

but reversed on the award of attorney fees. Middleton v. PNC Bank N.A., No.

-6- 2017-CA-001673-MR, 2019 WL 1224621 (Ky. App. Mar. 15, 2019)

(unpublished). In pertinent part, this Court held that any award of attorney fees is

subject to a determination of reasonableness by the Trial Court. Id. at *8 (citing

Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 293 (Ky. 1991)). In the

absence of the necessary findings of reasonableness, this Court remanded the

matter for a new hearing and findings on that issue. To determine whether the

requested attorney fees are reasonable, this Court directed the Trial Court to

address the “well-established” factors, including:

(a) Amount and character of services rendered.

(b) Labor, time, and trouble involved.

(c) Nature and importance of the litigation or business in which the services were rendered.

(d) Responsibility imposed.

(e) The amount of money or the value of property affected by the controversy or involved in the employment.

(f) Skill and experience called for in the performance of the services.

(g) The professional character and standing of the attorneys.

(h) The result secured.

-7- Id. at *9 (citing Mo-Jack Distrib., LLC v. Tamarak Snacks, LLC, 476 S.W.3d 900,

910 (Ky. App. 2015) (quoting Axton v. Vance, 207 Ky. 580, 269 S.W. 534, 536-37

(1925))).

On remand, the Middletons argued that they were entitled to a jury

trial on the issue of reasonableness of the attorney fees. The Trial Court denied the

motion, concluding that reasonableness is a question of law for the Court to decide.

The Court also directed the Middletons to identify the specific expenses that were

claimed to be unreasonable. In a separate order, the Trial Court granted C.B.&T.’s

motion to exclude the Middletons’ expert witness, finding that the reasonableness

of attorney fees is a matter of law and not an appropriate topic for expert

testimony. Finally, the Trial Court denied the Middletons’ motion to apply the

“lodestar” analysis in assessing the reasonableness of the fees, concluding that

standard was not applicable in this situation.

The matter proceeded to an evidentiary hearing in February 2021.

The Trial Court summarized the evidence as follows:

Ms. Beth Breetz an attorney with Stites and Harbison, the law firm that represented PNC, testified regarding the fees and costs incurred by PNC in defending the Defendants’ lawsuit. She testified that despite the extensive litigation in this case, only four attorneys have been involved in any substantial way in PNCs legal defense; that each attorney had a particular skill set that they brought to the litigation; and that other attorneys were not included because of the amount of

-8- time that would have to be expended by each additional attorney to become familiar with the litigation. She testified that the fees and costs submitted to the Court were identical to those submitted to PNC and paid by the Trust, and that the fees and costs total $1,001,984.96. Ms. Breetz also testified that Capital Forensics, whose invoices are part of the fees and costs submitted to PNC and paid by the Trust, was retained on behalf of PNC to analyze the Middletons’ claims of damages and provide expert trial testimony. Ms. Breetz testified that PNC was billed in the standard manner at a rate lower than the standard rates offered to other clients, and that PNC never voiced any objection to the bills submitted. She testified that the firm’s rates are set every year by the firm’s management committee and are comparable to other large firms. She testified that in reviewing a publication that lists attorney rates across the nation, and also reviewing rates of other local large law firms involved in separate litigation, the hourly rates of the Stites and Harbison lawyers were neither the lowest nor the highest in this market. A copy of all of the invoices has been filed in the record.

The earliest invoices, in 2007, indicate that three attorneys worked on the litigation at that time and the fees for those attorneys were $360/hr. for the most senior attorney, a Mr. Griffith, $250/hr. for Ms. Breetz and $160/hr. for Mr. Owsley. In 2008, a fourth attorney, Mr. Kleinert, began working on the case at a rate of $160/hr. The rates for the other attorneys all had been adjusted upward by anywhere from $5 to $15 per hour. Those incremental adjustments continued through the years. A review of the records indicates that research and writing duties were primarily assigned to the lawyers with the lower rates. From time to time, other names crop up as having done some minimal amount of work on the case, but the Defendant has raised no specific challenges to these, or in fact any, entries.

-9- Charles Middleton testified at the hearing on behalf of the Defendants, raising several objections to the billing. He asserted that PNC’s third-party claims against Parthenon LLC (the investment adviser to the Trust) did not arise from the Defendants’ lawsuit and therefore were beyond the scope of the indemnity obligation. He estimated that those fees comprised 30% to 50% of the fees and costs. He challenged the amount of time PNC’s counsel spent on preparing for depositions; the number of attorneys who attended the depositions; and the failure to assign “clerical” duties to paralegals. He provided his own cost calculations for what counsel for PNC charged for various deposition preparations which he testified were excessive. Mr. Middleton objected to the hourly rates of PNC’s counsel, relying on hourly rates approved in bankruptcy and receivership cases.

Mr. Middleton testified that many of the invoices submitted by counsel for PNC contained “block billing,” which made it impossible to determine the time allocated to each of the subjects contained in the billing blocks, and therefore made it impossible to specify those charges which might be excessive. He cited numerous cases in which the courts have reduced the amount of attorney fees based on the inadequacy of documentation that occurs when a firm relies on block billing stating that those cases support reductions of anywhere from 20% to 70%.

In its conclusions of law, the Trial Court reviewed the factors set out

in Mo-Jack Distrib., LLC v. Tamarak Snacks, L.L.C., supra. Based on these

factors, the Court found that the fees claimed by PNC were reasonable. The Court

concluded that the amount and character of the legal services rendered were

consistent with a high-dollar, multi-year, very complex case worth, potentially,

millions of dollars. The Court also noted the Middletons’ aggressive litigation of

-10- the matter, and the potential financial and reputational damage to PNC from an

adverse judgment. The Court concluded that PNC reasonably engaged attorneys

with top reputations in the community, and that the hourly rates were reasonable

given the expertise of those attorneys and the extent and complicated nature of the

litigation.

The Trial Court further noted that the Middletons had not identified

specific invoices and expenses to which they took exception. The Court found that

the block billing entries were sufficiently detailed, in that they described the work

to be performed in enough detail to allow a client to know what work was being

claimed under each entry. The Court next found that PNC’s third-party claim was

covered by the Agreement because that claim arose from the Middletons’ claims

against PNC as trustee. Finally, the Trial Court rejected the Middletons’ multiple

arguments related to excessive staffing and time charged, finding no evidence that

any time or staffing was excessive or unreasonable.

Consequently, the Trial Court entered judgment against the

Middletons in the amount of $1,081,293.61. This amount reflects the

$1,001,984.96 in legal fees and costs incurred by the Trust in defending the 2007

Action, and $79,308.65 in fees and costs paid by the Trust in prosecuting the

indemnity action. The Middletons filed a Notice of Appeal from this judgment.

No supersedes bond was filed.

-11- Following entry of the judgment, C.B.&T.1 sought to collect on the

judgment. In the course of these collection efforts, C.B.&T. discovered that

Charles Middleton is the trustee and sole beneficiary of a trust established under

the last will and testament of his mother, Katharine Jones Smith (“the Smith

Trust”). As trustee, Charles Middleton has unfettered discretion to make

distributions of any kind to himself, without regard to any other beneficiary.

C.B.&T. also noted that, in a separate action, Charles Middleton represented under

oath that the corpus of the Smith Trust was entirely his.

C.B.&T. moved pursuant to KRS2 386B-5.010(1) to attach and collect

that beneficial interest. Because the Smith Trust granted Charles Middleton

“uncontrolled discretion” to make distributions of the trust principal to himself,

C.B.&T. requested that the Trial Court enter an order to attach his full interest in

the Smith Trust and to compel the distribution of the trust assets to satisfy the

Judgment. In a Memorandum and Order entered on May 12, 2022, the Trial Court

granted C.B.&T.’s motion, attaching the Smith Trust assets and compelling

Charles Middleton to turn the assets over to C.B.&T. Charles Middleton

1 Shortly after this filing, C.B.&T. was acquired by Stock Yards Bank & Trust Co. (“Stock Yards”). However, Stock Yards was not substituted as a party to the action below or the appeal. Consequently, we shall continue to refer to the Appellee as “C.B.&T.” 2 Kentucky Revised Statutes.

-12- separately appealed from this Order. Subsequently, this Court directed that the

appeals be heard together. Additional facts will be set forth below as necessary.

II. Appeal No. 2021-CA-1035-MR

A. Denial of Right to Jury Trial

We first turn to the issues raised in the Middletons’ appeal from the

Judgment awarding attorney fees to C.B.&T. To begin, the Middletons argue that

the Trial Court erred in denying their request for a jury trial to determine the

amount of reasonable attorney fees. The Middletons point out that Section 7 of the

Kentucky Constitution guarantees that “[t]he ancient mode of trial by jury shall be

held sacred, and the right thereof remain inviolate[.]” Because the claim for

attorney fees arises from a contract – the Agreement, the Middletons contend they

were entitled to a jury trial on the issue.

We disagree. Section 7 of the Kentucky Constitution preserves the

right to trial by jury as it existed in common law. Steelvest, Inc. v. Scansteel Serv.

Ctr., Inc., 908 S.W.2d 104, 106 (Ky. 1995). Kentucky’s common-law does not

allow for recovery of attorney fees. Superior Steel, Inc. v. Ascent at Roebling’s

Bridge, L.L.C., 540 S.W.3d 770, 787 (Ky. 2017). Rather, attorney fees are only

recoverable where authorized by statute or a specific contractual provision. Id.

Furthermore, recovery of attorney fees is grounded in equity, where there is no

right to a jury trial. Mo-Jack, 476 S.W.3d at 906 (citing Smith v. Bear, Inc., 419

-13- S.W.3d 49, 59 (Ky. App. 2013), and Gibson v. Kentucky Farm Bureau Mut. Ins.

Co., 328 S.W.3d 195, 204 (Ky. App. 2010)).

Rather, as the Trial Court noted, the issue of a reasonable attorney fee

is an issue of law for a trial court and not for a jury. Inn-Grp. Mgmt. Servs., Inc. v.

Greer, 71 S.W.3d 125, 130 (Ky. App. 2002). Reasonableness of an attorney fee is

for the trial court to determine, subject only to the abuse of discretion standard.

Superior Steel, 540 S.W.3d at 787 (citing Woodall v. Grange Mutual Casualty Co.,

648 S.W.2d 871 (Ky. 1983)). Because this matter involves only an issue of law,

the Middletons were not entitled to submit the issue to a jury.

B. Reasonableness of Attorney Fees

The Middletons primarily argue that the Trial Court abused its

discretion in finding that the total amount of attorney fees claimed by PNC was

reasonable. An award of attorney fees is within the sound discretion of a trial court

and will not be disturbed “[a]bsent a showing of an abuse of that discretion[.]”

Woodall, 648 S.W.2d at 873. “The test for abuse of discretion is whether the trial

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.

2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). More

specifically, a trial court abuses the discretion afforded it when “(1) its decision

rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision

-14- . . . cannot be located within the range of permissible decisions.” Miller v.

Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (cleaned up).

i. Exclusion of Expert Witness

The Middletons raise three arguments challenging the Trial Court’s

determination that the attorney fees were reasonable. First, they contend that the

Trial Court abused its discretion by excluding their expert witness on the issue of

attorney fees. We disagree. While KRE3 702 permits expert testimony that “will

assist the trier of fact to understand the evidence or to determine a fact in issue,” it

does not permit a witness to aid in the determination of a legal issue. See Gibson v.

Crawford, 259 Ky. 708, 83 S.W.2d 1, 7 (1935) (“The courts never allow a witness

to give his conclusion on questions of law . . . .”); and Foster v. Commonwealth,

827 S.W.2d 670, 678 (Ky.1991). See also Rockwell Int’l Corp. v. Wilhite, 143

S.W.3d 604, 623-24 (Ky. App. 2003). When the attorney or client seeks to recover

an attorney fee from an opposing or third party, the reasonableness of the fee is an

issue of law. Inn-Grp. Mgmt. Servs., Inc., 71 S.W.3d at 130. Since the proposed

expert testimony related only to the reasonableness of the attorney fees that PNC

incurred in defending the Middletons’ 2007 Action, the Trial Court properly

excluded the testimony.

3 Kentucky Rules of Evidence.

-15- ii. Application of Lodestar Test

Second, the Middletons argue that the Trial Court failed to apply the

proper test to determine reasonableness of the attorney fees. As discussed above,

the Trial Court analyzed the reasonableness of attorney fees using the Mo-Jack

factors identified in this Court’s prior opinion. The Middletons argue that the Trial

Court should have applied the “lodestar” formula in making this determination.

This formula was originally adopted in Kentucky to determine attorney fees under

the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., Inc., 840

S.W.2d 814 (Ky. 1992). An “attorney’s fee awarded should consist of the product

of counsel’s reasonable hours, multiplied by a reasonable hourly rate, which

provides a ‘lodestar’ figure, which may then be adjusted to account for various

special factors in the litigation.” Id. at 826 (citing Hensley v. Eckerhart, 461 U.S.

424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). See also Virgin Mobile U.S.A., L.P.

v. Com. ex rel. Com. Mobile Radio Serv. Telecommunications Bd., 448 S.W.3d

241, 252 (Ky. 2014). More recently, this Court held that the loadstar method is

also applicable to other statutory claims for attorney fees. Mid S. Cap. Partners,

LP v. Adkins, 626 S.W.3d 688, 691 (Ky. App. 2020).

However, the Court in Adkins cited the same “special factors” that

were set out in Mo-Jack. Id. at 691; Mo-Jack, 476 S.W.3d at 910. Although some

Federal cases frame these factors slightly differently, the Middletons do not allege

-16- that the Trial Court failed to consider any significant factor. Moreover, in Hensley

v. Eckerhart, supra, the United States Supreme Court held that the extent of the

relief obtained is the most important factor in considering the reasonableness of an

award of attorney fees. Hensley v. Eckerhart, 461 U.S. at 438-40, 103 S. Ct. at

1942-43.

iii. Sufficiency of Evidence of Reasonableness

Thus, we turn to the central question in this appeal: whether the Trial

Court properly considered all relevant factors in determining that the amount of

attorney fees incurred by PNC was reasonable. In this case, the Trial Court relied

upon the billing from Stites & Harbison to establish both the hours worked by

counsel and the hourly rates charged by the various attorneys. For the most part,

the Middletons did not identify specific items as unreasonable. Rather, they raised

several general objections to certain classes of billed items, as well as the overall

reasonableness of the charges.

a) Third-Party Complaint against Parthenon

The Middletons contend that the Trial Court improperly allowed

recovery of attorney fees incurred from PNC’s third-party complaint against

Parthenon. But as the Trial Court noted, the Agreement allowed recovery of

attorney fees and costs “arising directly or indirectly” from the Middleton’s claims

against PNC in the 2007 Action. Given the expansive language in the Agreement,

-17- we agree with the Trial Court that the third-party complaint against Parthenon was

an action that arose, at least indirectly, from the Middletons’ claims against PNC.

Moreover, Kentucky case law does not require exclusion of those

fees. Generally, attorney fees must be apportioned between claims for which there

is statutory or contractual authority for an award of attorney fees and those for

which there is not. Young v. Vista Homes, Inc., 243 S.W.3d 352, 368 (Ky. App.

2007). But where all of the claims arise from the same nucleus of operative facts

and each claim is “inextricably interwoven” with the other claims, apportionment

of fees is unnecessary. Id. (citations omitted).

In the 2007 Action, the Middletons asserted claims against PNC for

breach of fiduciary duties allegedly arising from its improper delegation of

investment management and failure to supervise properly the investments by

Parthenon. The Middletons asserted that these actions caused losses to the Trust’s

investment portfolio during the period from July 2001 through October 2007. See

Middleton v. PNC Bank, 2014 WL 5510872, at *2. PNC’s third-party complaint

sought to recover damages against any breach by Parthenon involving its

investment strategy. Thus, the third-party complaint involved the same factual

issues, the same legal issues, and was “inextricably interwoven” with the

Middletons’ claims against PNC. Therefore, the Trial Court was not obligated to

apportion fees incurred by PNC in bringing the third-party complaint.

-18- b) Block Billing

The Middletons next argue that the Trial Court improperly allowed

“block billing,” which allegedly made it difficult to determine the reasonable

amount of time devoted to distinct tasks. Block billing involves identifying more

than one task in a single billing entry. Gibson v. Scott, No. 2:12-CV-1128, 2014

WL 661716, at *4 (S.D. Ohio Feb. 19, 2014) (unpublished). In his testimony,

Charles Middleton identified three examples of the “pervasive” block billing in the

itemized attorney fees.4 He did not contend that these entries involved matters that

were unrelated to the 2007 Action. Rather, he merely suggested that these entries

may be duplicative of other billed items.

The Trial Court analyzed one of these entries, stating that a “typical

billing entry (chosen at random from a June 13, 2012, invoice) is representative of

the entries found throughout the invoices.” That entry is as follows:

Coordinate research re McCrea exclusion; research same; continue outlining response to Middleton summary judgment motion; teleconference with Parthenon counsel; analyze Stone, Wheeler, and Myles transcripts; outline potential affidavit for Stone and Wheeler; continue drafting summary judgment response; confer with Breetz re deadlines and case management.

4 The Middletons’ expert, John Conlon, identified additional examples of block billing in his report. But as noted above, the Trial Court did not allow his testimony or report. The Middletons introduced his report by avowal.

-19- The Stites & Harbison bill, as introduced by Ms. Breetz, showed that

the attorney who billed for these tasks billed 6.80 hours at the hourly rate of $260.

The other examples of block billing cited by Charles Middleton involved similar

descriptions. The Trial Court agreed with the Middletons that there is no method

by which to determine the exact minutes expended on each task. However, the

Trial Court concluded that the description was sufficient to determine that the work

was reasonably related to the claims for which PNC was entitled to recover

attorney fees.

We agree. The Middletons assert that the Federal Courts reject block

billing as an allowable practice in calculating attorney fees. To the contrary, most

Federal Courts have held that block billing is not a prohibited practice. See

Pittsburgh & Conneaut Dock Co. v. Dir., Office of Workers’ Comp. Programs, 473

F.3d 253, 273 (6th Cir. 2007); Farfaras v. Citizens Bank & Tr. of Chicago, 433

F.3d 558, 569 (7th Cir. 2006); Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1121 (9th

Cir. 2000); and Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000).

In Hensley, supra, the Supreme Court also stated that plaintiff’s counsel “is not

required to record in great detail how each minute of his time was expended.” Id.

at 437 n.12, 103 S. Ct. at 1933. “Instead, plaintiff’s counsel can meet his burden –

although just barely – by simply listing his hours and ‘identify[ing] the general

-20- subject matter of his time expenditures.’” Fischer, 214 F.3d at 1121 (quoting

Hensley, 461 U.S. at 437 n.12).

The party seeking fees has “the burden of providing for the court’s

perusal a particularized billing record.” Perotti v. Seiter, 935 F.2d 761, 764 (6th

Cir. 1991). A trial court may reduce hours where the descriptions lack sufficient

detail to ascertain whether the time expended was reasonable. See Perry v.

AutoZone Stores, Inc., 624 Fed. App’x 370, 373 (6th Cir. 2015). A trial court also

has discretion to reduce the allowable hours where the use of block billing in

entries make it impossible for that court to determine the exact amount of non-

compensable time included in the requested hours. Miller v. Davis, 267 F. Supp.

3d 961, 997 (E.D. Ky. 2017), aff’d sub nom. Miller v. Caudill, 936 F.3d 442 (6th

Cir. 2019).

In this case, the entries were sufficient to identify the tasks performed

and the subject matter of each attorney’s work. We agree with the Trial Court that

C.B.&T. met its initial burden of providing particularized, billing records.

c) Consideration of All Relevant Adjustment Factors

Once the prevailing party provides such a record, “conclusory

allegations that the award was excessive and that . . . counsel employed poor

billing judgment . . . do not suffice to establish that there was error . . . ,

particularly in light of the statements of the district court [explaining the award]

-21- and our standard of review.” Perotti, 935 F.2d at 764. See also Imwalle v.

Reliance Med. Prod., Inc., 515 F.3d 531, 553 (6th Cir. 2008). The Middletons

assert that some of these entries may be duplicative. Along similar lines, the

Middletons claim that PNC failed to rebut Charles Middleton’s testimony about

excessive staffing, time charged for particular items, and the hourly rates charged

by the respective attorneys.5

The Trial Court rejected these claims, concluding as follows:

Despite the Middletons’ characterization of this case as “not complex,” and one that “required no specific, specialized knowledge,” this is a case in which the Middletons asserted multi-million dollar misfeasance on the part of PNC, and litigated this case from 2007 until 2015, at every level of the Kentucky Court system, until they ultimately failed to prevail on any issue. The Court believes that it would be a rare client who would not seek out top lawyers to defend such an action, especially as the case went on for a protracted period. The Middletons have not pointed out which entries in the hundreds of pages of invoices they believe support their general claim that multiple attorneys duplicated efforts, with a few exceptions. Nor have they identified entries that they claim the time utilized was excessive for the tasks. The Middletons have identified entries relating to the taking of depositions which they assert show that such

5 The Middletons also contend that the fees charged by Stites & Harbison were excessive because its joint representation of PNC individually and as a Trustee amounted to a conflict of interest. But in the prior appeal, the Middletons raised this alleged conflict, arguing that PNC was not authorized to expend Trust funds to defend claims brought against it individually. The Trial Court held, and this Court agreed, that this issue had been previously litigated in the 2007 Action. Thus, the Middletons’ argument was barred by collateral estoppel. Middleton v. PNC Bank, 2019 WL 1224621, at *6. For the same reason, we conclude that Middletons cannot use this issue to challenge the reasonableness of the fees incurred.

-22- depositions and deposition preparations were overstaffed, and that more junior attorneys should have been utilized for much of the preparation. Again, it was apparent that the Middletons were going to litigate this matter to the bitter and expensive end. The defense absolutely could have been done more cheaply by fewer or different attorneys, or possibly another firm entirely, but that is not the standard the Court is required to employ. The Court cannot overlook the fact the defense of this case by these attorneys practicing in the manner they did, resulted in a complete victory for their client. The standard is whether the attorneys’ fees and costs were reasonable in light of all the circumstances of the case. The Court finds that they were.

This Court finds that it is unnecessary to improve upon the Trial Court’s analysis

of the relevant issues.

The Trial Court applied the proper standard, first determining the total

number of hours expended and the hourly rates charged. The Court concluded that

the billing entries were sufficiently detailed and related to the claims for which

attorney fees were sought. The Middletons made only general objections to many

of these entries, which the Trial Court considered and rejected. In addition, the

Trial Court properly considered the reasonableness of the hourly rates charged by

Stites & Harbison, rather than adopting the “community rate” asserted by the

Middletons.

The Trial Court then considered the bills in light of all relevant

factors, determining that the hours worked and the rates charged were reasonable

under the circumstances. The Trial Court particularly focused on the degree of

-23- success that PNC’s attorneys obtained in the litigation. Since none of these

findings were clearly erroneous, the Trial Court did not abuse its discretion in

concluding that the fees were reasonable.

III. Appeal No. 2022-CA-0675-MR

The second appeal involves the post-judgment proceedings to enforce

the award of attorney fees to C.B.&T. Although both Charles Middleton and the

Estate of Lawrence Middleton are the Appellants in this appeal, the Trial Court’s

Order only affects the interests of Charles Middleton. Unless the context requires

otherwise, we shall refer to him separately as Charles Middleton.

As noted above, Charles Middleton is the lifetime beneficiary and sole

trustee of the Smith Trust.6 C.B.&T. moved to attach Charles Middleton’s

beneficial interest in the Smith Trust and to compel him as Trustee to distribute the

trust corpus to satisfy the judgment. Charles Middleton argues that the Trial Court

lacked subject-matter and personal jurisdiction over the Trust, the trustee and

remainder beneficiaries were indispensable parties, and Charles Middleton had

disclaimed his authority as trustee to make unrestricted distributions from the Trust

6 The Smith Trust originally designated Charles and Lawrence Middleton as co-trustees. Upon Lawrence Middleton’s death, Charles Middleton became sole trustee. The Smith Trust also established separate trusts for Charles Middleton and Lawrence Middleton. C.B.&T.’s motion only sought to attach the assets of the trust of which Charles Middleton was a beneficiary.

-24- corpus. For these reasons, he argues that the Trial Court erred by compelling him

to make distributions to satisfy the Judgment for attorney fees.

A. Subject-Matter Jurisdiction

Charles Middleton first argues that the Trial Court lacked subject-

matter jurisdiction over the Trust. KRS Chapter 386B contains a number of

statutes that vest exclusive jurisdiction over trust matters in either Circuit Court or

District Court. See Hauber v. Hauber, 600 S.W.3d 204, 208 n.9 (Ky. 2020).

Circuit Court has exclusive jurisdiction to apply cy pres doctrine. KRS 386B.4-

130(3). District Court has exclusive jurisdiction over matters involving

termination of a trust or removal of a trustee, KRS 386B.8-180(6), and matters

relating to the office of trustee. KRS 386B.7-100. See also PNC Bank, Nat’l Ass’n

v. Edwards, 590 S.W.3d 818 (Ky. 2019). District Court also has exclusive

jurisdiction over modification or termination of certain trusts. KRS 386B.4-

110(7), KRS 386B.4-120(4), KRS 386B.4-140(5), KRS 386B.4-160, KRS 386B.4-

170(3).

In addition, KRS 386B.2-030(1) provides that the “District Court and

Circuit Court shall have concurrent jurisdiction of any proceedings in this

Commonwealth brought by a trustee or beneficiary concerning any trust matter[.]”

However, this is not a proceeding brought by a trustee or beneficiary, but an action

-25- brought by a creditor against a trust beneficiary. But KRS 386B.2-030(2) further

provides:

If a proceeding is initially brought in District Court concerning any trust matter, the jurisdiction of the District Court shall become exclusive with respect to such matter unless, within twenty (20) days of receipt of notice of such proceeding, a party files an action in Circuit Court relating to the same trust matter, in which event the District Court shall be divested of jurisdiction and the Circuit Court shall have exclusive jurisdiction over such action.

Recently, the Kentucky Supreme Court interpreted this section in

PNC Bank v. Edwards, supra. In that case, Boyd, as attorney-in-fact for the trust

settlor, Hager, removed PNC Bank as trustee and appointed CB&T as successor

trustee. PNC Bank provided its statutory notice of the change in trustee and of the

settlor’s right to object to any acts or omissions disclosed in the trust information.

In response, Boyd and Hager sent PNC Bank a list of objections to the statutory

notice, including allegations of breach of fiduciary duty by PNC Bank. Id., 590

S.W.3d at 820.

PNC Bank filed a petition in District Court to approve its statutory

notice. Boyd and Hager then filed an action in Circuit Court against PNC Bank on

their breach-of-fiduciary-duty claims. Id. After the Circuit Court denied PNC

Bank’s motions to dismiss based on subject-matter jurisdiction, PNC Bank sought

a writ of prohibition against the Circuit Court judge. Ultimately, the Supreme

-26- Court concluded that objections to the statutory notice must be brought in District

Court. Id. at 821 (citing KRS 386B.8-180). After the objections were brought in

District Court, that court had exclusive jurisdiction over breach-of-trust claims

raised as part of a proceeding brought under KRS 386B.8-180. Id. at 822-23.

However, the Supreme Court clarified that:

This opinion should not be read as holding that circuit courts have no jurisdiction to decide breach of trust or fiduciary duty claims of the type made by Boyd. If, for example, she had filed her action in circuit court prior to removing PNC as trustee, or prior to PNC’s filing its petition in district court, the circuit court’s jurisdiction would have been proper under the concurrent jurisdiction provisions of KRS 386B.2-030.

Id. at 823.

In the current case, the first question before this Court is whether

C.B.&T.’s garnishment petition against the Smith Trust falls within one of

exclusive-jurisdiction provisions of KRS Chapter 386B or the concurrent

jurisdiction of both Circuit and District Courts. Charles Middleton argues that the

attachment order effectively requires termination of the Smith Trust, insofar as it

requires the trustee to pay out the majority of the trust assets. Consequently, he

maintains that only the District Court has jurisdiction. KRS 386B.4-140. We

disagree.

C.B.&T. filed its motion pursuant to KRS 386B.5-010, which

-27- To the extent a beneficiary’s interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary’s interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means.

Neither this statute nor any other provision of subchapter 5 of KRS

386B assigns exclusive jurisdiction to the District Court over attachment or

garnishment proceedings. Furthermore, the Circuit Court is a court of general

jurisdiction, while the District Court is a court of limited jurisdiction that may be

exercised only under statutory limits and prescriptions. Hisle v. Lexington-Fayette

Urb. Cnty. Gov’t, 258 S.W.3d 422, 433 n.7 (Ky. App. 2008) (citing KY. CONST. §

109). The Trust Code preserves this jurisdictional distinction – assigning

concurrent jurisdiction over trust matters to Circuit and District Court, except for

specific matters over which the District Court has exclusive jurisdiction.

Consequently, we conclude that attachment proceedings are subject to

the provisions of KRS 386B.2-030(2) and may be brought in either District or

Circuit Court. District Court has exclusive jurisdiction only when termination of

the trust or removal of the trustee is sought as a remedy. Here, C.B.&T. did not

seek termination or removal, and Charles Middleton merely argues that termination

of the Smith Trust may result from attachment of the trust corpus. We conclude

that this possibility is not sufficient to divest the Circuit Court from jurisdiction

over the proceeding.

-28- At oral argument, Charles Middleton also asserted that C.B.&T. was

required to bring its garnishment petition against the Smith Trust in District Court

and then seek removal of the petition to Circuit Court. But as explained in PNC

Bank v. Edwards, supra, KRS 386B.2-030(2) does not prohibit a party from

bringing a concurrent-jurisdiction claim in Circuit Court. In such cases, the statute

only invests exclusive jurisdiction where the action was originally filed in District

Court and no action was filed in Circuit Court within 20 days of the filing of such

action. 590 S.W.3d at 823. Since C.B.&T. never filed its garnishment petition in

District Court, the Circuit Court properly exercised jurisdiction over the matter.

B. Personal Jurisdiction/Indispensable Parties

Second, Charles Middleton notes that C.B.&T. did not name him

separately in his capacity as Trustee of the Smith Trust. He also notes that

C.B.&T. did not name the remainder beneficiaries of the Smith Trust. Charles

Middleton contends that these were indispensable parties to the action.

Consequently, he argues that the Trial Court lacked personal jurisdiction to enter

the orders attaching the assets of the Smith Trust and directing Charles Middleton

to disperse trust assets.

CR7 19.01 provides:

A person who is subject to service of process, either personal or constructive, shall be joined as a party in the

7 Kentucky Rules of Civil Procedure.

-29- action if (a) in his absence complete relief cannot be accorded among those already parties, or (b) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

If a person described in CR 19.01 cannot be made a party, a Trial

Court may dismiss an action for failure to join an indispensable party. Id. Because

personal jurisdiction presents a question of law, it is subject to de novo review.

Hinners v. Robey, 336 S.W.3d 891, 895 (Ky. 2011) (citing Appalachian Regional

Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007)).

We agree that, ordinarily, the beneficiaries and trustee of a trust are

necessary parties to an action seeking to avoid a trust. Gripshover v. Gripshover,

246 S.W.3d 460, 466 (Ky. 2008). But in this case, Charles Middleton was already

a party to the proceedings. C.B.&T. was not required to name him separately to

attach his interest as a beneficiary. Rather, the Trial Court had personal

jurisdiction to attach Charles Middleton’s beneficial interest in the Smith Trust.

See Tyler v. Smith, 272 S.W.2d 454, 455 (Ky. 1954).

Charles Middleton also argues that his descendants, as future

beneficiaries of the Smith Trust, were necessary parties to the action. But as

discussed further below, the Smith Trust granted him unfettered discretion to

-30- distribute any and all portions of the Trust income and corpus to himself during his

lifetime. Consequently, the interests of any future beneficiaries of the Smith Trust

are merely contingent and speculative at this point and will not be materially

impaired by the attachment of Charles Middleton’s beneficial interest. See

Kentucky Ass’n of Fire Chiefs, Inc. v. Kentucky Bd. of Hous., Bldgs. & Const., 344

S.W.3d 129, 134 (Ky. App. 2010).

C.B.&T. also sought to compel Charles Middleton, as Trustee of the

Smith Trust, to distribute trust assets to satisfy the Judgment. While Charles

Middleton was not named separately in his capacity as Trustee of the Smith Trust,

we conclude that was not necessary under the facts in this case. First, Charles

Middleton did not raise C.B.&T.’s failure to name him in his capacity as Trustee in

his objections to C.B.&T.’s motion. He only objected to C.B.&T.’s failure to

name the future beneficiaries of the Smith Trust. Likewise, in his Report of

Distribution and Settlement of the Trust, Charles Middleton made a general

objection to personal jurisdiction in his capacity as Trustee. However, he did not

assert that the Trustee was a necessary or an indispensable party. Because Charles

Middleton appeared in his capacity as Trustee and did not raise the issue by means

of a motion pursuant to CR 12.02 or CR 19.02, he waived any objection to

personal service in that capacity. See also Brock v. Saylor, 189 S.W.2d 688, 690,

-31- 300 Ky. 471, 474 (Ky. 1945), and Cabinet for Hum. Res. v. Kentucky State Pers.

Bd., 846 S.W.2d 711, 714 (Ky. App. 1992).

And second, as discussed further below, the Smith Trust granted

Charles Middleton the sole discretion as Trustee to distribute assets to himself. In

such cases, the law recognizes that the trustee is really the absolute owner of the

trust assets. Alexander v. Hicks, 488 S.W.2d 336, 338 (Ky. 1972). Because

Charles Middleton was a party to the action and the de facto owner of the assets of

the Smith Trust, C.B.&T. was not required to name and serve him separately as

Trustee.

C. Interpretation of Trust Powers

Finally, the Middletons argue that the Trial Court erred in its

interpretation of the Smith Trust to allow attachment of Charles Middleton’s

beneficial interest. As previously mentioned, the Smith Trust grants Charles

Middleton, as Trustee, the uncontrolled discretion to pay any or all of the income

or principal of the Trust to himself, providing as follows:

B. My Trustees are authorized at any time and from time to time to pay such part or all of the income and principal thereto from each of the respective trust estates to themselves or among their children or descendants in such proportions as the Trustees in their uncontrolled discretion shall deem best, taking into consideration any other means of support they or any of them may have. Any income not paid out or used currently shall be accumulative and added to the principal of the respective trust.

-32- Because the Smith Trust allows Charles Middleton to distribute any

part or all of income or principal, C.B.&T. argued that his beneficial interest was

subject to attachment. In response, Charles Middleton pointed to a February 28,

2005, “disclaimer” that he and his brother signed, stating:

We hereby disdain, renounce and forever refuse to accept the power granted to each of us as Trustees, under Article V, subsection B, which allows us, as Trustees, to encroach and pay principal of the two Trusts to ourselves as beneficiaries. This renunciation of this power is binding on any successor Trustee.

Based on this disclaimer, Charles Middleton argued that he no longer

had unfettered discretion as Trustee to pay out income or corpus of the Smith Trust

to himself. C.B.&T. responded that Charles and Lawrence Middleton could not

unilaterally alter the terms of the Smith Trust while still accepting the position as

Trustee and their respective beneficial interests. The Trial Court agreed,

concluding that the disclaimer was ineffective because it did not disclaim his

beneficial interest. The Court further noted that the RESTATEMENT (SECOND) OF

THE LAW OF TRUSTS section 102(4) provides that a trustee cannot accept title to the

trust property but disclaim part of the duties of the trustee. Consequently, the Trial

Court concluded that the disclaimer did not prevent attachment of Charles

Middleton’s beneficial interest.

Charles Middleton maintains that his disclaimer met the requirements

of KRS 394.610 and was sufficient to disclaim the powers granted to him as

-33- Trustee under the Will of Katherine Smith. However, that statute merely allows a

person to “disclaim in whole or in part the right of succession to any property or

interest therein, including a future interest[.]” The disclaimer does not purport to

disclaim Charles Middleton’s interest as beneficiary in the Smith Trust.

Moreover, a Trustee cannot accept title to the trust property in part

and disclaim in part. Comment f to section 102 of the RESTATEMENT (SECOND) OF

TRUSTS specifies that “[i]f a trustee manifests an intention to accept a trust in part

and to disclaim in part, this will have the effect of an acceptance of the whole. If

the trustee accepts the trust as to a part of the trust property, this is an acceptance

of the trust of the whole trust property.”8 As a result, we agree with the Trial Court

that the disclaimer is not effective to restrict the attachment of Charles Middleton’s

interest in the Smith Trust.9

As the last part of his final argument, Charles Middleton claims that

the Smith Trust has a spendthrift provision that limits it from being attached. The

Trust Code defines a spendthrift trust as “a trust in which by the terms of the

8 See also RESTATEMENT (THIRD) OF TRUSTS § 35 (2003) (providing for acceptance or renunciation of trusteeship). 9 C.B.&T. also points out that, in a 2017 action for legal separation from his wife, Charles Middleton identified the entire corpus of the Smith Trust as his separate, nonmarital property. C.B.&T. argues that Charles Middleton is estopped from relying on the disclaimer when he previously made sworn statements to the contrary. Since we have concluded that the disclaimer was not effective to renounce a portion of the powers granted to the Trustee under the Smith Trust, we need not reach this issue, even though it may have merit.

-34- instrument creating it a valid restraint on the voluntary and involuntary alienation

of the interest of a beneficiary is imposed.” KRS 386B.5-030(5) limits the reach of

a creditor to attach a beneficial interest in a spendthrift trust if the trustee’s

discretion to make distributions for the trustee’s own benefit is “limited by an

ascertainable standard[.]”

Charles Middleton concedes that the Smith Trust does not contain an

express, spendthrift provision, but he notes that one may be implied “if the

instrument creating the trust manifests an intention to create a spendthrift trust.”

See KRS 386B.5-030(3). Although the Smith Trust affords the Trustee

“uncontrolled discretion” to pay out all income or principal, that discretion requires

that Trustee to “tak[e] into consideration any other means of support they or any of

them shall have.” Charles Middleton contends that this language is sufficient to

imply an ascertainable standard that limits his discretion as Trustee.

We disagree. KRS 386B.1-010(2) defines “ascertainable standard” to

mean “a standard relating to an individual’s health, education, support, or

maintenance within the meaning of 26 U.S.C.[10] sec. 2041(b)(1)(A) or 26 U.S.C.

sec. 2514(c)(1), as amended[.]” The Smith Trust grants the Trustee “uncontrolled

discretion” to pay out income or principal to either himself or his descendants. The

following line merely directs the Trustee to “tak[e] into consideration” those

10 United States Code.

-35- persons’ other means of support. But it does not subject the Trustee’s discretion to

any defined limitations relating to health, education, support, or maintenance.

Therefore, we agree with the Trial Court that Charles Middleton’s beneficial

interest was subject to attachment to satisfy C.B.&T.’s judgment.

IV. Conclusion

In the first appeal, we affirm the Trial Court’s judgment awarding

attorney fees to C.B.&T. The Trial Court properly held that the Middletons were

not entitled to a jury trial to determine the reasonable amount of attorney fees. The

Trial Court properly excluded the Middletons’ expert witness because the matter

involved a question of law, not of fact. The Trial Court applied the correct test for

determining that the attorney fees were reasonable. C.B.&T. provided billing

statements containing the hours worked and rates charged by Stites and Harbison.

Those statements were sufficiently detailed to establish the nature and

compensability of that work.

The Trial Court also properly allowed attorney fees for the third-party

claim against Parthenon because those claims arose from the Middletons’ claims

against PNC, and they were inextricably intertwined with PNC’s defense of the

Middletons’ claims. The Trial Court considered the Middletons’ objections, but

concluded that they did not warrant a downward adjustment of attorney fees.

Considering the degree of success that PNC achieved in the 2007 Action, we

-36- conclude that the Trial Court did not abuse its discretion in awarding C.B.&T. the

full amount of attorney fees.

In the second appeal, we conclude that the Trial Court had subject-

matter jurisdiction over C.B.&T.’s claim to attach Charles Middleton’s beneficial

interest in the Smith Trust. We further conclude that the Trial Court properly

exercised personal jurisdiction over that interest, and that Charles Middleton was

properly before the Court in his capacity as Trustee. Finally, the Trial Court

correctly interpreted the language of the Smith Trust as allowing the attachment of

Charles Middleton’s beneficial interest.

Accordingly, we affirm the August 3, 2021, Memorandum and Order

of the Jefferson Circuit Court awarding attorney fees to C.B.&T; and the May 12,

2022, Memorandum and Order of the Jefferson Circuit Court granting C.B.&T.’s

motion to attach the corpus of the Smith Trust and compelling Charles Middleton

as Trustee to distribute the corpus of the Smith Trust to satisfy C.B.&T.’s

judgment.

ALL CONCUR.

-37- BRIEFS AND ORAL ARGUMENT BRIEFS FOR APPELLEES: FOR APPELLANTS: Edward H. Stopher Charles G. Middleton, III Earl L. Martin III Louisville, Kentucky Louisville, Kentucky

Mark G. Hall David Cantor Louisville, Kentucky Louisville, Kentucky

David Tachau Louisville, Kentucky

ORAL ARGUMENT FOR APPELLEES:

Edward H. Stopher Louisville, Kentucky

-38-