The Risk Manager, Winter 2012
In O’Rourke v. Lexington Real Estate Co.* the Court of Appeals construed the requirements of CR 8.01 in a way that surprised many Kentucky lawyers. The case concerned the award at trial of attorney’s fees to Lexington Real Estate. O’Rourke appealed resulting in a favorable ruling for him that included this language:
Moreover, for another sound reason the attorney fees claim against O’Rourke must fail. In the complaint, a party must state in plain and adequate terms the basis for any claim. Caldwell v. Frazier, 304 S.W.2d 922 (Ky. 1957). CR 8.01 provides that a claim (sic) “shall contain (a) a short and plain statement of the claim showing that the pleader is entitled to relief, and (b) a demand for judgment for the relief to which he deems himself entitled.” Our review of the complaint filed herein reveals that Lexington Real Estate failed to properly plead any claim for attorney’s fees, and certainly no claim under KRS 383.660(3). Although the complaint requested an award of attorney’s fees in the ad damnum clause, it failed to state any claim for attorney’s fees in the body of the complaint. CR 8.01 requires notice of the claim, and O’Rourke was not given notice of any acts or omissions alleged against him that would authorize application of KRS 383.660(3). Although KRS 383.660(3) creates a limited exception to the general rule that each party shall pay its own attorney’s fees, to invoke that exception notice of the claim must be pled to join the issue. See Pike v. George, 434 S.W.2d 626 (Ky.App. 1968).
Read this case and risk manage your pleadings accordingly.
*No. 2010-CA-000108-MR, 10/7/2011. Motion for discretionary review has been filed.