George Hanna v. Pickett and Dunn Roofing and Sheet Metal, Inc.

• Court: Court of Appeals of Kentucky
• Decided: November 15, 2024
• Docket: 2023-CA-0708
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NOS. 2023-CA-0708-MR & 2023-CA-0753-MR

GEORGE HANNA; AND NAHED HANNA APPELLANTS/CROSS-APPELLEES

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 11-CI-00686

PICKETT AND DUNN ROOFING AND SHEET METAL, INC. APPELLEES/CROSS-APPELLANTS

OPINION AFFIRMING IN APPEAL NO. 2023-CA-0708-MR; REVERSING AND REMANDING IN APPEAL NO. 2023-CA-0753-MR

** ** ** ** **

BEFORE: ECKERLE, GOODWINE, AND MCNEILL, JUDGES.

ECKERLE, JUDGE: This dispute involves primarily claims of breach of contract

and warranty stemming from the installation of a residential roof.

Appellants/Cross-Appellees, George and Nahed Hanna (collectively, “the Hannas”), seek review of orders and a judgment of the Fayette Circuit Court

following a jury verdict in favor of Appellees/Cross-Appellants, Pickett and Dunn

Roofing and Sheet Metal, Inc (“Pickett & Dunn”). The Hannas appeal from the

Trial Court’s orders: granting Pickett & Dunn’s motion to amend the complaint

and denying their motion to file an amended complaint; granting partial summary

judgment for Pickett & Dunn on the breach-of-contract claims; denying their

motion for directed verdict; and excluding or allowing the admission of certain

evidence at trial. In its cross-appeal, Pickett & Dunn argues that the Trial Court

abused its discretion by denying its motion for attorneys’ fees and costs as

provided for by the contract.

After careful review, we find no error or abuse of discretion in the

rulings addressed in the appeal. However, we conclude that the Trial Court failed

to make sufficient findings justifying its decision to deny attorneys’ fees in the

cross-appeal. Hence, we reverse this order and remand for additional findings of

fact and conclusions of law.

I. Facts and Procedural History

On October 6, 2008, the Hannas entered into a contract with Pickett &

Dunn Roofing for installation of a roof on their house located at 4241 Bridle Ridge

Lane in Lexington. The roof consisted of areas that were to be covered with

shingles and a large turret that was to be covered by metal. The parties agreed on a

-2- total price of $90,000.00, with one-third to be paid at signing, one-third to be paid

on delivery of the materials, and the final third to be paid upon completion. The

contract also set out several warranties for the materials and workmanship.

Between October 9, 2008, and December 12, 2008, the parties

negotiated four revisions of the contract. One of the revisions specified that the

material for the turret was to consist of 26-gauge, standing seam metal. The

second required that shingles were to be colored stone-gate grey. The third

provided that Pickett & Dunn would install 16-ounce copper standing seam

valleys. And the fourth and final modification reflected the parties’ agreement that

Pickett & Dunn were not to perform any carpentry or woodwork on the house.

The Hannas made the first installment payment after the execution of

the final contract revision, and they made the second upon delivery of the

materials. Pickett & Dunn began work in January of 2009 and completed the

shingle work by early February. However, the turret work did not run smoothly.

Pickett & Dunn claimed that the Hannas had not selected a color for that part of the

job, and it could not begin work until they did. The Hannas countered that they

had requested copper roofing for the turret and demanded that Pickett & Dunn

install it for the quoted price. The parties were unable to achieve agreement on the

material or the cost for the turret, and Pickett & Dunn ceased work.

-3- The Hannas then hired a different roofer to complete the work. They

also opined that much of the roofing work performed by Pickett & Dunn had been

done incorrectly. Consequently, on February 11, 2011, George Hanna filed a

complaint against Pickett & Dunn alleging breach of contract and breach of

warranty. In its answer, Pickett & Dunn also asserted counterclaims for breach of

contract and fraud. Nahed Hanna was later added as a party to both the complaint

and counterclaims.

This litigation has proceeded ever since, encompassing more than a

decade. After extensive discovery, the parties filed cross-motions for summary

judgment. In an Order entered more than ten years after the case began, on

November 30, 2021, the Trial Court granted Pickett & Dunn’s motion for summary

judgment. The Trial Court concluded that the contract clearly specified 26-gauge

standing sheet metal for the turret. The Trial Court also found, as a matter of law,

that the Hannas’ refusal to allow installation of the agreed-upon material

constituted a breach of contract that prevented Pickett & Dunn from full

performance of the contract. Thus, the Trial Court dismissed the Hannas’ breach-

of-contract claim and granted summary judgment in favor of Pickett & Dunn on its

countervailing breach-of-contract claim. The Trial Court separately granted

summary judgment for the Hannas on Pickett & Dunn’s fraud claim.

-4- Over a year later, the case went to a jury trial from March 8, 2023, to

March 15, 2023. The jury found for Pickett & Dunn on the Hannas’ warranty

claims, specifically finding that Pickett & Dunn substantially performed its duties

to install the shingled portion of the roof in a good and workmanlike manner and

that Pickett & Dunn did not fail to correct any defects prior to leaving the job site.

The jury also awarded Pickett & Dunn $30,000.00, representing the unpaid portion

of its contract with the Hannas.

The Trial Court subsequently denied the Hannas’ motion for a

judgment notwithstanding the verdict. The Trial Court also denied Pickett &

Dunn’s motion for attorneys’ fees and costs of litigation. However, the Trial Court

granted Pickett & Dunn’s motions for prejudgment interest. This appeal and cross-

appeal followed. Additional facts will be set forth below as necessary.

II. Motions to Amend the Complaint

The Hannas challenge two of the Trial Court’s rulings regarding

amending the complaint: (1) adding Nahed Hanna as a party; and (2) declining to

add a claim for constructive trust. As to the first argument, Pickett & Dunn had

moved to add Nahed Hanna as a plaintiff and co-defendant to its counterclaim on

November 11, 2016, claiming that she was an indispensable party because she co-

owned the property. The Hannas countered that Nahed Hanna was not

-5- indispensable and that the motion was untimely. Following a hearing, the Trial

Court granted Pickett & Dunn’s motion.

The decision whether to add necessary or indispensable parties rests

within the sound discretion of the Trial Court. Jones by & through Jones v. IC

Bus, L.L.C., 626 S.W.3d 661, 669 (Ky. App. 2020) (citing Commonwealth, Dep’t

of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 14 (Ky. 1995)). Joinder of

parties is governed by Kentucky Rule of Civil Procedure (“CR”) 19.01, which

provides:

A person who is subject to service of process, either personal or constructive, shall be joined as a party in the 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 he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

As the rule states, an indispensable party is one whose absence prevents the Court

from granting complete relief among those already parties. Jones, supra, at 670

(citing Milligan v. Schenley Distillers, Inc., 584 S.W.2d 751, 753 (Ky. App. 1979),

-6- superseded by statute on other grounds by Browning v. Preece, 392 S.W.3d 388

(Ky. 2013)). See also West v. Goldstein, 830 S.W.2d 379, 385 (Ky. 1992),

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

S.W.3d 129, 134 (Ky. App. 2010), and Liquor Outlet, L.L.C. v. Alcoholic Beverage

Control Bd., 141 S.W.3d 378, 387 (Ky. App. 2004).

Although Nahed Hanna did not sign the contract, that document

named her as a co-owner of the property. And as an undisputed fact, Nahed Hanna

actually is a co-owner of the property. As such, she is directly affected by the

contract and the claims in this suit. She clearly has an interest in her own home,

and omitting her from the litigation could impede her interest and subject Pickett &

Dunn to future liability for the same claims. Accordingly, we agree with Trial

Court that Nahed Hanna was an indispensable party, and her presence is necessary

to grant complete relief among parties already to the action. Rice v. Steele, 295

S.W.3d 453, 454-55 (Ky. App. 2009). No error occurred here on that issue.

Turning to the second issue of amending the complaint, the Hannas

argue that the Trial Court erred by denying their motion to add a claim for

constructive trust. On May 10, 2021, the Hannas had moved to file an amended

complaint naming Clarence Pickett and Mark Dunn, individually, as constructive

trustees of the assets of Pickett & Dunn. The Hannas argued that the Pickett and

Dunn individuals were liable as constructive trustees, having received the assets of

-7- the Pickett & Dunn company upon its dissolution in 2015 (seven years after the

2008 contract at issue here).

As a general rule, if a shareholder receives property from a dissolved

corporation, that shareholder is liable to any unpaid creditors of the dissolved

corporation to the extent of the property received. Bear, Inc. v. Smith, 303 S.W.3d

137, 146 (Ky. App. 2010) (citing Kentucky Revised Statutes (“KRS”) 271B.14-

060). However, the claims against the shareholder must be timely asserted. Id. at

147. Here, the Hannas were advised of the corporate dissolution in 2016, but did

not attempt to file their amended complaint until 2021. Furthermore, the Trial

Court’s pre-trial order, entered October 8, 2018, required filing of amended

pleadings on or before December 4, 2018, “with leave to file other pleadings only

for good cause shown.” The Hannas have not attempted to account for their years-

long tardiness or to show how their amended complaint would have been timely.

In addition, the Hannas fail to show any prejudice from the denial of

their motion to amend. The Trial Court entered a status quo order directing that

Pickett & Dunn would not dissipate its assets and would submit to further

discovery. The Hannas do not allege that the status quo order was violated.

Moreover, for the reasons discussed infra, any issue relating to their attempted

collection of a judgment is now moot.

-8- III. Partial Summary Judgment

The Hannas next argue that the Trial Court erred by granting partial

summary judgment on their breach of contract claims against Pickett & Dunn.

“The proper function of summary judgment is to terminate litigation when, as a

matter of law, it appears that it would be impossible for the respondent to produce

evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v.

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

stipulations, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” CR 56.03. The record must be viewed

in a light most favorable to the party opposing the motion for summary judgment

and all doubts are to be resolved in his favor. Steelvest, 807 S.W.2d at 480. The

Trial Court must examine the evidence, not to decide any issue of fact, but to

discover if a real issue exists. Id. Since a summary judgment involves no fact-

finding, this Court’s review is de novo, in the sense that we owe no deference to

the conclusions of the Trial Court. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.

App. 1996).

The Hannas assert that Pickett & Dunn was the first to breach the

contract by refusing to complete the contracted roofing work. Consequently, the

-9- Hannas contend that Pickett & Dunn should not be heard to complain based on

their subsequent breach. Mostert v. Mostert Grp., L.L.C., 606 S.W.3d 87, 94 (Ky.

2020) (citing Dalton v. Mullins, 293 S.W.2d 470, 476 (Ky. 1956)).

While the Hannas assert that Pickett & Dunn breached the agreement

first, there was no factual dispute that the contract required Nahed Hanna to select

a color for the turret roof. Until she did so, Pickett & Dunn could not complete the

work. However, Nahed Hanna refused to select a color, taking the position that the

Hannas were entitled to upgrade the roofing material to the more-expensive copper

material.

Nevertheless, the Hannas maintain that the Trial Court should have

allowed them to present extrinsic evidence regarding the roofing material. We

disagree. “In the absence of ambiguity[,] court[s] will interpret the contract’s

terms by assigning language its ordinary meaning and without resort to extrinsic

evidence. A contract is ambiguous if a reasonable person would find it susceptible

to different or inconsistent interpretations.” Id. at 92 (quoting Ky. Shakespeare

Festival, Inc. v. Dunaway, 490 S.W.3d 691, 694-95 (Ky. 2016)).

The parties agree that the December 12, 2008, revisions represent the

final, executed version of the contract. The contract clearly provided for Pickett &

Dunn to use 26-gauge standing seam metal on the turret. The Hannas fail to show

that the contract term was ambiguous or that they did or reasonably could have

-10- understood it to mean copper. Indeed, the evidence was uncontested that 26-gauge

standing seam metal does not include 16-ounce copper, which was required by

contract only in the valleys. Furthermore, Nahed Hanna testified in her deposition

that she did not understand the difference between 26-gauge standing seam metal

and copper, and perhaps not turrets and valleys either. The Hannas’ unilateral

misunderstanding, if it was one, cannot constitute a ground to find the clear

contract terms ambiguous. See Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d

699, 704 (Ky. 2006).

Likewise, there was no dispute that Pickett & Dunn could not

complete the roofing work until the Hannas selected a color for the turret. (They

had selected a color for the shingles, and Pickett & Dunn completed that part of the

work.) The Hannas refused, instead demanding a turret made of copper material

not provided in the contract. Thus, there was no genuine issue of material fact that

the Hannas first breached the contract. Consequently, the Trial Court properly

granted summary against the Hannas and for Pickett & Dunn on the breach of

contract claims. For the same reasons, we find no error in the portion of the

instructions advising the jury of these rulings.

IV. Denial of Motions for Directed Verdict/Judgment Notwithstanding the Verdict

The Hannas further argue that they were entitled to a directed verdict

or a judgment notwithstanding the verdict on their warranty claims against Pickett

-11- & Dunn. The same standard of review applies to both motions. Radioshack Corp.

v. ComSmart, Inc., 222 S.W.3d 256, 261 (Ky. App. 2007). A Trial Court may

direct a verdict on an issue when there is a “complete absence of proof on a

material issue or if no disputed issues of fact exist upon which reasonable minds

could differ.” Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). See also

CR 50.01. In making this determination, the Trial Court must “admit[] the truth of

all evidence which is favorable to the party against whom the motion is made.”

National Collegiate Athletic Ass’n by and Through Bellarmine College v.

Hornung, 754 S.W.2d 855, 860 (Ky. 1988). The Trial Court may not consider the

credibility or weight of the proffered evidence, because “if there is conflicting

evidence, it is the responsibility of the jury, the trier of fact, to resolve such

conflicts.” Daniels v. CDB Bell, L.L.C., 300 S.W.3d 204, 215 (Ky. App. 2009)

(citing Hornung, 754 S.W.2d at 860).

The Hannas point out that their experts identified nearly $18,000.00 in

deficiencies attributable to Pickett & Dunn’s installation of the roof. They also

contend that Pickett & Dunn’s experts did not significantly dispute this testimony.

But while Pickett & Dunn’s experts conceded that some of the work was

incomplete, they contend the lack of finish was caused by the Hannas’ breach.

Pickett & Dunn’s experts testified that Pickett & Dunn substantially

completed the shingle portion of the roof in a good and workmanlike manner.

-12- They also testified that other defects identified by the Hannas were not caused by

Pickett & Dunn, but by defective work by other contractors. The experts also

testified that the unfinished work could not have been completed before Pickett &

Dunn left the worksite. In other words, the expert testimony conflicted, and the

parties hotly contested the effect of the testimony on the warranty. Under the

circumstances, the Trial Court did not err by submitting the disputed warranty

issues to the jury to decide these matters of fact.

V. Evidentiary Issues

Finally, the Hannas raise several issues concerning the Trial Court’s

decisions to admit or exclude certain evidence. This Court reviews the Trial

Court’s evidentiary rulings for abuse of discretion. Goodyear Tire and Rubber Co.

v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is

whether the trial judge’s decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Id. at 581. More specifically, a 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 . . . cannot be located

within the range of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909,

915 n.11 (Ky. 2004).

-13- A. Exclusion of Expert Witness

In a matter related to the denial of their motion for a directed verdict,

the Hannas contend that the Trial Court improperly excluded the testimony of one

of their expert witnesses, Jared Stephenson. In 2021, the Hannas identified

Stephenson as a fact witness to identify leaks in the roof. The Trial Court excluded

his testimony due to the Hannas’ failure to comply with discovery orders. In the

same order, the Trial Court also denied Pickett & Dunn’s motion for an additional

inspection of the roof. Thereafter, in March of 2023 and shortly before the trial,

the Hannas filed a “motion to reconsider” to allow Stephenson to testify as an

expert witness. The Trial Court denied this motion, concluding that it was

untimely.

We find no abuse of discretion here. The exclusion of a witness may

be an appropriate consequence for failure to comply with pretrial orders. Peyton v.

Commonwealth, 253 S.W.3d 504, 512 (Ky. 2008). Furthermore, a Trial Court may

properly exclude expert testimony for failure to comply with the disclosure

requirements of CR 26.02(4). Clephas v. Garlock, Inc., 168 S.W.3d 389 (Ky. App.

2004). Under these circumstances, the Hannas make no showing that the Trial

Court’s exclusion of Stephenson constituted an abuse of its discretion to sanction

failures to comply with timelines and discovery.

-14- B. Testimony about other disputes involving the Hannas and other Contractors

Next, the Hannas argue that the Trial Court abused its discretion by

allowing testimony about disputes between the Hannas and other contractors who

worked on their home. Prior to trial, the Hannas filed a motion in limine to

exclude testimony from Pickett & Dunn’s witnesses on these matters. The Trial

Court granted the motion but noted that such evidence may be admissible for

impeachment purposes. During trial, Trial Court allowed Pickett & Dunn to

question Nahed Hanna about the Hannas’ lawsuits against another contractor. The

Hannas allege that the Trial Court improperly allowed Pickett & Dunn to violate

the pre-trial order and introduce prejudicial evidence suggesting that they were

litigious in matters involving construction of the house.

Under Kentucky Rule of Evidence 404(b), evidence of other wrongs

or acts is not admissible to prove the character of a person in order to show

conformity therewith, but it may be admissible if offered for another purpose. In

this case, the Hannas’ warranty claims challenged the workmanship of Pickett &

Dunn’s installation of the roof, causing various leaks. On cross-examination,

Pickett & Dunn asked Nahed Hanna about the Hannas’ litigation against other

contractors involving the same leaks. Thus, the Trial Court did not allow Pickett &

Dunn to ask these questions to impugn the Hannas’ character. Rather, the

-15- questions were relevant to impeach the Hannas’ allegations regarding the cause of

the leaks. Therefore, we find no abuse of discretion.

C. Exclusion of Photographic Evidence

Shortly before trial, Pickett & Dunn’s counsel objected to the Hannas’

introduction of photographs that George Hanna had taken during the construction

of the house. The Trial Court excluded the photos due to the Hannas’ failure to

disclose them during discovery. However, during trial, George Hanna testified that

he took the pictures. The Hannas’ counsel moved the Trial Court to reconsider its

prior ruling excluding the photos. Ultimately, the Trial Court allowed the Hannas

to introduce some but not all of the photos.

The Hannas maintain that the pre-trial ruling excluding all of the

photos and the trial ruling excluding some of the photos amounted to an abuse of

discretion. However, the Hannas fail to identify how they were prejudiced by the

exclusion of some of the photos. Indeed, the Trial Court allowed testimony about

them. In the absence of a showing that their substantial rights were prejudiced, the

abuse of discretion, if any, was harmless. Renot v. Secura Supreme Ins. Co., 671

S.W.3d 282, 288 (Ky. 2023) (citing Rossi v. CSX Transp., Inc., 357 S.W.3d 510,

515 (Ky. App. 2010)).

-16- D. Exclusion of Evidence of Pickett & Dunn’s Corporate Dissolution

In their final argument on appeal, the Hannas argue that the Trial

Court improperly excluded evidence of Pickett & Dunn’s corporate dissolution.

As discussed above, the Trial Court declined to allow the Hannas to file an

amended complaint to assert claims for a constructive trust based on these

circumstances. Moreover, the Hannas fail to show how this evidence would have

been relevant to any of the issues remaining for trial or that they were prejudiced

by its exclusion. Therefore, we find no abuse of discretion.

VI. Cross-Appeal

In its sole argument on cross-appeal, Pickett & Dunn argues that the

Trial Court erred when it failed to award attorneys’ fees and costs. The final

version of the contract executed in 2008 included a separate page that set forth the

payment schedule, as well as the following provision:

BY SIGNING THIS FORM YOU ALSO AGREE THAT IF PAYMENT IS NOT RECEIVED AS AGREED UPON, WE HAVE THE RIGHT TO USE ANY MEANS TO COLLECT PAYMENT. ANY EXPENSES INCURRED ATTORNEY FEES, COURT COSTS, ETC. WILL BE THE RESPONSIBILITY OF THE HOMEOWNER AND/OR PERSON(S) SIGNING ABOVE.

In its initial judgment following the jury verdict, the Trial Court found

that the contract provision for attorneys’ fees was clear and unambiguous. The

Trial Court further found that the Hannas breached the contract, and that they

-17- clearly owed the $30,000.00 unpaid balance. The Trial Court further noted that

KRS 411.195 authorizes the enforcement of contractual provisions for the

collection of attorneys’ fees, although the award of any amount of attorneys’ fees

is within the Trial Court’s discretion. The Trial Court concluded that “[t]he

amount of contractual attorney fees is reserved for decision.”

At the May 5, 2023, hearing, the Hannas extensively argued that the

fee provision was unenforceable because it was not properly incorporated by

reference into the contract. See Dixon v. Daymar Colleges Grp., L.L.C., 483

S.W.3d 332, 344 (Ky. 2015).1 They also argued that Pickett & Dunn failed to

comply with KRS 411.195 by establishing that it actually paid the fees to outside

counsel. In addition, the Hannas asserted that the fee provision was not triggered

due to Pickett & Dunn’s failure to complete the roofing work, and that the fees

sought by Pickett & Dunn were unreasonable insofar as they included amounts

expended for claims unrelated to the contract collection. The Trial Court’s May

23, 2023, Order summarily denied Pickett & Dunn’s motion for attorneys’ fees

without setting forth any reasons.2

1 In response, Pickett & Dunn argued that, even if the attorneys’ fee provision was not incorporated into the contract, the Hannas should be estopped from denying it because their breach of contract claims involved the same unsigned form. 2 The Trial Court’s May 23, 2023, Order incorporated many previous rulings made on the record. However, the Trial Court did not rule on the attorneys’ fee issue at any prior hearing.

-18- We recognize that, even when there is a contractual provision

authorizing an award of attorneys’ fees, such an award is largely within the

discretion of the Trial Court. Superior Steel, Inc. v. Ascent at Roebling’s Bridge,

L.L.C., 540 S.W.3d 770, 787 (Ky. 2017) (citing Woodall v. Grange Mut. Cas. Co.,

648 S.W.2d 871, 873 (Ky. 1983)). However, the Trial Court’s failure to make any

findings on this matter precludes any meaningful appellate review. We are unable

to determine whether the Trial Court based its conclusion on a proper application

of the law to the facts of this case. For instance, we do not know whether the Trial

Court concluded that the attorneys’ fee provision was not incorporated by

reference or whether the amount claimed was unreasonable. Under the

circumstances, we must remand the matter to the Trial Court for additional

findings of fact and conclusions of law supporting its decision regarding the

collection of contractually authorized attorneys’ fees.

VII. Conclusion

Accordingly, in Appeal No. 2023-CA-0708-MR, we affirm the

judgment and orders of the Fayette Circuit Court. In Appeal No. 2023-CA-0753-

MR, we reverse the post-judgment order of the Fayette Circuit Court denying

Pickett & Dunn’s motion for attorneys’ fees, and we remand for additional findings

of fact and conclusions of law to determine whether the contractual provision is

-19- enforceable and, if so, the amount of reasonable attorneys’ fees to which Pickett &

Dunn is entitled.

ALL CONCUR.

BRIEFS FOR BRIEFS FOR APPELLEE/CROSS- APPELLANTS/CROSS- APPELLANT: APPELLEES: Whitley Dunlap, III J. Ross Stinetorf Versailles, Kentucky Lexington, Kentucky Erin C. S. Izzo Lexington, Kentucky

-20-