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December 10, 2004; 10:00 a.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2003-CA-001924-DG

JOSEPH LEAR

APPELLANT

v.

DISCRETIONARY REVIEW FROM NELSON CIRCUIT COURT HONORABLE LARRY D. RAIKES, JUDGE ACTION NO. 03-XX-00004

RAYMOND KING

APPELLEE

AND

NO. 2003-CA-001935-DG

RAYMOND E. KING, GUARDIAN FOR MARGARET LOUISE KING, A DISABLED PERSON

CROSS-APPELLANT

v.

DISCRETIONARY REVIEW FROM NELSON CIRCUIT COURT HONORABLE LARRY D. RAIKES, JUDGE ACTION NO. 03-XX-00004

SHARON E. MERCIER; JERRY LEAR; AND ALAN K. AKERS, SR.

CROSS-APPELLEES

OPINION VACATING ** ** ** ** **

BEFORE:

DYCHE, AND McANULTY, JUDGES; EMBERTON, SENIOR JUDGE.1 We granted discretionary review of two

McANULTY, JUDGE:

petitions arising out of an appeal to the Nelson Circuit Court which reviewed the availability of attorney's fees and reimbursement of expenses in a district court guardianship determination. These consolidated cases originated in the

Nelson District Court as a petition for guardianship to determine whether Margaret Louise King was disabled so as to be unable to take care of her personal affairs and financial resources. Interested parties in that proceeding included

Raymond King (King), husband of Margaret Louise King, and Joseph Lear, Sharon Mercier, Brenda Merritt and Jerry Lear, children of Mrs. King. The jury found that Mrs. King was wholly disabled.

The parties to the guardianship proceeding eventually reached agreement that Raymond King would be the guardian and Jerry Lear and Sharon Mercier would be standby guardians. The terms and

conditions of the guardianship were set forth in an order of August 6, 2002. A few months later, Joseph Lear and Sharon Mercier (Mercier) filed a motion for payment of attorney fees and motion for reimbursement of their fees and expenses out of the estate of Margaret Louise King.
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Soon after, Jerry Lear filed a motion

Senior Judge Thomas D. Emberton, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

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for reimbursement of his fees and expenses. held a hearing on those issues.

The district court

On October 28, 2002, the court

entered an order awarding attorney fees and expenses to Alan Kent Akers, Sr., (Akers), as attorney representing the aforementioned interested parties in the disability case, and expenses to Joseph Lear, Jerry Lear and Mercier. In December, Joseph Lear, Merritt and Mercier filed a motion to appoint a new guardian and remove King as guardian for failure to fulfill his duties and responsibilities as guardian and failure to comply with court orders. The court made a

notation on its calendar on December 19, 2002, that it had ordered an inventory to be filed and had set the motion to remove guardian for a hearing. King's attorney was to tender order making Order of 10/24/02 filed 10/28/02 "final and appealable." Court is not ruling that such language is necessary. On January 23, 2003, the Nelson District Court entered an order, presumably tendered by King, which stated that the court's order of October 28, 2002, was final and appealable, citing CR 54.02. February 18, 2003. King thereafter filed notice of appeal on On appeal, the Nelson Circuit Court The court further noted that

determined that as standby guardians, Jerry Lear and Mercier were entitled to recover expenses under KRS 387.760(2); but

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there was no legal basis for an award of expenses to Joseph Lear. This Court was asked to review the Nelson Circuit Court decision on discretionary review. In 2003-CA-001924-DG,

Joseph Lear asks us to review the circuit court's determination denying him recovery of expenses. In 2003-CA-001935-DG, King

asks us to review the award of attorney fees to Akers, and the reimbursement of the expenses of Jerry Lear and Mercier. Initially, Joseph Lear argues that King's failure to timely appeal the Nelson District Court order was inexcusable and should be dispositive of the issues on discretionary review. Jerry Lear and Mercier do not raise this same argument, but they agree in their brief that this argument raised by Joseph Lear is dispositive of the issues raised by King. The circuit court in its opinion and order on appeal stated that the October 28, 2002 order was final and appealable at the time of its entry of record, and so King's notice of appeal in February, 2003, was untimely. The court concluded

that the only issue pending at the time of the October 28, 2002 order was the request for reimbursement of expenses and fees, and when the issue was determined in that order there was nothing left to resolve. The circuit court held that the Nevertheless,

October 28, 2002 order was final and appealable.

the court did not entertain the issue of whether the appeal

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should be dismissed because the appellees below did not raise the issue in a cross-appeal. First, we agree with the circuit court that the order was final at the time of its entry. King responds that the

October 28, 2002 order did not dispose of all the claims in the guardianship action pending before the district court. however, does not identify any claims which remained. King also asserts that the failure to include the finality language set forth in CR 54.02 prevented its being immediately appealable and so it was interlocutory. The King,

applicable rule for determining when judgments and orders of the trial court are "final orders," and thus appealable, is that a judgment or order to be final must not merely decide that one of the parties is entitled to relief of a final character, but it must give that relief by its own force or be enforceable for that purpose without further action by the court. Green River The

Fuel Co. v. Sutton, 260 Ky. 288, 84 S.W.2d 79 (1935).

circuit court correctly found that this was true of the October 28, 2002 order. An appeal will lie from an order which allows

for an attorney's fee or for expenses and also provides for the distribution of funds to the attorney or the party. Smith v.

Ferguson, Ky., 295 S.W.2d 792, 794 (1956); Buckley v. Buckley, 251 Ky. 271, 64 S.W.2d 593 (1933). The October 28, 2002 order

ordered King to issue payments from Margaret Louise King's

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estate to Akers, Joseph Lear, Mercier and Jerry Lear, and it made clear that all other expenses claimed by the petitioners not specifically approved by the court in that order were rejected thereby. Thus, nothing remained to be resolved on the

issue of attorney fees and expenses. The presence or absence of finality language is not the determining factor in whether an order is appealable. Revenue Cabinet v. Barbour, Ky. App., 836 S.W.2d 418, 422 (1992), the order granting attorney's fees was considered interlocutory even though it recited that it was a final order because it reserved the decision as to the actual amount of the fees until a later date. An order which decides the issues In

before the court and directs disbursement of funds is definitely final and appealable even if it does not contain the "magic words" of the Rule. Security Fed. Sav. & Loan Ass'n v. Nesler,

Ky., 697 S.W.2d 136 (1985). Next, we do not agree that this argument had to be raised as a cross-appeal. Failure to timely file a notice of

appeal is a jurisdictional error and results in automatic dismissal. (1990). City of Devondale v. Stallings, Ky., 795 S.W.2d 954

Notice of appeal transfers jurisdiction from the court

below to the appellate court and places the named parties in the jurisdiction of the appellate court. Id. at 957. Because this

was a jurisdictional matter, it was of no importance that the

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appellees below failed to raise this issue as a cross-appeal. The circuit court was required to dismiss the appeal under the terms of CR 73.02(2). Incidentally, the fact that the trial court agreed to enter an order which stated that the October 28, 2002 order was final and appealable in January did not give King any more time to act. The time for filing a notice of appeal had already

passed since it was well beyond thirty days from the date of notation of the service of the October 28, 2002 order pursuant to CR 73.02(1). Furthermore, the Nelson District Court stated

that it was not ruling that the October 28, 2002 order needed the magic words "final and appealable." Because we agree that the appeal of the attorney fees and expenses issues should have resulted in dismissal of the appeal below, we decline to review the issues on the merits, and instead vacate the opinion and order of the Nelson Circuit Court. The trial court's order of October 28, 2002, having not

been properly appealed, remains in effect. ALL CONCUR.

BRIEF FOR APPELLANT: Alan Kent Akers, Sr. Bardstown, Kentucky

BRIEF FOR APPELLEE/CROSSAPPELLANT RAYMOND KING: John David Seay Bardstown, Kentucky

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BRIEF FOR CROSS-APPELLEES SHARON MERCIER, JERRY LEAR AND ALAN KENT AKERS, SR.: Alan Kent Akers, Sr. Bardstown, Kentucky

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