Right to Recovery of Attorney’s Fees May Be Lost By Delay

Attorney’s fees that are recoverable pursuant to a statute or contract should be distinguished from a cost that may be recovered by a prevailing party under Rule 54.04 in a supplemental judgment. Therefore, if a prevailing party is entitled to attorney’s fees by statute or contract, the party should request that the award of attorney’s fees be made in the final judgment. See Harris v. Camp Taylor Fire Protection District, 303 S.W.3d 479, 481 (Ky. App. 2009). 

The best practice in this regard is for the prevailing party, which is customarily the one to prepare a proposed judgment, circulate it to the other parties, and submit it to the trial court for entry, to make a motion for an award of attorney’s fees with supporting documentation before tendering the proposed final judgment to the trial court. If the motion is not ruled on by the time the proposed judgment is tendered, the prevailing party should leave a blank line in the judgment for the amount of attorney’s fees that the court might award.  If the attorney’s fees are not included in the final judgment, the prevailing party with a claim for recovery of attorney’s fees by statute or contract may make a motion to alter, amend, or vacate the final judgment within 10 days pursuant to Rule 59.05. If no steps are taken within 30 days after entry of the final judgment that does not include an award of recoverable attorney’s fees, the trial court loses jurisdiction to award fees. Id.  

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail. 

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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