UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISION

IN RE:

S.J. COX ENTERPRISES, INC.

DEBTOR                                                                                          CASE NO. 07-50705

PEOPLES BANK OF KENTUCKY, INC.                                                     PLAINTIFF

VS.                                                                                                    ADV. NO. 08-5066

U.S. BANK, N.A., COMMUNITY TRUST

BANK, INC., KENTUCKY BANK and

ANNA C. JOHNSON, TRUSTEE                                                                 DEFENDANTS

MEMORANDUM OPINION AND ORDER

           This matter is before the court on the Motion to Set Attorney Fees (“the Motion”) filed by Peoples Bank of Kentucky, Inc. (“Peoples Bank”), U.S. Bank. N.A. (“U.S. Bank”),and Community Trust Bank, Inc. (“Community Trust”) (collectively “Movants”). The Movants seek to have the court set the amount of attorney fees they contend were awarded in the Partial Summary Judgment entered herein against Defendant Kentucky Bank and in the Movants’ favor on March 3, 2009. Kentucky Bank has filed a Response to Motion to Set Attorney Fees. The matter was heard on June 18, 2009, and taken under submission for decision.

           1.        Factual and procedural background

           The Movants filed a joint Motion for Partial Summary Judgment on October 20, 2008, in which they argued that Kentucky Bank wrongfully terminated a Peoples Bank UCC financing statement that caused the

Movants to incur substantial losses, including attorney fees. The Movants argued that they were entitled to be put back in the position they would have been but for the wrongful termination. Kentucky Bank denied any liability to the Movants, arguing that Peoples Bank’s losses were caused by its own negligence, that U.S. Bank and Community

Trust did not suffer any losses as a result of the wrongful termination, and that the Movants were not entitled to recover their respective attorney fees.

           The court entered its Memorandum Opinion and Partial Summary Judgment on March 3, 2009. In the Memorandum Opinion the court stated:

Peoples Bank’s security interest was terminated, and Kentucky Bank is liable for the effect of that termination. This court therefore concludes that it should sustain the Movants’ Motion for Partial Summary Judgment that Kentucky Bank wrongfully terminated the Financing Statement and that it is obligated to compensate the Movants in order to return them to the positions they would have held but for the wrongful termination.

Memo. Op., p. 10. The Partial Summary Judgment ruled that the Movants were entitled to judgment as a matter of law that Kentucky Bank was liable to them for the wrongful termination of Peoples Bank’s financing statement. The Movants contend that the Partial Summary Judgment is final and appealable because the Memorandum Opinion resolved all of the Movants’ claims against Kentucky Bank. They cite In re Integrated Resources, Inc., 3 F.3d 49, 53 (2^nd Cir. 1993), which held that it is a “basic rule of finality” that a determination of liability is a final and appealable judgment when only “ministerial tasks relating to computation of damages” remain for the court to resolve. Id.

           Kentucky Bank contends, however, that all the issues between the parties have not been resolved, and that the Partial Summary Judgment is not a final and appealable order. It cites Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202 (1976) for the proposition that a partial summary judgment on liability in a single-claim action is interlocutory by its terms. There, in finding that a partial summary judgment on the issue of liability under Title VII of the Civil Rights Act of 1964 was not a final and appealable order, the Supreme Court observed:

It is obvious from the District Court’s order that respondents, although having received a favorable ruling on the issue of petitioner’s liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys’ fees, but received none. ... [E]ven if we accept respondents’ contention that the District Court’s order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents’ requests for an injunction, for compensatory and exemplary damages, and for attorneys’ fees. It finally disposed of none of respondents’ prayers for relief.

Id. at 1205-06.

           Under this reasoning, the question that remains for this court is whether the Partial Summary Judgment finally disposed of the Movants’ prayers for relief. No judgment has been entered awarding the Movants the damages they seek, including attorneys’ fees, so there has been no final disposition in this action. This matter is not in a posture that allows the court to “set the amount of attorney fees awarded in the Court’s partial summary judgment” as stated in the Motion to Set Attorney Fees. The court therefore concludes that the Motion to Set Attorney Fees should be, and it hereby is, overruled as premature.

Copies to:

Amanda P. Thompson, Esq.

Mary Elizabeth Naumann, Esq.

James B. Ratliff, Esq.

Sannie Overly, Esq.

Anna C. Johnson, Esq., Trustee

W. Thomas Bunch, II, Esq.