Ontrac, Inc. D/B/A Blitz Builders, Inc v. James Ivy

• Court: Court of Appeals of Kentucky
• Decided: April 24, 2026
• Docket: 2024-CA-1344
• Status: Published

Opinion

RENDERED: APRIL 24, 2026; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1275-MR

JAMES IVY APPELLANT

APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE MELANIE BRUMMER, JUDGE ACTION NO. 19-CI-00055

ONTRAC, INC. D/B/A BLITZ BUILDERS, INC. APPELLEE

AND

NO. 2024-CA-1344-MR

ONTRAC, INC. D/B/A BLITZ BUILDERS, INC. CROSS-APPELLANT

CROSS-APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE MELANIE BRUMMER, JUDGE ACTION NO. 19-CI-00055

JAMES IVY CROSS-APPELLEE

NO. 2025-CA-0429-MR JAMES IVY APPELLANT

APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE MELANIE BRUMMER, JUDGE ACTION NO. 19-CI-00055

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

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

ECKERLE, JUDGE: This appeal concerns both parties’ entitlement to attorneys’

fees. Appellant/Cross-Appellee, James Ivy (“Owner”), challenges the Shelby

Circuit Court’s Opinion and Order denying his motion for attorneys’ fees and

granting the motion of Appellee/Cross-Appellant, Ontrac, Inc. d/b/a Blitz Builders,

Inc. (“Builder”), for entitlement to attorneys’ fees. Builder’s cross-appeal alleges

that the Trial Court should have awarded it attorneys’ fees in a greater amount.

Finally, Owner challenges Builder’s non-wage garnishment against a joint account

that Owner shares with his spouse, arguing that certain retirement funds deposited

in the account are statutorily exempt.

-2- This Court, having been fully briefed on the matter, hearing oral

arguments on April 7, 2026, and carefully considering the merits, hereby affirms

the Shelby Circuit Court’s Opinion and Order in part, reverses it in part, and

remands with further instructions. Regarding Owner’s appeal, this Court holds the

following: (1) Owner’s underlying lawsuit triggered the unilateral, fee provision

contained within the parties’ building contract; (2) that provision is not

unconscionable or in contravention of public policy; and (3) Owner is not entitled

to recover attorneys’ fees as a matter of equity. This Court further holds, in review

of Builder’s cross-appeal, that the Trial Court erred in calculating the amount

awarded to Builder for its reasonable attorneys’ fees. Regarding Owner’s separate

appeal of the garnishment of his joint account, this Court affirms the Order

upholding the garnishment and denying the application of an exemption regarding

commingled funds held in a joint bank account.

FACTUAL AND PROCEDURAL BACKGROUND

In September of 2018, Owner contracted with Builder for the

construction of a pole barn on Owner’s property. The contract, titled “Building

Purchase Agreement Terms and Conditions” (the “Contract”), identified the

dimensions and specifications of the barn with a purchase price of $49,860.00.

The Contract required Builder to construct the barn in a workmanlike manner.

-3- Central to this appeal and cross-appeal is the attorneys’ fees provision (the “Fee

Provision”) located in section 13 of the Contract, which reads as follows:

If the [Builder] is required to employ an attorney to enforce the provisions of this [Contract] or any of its rights hereunder, the [Builder] shall have the right to receive from the [Owner] all costs and expenses including reasonable attorneys’ fees incurred, whether such action results in litigation or not.

Trial Record (“TR”), p. 299.

Less than one month into construction, Owner experienced problems

with Builder’s erection of the barn. Specifically, among other issues, Owner

reported to Builder that it framed an eight-by-10-foot overhead door in an incorrect

location and failed to deliver or install the door. Owner also reported that Builder

failed to deliver or install a 12-by-10-foot overhead door. Owner eventually

provided Builder with a “punch list” of 23 items in need of delivery, correction,

repair, or replacement. Builder argued that it repaired, replaced, or installed the

identified items, or was willing to do so but Owner would not allow Builder on the

property.

During the course of construction, Owner remitted payments to

Builder totaling $52,065.00. This amount represented the contractual price, along

with post-contractual costs for materials. On February 4, 2019, Owner filed suit

against Builder in the Shelby Circuit Court alleging damages totaling $46,712.32.

Owner did not plead specific counts or causes of action. Instead, Owner claimed

-4- that Builder breached the terms of Contract by providing negligent and defective

work and by breaching Builder’s warranty. In review of Owner’s complaint, we

surmise that while Owner averred that Builder breached the Contract in numerous

ways, he categorized his breach of contract causes of action into two counts.

First, Builder allegedly breached the contract by performing work in a

defective and negligent manner through the following acts and omissions: “doors

were put in incorrect location or were not installed at all; posts are slit, posts are

incorrectly located, screws and bent metal need to be replace [sic], trash not picked

up, posts not set to grade, additional rock charges and other incorrect items.” TR,

p. 4. Owner also alleged that Builder’s unworkmanlike construction amounted to a

material breach of the Contract, resulting in $45,000.00 in damages. Second,

Owner alleged that Builder materially breached the Contract by failing to provide

the following items necessary for completion of the work: “diesel fuel, use of

ATV, dozer use, hauling dirt, and personal time of the [Owner], and other items.”

TR, p. 4. For this count, Owner sought damages in the amount of $1,712.32.

Owner’s complaint also alleged that Builder was in breach of

warranty, and that Builder committed fraud by failing to obtain a residential

building permit. In addition to the above-listed compensatory damages, Owner’s

complaint sought punitive damages and an award of attorneys’ fees and costs.

-5- Builder subsequently filed its answer and asserted a counterclaim

against Owner. It asserted defamation, libel, and intentional interference with

Builder’s contracts.

On August 28, 2023, and through August 30, 2023, the case

proceeded to a jury trial. Evidence consisted of, among other things, the Contract,

payments that Owner made to Builder, lay and expert testimony regarding the

alleged deficiencies or missing components, and communications between the

parties. Builder did not present any evidence supporting its counterclaim.

Accordingly, and at the conclusion of evidence, the Trial Court granted Owner’s

motion for a directed verdict as to Builder’s claims.

The Trial Court instructed the jury on the definition of “good

workmanlike manner,” which it defined as “construction performed as a reasonable

builder of pole barns would perform under the same or similar circumstances for

the building of the pole barn about which you have heard evidence.” TR, pp. 455-

56. The Trial Court then provided the jury with two instructions. “Instruction No.

1” asked whether Builder breached its duty under the Contract to build the barn in

a good and workmanlike manner, free of defects, and in conformity with the

specifications of the Contract. This Instruction also requested that the jury exclude

from its award amounts that Owner could have mitigated with the exercise of

ordinary care after learning of the defects. “Instruction No. 2” explained to the

-6- jury that should it find that Owner prohibited Builder from making repairs or

installations, it “should find in favor of the [Builder] and exclude those items from

[the] award.”

The jury returned a verdict finding in favor of Owner on Instruction

No. 1., that Builder failed to fulfill its obligations under the Contract in a good and

workmanlike manner, free of defects, and in accordance with the Contract. The

jury awarded Owner $9,840.00 in damages. The jury answered “No” to

Interrogatory No. 4, which asked if the evidence demonstrated that the Builder had

an obligation to reimburse Owner for its use of his diesel fuel, ATV, dozer, and for

Owner’s hauling of dirt. Both parties appear to agree with the Trial Court’s

conclusion, discussed below, that the jury award equates to the amount of two

overhead doors that Builder failed to deliver and install.

Subsequent to the jury’s verdict, Owner filed a motion to recover his

attorneys’ fees and costs in the amount of $29,800.00. Owner’s claim for

entitlement to attorneys’ fees was based entirely on the Fee Provision. Owner did

not specifically concede that the Contract is silent as to his alleged entitlement to

attorneys’ fees, but he nonetheless argued that the Trial Court is required under

Kentucky law to construe the Fee Provision as reciprocal.

In turn, Builder not only objected to Owner’s motion, but also filed a

cross-motion for attorneys’ fees pursuant to the Fee Provision in the amount of

-7- $61,588.75. Builder additionally cited Kentucky Revised Statute (“KRS”) 411.195

as authorizing an award of attorneys’ fees. Builder’s motion supplied the Trial

Court with a supporting affidavit from its trial counsel, Gregg Y. Neal (“Neal”). In

his affidavit, Neal attested to incurring attorneys’ fees in the amount of $61,588.75.

Neal attached to his affidavit a one-page “Billing history report” listing invoice

numbers, the date of the invoice, the total amount billed, Builder’s payments of the

invoice, and the remaining balance. The Billing history report did not specify the

amount of hours Neal expended, the work completed, or his hourly rate.

By order dated May 1, 2024, the Trial Court issued the Opinion and

Order subject to this appeal. The Trial Court granted Builder’s motion for

attorneys’ fees and denied Owner’s motion for attorneys’ fees. First, the Trial

Court concluded that the Fee Provision’s clear language provided Builder with a

unilateral right to recover attorneys’ fees, which was enforceable as it did not

violate public policy or judicial precedent. Second, the Trial Court determined that

the Fee Provision’s language did not entitle Owner to attorneys’ fees as there was

no language to that effect. The Trial Court rejected Owner’s notion that it is

required to interpret the Fee Provision in a reciprocal manner absent any authority

to the contrary.

Third, the Trial Court analyzed the reasonableness of Builder’s

requested attorneys’ fees. The Trial Court acknowledged that the Fee Provision

-8- afforded Builder its reasonably incurred attorneys’ fees. But it encountered

difficulty squaring the reasonableness of Builder’s fee request when compared to

the amount of fees that Owner’s trial counsel sought for the same work. Builder,

through Neal’s claimed fees, sought more than twice the amount than Owner.

Ultimately, the Trial Court concluded that Builder’s claim of attorneys’ fees was

unreasonable.

The Trial Court interpreted the Fee Provision’s use of the term

“reasonable attorneys’ fees,” as requiring a calculation of fees based on the factors

described in the Rules of the Supreme Court (“SCR”) 3.130(1.5). The Trial Court

placed great emphasis on the first factor that weighs “the time and labor required,

the novelty and difficulty of the questions involved, and the skill requisite to

perform the legal service properly; which evaluates the time and labor required of

counsel.” SCR 3.130(1.5)(a)(1). In evaluating the reasonable time necessary in

defense of the action, the Trial Court described Neal’s Affidavit as “completely

redacted in specifying the amount of time and specific tasks/labor completed[,]”

including time “preparing three times for expert testimony (twice for the same

expert that did not appear, and for expert Botner), work preparing for trial, and the

three-day trial that he alleges had, ‘numerous claims[.]’” TR, p. 503.

Notwithstanding the lack of supporting information, the Trial Court

bestowed Builder leeway and authenticated the amount of time that Neal

-9- expended, per his invoice, for the three-day jury trial. The Trial Court did not

explicitly identify the amount of hours that Neal expended during the trial or his

hourly rate. The Trial Court then attempted to evaluate the reasonableness of

Neal’s claimed jury trial fees by comparing said fees with the total amount of fees

requested from Owner’s trial counsel in the amount of $28,931.25, less than one-

half of what Neal requested. The Trial Court noted that both trial attorneys

practiced in the same area and had similar experience. Without expounding on its

calculation, the Trial Court ruled the following: “Based upon the scant evidence

provided to justify [Neal’s] fee and in recognition of the amount claimed by

[Owner’s trial counsel] for litigating the entire case, this Court awards [Builder]

$30,794.38 on its claim for reasonable attorneys’ fees pursuant to [the Contract].”

TR, p. 503. This amount represents exactly half of the $61,588.75 that Builder

claimed as attorneys’ fees.

Owner subsequently filed a motion to reconsider, alter, amend, or

vacate the Trial Court’s Opinion and Order. Owner argued that the litigation did

not trigger the Fee Provision given that Builder was not required to “enforce the

provisions of the [contract] or any of its rights [there]in.” Said differently, Owner

asserted that Builder’s defense of the action did not qualify as “asserting any of its

rights” under the Contract. Owner also argued that the Trial Court’s fee award

-10- directly contravened public policy, as Builder did not initiate suit, bring any

counterclaims against Owner under the Contract, or become the prevailing party.

On September 20, 2024, the Trial Court denied Owner’s motion. The

Trial Court reasoned that Builder incurred attorneys’ fees to defend Owner’s

lawsuit, thereby falling within the Fee Provision. The Trial Court concluded that

while Owner had already paid the contractual purchase price of the barn, Builder

was forced to employ an attorney to prevent Owner from recouping those funds,

which constituted an act of enforcement of Builder’s rights under the Contract.

On October 28, 2024, Builder filed an affidavit for non-wage

garnishment against Owner, seeking the $30,794.38 in awarded attorneys’ fees

from a joint bank account held by Owner and his spouse. Owner challenged the

garnishment, alleging that KRS 161.700 and 427.150 exempt from garnishment

monthly pension benefits payable to Owner’s spouse from the Kentucky Teachers’

Retirement System (“TRS”), which are deposited and held in the joint account. On

January 28, 2025, the Trial Court denied Owner’s challenge to the non-wage

garnishment, holding that retirement benefits, once paid out to the beneficiary, are

not exempt from garnishment. Owner filed a motion to reconsider, which the Trial

Court also denied.

Thereafter, Owner appealed to this Court challenging the Trial Court’s

Opinion and Order awarding Builder attorneys’ fees, in addition to its denial of

-11- Owner’s motion for fees. Builder filed a cross-appeal contesting the amount of the

attorneys’ fee award. Subsequently, Owner appealed the Trial Court’s Opinion

and Order denying his challenge to Builder’s garnishment. Neither party appeals

the jury’s verdict as to liability or damages.

STANDARD OF REVIEW

This Court applies an abuse of discretion standard of review to claims

of error concerning a Trial Court’s award of attorneys’ fees. Banker v. University

of Louisville Athletic Ass’n, Inc., 466 S.W.3d 456, 465 (Ky. 2015). Thus, we will

not disturb a Trial Court’s decision unless it was “arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.

Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Furthermore, “[t]he interpretation of a

contract, including determining whether a contract is ambiguous, is a question of

law for the courts and is subject to de novo review.” 3D Enterprises Contracting

Corp. v. Louisville and Jefferson County Metropolitan Sewer District, 174 S.W.3d

440, 448 (Ky. 2005) (citing Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94

S.W.3d 381, 384 (Ky. App. 2002)). Finally, the Trial Court’s “interpretation of a

garnishment or exemption statute is, of course, a question of law . . . [and] [t]his

Court reviews the trial court’s legal conclusions de novo.” Brown v.

Commonwealth, ex rel Nat. Resources and Env’t Prot. Cab., 40 S.W.3d 873, 875

-12- (Ky. 1999) (citing Louisville and Nashville Railroad Co. v. Commonwealth, ex rel

Kentucky Railroad Comm’n, 314 S.W.2d 940, 943 (Ky. 1958)).

ANALYSIS

I. Owner’s Appeal

A. Kentucky Rules of Appellate Procedure

It is incumbent upon this Court to recognize and discuss Owner’s

violations of Kentucky Rule of Appellate Procedure (“RAP”) 32(A)(4).

Specifically, Owner failed to provide proper and conforming preservation

statements. Owner provided generalized statements that he preserved the below

arguments within his motion for attorneys’ fees and subsequent motion to alter,

amend, or vacate the Trial Court’s Opinion and Order. However, this Court was

required to comb these motions to identify Owner’s arguments, or lack thereof.

Having determined that Owner violated RAP 32(A)(4), this Court may proceed as

follows: (1) ignore the deficiency and proceed with review; (2) strike the brief or

its offending portions; or (3) review the issues raised for manifest injustice only.

Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). This Court opts to ignore

the deficiency and proceed with reviewing the appeal on the merits. However, we

caution appellate counsel that future violations will not be met with such tolerance.

Furthermore, this Court’s leniency in this instance shall not be utilized as

precedential authority.

-13- B. Builder’s Entitlement to Attorneys’ Fees

Owner’s first allegation of error is that the Trial Court abused its

discretion in awarding Builder attorneys’ fees at all. Owner contends that the Fee

Provision was not triggered by the underlying litigation, and Builder is therefore

not entitled to recover any attorneys’ fees. In the alternative, Owner requests that

this Court set aside the Fee Provision as unconscionable or against public policy.

1. Application of the Fee Provision

Kentucky adheres to the “American rule,” which permits a party to

recover attorneys’ fees where specifically authorized by statute or contract.

Superior Steel, Inc. v. Ascent at Roebling’s Bridge, L.L.C., 540 S.W.3d 770, 787

(Ky. 2017). Indeed, it is well-established law that absent a statute or contract

expressly providing for such awards, each party generally bears its own fees and

costs of litigation, notwithstanding equitable exceptions. E.g., Bell v.

Commonwealth, 423 S.W.3d 742 (Ky. 2014). In the present appeal, Builder

asserted entitlement to attorneys’ fees pursuant to the Fee Provision of the

Contract, as well as pursuant to KRS 411.195.

We first address Builder’s contractual entitlement to attorneys’ fees

pursuant the Fee Provision with our de novo standard of review in mind. See

Rumpel v. Rumpel, 438 S.W.3d 354, 360 (Ky. 2014). The Fee Provision states as

follows:

-14- If the [Builder] is required to employ an attorney to enforce the provisions of this [Contract] or any of its rights hereunder, the [Builder] shall have the right to receive from the [Owner] all costs and expenses including reasonable attorneys’ fees incurred, whether such action results in litigation or not.”

(Emphasis added.) The language of the Fee Provision is clear. We ascertain no

ambiguity. See Hazard Coal Corp. v. Knight, 325 S.W.3d 290, 298 (Ky. 2010)

(“A contract is ambiguous if a reasonable person would find it susceptible to

different or inconsistent interpretations.”). The Fee Provision is unilateral and

precisely provides that only Builder may obtain reasonable attorneys’ fees if

required to employ counsel to enforce the Contract and its rights thereunder. “‘In

the absence of ambiguity, a written instrument will be enforced strictly according

to its terms,’ and a court will interpret the contract’s terms by assigning language

its ordinary meaning and without resort to extrinsic evidence.” Kentucky

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

Wehr Constructors, Inc. v. Assurance Co. of America, 384 S.W.3d 680, 687 (Ky.

2012)).

Owner submits that the Fee Provision remained untriggered because

Owner paid Builder the full contractual amount owed prior to the commencement

of the underlying lawsuit, and Builder was not forced to commence its own suit for

relief. However, Builder’s retainment of counsel and payment of attorneys’ fees

were in direct defense of Owner’s lawsuit. Builder’s defense of the underlying

-15- action can only legitimately be characterized as protecting its right to Owner’s full

payment under the Contract. While Builder and the Trial Court utilize the term

“offsets,” in describing Builder’s right to retain Owner’s full contractual payment,

there should be no confusion that Builder retained counsel to prevent a judgment

requiring it to return payments to Owner. Stated another way, Owner commenced

the underlying litigation to recoup monies that he had paid to Builder pursuant to

the Contract, and this very case potentially exposed Builder to liability in the form

of compensatory damages. Therefore, we find no error in the Trial Court’s

interpretation of the Fee Provision, including its triggering event, which occurred

when Builder was required to employ counsel to enforce its right to retain the

monies Owner remitted Builder pursuant to the Contract. The language of the

Contract does not restrict Builder to recovery exclusively when it initiates, versus

defends, suit as to the enforcement of its terms. Nor would it make sense to do so,

as the claims and counterclaims in the case sub judice make clear.

Notwithstanding the above analysis, this Court briefly addresses the

non-binding cases on which Owner relies in asserting his argument that the Fee

Provision was not triggered. In the first case, LJM 12, L.L.C. v. H.C. Truitt Co.,

this Court issued an unpublished opinion holding that the appellee, a roofing

company, “fully performed the contract [the appellant] agreed to, thereby creating

a debt owed by [the appellant] to [the appellee].” No. 2009-CA-000968-MR, 2010

-16- WL 4860375, at *3 (Ky. App. Nov. 12, 2010). Invoking the statutory authority

provided by KRS 411.195,1 we held that the roofing company was entitled to

reasonable attorneys’ fees for its action to collect the debt. Id. Owner misreads

our non-binding holding in LJM 12 for the proposition that a contractual attorneys’

fees clause is only enforceable to recover unpaid moneys, debts, or a lien on real

property as permitted under KRS 411.195. This interpretation is simply not

supported by our decision, which considered the discrete question of whether the

roofing contract’s specific attorneys’ fees clause was valid. 2010 WL 4860375, at

*1. The explicit language of that provision stated that attorneys’ fees would be

awarded “if it should be necessary to pursue legal action to secure payment.” Id.

The Fee Provision that Owner signed, which by its express terms does not even

require litigation to collect, is clearly distinguishable. Moreover, our holding in

LJM 12 supports our finding, infra, that a unilateral attorneys’ fees provision is not

contrary to public policy and is enforceable. Id.

Owner next cities to Heartland Materials, Inc. v. Warren Paving, Inc.,

in which the Federal District Court enforced a reciprocal attorneys’ fees provision

that only applied in the event of a breach of contract, with its analysis simply

1 KRS 411.195, titled “Enforceability of written agreement to pay attorney fees in event of default,” states the following: “Any provisions in a writing which create a debt, or create a lien on real property, requiring the debtor, obligor, lienor or mortgagor to pay reasonable attorney fees . . . in the event of default, shall be enforceable . . . .”

-17- identifying the date of the contractual breach. 384 F. Supp. 3d 786, 792 (W.D. Ky.

2019).2 Once again, the facts are distinguishable from the bargained-for and

explicit Fee Provision in this case. At most, the Heartland Materials decision

suggests that Owner could have bargained for more favorable contractual

language, which he intentionally chose to refrain from doing. And of course, the

Fee Provision here, as stated supra, does not require litigation, but rather simply

the employment of counsel. Furthermore, the Fee Provision is not limited to

breach of contract claims; and Owner did not limit himself to a claim for breach.

He also sued upon theories of breach of warranty, negligence, and fraud, and he

sought both compensatory and punitive damages. Thus, his cited caselaw for

breach of contract is not controlling. Therefore, for all of these reasons, Owner has

failed to provide sufficient support opposing our affirmance of the Trial Court’s

conclusion that Builder incurred attorneys’ fees to enforce its rights under the

contract and, in so doing, triggered the application of the Fee Provision.

Although the following issue is now superfluous, given our analysis

supra, Builder also sought to apply KRS 411.195 as an alternative basis for

recouping attorneys’ fees. This Court finds no need to extend this statutory

2 Owner also cites a prior unpublished federal decision relating to the same contractual dispute, which does not implicate attorneys’ fees and is otherwise devoid of any analysis pertinent to the issue sub judice. See Warren Paving, Inc. v. Heartland Materials, Inc., No. 5:14-CV-149-TBR, 2015 WL 269204, at *5 (W.D. Ky. Jan. 21, 2015).

-18- provision to the appeal sub judice. Builder maintained adequate grounds to recoup

attorneys’ fees from the Contract itself. Further consideration of the application of

KRS 411.195 is unnecessary, especially given that Owner submitted to Builder the

entirety of the contractual amount owed, and Owner raises credible questions as to

the statute’s application where, as here, Owner is not in default. Nevertheless, we

note that the Contract certainly created a debt for the construction of the barn. This

Court has found far fewer “writings” as creating a debt. See, e.g., Haney v. Stykes,

688 S.W.3d 561, 564, 568 (Ky. App. 2023) (invoices for tax preparation “created a

debt for services performed”). Further, Owner’s action to recoup money owed

under the Contract can, by way of logic, implicate the default requirement

espoused in KRS 411.195. For example, had Owner refused to supply full

payment for the completed barn and withheld payments pending resolution of the

dispute, as opposed to providing full payment and then suing to recoup those

payments, then KRS 411.195 would likely apply. However, we need not delve

into the nuances of KRS 411.195 or its applicability to the appeal before us, as the

Contract plainly provides for Builder’s right to recover attorneys’ fees. There is

simply no need for this Court to supply unnecessary obiter dictum by relying on

statutory authority to enforce the Fee Provision.

Having no need to construe the Fee Provision beyond its clear

language, we find no error in the Trial Court’s application of the Fee Provision in

-19- awarding Builder attorneys’ fees. Owner is obligated to pay Builder’s attorneys’

fees based upon the Contract as a matter of law. Therefore, we turn to the next

issue on appeal, namely, whether the Trial Court abused its discretion in

concluding the Fee Provision is not contrary to public policy or unconscionable.

2. Public Policy

Controlling law provides Trial Courts with authority to refrain from

enforcement of contacts that are in violation of public policy. State Farm Mut.

Auto. Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 879-80 (Ky. 2013) (“It is, of

course, a well-settled principle of general contract law that courts are not to

enforce contracts in contravention of public policy.”); see also City of Hazard

Municipal Housing Commission v. Hinch, 411 S.W.2d 686, 689 (Ky. 1967) (“A

contract for exemption from liability for negligence is generally void and

unenforceable if it is violative of the law or contrary to some rule of public

policy.”). Public policy “is not simply something courts establish from general

considerations of supposed public interest, but rather something that must be found

clearly expressed in the applicable law.” Kentucky Farm. Bureau Mut. Ins. Co. v.

Thompson, 1 S.W.2d 475, 476-77 (Ky. 1999). For instance, in Hodgkiss-Warrick,

our Supreme Court identified “a broad and seemingly broadening public policy

against household or family exclusions from liability coverage. . . .” 413 S.W.3d

-20- at 883. Yet, the Court enforced the contract at odds with this public policy,

holding that such a “mandate must come from the General Assembly.” Id. at 886.

In the appeal at hand, Owner contends that a unilateral attorneys’ fees

provision is against public policy unless it is interpreted as reciprocal. Owner fails

to identify any expressed public policy to that effect. Unlike several other states,

Kentucky has not promulgated legislation superseding a unilateral contractual fee

provision. See Cal. Civ. Code § 1717; Wash. Rev. Code § 4.84.330; Fla. Stat.

Ann. § 57.105(7). The only public policy germane to this issue that this Court can

identify is KRS 411.195, which this Court briefly discussed above. Again, KRS

411.195 authorizes enforcement of attorneys’ fees provisions in written

instruments evidencing a debt or a lien. Thus, if anything, Kentucky’s public

policy appears to support one-way contractual provisions providing for attorneys’

fees. Similarly, the Commonwealth has an important public policy of encouraging

“contracts voluntarily made between competent persons[,]” which “are not to be

set aside lightly . . . [as] the right of private contract is no small part of the liberty

of the citizen[.]” Zeitz v. Foley, 264 S.W.2d 267, 268 (Ky. 1954).

The Trial Court’s Opinion and Order cited an unpublished case from

the United States Eastern District of Kentucky and held that a contractual,

unilateral attorneys’ fees provision that is voluntarily entered into between two

competent persons cannot be set aside absent “a clear and certain statement of

-21- strong public policy in controlling laws or judicial precedent.” Vasquez v. Paso

Fino Horse Ass’n Inc., No. CV 5:18-366-DCR, 2019 WL 3842863, at *3 (E.D. Ky.

Aug. 14, 2019) (quoting Hodgkiss-Warrick, 413 S.W.3d at 880). While not

controlling, the District Court in Vasquez applied Kentucky authority, and Owner

has failed to present a persuasive reason to deviate from the Trial Court’s reliance

thereon. Moreover, considering that we are unconstrained by a specific public

policy here, we find that the Trial Court ruled within the bounds of its discretion in

enforcing the clearly-articulated Fee Provision.

Owner creatively posits that this Court should set its own public

policy standards under the guise of this issue being one of first impression. Yet,

Owner mischaracterizes the issue as whether a unilateral fee provision is in

contravention of public policy where the allegedly non-prevailing party, who did

not bring forth suit, is awarded fees pursuant to said provision. Owner’s factual

framing of the issue is debatable. We agree with the Trial Court that Owner is not

necessarily the prevailing party in this situation. Owner may have procedurally

prevailed in the fact that the jury found Builder breached the Contract, but Builder

successfully defended against the majority of Owner’s claimed damages. As the

Trial Court explained, Builder remained in the same position regarding payment

under the Contract and did not suffer a net loss from the jury’s determination of

damages. Indeed, the jury awarded Owner damages in the amount of the garage

-22- door, which Builder “was not allowed to deliver to [Owner] under the terms of the

contract . . . [because Owner] would not let [Builder] on his property after growing

frustrated . . . .” Id. Significantly, Builder was already in receipt of the fair market

value of the garage door, and it suffered no damages based on the amount that the

jury awarded Owner.

Importantly, besides the costs of the overhead doors, the jury did not

award Owner any other damages for Builder’s alleged contractual breach of

contract. Therefore, the jury rejected Owner’s other claims of damages concerning

the workmanlike condition of the barn. As a result, Builder may be classified as

the prevailing party considering that its counsel successfully defended against

Owner’s claims, resulting in a verdict imposing a zero-net loss upon Builder

despite its facing compensatory damages, punitive damages, and attorneys’ fees

and costs. Even so, we must underscore that Owner’s argument is without merit as

public policy is not contingent on a prevailing party-type analysis. Superior Steel,

540 S.W.3d at 787 (reversing the Trial Court’s award of attorneys’ fees where the

contractual provision required the awarded party to be the prevailing party). And

we do not find it relevant that some jurors found the breach, and a different

grouping of jurors awarded damages. Civil verdicts are not required to be

unanimous, or even identical on each count. The lack of uniformity of jurors on

-23- different verdicts, or on liability as opposed to damages, does not prove that a

compromise verdict was reached, as was suggested at oral argument.

The identity of the party prevailing is inapposite to the issue here.

While Owner may be technically correct that, as he stated at oral argument, there is

no precedent stating that a prevailing party must pay a non-prevailing party

attorneys’ fees, this case involves a contractual fee provision that is decidedly not

dependent upon which party prevails – or even that litigation occur at all. It

merely requires the employment of an attorney, an action that both parties

eventually took.

In addition, we reject the notion that unilateral attorneys’ fees

provisions are per se against public policy. Our Commonwealth has “long

respected freedom of contract and allowed parties to allocate among themselves

the foreseeable risks.” Superior Steel, 540 S.W.3d at 786 (holding “pay-if-paid”

terms in a construction contract do not violate Kentucky’s public policy); see also

Zeitz, 264 S.W.2d at 268 (deducing that contracts should not “be set aside lightly”

because the “right of private contract is no small part of the liberty of the citizen”).

Thus, “[w]hile there are valid policy reasons for disfavoring [unfair] provisions,

any prohibition against this type of contract clause should come from the

legislature rather than from this Court.” Superior Steel, 540 S.W.3d at 786. Here,

the parties agreed by contract that Owner would bear the burden of paying

-24- Builder’s attorneys’ fees should it be required to employ an attorney to enforce its

rights under the contract. Builder abided by the Contract in retaining trial counsel,

and the Trial Court’s enforcement of the Fee Provision was therefore not in

contravention of public policy.

3. Unconscionability

While Owner seeks avoidance of the Fee Provision by asserting it is

procedurally and substantively unconscionable, this Court has been unable to

locate Owner’s argument to the Trial Court pertaining to unconscionability.

Nonetheless, we will assume that unconscionability is a subset of Owner’s public

policy argument.

“The doctrine [of unconscionability] is used by the courts to police the

excesses of certain parties who abuse their right to contract freely. It is directed

against one-sided, oppressive and unfairly surprising contracts, and not against the

consequences per se of uneven bargaining power or even a simple old-fashioned

bad bargain.” Schnuerle v. Insight Communications, Co., 376 S.W.3d 561, 575

(Ky. 2011). Procedural unconscionability concerns the development of the parties’

agreement and the form of said agreement. Id. at 576-77; Energy Home, Div. of

Southern Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 836 (Ky. 2013) (providing

examples of procedural unconscionability as “the use of fine or inconspicuous print

and convoluted or unclear language that may conceal or obscure a contractual

-25- term”). To evaluate procedural unconscionability, a Court must evaluate “the

bargaining power of the parties, the conspicuousness and comprehensibility of the

contract language, the oppressiveness of the terms, and the presence or absence of

a meaningful choice.” Schnuerle, 376 S.W.3d at 576.

Substantive unconscionability encompasses “contractual terms that

are unreasonably or grossly favorable to one side and to which the disfavored party

does not assent.” 406 S.W.3d at 835 (citing Schnuerle, 376 S.W.3d at

577). Necessary to analyze a party’s claim of substantive unconscionability, a

Trial Court must consider “‘the commercial reasonableness of the contract terms,

the purpose and effect of the terms, the allocation of the risks between the parties,

and similar public policy concerns.’” Schnuerle, 376 S.W.3d at 577 (quoting

Jenkins v. First Am. Cash Advance of Ga., L.L.C., 400 F.3d 868, 876 (11th Cir.

2005)). Regardless of its classification, unconscionability is a narrow exception to

our well-established rule favoring contract enforceability. Schnuerle, 376 S.W.3d

at 575.

We cannot find a reasonable basis to set aside the Contract based upon

alleged substantive or procedural unconscionability. The Fee Provision was not

discreetly placed in a manner to trick Owner into agreement. The Fee Provision

was provided in the same format as every other provision of the Contract. The Fee

Provision is also set apart via a separately numbered provision. The pages

-26- requiring a signature or initial appear to relate to the specifications of the barn

construction. Regarding the language of the Fee Provision, the “terms are not

confusing, [are] easily understandable by persons of ordinary experience and

education, and further do not limit damages available or statutory remedies.”

Green v. Frazier, 655 S.W.3d 340, 347 (Ky. 2022). Even if Builder sought to

“trick” Owner by hiding the Fee Provision or utilizing puzzling language, which

we do not find, Owner himself conceded in his sworn testimony during his

deposition that he not only refused an attorney’s review of the Contract, but also

completely failed to read the Contract before signing. TR, p. 158, 298. Our

Supreme Court aptly explained that “[a] fundamental rule of contract law holds

that, absent fraud in the inducement, a written agreement duly executed by the

party to be held, who had an opportunity to read it, will be enforced according to

its terms.” Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 341 (Ky. App.

2001); see also Schnuerle, 376 S.W.3d at 575. Simply put, written contracts are

generally enforceable against a party who had an opportunity to read them, and one

waives that opportunity at his own peril. Green, 655 S.W.3d 346 (citing

Schnuerle, 376 S.W.3d at 575).

In addition, we understand Owner’s self-perception as being

unfamiliar with the barn-building process. That fact alone neither proves

unconscionability nor excuses Owner from the responsibility of seeking

-27- professional review of the Contract or of even reading the Contract for himself.

Moreover, the Fee Provision at issue does not demonstrate terms that “no man in

his senses, not under delusion, would make, on the one hand, and which no fair and

honest man would accept, on the other.” Conseco, 47 S.W.3d at 342. Fee-shifting

provisions, similar to arbitration provisions, are customary in the construction

business and are commercially reasonable. See Energy Homes, 406 S.W.3d at

836. Here, Owner signed the Contract allocating the reasonable risk associated

with the cost of hiring an attorney and provided consideration for the same. The

Fee Provision was plainly a part of the bargained-for Contract, which Owner was

free to reject. As Builder notes, it does not maintain a monopoly on pole barn

construction. Owner remained at liberty to seek another builder to construct the

barn under contractual terms that were more desirable to him. See Prewitt v.

Estate Bldg. & Loan Ass’n, 156 S.W.2d 156, 173 (Ky. 1941). He chose not to do

so. We will not award him a windfall for choices that in hindsight may have been

unwise.

Regarding Owner’s qualms with the Fee Provision’s lack of

reciprocity, we also reject the notion that unilateral terms demonstrate

unconscionability. The Contract does not present a “take-it-or-leave-it” situation

where Owner was forced to agree to the Fee Provision without input or choice.

-28- This Court has expressly held that a contract drafted by one party

without the other party’s input is not proof of unconscionability. Conseco, 47

S.W.3d at 342 n.20. The Kentucky Supreme Court, in Grimes v. GHSW

Enterprises, L.L.C., 556 S.W.3d 576, 582-83 (Ky. 2018), rejected any requirement,

albeit in the context of arbitration, that both parties must agree equally to submit to

arbitration. The Court held “that as long as the requirement of consideration is

met, no additional requirement of mutuality of obligation exists.” See Green, 655

S.W.3d at 348 (citing Grimes, 556 S.W.3d at 582-83).

Similarly, here, Owner’s citation to the doctrine of unconscionability

to attempt to overcome a contractual, unilateral fee provision simply fails to pass

muster under the precedential jurisprudence of this Commonwealth. The facts of

the appeal sub judice do not present an oppressive or surprising contract to which

Owner was unable to bargain. On the contrary, Owner candidly (and perhaps

shamelessly) admitted that he did not even feel it necessary to take the given

opportunity to read the Contract that he chose to sign and that he now wants to

dispute.

Absent law to the contrary, the Fee Provision was not procedurally or

substantively unconscionable. The Trial Court’s enforcement of the Fee Provision

did not constitute an abuse of discretion.

-29- 4. Equity

Owner’s final argument rests in his assertion that, regardless of the

Fee Provision, he is entitled to his reasonable attorneys’ fees as a matter of equity.

Owner posits that he commenced suit to recoup monies paid in conformity with the

Contract, which Builder breached. As he was awarded money, he claims to be the

prevailing party. Consequently, Owner argues that it would be unfair to require

him to pay for his own attorneys’ fees in prosecuting his purportedly successful

breach-of-contract action against Builder. Owner’s argument is based solely upon

the case of Batson v. Clark, 980 S.W.2d 566 (Ky. 1998), which concerned

wrongful eviction, with damages consisting of relocation expenses and attorneys’

fees. Id. at 577. The Batson Court held that it would not disturb the Trial Court’s

decision to place the evicted parties “in the same position in which they would

have been had they not been forced from the property.” Id.

Obviously, Batson is distinguishable from the appeal before us, and its

application falls well-short of supplying this Court with authority to overturn the

Trial Court’s denial of Owner’s motion for entitlement to attorneys’ fees as a

matter of equity. There is no status quo to be preserved here. Rather, in the case

sub judice, Owner knew, or reasonably should have known if he had read the

Contract, that a suit pursuant to its terms would subject him to liability for

Builder’s attorneys’ fees. And he is the one who started the litigation. As stated

-30- above, Kentucky law does not require Courts to declare a unilateral contract

provision as necessarily or automatically unfair. Moreover, as Builder noted at the

oral argument, Owner was allegedly the first party to breach the contract by

prohibiting installation, and thus under some circumstances in equity, he would not

be entitled to demand reimbursement of attorneys’ fees at all. Accordingly, and for

all of these reasons, we find no error in the Trial Court’s Opinion and Order

denying Owner entitlement to attorneys’ fees and costs.

II. Builder’s Cross-Appeal for Attorneys’ Fees

Builder’s cross-appeal contends that the Trial Court erred in awarding

it a reduced attorneys’ fee award. In support thereof, Builder directs this Court to

its requested fee award in the amount of $61,588.75.

As detailed, the Trial Court found that Builder’s requested reward was

unreasonably excessive. The Trial Court utilized SCR 3.130(1.5) to evaluate the

reasonableness of Builder’s requested award and found Neal’s Billing history

report lacked critical details. Nonetheless, the Trial Court was able to compute a

fee award, but it did not articulate its calculation other than substantiating the

reasonableness of Builder’s partial claim to fees in relation to the three-day trial.

On cross-appeal, Builder seeks the difference of $31,657.50. Builder maintains

that it is not obligated to provide additional details regarding its billing pursuant to

the attorney-client privilege.

-31- As stated, an award of attorneys’ fees is “within the sound discretion

of the trial court and [its] decision will not be disturbed on appeal absent an abuse

of discretion.” Giacalone v. Giacalone, 876 S.W.2d 616, 620 (Ky. App. 1994)

(citing Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990)); see also Wilhoit v. Wilhoit,

521 S.W.2d 512 (Ky. 1975).

Builder’s summary argument to this Court, without explanation,

asserts that the Trial Court is required to presume that Neal’s affidavit and

accompanied Billing history report demonstrate that the fees sought were

reasonable. Builder cites KRS 304.39-020(5)(a) for this proposition, a statute that

presumes medical bills incurred for injuries sustained in an automobile accident are

reasonable. Builder provides no expounding as to any reason that KRS 304.39-

020(5)(a) would be analogous to the appeal before us.

Builder also suggests that Owner is not permitted to challenge the

Trial Court’s award of fees without first requesting an evidentiary hearing. We

refrain from commenting on the correctness of this position because Builder

provides no support for this argument. If Builder seeks to overcome the Trial

Court’s wide discretion on its award, we expect more than a singular citation to an

unanalogous statute. Any other conclusion would be akin to offering Builder a

blank check for fees incurred in defending the lawsuit. Daly v. Power, 33 S.W.2d

305, 307 (Ky. 1930) (“This, however, does not mean that the court may arbitrarily

-32- disregard the evidence, refuse to be informed by it, and fix the fee at any sum it

may choose without being responsible for an abuse of discretion.”). That is not the

law of this Commonwealth, and Builder does not provide reasoning or authority to

the contrary.

Owner, on the other hand, argues that the Trial Court abused its

discretion by failing to apply the factors established in Axton v. Vance, 269 S.W.

534 (Ky. 1925). In Axton, the Court delineated the following factors that a Trial

Court should consider when determining the reasonableness of attorneys’ fees:

“(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 results secured.” Id.

at 536-37. These factors represent the variables that a Trial Court considers in

adjusting the “lodestar” figure as articulated and adopted in Meyers v. Chapman

Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992).

Meyers arose from an attorneys’ fee award under the Kentucky Civil

Rights Act, wherein the Court was confronted with the issue regarding the

reasonableness of the fees. Under Kentucky law, the “lodestar” method is the

-33- starting point for calculating reasonable attorneys’ fees absent a contractual or

standard allocation. See Meyers, 840 S.W.2d at 826. Generally, a Trial Court

determines the reasonableness of requested attorneys’ fees by utilizing the lodestar

amount—a calculation of the hours expended multiplied by the attorneys’ hourly

rates, and it then adjusts the amount to account for various special factors in the

litigation. Id.

However, the appeal before us does not concern the reasonableness of

an award of attorneys’ fees statutorily authorized for the purposes of insuring

individuals alleging civil rights violations have access to the judicial process. This

appeal concerns the reasonableness of legal fees under a written Contract.

The Contract does not articulate or define what constitutes reasonable

fees. Thus, this Court must interpret the contract de novo. Inn-Group

Management Servs., Inc. v. Greer, 71 S.W.3d 125, 130 (Ky. App. 2002).

“‘Generally, . . . in construing contracts courts endeavor to give effect to the

parties’ intent as expressed by the ordinary meaning of the language they

employed.’” Mostert v. Mostert Grp., L.L.C., 606 S.W.3d 87, 91 (Ky. 2020)

(quoting North Fork Collieries, L.L.C. v. Hall, 322 S.W.3d 98, 105 (Ky. 2010)).

The plain language of the Contract utilizes the term “reasonable

attorneys’ fees.” Under Kentucky law, the “lodestar” method is the starting point

for calculating reasonable attorneys’ fees, including applicable adjustments

-34- adopted in Meyers and its progeny. See, e.g., Mid South Capital Partners, LP v.

Adkins, 626 S.W.3d 688, 691 (Ky. App. 2020). As explained, the Trial Court

neither determined a lodestar figure nor identified the reasonableness of the

number of hours Neal spent in defense of the action or his hourly rate. However,

this Court has not been directed to any authority mandating a particular formula for

awarding fees based on a similar contractual provision. That matter is best left to

the Trial Court’s discretion, which, at minimum should consider the lodestar figure

or the factors established in Axton.

Based on our review of the record on appeal and appellate briefs, we

have no method of evaluating the lodestar figure or Axton factors. Neal requests

legal services in the amount of $61,588.75. We do not know the hours this amount

represents or the hourly fee Neal or his staff charged for such services. Likewise,

we are unaware of the fee arrangement for which Builder contracted with Neal for

such services. The single billing entries assigned to monetary totals fail to describe

any details as to which tasks Neal or his staff performed. The elements sustaining

the value an attorney claims as compensation for legal services rendered must be

proven. The Trial Court’s award is problematic because it lacked sufficient

evidence on which to base a reasonable award. While the Trial Court commented

on Neal’s professional standing, reputation, and comparative ability to opposing

counsel, the award – being that it was simply the request split in half – appears

-35- arbitrary and randomly assigned. There is simply insufficient evidence to support

the 50% figure of Builder’s award for attorneys’ fees. The implication that

opposing counsel’s claim for less than half of the amount of Builder’s fees is the

proper amount lacks any evidentiary foundation. Neal’s Billing history report

merely lists indistinguishable totals with no specificity other than the date of

billing. The Trial Court certainly enjoys wide discretion in awarding attorneys’

fees; yet such an award must be based in law. See A & A Mech., Inc. v. Thermal

Equip. Sales, Inc., 998 S.W.2d 505, 514 (Ky. App. 1999). And while neither party

requested a hearing on the issue – and both should have – the Trial Court itself is

likewise responsible for appreciating the need for a hearing and evidence before

making a determination as to the fee to award here.

Other than splitting the requested fee in half, this Court is unable to

identify the methodology that the Trial Court utilized in decreasing Builder’s fee

request. We, therefore, cannot properly evaluate whether the Trial Court acted

within the bounds of its discretion. We note Capitol Cadillac Olds, Inc. v. Roberts,

813 S.W.2d 287, 293 (Ky. 1991), wherein the Court was faced with a contractual

attorneys’ fees provision allocating fees in the amount of 15% of the amount due

under the contract. In rejecting the liquidated amount of attorneys’ fees, the Court

explained that the basic requirement is for the party requesting fees to provide

-36- proof of reasonableness, and that the fee “accurately reflects the reasonable value

of bona fide legal expenses incurred.” Id.

Builder, once challenged as to the reasonableness of the requested

fees, is required to prove his entitlement to the claimed amount of fees sought. See

Fidelity & Cas. Co. of New York v. Mauney, 116 S.W.2d 960, 962 (1938). Here,

Owner contested the amount that Builder requested in attorneys’ fees, and we lack

sufficient information to provide the Trial Court latitude in its award, the reasoning

for which was undeveloped. See Baker v. Motorists Ins. Cos., 695 S.W.2d 415,

417 (Ky. 1985) (holding, in the context of statutorily required attorneys’ fees, that

a Trial Court must nonetheless conduct an analysis considering the reasonableness

of attorneys’ fees). Therefore, in the absence of evidentiary support, we must find

an abuse of discretion below that compels us to reverse the Trial Court’s award of

attorneys’ fees to Builder and remand for reconsideration. Upon remand, we leave

the amount of attorneys’ fees to the discretion of the Trial Court after reaching an

articulable calculation that considers the reasonableness of Neal’s requested fees.

III. Owner’s Challenge to Non-Wage Garnishment Affidavit

Lastly, we review Owner’s challenge to Builder’s affidavit seeking

non-wage garnishment of Owner’s joint bank account, which he shares with his

spouse, and which includes deposits of her monthly benefit payments from TRS.

Owner argues that his spouse’s TRS benefits are exempt from garnishment

-37- pursuant to KRS 161.700 and 427.150 and retain their exempt status after their

deposit to the joint account. Builder contends that funds paid from a defined

benefit plan such as TRS do not retain their character as exempt payments once

paid into an account owned wholly or jointly by another person. The Trial Court

agreed and denied Owner’s challenge.

Again, we review de novo the Trial Court’s interpretation of the

garnishment exemption statutes. We recognize that, upon remand and

reconsideration of Builder’s reasonable attorneys’ fees, the Trial Court may alter

the sum that Builder is permitted to recoup, necessitating a new affidavit for

garnishment. However, because Owner may still be subject to garnishment of his

joint account, while not necessarily for the original sum, the issue of the exemption

of funds held in the joint account is still pertinent to this case and controversy.

KRS 161.700(1) provides in pertinent part:

[T]he right of a member to a retirement allowance and to the return of contributions, any benefit or right accrued or accruing to any person under KRS 161.220 to 161.716, and the money in the various funds established pursuant to KRS 161.220 to 161.716 are hereby exempt from any state or municipal tax, and shall not be subject to execution, garnishment, attachment, or other process, and shall not be assigned.

KRS 427.150, relating to the enforcement of judgments, confirms this garnishment

exemption for “[a]ssets held, payments made and amounts payable under pensions

-38- exempt pursuant to KRS 61.690, 161.700, and 427.125[.]” For purposes of KRS

Chapter 427, garnishment is defined as “any legal or equitable procedure through

which the earnings of any individual are required to be withheld for payment of

any debt.” KRS 427.005. The term “earnings” includes “periodic payments

pursuant to a pension or retirement program.” Id. As stated in Brown, we are

mindful of the following rules of statutory interpretation:

When interpreting a statute, we look to the statute’s express language and overall purpose. The task begins with the language of the statute itself. When a statute’s language is plain, “the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917); Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984).

40 S.W.3d at 875-76 (citation omitted).

In support of his challenge to the garnishment and favored

interpretation of the relevant statutes, Owner cites Matthews v. Lewis, in which the

Kentucky Supreme Court ruled that workers’ compensation benefits deposited to a

debtor’s checking account were precluded from garnishment under KRS 342.180.

The Court observed that, “unless they provide clearly to the contrary, Kentucky’s

exemption statutes, including but not limited to KRS 342.180, extend protection to

deposits in bank checking accounts so long as those deposits can be identified as

or traced to payments of exempt funds.” 617 S.W.2d 43, 46 (Ky. 1981) (emphasis

added). We have declined to extend Matthews in cases that were distinguishable

-39- based on their facts and the language of the applicable exemption statute. For

example, in Brown we held that percentage restrictions on wage garnishment did

not create a “true exemption” from garnishment of the debtor’s wages when those

wages were deposited to a joint bank account. 40 S.W.3d 877-80. Unlike the

wage restrictions, we observed in dicta that the workers’ compensation exemption

of KRS 342.180 analyzed in Matthews, as well as retirement exemption statutes

such as KRS 61.690, did create “a true exemption.” Id. at 878. As to the debtor’s

spouse’s wages, which were also deposited to the joint account, we held that the

Trial Court was obliged to consider the spouse’s “countervailing interest or the rule

that [a] judgment creditor acquires an interest in the garnished property no greater

than the debtor’s.” Id. at 880. However, and importantly, the debtor was the one

with the exemption in Matthews – not the spouse. And we did not hold that one

who willingly deposits otherwise-exempt funds into a joint account with clearly

non-exempt funds of a debtor spouse is entitled to protection.

In Nunn v. Ross, an unpublished opinion relied upon by the Trial

Court, we held that while a convicted legislator’s retirement allowance was not

subject to garnishment when under the control of the Judicial Form Retirement

System, the benefit funds lost their exempt status upon payment to the prisoner’s

inmate account. No. 2014-CA-000452-MR, 2015 WL 4880305, at *1 (Ky. App.

-40- Aug. 14, 2015).3 Conversely, Owner cites a case that is similarly non-binding on

this Court, in which a Kentucky Bankruptcy Court, interpreting KRS 161.700 and

427.150, held that benefit distributions from a TRS account to a debtor did not lose

their exempt status upon deposit to the debtor’s checking account. In re Dennis R.

Cornett, 332 B.R. 289, 2005 WL 2457206 (E.D. Ky. Oct. 3, 2005). However, that

case involved an otherwise exempt debt, not a spouse’s otherwise exempt debt in a

joint checking account.

None of these cases are directly on point, and there is no case law,

binding or not, to turn to for guidance. However, we do have the precise language

of the exempting statute, and its silence on the issue before us is compelling.

Nowhere does it state that otherwise exempt funds retain exemption when

willingly blended with non-exempt funds of another. Indeed, we could find no

case law supporting such an argument either. Stated differently, there is no legal

authority for the proposition that a spouse can commingle her exempt funds with

her debtor husband by intentionally depositing them in a joint, merged account

with him and yet later be permitted to attempt to separate them somehow from

collection efforts against her husband’s non-exempt, mixed funds. As a matter of

principle, if one desires to keep funds separated, she has the minimal burden of

3 We cite this case only because it was cited by the Trial Court as persuasive, non-binding authority. RAP 41(A).

-41- segregating them – even from her own, non-exempt funds. Otherwise, and once

commingled, she runs the clear and readily-foreseeable risk of attachment. By its

very nature, a joint account is totally accessible to both holders, for deposits,

withdrawals, and management. It is shared, or married, for better or worse.

Further, it is not clear that Owner has standing to raise this issue on

behalf of his wife, who is not a party to this action. Accordingly, we affirm the

Trial Court’s holding on this issue.

CONCLUSION

This Court hereby affirms the Shelby Circuit Court’s Order as to its

ruling that Owner is not entitled to recover his attorneys’ fees. This Court further

affirms the Shelby Circuit Court’s Order that Builder is entitled to recover its

reasonable attorneys’ fees pursuant to the Contract. Regarding Builder’s cross-

appeal, this Court reverses the Shelby Circuit Court’s Order as to the amount

awarded to Builder. Regarding Owner’s separate appeal of the garnishment of his

joint account, this Court affirms the Shelby Circuit Court’s Order upholding the

garnishment and denying the application of an exemption regarding commingled

funds held in a joint bank account. Accordingly, this matter is hereby remanded to

the Shelby Circuit Court with instructions that it take reasonable evidence – either

by hearing or written affidavit – and award Builder its reasonable attorneys’ fees

-42- pursuant to a reviewable analysis and calculation falling within the bounds of the

law.

ALL CONCUR.

BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS- APPELLEE: APPELLANT:

C. Gilmore Dutton, III Chad R. Wadlington Shelbyville, Kentucky Shelbyville, Kentucky

ORAL ARGUMENT FOR ORAL ARGUMENT FOR APPELLANT/CROSS-APPELLEE: APPELLEE/CROSS-APPELLANT:

C. Gilmore Dutton, III Andre F. Regard Samuel B. Hoffman Lexington, Kentucky Shelbyville, Kentucky

-43-