Gilbert v. MONTLICK & ASSOCIATES, PC

• Citation: 546 S.E.2d 895,248 Ga. App. 535
• Decision Date: 09 March 2001
• Docket Number: No. A00A2286., No. A00A2284
• Court: United States Court of Appeals (Georgia)
• Parties: GILBERT v. MONTLICK & ASSOCIATES, P.C. (Two Cases).

546 S.E.2d 895

248 Ga. App. 535

GILBERT v. MONTLICK & ASSOCIATES, P.C. (Two Cases).

Nos. A00A2284, A00A2286.

Court of Appeals of Georgia.

March 9, 2001.

Fred A. Gilbert, pro se.

Nelson, Mullins, Riley & Scarborough, Kenneth L. Millwood, Kilpatrick Stockton, Craig E. Bertschi, Atlanta, for appellee. MILLER, Judge.

Fred A. Gilbert, attorney, appeals from two separate orders of the trial court arising from attorney's liens filed against his former law firm. As both appeals involve the same operative facts, we have consolidated them in this opinion. For the reasons that follow, we affirm.

The relevant facts are as follows. Gilbert and David Montlick were partners in the law firm of Gilbert & Montlick, P.C. After a business dispute, Gilbert & Montlick, P.C. initiated arbitration proceedings against Gilbert, which resulted in a ruling terminating the law practice. Under the arbitration ruling, Gilbert received a final award of more than $1.8 million, $1.6 million of which was payable in quarterly installments of $93,446.98. Gilbert attempted to have the arbitration award vacated, but the arbitration results were upheld in superior court and on appeal in this court in Gilbert v. Montlick.¹

The law firm of Kilpatrick Stockton (KS) represented Gilbert in the arbitration proceedings, and Erck, Dever & Merlin, LLC (EDM) assisted Gilbert in challenging the arbitration award. KS and EDM both withdrew from their representation of Gilbert in 1997, and Gilbert has since been representing himself pro se.

On August 14, 1997, EDM served an attorney's lien under OCGA § 15-19-14² on Montlick & Associates (MA) for $43,468.91, demanding that MA pay EDM any money that MA otherwise owed Gilbert under the final award. In September 1997, KS also served an attorney's lien on MA for $144,621.82. MA subsequently filed this interpleader action naming EDM, KS, and Gilbert as defendants and as adverse claimants to the funds that MA owed Gilbert under the final award. Both KS and EDM filed cross-claims against Gilbert for legal fees, and Gilbert filed cross-claims against the two law firms for legal malpractice. Gilbert and EDM subsequently agreed to a dismissal of all claims each party had against the other. On April 22, 1998, the trial court ordered MA to pay into the registry of the court the June 1998 and September 1998 quarterly payments due Gilbert under the final arbitration award. The court further ruled that upon payment of such sums that MA would be dismissed with prejudice from the interpleader action and that defendants would thereafter be enjoined from bringing suit against MA "with regard to the attorneys' liens or the sums deposited with this court pursuant to its various orders."³

Case No. A00A2286

In Case No. A00A2286, Gilbert appeals from the trial court's June 9, 1998 order. In that order the trial court: (1) partially granted Gilbert's motion for summary judgment finding that EDM was not retained by Gilbert until after the arbitration award had been entered, but noted that EDM's breach of contract and quantum meruit cross-claims remain; (2) granted EDM's cross-motion for summary judgment for legal fees totaling $43,648.57 plus 12 percent annual interest; (3) found that MA was entitled to $2,065 in attorney fees and costs, ordering one-half to be paid by EDM and the remaining one-half to be paid by either Gilbert or KS upon resolution of the action; (4) ordered MA to make a deferred compensation payment into the registry of the court sufficient to satisfy the attorney's lien filed by KS with the remainder to be paid to Gilbert; and (5) extended the time for completion of discovery.

1. In his third and fourth enumerations of error, Gilbert argues that the court erred in finding that MA had a right to interplead and in failing to dismiss the interpleader action in its entirety. Gilbert argues that MA knew that (1) KS's claim was not legitimate and (2) EDM had not represented him at the time the final award was entered. The right to interpleader under OCGA § 9-11-22, however, depends upon the stakeholder's good faith fear of adverse claims.⁴ That is regardless of the merits of those claims or what the stakeholder in good faith believes the merits to be.⁵ Specifically, a stakeholder's offer to deposit disputed funds into the registry of the court in order to be discharged from potential litigation should not be denied merely because a claimant's case is weak or rests on tenuous grounds.⁶ These enumerations are without merit.

2. In his first enumeration of error, Gilbert contends that the trial court erred in dismissing MA with prejudice from the interpleader action and in enjoining Gilbert from bringing any action against MA. He contends that there is no evidence to support either action. Contrary to this assertion the very case that Gilbert cites clearly explains that where "adverse claims on a fund have in fact been interpleaded, it is proper to dismiss the holder of the disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary."⁷ If no direct personal liability is being sought and the only claims are to the funds that the party holds, his capacity in the action is that of merely a stakeholder.⁸ The stakeholder's successful invocation of the interpleader procedure serves to discharge him from the threat of potential liability to the adverse claimants of the disputed funds.⁹ Clearly in this case it was proper to dismiss MA, the former holder of disputed funds against which EDM and KS had potentially adverse claims, as no further relief was sought against MA. Therefore, this enumeration is without merit.

3. Gilbert's argument that the court erred in refusing to hear his motion for summary judgment at the time it heard MA's motion to dismiss is without merit. Subject to the constitutional rights of the litigants, the presiding judge plainly retains discretionary control of its own calendar, and an appellate court will rightly hesitate to disturb the trial court's rulings on such matters unless it is clearly shown that this discretion was manifestly abused.¹⁰ The transcript of that hearing clearly reveals that Gilbert's motion for summary judgment was on the calendar to be heard on June 3, 1998. We find no abuse of discretion in the court's refusal to hear Gilbert's summary judgment motion at the same time MA's motion was heard.

4. Gilbert's second enumeration of error contends the court erred in finding that MA had established a right to be reimbursed for attorney fees associated with bringing the interpleader action. Gilbert asserts this error prematurely as it has not yet been determined by the trial court whether it is Gilbert or KS that is to pay one-half of MA's attorney fees and costs. Consequently, this enumeration is not ripe for appellate consideration.¹¹

5. Gilbert's sixth enumeration of error is deemed abandoned¹² as he has not referenced the record¹³ nor has he supported this claim of error by any citation to authority or reasoned argument.¹⁴

Case No. A00A2284

In Case No. A00A2284, Gilbert appeals from the court's March 8, 1999 order. In that order the trial court granted partial summary judgment to KS on its cross-claims against Gilbert in the amount of $123,694.23 and denied Gilbert's motion on the same claim. The court also granted KS's motion for partial summary judgment on Gilbert's cross-claim of legal malpractice and denied Gilbert's motion for sanctions against KS.

6. Gilbert argues that the court "failed to consider, or erroneously considered" his objection to KS's attorney's lien. In particular he argues that because he presented evidence that the judgment upon which KS claimed a lien had been assigned to a third party, the lien did not comply with the statute. The attorney's lien statute is in derogation of the common law and should be strictly construed.¹⁵ "[T]he statute will not be construed so as to apply to any factual situation not strictly within its wording."¹⁶ The statute clearly states that upon decrees for money, attorneys "shall have a lien superior to all liens except [for] tax liens; and no person shall be at liberty to satisfy such an action, judgment or decree until the lien or claim of the attorney for his fees is fully satisfied."¹⁷ The attorney's lien rule applies to existing creditors as the third-party assignee in this case.¹⁸ Therefore, the validity of KS's lien is unaffected by the assignment.¹⁹ In this regard, Gilbert's reliance on OCGA § 15-19-14(c), concerning actions to recover real property, is misplaced.

Gilbert's argument that the lien was invalid because KS added improper fees also fails. "The inclusion of nonlienable items, easily separable from lienable items, does not defeat the entire lien."²⁰ The trial court made the specific finding that issues of fact remain with regard to the contested charges. And the disputed fees are obviously easily separable as the trial court granted summary judgment on KS's cross-claim reduced by the amount of these fees.

7. Gilbert enumerates as error the court's grant of summary judgment to KS on the issue of malpractice. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.²¹ A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.²² To prove legal malpractice, Gilbert must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill, and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.²³ In practice, this effectively requires proof that Gilbert would have prevailed on the merits of the original litigation.²⁴ In other words, Gilbert must show that but for KS's alleged error, the...