A Claim for Attorney’s Fees Must be Expressly Pled

A Claim for Attorney’s Fees Must be Expressly Pled

     The recent case of O’Rourke v. Lexington Real Estate Company LLC provides a bit of interesting guidance with respect to claims for attorney’s fees.  No. 2010-CI-0001208-MR (Ky. App. Oct. 7, 2011) (To Be Published). 

     O’Rourke was a residential tenant of Lexington Real Estate Company LLC.  After O’Rourke vacated the property, the landlord sought in excess of $5,600 in both repair costs and late fees.  Having been awarded those amounts, they were also awarded $5,000 in attorney fees.  The lease in question did not contain a attorney fee provision.  Rather, the attorney’s fees were, inter alia, awarded pursuant to the Court’s general equity powers (or so it would appear, the Court of Appeals did not identify the basis of the trial court’s award).

     It was that additional $5,000 assessment that O’Rourke appealed to the Court of Appeals.

     Initially, the Court found that, in that the legislature had by statute precluded a contractual attorney fee provision in a residential lease, and further determining that O’Rourke’s conduct was not “willful” such that an exception allowing attorney’s fees to be recovered, the attorney’s fees were rejected.  Acknowledging that, in certain situations, the Court may utilizing its equity authority require one party to pay attorney’s fees, citing Batson v. Clark, 980 S.W.2d 566 (Ky. App. 1998), the Court held that, in the face of the express statute precluding an attorney’s fee clause in the lease, the Court’s equitable authority could not enable what was by statute forbidden.

     The Court of Appeals cited an additional basis on which the attorney’s fee claim must fail, namely the sufficiency of the original complaint.  While Lexington Real Estate included a claim for attorney’s fees in the ad damnum clause, “it failed to state any claim for attorney’s fees in the body of the complaint.”  Slip op. at 5.  Ergo, where there is a claim for attorney’s fees, it would appear necessary that it be set forth as an independent count within the complaint, and not be simply recited in the list of damages sought.