Kevin Stich v. Dale Mattingly

• Court: Court of Appeals of Kentucky
• Decided: July 11, 2025
• Docket: 2024-CA-0797
• Status: Unpublished

Opinion

RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0797-MR

KEVIN STICH APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 20-CI-002044

DALE MATTINGLY; KEVIN M. DORAN; LEVEL UP FITNESS, LLC; MAKENZIE ACKERMANN; AND PAUL R. SCHURMAN, JR. APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.

COMBS, JUDGE: Kevin Stich appeals a supplemental judgment of the Jefferson

Circuit Court. That judgment was entered after the trial court had granted the

motion of Stich’s judgment creditor, Dale Mattingly, for additional attorney’s fees. Mattingly incurred the fees in connection with his attempt to enforce the court’s

original judgment.

Stich contends that the circuit court lacked jurisdiction to grant

Mattingly’s motion and -- furthermore -- that Mattingly failed to file the

appropriate “supplemental pleading.” In the alternative, Stich argues that the

circuit court erred by failing to apply a “lodestar” review of the fees sought. After

our review, we affirm.

This is the third appeal filed by Stich in the course of these

proceedings. The following facts are derived from the trial court’s record and from

our earlier decision in the parties’ first appeal to this Court, Stich v. Mattingly, 709

S.W.3d 277 (Ky. App. 2024), review denied (Apr. 16, 2025).

On March 20, 2020, Mattingly filed a civil action against Stich. In his

complaint, Mattingly alleged that Stich contracted with him to lease commercial

property in Louisville and that Stich breached that contract by failing to pay

Mattingly the consideration to which he was entitled. Stich was timely served with

Mattingly’s complaint, but he failed to answer or otherwise to enter an appearance.

Accordingly, Mattingly moved the circuit court for a default judgment. In its order

entered on April 28, 2020, the circuit court granted Mattingly’s motion for default

judgment with respect to liability and set a hearing to determine damages.

Although Mattingly appeared at the damages hearing and presented proof, neither

-2- Stich nor anyone acting on his behalf attended. On August 24, 2020, the circuit

court entered a judgment against Stich for “$73,458.74[,] plus court costs and

attorney’s fees in the amount of $910.00.”

On October 22, 2020, Mattingly filed a motion pursuant to the

provisions of KRS1 275.260 to be charged with Stich’s interest in seven separate

limited liability companies in order to satisfy the judgment. The trial court granted

Mattingly’s motion and entered a separate charging order for each of the seven

companies. Thereafter, with the assistance of counsel, Stich entered his

appearance. For the next several months, Mattingly unsuccessfully attempted to

collect on the judgment.

On June 15, 2022, pursuant to the provisions of KRS 275.260(4),

Mattingly moved the circuit court for foreclosure of Stich’s interest in one of the

limited liability companies by way of a judicial sale to be conducted by the Master

Commissioner at public auction. Stich did not object to the fact that Mattingly

could seek to foreclose on the charging order; however, he asserted that the only

interest subject to foreclosure was his right to receive distributions up to the

amount of the judgment and not his (Stich’s) entire interest in the company. The

circuit court observed that Stich was the sole member of the limited liability

company and concluded that his position was unsupported by applicable law.

1 Kentucky Revised Statutes.

-3- After the circuit court denied Stich’s motion to alter, amend, or vacate the

foreclosure order, he appealed to this Court. On appeal, we concluded that Stich’s

entire transferable interest in the company was subject to foreclosure -- not merely

his rights to distributions up to the amount of the judgment. In a decision rendered

in May 2024, we affirmed the circuit court’s foreclosure order. The Supreme

Court of Kentucky then denied discretionary review.

In August 2022, as a result of the protracted nature of the litigation,

Mattingly filed a motion for a supplemental judgment for the additional attorney’s

fees that he had incurred since the trial court’s original judgment of August 24,

2020. Stich objected, arguing that the court lacked jurisdiction. The circuit court

granted the motion, and in its order entered on December 13, 2022, concluded as

follows:

when additional litigation is necessary to collect the judgment, or when the prevailing party is required to expend additional sums to answer the multiple motions filed in an attempt to delay the proceedings, additional attorney’s fees may be awarded, and the Court has jurisdiction to do so.

As the basis for its conclusion, the circuit court relied on our decision in Louisville-

Jefferson County Metro Government v. Brooks, No. 2012-CA-001141-MR, 2013

WL 4512649 (Ky. App. Aug. 23, 2013). Noting that the parties’ agreement itself

provided for the payment of attorney’s fees upon default, the trial court ordered

Mattingly to supplement his motion by filing invoices setting forth the hourly rates

-4- and hours worked by counsel but excluding fees properly charged to the

foreclosure action handled by another division of the circuit court. Mattingly filed

the required supplemental materials on January 5, 2023.

On January 7, 2023, Stich filed a notice of appeal to this Court.

Proceedings in the circuit court ground to a halt -- with the circuit court not issuing

an order setting an amount for the attorney’s fee award. By our order entered on

June 30, 2023, the appeal was dismissed because Stich’s appeal had been taken

from an interlocutory order. The Supreme Court of Kentucky again declined

discretionary review.

On May 9, 2024, Mattingly filed another motion for supplemental

judgment. He now sought additional amounts for legal services incurred from

January 2023 forward. Again, Stich objected on procedural grounds.

By order entered on June 6, 2024, the circuit court concluded that

Mattingly was entitled to recover an additional $92,139.27 for his attorney’s fees;

$4,020.93 for costs incurred; and interest. The court observed that Stich had made

it “abundantly clear” that rather than pay the judgment which he never

challenged, he intended to “extract[] the maximum financial hardship on

[Mattingly] to his own detriment.” (Emphasis added.) It observed that Stich had

not challenged the reasonableness of the services rendered, “nor could [he], since

[Stich] unilaterally necessitated nearly all of them.” The court found specifically

-5- that the fees and costs incurred were both necessary and reasonable. This appeal

followed.

In this appeal, Stich argues first that the circuit court lost jurisdiction

to make an award for additional attorney’s fees because the judgment of August

24, 2020, became final before Mattingly filed his motion. Because jurisdiction is

an issue of law, we review the trial court’s holding de novo. Monin v. Monin, 156

S.W.3d 309 (Ky. App. 2004).

In his brief, Stich appears to concede that our caselaw holds that trial

courts retain supplemental judgment jurisdiction and that we have specifically

authorized awards of attorney’s fees and costs outside the ten-day period following

entry of judgment.

Mattingly cites our decision in Brooks, supra. In Brooks, Kelvin

Brooks and Donna Martin prevailed in their civil rights action against Louisville-

Jefferson County Metro Government. The litigation included two jury trials and

numerous appellate proceedings, and the attorney’s fees incurred were substantial.

Upon the motion of Brooks and Martin, the trial court amended its judgment

against the government to include $242,901 in attorney’s fees.

The government appealed from the amended judgment, and Brooks

and Martin cross-appealed. We affirmed the judgment in all respects except the

award of lost wages to Martin. We remanded the matter to the Jefferson Circuit

-6- Court, which rendered an order and supplemental judgment on July 15, 2011,

conforming to our opinion. The government tendered a check to Brooks and

Martin in the amount of $949,910, representing full satisfaction of the

supplemental judgment, including attorney’s fees. Brooks and Martin declined to

accept the payment as full satisfaction, claiming that they were also entitled to

post-judgment interest. Thereafter, the circuit court awarded post-judgment

interest at the rate of 12%.

Subsequently, Martin filed a motion to modify the amount of

attorney’s fees set out in the 2011 order and supplemental judgment to include

attorney’s fees incurred in preparation for the second appeal. The government

responded and argued that the circuit court had lost jurisdiction to amend the

supplemental judgment because the motion to modify the attorney’s fees award

was filed more than 10 days after entry of the judgment. (During the pendency of

the motion, the government filed a notice of appeal. As a basis for the appeal, the

government argued that the circuit court erred in awarding 12% interest.

Ultimately, we affirmed the supplemental judgment.)

On June 4, 2012, the Jefferson Circuit Court rendered an order

granting Martin’s renewed motion for additional attorney’s fees in the amount of

$29,750. The order contained a handwritten notation that “hearing [was]

conducted [on] Oct. 25, 2011.” The government appealed.

-7- In a fourth appeal, the government argued that the Jefferson Circuit

Court erred by granting Martin’s motion for additional attorney’s fees in the

amount of $29,750 for work performed by Martin’s counsel in preparation for the

second appeal. The government noted that the final order and supplemental

judgment had been entered on July 15, 2011, and that our rules of civil procedure

required all motions to amend the judgment to be filed within ten days. It argued

that the circuit court had lost jurisdiction over the action before Martin moved for

an award of additional attorney’s fees because its supplemental judgment left

nothing for later adjudication, becoming final as a matter of law.

We referred to our rules of civil procedure providing that a motion to

alter, amend, or vacate a judgment must be served not later than ten days after

entry of judgment. We observed that this rule was derived from the broader

common law recognizing that a court ultimately loses jurisdiction following its

judgment. However, we noted exceptions to the rule of finality. For instance, we

observed that the Kentucky Supreme Court recognized that the procedural rule

depriving the trial court of jurisdiction to amend its final judgment more than 10

days after the judgment did not deprive the trial court of jurisdiction to render a

supplemental judgment awarding costs. Brett v. Isaac, No. 2008-SC-000712-MR,

2009 WL 2707092 (Ky. 2009).

-8- In Brett, the Supreme Court of Kentucky noted that our finality rule

deprives trial courts of jurisdiction to make new findings after ten days. While the

Court agreed that the rule is clear that a trial court loses jurisdiction to amend its

final judgment ten days after the final judgment was entered, the rule is “not to be

read to deprive a trial court of all jurisdiction.” Id. at *2. The Court observed that

the provisions of CR2 60.01 allow courts to correct clerical mistakes anytime; that

the provisions of CR 60.02 allow newly discovered evidence to be considered one

year after a final judgment; and that fraud, “or any other reason of an extraordinary

nature justifying relief,” may be considered within a reasonable time after entry of

judgment. Id.

We also noted in Brooks, supra, that years after Brett was decided, we

applied its rationale to decide Nationwide Insurance Company v. Madison, No.

2011-CA-001614-MR, 2012 WL 6213794 (Ky. App. Dec. 14, 2012). In Madison,

we specifically concluded that “awarding attorneys’ fees and costs . . . more than

ten days after entry of the judgment is permissible . . . .” Id. at *3.

Relying upon these cases for guidance, we affirmed the supplemental

judgment of the Jefferson Circuit Court in Brooks because we concluded that the

court retained authority to award costs and fees beyond the ten days after which it

otherwise lost jurisdiction to amend the judgment, to order a new trial, or to vacate

2 Kentucky Rules of Civil Procedure.

-9- its judgment. Separately, we held that the trial court did not abuse its discretion by

awarding the additional attorney’s fees incurred as a result of the government’s

decision to appeal.

The same analysis applies here. The Jefferson Circuit Court did not

lack jurisdiction to entertain Mattingly’s motion for additional attorney’s fees

incurred as a consequence of his attempts to enforce the court’s judgment against

Stich. In conjunction with this argument, Stich contends that Mattingly was

required to do more than to file a motion in order to invoke the trial court’s

jurisdiction to decide whether an additional award of attorney’s fees was

warranted. Stich claims that Mattingly was required to file a formal pleading

instead. In light of the caselaw discussed above, this argument has no basis,

relevance, or application.

Next, Stich contends that the trial court erred by failing to use the

“lodestar” approach to compute the value of an award of attorney’s fees. In

support, he cites caselaw related to the computation of awards of attorney’s fees

authorized by statute. However, in this case, the parties had agreed through a

specific contractual provision to allow for recovery of attorney’s fees.

Consequently, this award of attorney’s fees was subject to the sound discretion of

the trial court, and it will not be disturbed “[a]bsent a showing of an abuse of that

discretion[.]” Woodall v. Grange Mut. Cas. Co., 648 S.W.2d 871, 873 (Ky. 1983).

-10- “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)).

The trial court’s award was based upon the number of hours

reasonably expended on the litigation multiplied by a reasonable hourly rate. The

numerous supporting invoices were detailed. Nothing about the court’s award of

additional attorney’s fees appears arbitrary, unreasonable, unfair, or unsupported

by sound legal principles.

Therefore, we affirm the supplemental judgment of the Jefferson

Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DALE MATTINGLY: Harry B. O’Donnell IV Louisville, Kentucky Paul R. Schurman, Jr. Makenzie Ackermann Louisville, Kentucky

-11-