RENDERED: AUGUST 14, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001848-MR

WILLIAM BYARLEY, PEARL MARIE BYARLEY,

RAYMOND CROFT, AND JUDY ANN CROFT APPELLANTS

APPEAL FROM CRITTENDEN CIRCUIT COURT

v. HONORABLE C. RENE’ WILLIAMS, JUDGE

ACTION NO. 16-CI-00014

KAREN BERG, IN HER CAPACITY AS

SUCCESSOR TRUSTEE OF THE GORDON LIVING TRUST;

AND GORDON FARMS, INC. APPELLEES

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: William and Pearl Byarley and Raymond and Judy Croft 

(Appellants) appeal the Crittenden Circuit Court’s summary judgment in favor of 

Karen Berg, as Successor Trustee of the Gordon Living Trust. The Appellants 
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allege the circuit court improperly applied the law when it denied them recovery of 

attorney’s fees. Finding no error, we affirm. 

BACKGROUND

On February 4, 2016, Berg filed a Petition for Declaratory Judgment, 

seeking determination of the legal status of an unpaved, dirt road called “Cletis 

Millikan Road” (Road) in Crittenden County. Berg was the owner of two tracts of 

land separated by the Road. Her petition sought a determination either that the 

Road: (1) was a private road, which required an easement for utility purposes; or 

(2) was a public road to which every member of the public is granted unfettered 

access. 

Without access to the Road, Berg’s property would be landlocked. 

Without the proper establishment of an easement over the existing roadway for 

ingress and egress, Appellants’ property would continue to be landlocked as well. 

Appellants took issue with Berg’s attempt to make the pathway a public road or 

grant an easement across the property for utilities. Therefore, Appellants filed a 

counterclaim against Berg for attorney’s fees and prospective damages, calling her 

suit an “improper action.”

The circuit court granted a partial judgment on the pleadings and 

established an easement over the existing roadway for the purposes of ingress and 

egress. It further ordered “all other matters/issues/claims raised in the pleadings, 
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including the scope of use of the existing roadway by the parties hereto, their heirs, 

successors and assignees, shall remain subject to further adjudication before this 

Court.”

Berg eventually sold the property and filed a motion to dismiss

because she no longer had an interest in the subject matter of the action. The 

circuit court granted this motion in its November 8, 2018 order. Also, in this order, 

the circuit court granted Berg’s summary judgment motion on Appellants’ 

counterclaim for attorney’s fees and prospective damages. The court found that 

attorney’s fees and prospective damages for diminution in fair market value were

inappropriate and unrecoverable. This appeal followed. 

STANDARD OF REVIEW

The standard of review when a circuit court grants a motion for 

summary judgment is “whether the trial court correctly found that there were no 

genuine issues as to any material fact and that the moving party was entitled to 

judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.

1996). The trial court must view the evidence in the light most favorable to the 

non-moving party, and summary judgment should be granted only if it appears 

impossible the non-moving party will be able to produce evidence at trial 

warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, 

Inc., 807 S.W.2d 476, 480-82 (Ky. 1991). The party seeking summary disposition 
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bears the initial burden of establishing that no genuine issue of material fact exists, 

and the burden then shifts to the party opposing the motion to present “at least 

some affirmative evidence showing that there is a genuine issue of material fact for 

trial.” Id. at 482.

ANALYSIS

The only issue Appellants raise on appeal is the circuit court’s denial 

of attorney’s fees in its summary judgment order. Appellants argue the circuit 

court improperly applied the law established in Bell v. Commonwealth, Cabinet for 

Health and Family Services, Department for Community Based Services, which 

says:

[T]he only appropriate award of attorney’s fees as a 

sanction comes when the very integrity of the court is in 

issue. To that end, attorney’s fees may be awarded under 

Civil Rule 11 for filing pleadings that are not “well 

grounded in fact,” not “warranted by existing law or a 

good faith argument for the extension, modification or 

reversal of existing law,” or that are filed for “any 

improper purpose, such as to harass or to cause 

unnecessary delay or needless increase in the cost of 

litigation.”

423 S.W.3d 742, 749 (Ky. 2014) (quoting CR1 11). 

Appellants parroted and paraphrased Bell suggesting there were five 

factual issues that could only be decided by the trier of fact, namely whether 

 

1 Kentucky Rules of Civil Procedure.
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Berg’s action was: (1) not well grounded in fact; (2) not warranted under existing 

law; (3) made solely to harass Appellants; (4) made to needlessly increase 

Appellants’ cost to defend same; and (5) whether Berg’s delay of eighteen months 

before filing a motion to dismiss their remaining claims caused an unnecessary 

delay in the action. 

Appellants’ reliance on Bell is misplaced. To begin with, Bell also 

stated that attorney’s fees are “not awarded as costs to the prevailing party unless 

there is a statute permitting it or as a term of a contractual agreement between the 

parties. They may also be awarded as a sanction but only under limited 

circumstances.” Id. at 748. Appellants were not the prevailing party and there is

no statute or contract on point. Appellants’ only remaining argument is that

attorney’s fees are necessary as a sanction. Yet, Appellants identify no evidence 

that a sanction is justified. 

Berg’s defense to Appellants’ pursuit of CR 11 sanctions by means of 

a summary judgment motion may have been mildly unconventional. However, we 

see no reason, given these facts, why the grant of that motion was wrong.

Our procedural rules entrust to the trial court the responsibility of 

deciding whether to impose CR 11 sanctions. In that process, the court sits as 

factfinder. “[W]here sanctions have been denied, our review is limited to a 

determination of whether the trial court abused its discretion.” Clark Equipment 
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Co., Inc. v. Bowman, 762 S.W.2d 417, 420 (Ky. App. 1988). We see no abuse of 

such discretion here.

Furthermore, what was stated in Bell is also directly applicable here:

[W]here attorney’s fees are appropriate as a sanction, it is 

. . . because there has been an intrusion on the very power 

of the court. Any cases to the contrary are misguided, for 

only in this narrow use to support the integrity of the court 

may attorney’s fees be awarded without subverting the 

“American Rule” of not awarding attorney’s fees as costs.

The integrity of the court is not in question here.

423 S.W.3d at 749 (footnote omitted). Consequently, dispensing with Appellants’ 

claims to sanction Berg by shifting to her the obligation of paying Appellants’ 

attorney’s fees was appropriate. It was not an abuse of discretion under CR 11, nor 

was there any genuine issue of material fact that would have prevented entry of 

summary judgment as a means of accomplishing the same thing.

CONCLUSION

For the foregoing reasons, the Crittenden Circuit Court’s order 

granting summary judgment is affirmed. 

ALL CONCUR.
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BRIEF FOR APPELLANTS:

William F. McGee, Jr.

Smithland, Kentucky

BRIEF FOR APPELLEES:

Dailey E. Wilson

Allen O. Wilson

Eddyville, Kentucky