Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A.
2007-CA-001374 10/16/09 2009 WL 3336065 Rehearing Pending
Opinion by Judge Dixon; Judge Nickell and Senior Judge Knopf concurred.
The Court affirmed a judgment of the circuit court ruling that the appellant attorney was not entitled to any attorney’s fees from a class action lawsuit involving child sexual abuse against the Roman Catholic Diocese of Covington. The Court ultimately held that the trial court properly denied the request for attorney’s fees. In reaching that conclusion the Court first held that the trial court did not err in denying appellant’s motion for partial summary judgment. The denial was not interlocutory and not reviewable on appeal. Further, appellant could not have been prejudiced because she was provided the right to establish the merits of her position during trial. The Court next held that the trial court did not err in dismissing appellant’s individual claims against two class attorneys. Appellant entered into an agreed order specifying that the firm was the proper defendant, there was no merit to appellant’s claim that she was forced to enter the agreed order, and she waived the issue upon the signing of the agreed order and the filing of an amended complaint. The Court next held that the trial court properly limited appellant’s access to discovery as to other class actions and practices regarding fee splitting and opting out class members as the information did not have any correlation to whether appellant was entitled to a fee. The Court next held that the trial court did not abuse its discretion in prohibiting testimony regarding other counsels’ fee arrangements that had no relevance to whether appellant was entitled to a fee or if so, how much. The Court next held that the trial court properly excluded appellant’s expert evidence when appellant failed to show that the retired former judge possessed any specialized knowledge that would assist the trial court, since the trial court did not need guidance on the ultimate issues to be decided. The Court next held that appellant was not denied a fair trial as the trial court’s comments regarding her ethical violations could not improperly influence the same court during the bench trial. The Court next held that there was no merit to the claim that the trial court erred by entering orders that were inconsistent with prior court rulings. First, the issue was unpreserved as appellant failed to raise it in her prehearing statement as required by CR 76.03(8). Further, the prior judge in the case did not enter an order on the record that could be construed the law of the case. The Court next held that the trial court did not err in relying on Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), in addressing the proper measure for the allowance of a fee. Because the trial court concluded that appellant voluntarily withdrew from the case due to a conflict of interest, the appropriate method of determining what compensation she was owed was based on quantum meruit. Even if appellant could prove that she had a binding fee agreement, it could not be enforced when she voluntarily withdrew in the initial stages of the case. The Court next held that the trial court’s findings with respect to appellant’s ethical violations were based upon substantial evidence in the record that she violated SCR 3.130(1.3), (1.7), (1.9), and (1.16).
