Carragher v. Potts

• Decision Date: 03 November 2009
• Docket Number: No. A09A1523.,A09A1523.
• Citation: 686 S.E.2d 348
• Parties: CARRAGHER v. POTTS.
• Court: Georgia Court of Appeals

686 S.E.2d 348

CARRAGHER v. POTTS.

No. A09A1523.

Court of Appeals of Georgia.

November 3, 2009.

Joseph A. Carragher, Jr., pro se.

Troy R. Millikan, Gainesville, for appellee.

BERNES, Judge.

In this action to set aside an attorney's lien on real property, attorney Joseph A. Carragher, Jr., appeals the trial court's grant of summary judgment in favor of the property owner, Andrew Potts. The trial court's decision concluded that the attorney's lien was unenforceable since it was not timely filed prior to the settlement and dismissal of the underlying action in which the attorney fees had accrued. Because the trial court misapplied the statutory provisions of OCGA § 15-19-14 and conflicting evidence was presented to preclude the entry of summary judgment on Potts's claim, we reverse.

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. OCGA § 9-11-56(c). 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.

(Citation omitted.) Jones v. Wellon, 237 Ga. App. 62, 514 S.E.2d 880 (1999).

So viewed, the undisputed facts in this case establish that Carragher, a licensed attorney, represented Potts's wife in an underlying lawsuit involving three parcels of real property. Carragher and Potts's wife entered into a Legal Representation Agreement, providing that Carragher would be paid attorney fees for his services on a contingency basis in an amount equal to 40 percent of the recovery in the lawsuit. The underlying lawsuit was settled in favor of Potts's wife, allowing her to recover full ownership of the subject properties on September 12, 2006. Following her recovery, Potts's wife conveyed the properties to Potts by quitclaim deed on September 21, 2006. Thereafter, on or about October 12, 2006, Carragher filed a "Claim of Attorney's Lien" against the properties pursuant to OCGA § 15-19-14(c) and (d) to collect unpaid attorney fees accrued during the underlying lawsuit.

Potts filed the instant action, seeking to set aside the lien and to clear title to the property. In the action, Potts filed a motion for summary judgment, contending that the lien was unenforceable since it was untimely filed, he was a bona fide purchaser without notice of the lien, equitable estoppel barred enforcement, and the lien failed to set forth a specific amount and due date. The trial court granted Potts's motion, finding that the lien was untimely filed after the settlement and dismissal of the underlying lawsuit and, therefore, was unenforceable.

1. (a) Carragher contends that the trial court erred in its analysis and conclusion that the lien had been extinguished. We agree.

Carragher's attorney's lien against the real property in this case was established under the provisions of OCGA § 15-19-14(c), which provides:

Upon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes, which may be enforced by mortgage and foreclosure by the attorneys at law or their lawful representatives as liens on personal property and real estate are enforced. The property recovered shall remain subject to the liens unless transferred to bona fide purchasers without notice.

(Emphasis supplied.) An attorney's lien under this provision arises upon the attorney's employment and is perfected by the ultimate recovery in favor of his client. Molloy v. Hubbard, 48 Ga.App. 820, 821, 173 S.E. 877 (1934). Our state appellate courts have further held that "the attorney's lien created under OCGA § 15-19-14(c) attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, ... includ[ing] settlement." (Citation, punctuation, and emphasis omitted.) Smith, Bassett, Purcell & Koenig v. Word of God Ministries, 234 Ga.App. 263, 264, 506 S.E.2d 427 (1998) (hereinafter "Smith""). See also Brotherton v. Stone, 197 Ga. 74, 75(3), 28 S.E.2d 467 (1943); Middleton v. Westmoreland, 164 Ga. 324, 329(1), 138 S.E. 852 (1927). An attorney's lien on real property recovered by means of a settlement agreement successfully procured through the attorney's labor is not extinguished by the dismissal of the action brought to recover that property. See Smith, 234 Ga.App. at 264, 506 S.E.2d 427.

It is undisputed that the subject property in this case was recovered pursuant to the settlement of the underlying lawsuit and was obtained as a result of Carragher's legal services.¹ As such, the attorney's lien fell within the parameters of OCGA § 15-19-14(c) and was not extinguished upon the dismissal of the underlying lawsuit. See Smith, 234 Ga.App. at 264, 506 S.E.2d 427.

The trial court nevertheless relied upon the decisions of Howe & Assoc., P.C. v. Daniels, 280 Ga. 803, 631 S.E.2d 356 (2006), and Villani v. Edwards, 251 Ga.App. 293, 554 S.E.2d 184 (2001), in support of its conclusion that the lien was extinguished by the settlement and dismissal of the underlying lawsuit. It is true that these decisions hold that "no lien attaches in favor of the attorney at law to the cause of action, but it only arises upon the institution of the suit and hence when for any reason the suit is finally disposed of, the lien is discharged." (Citation and punctuation omitted.) Howe & Assoc., P.C., 280 Ga. at 805, 631 S.E.2d 356. See also Brown v. Ga. Carolina & Northern R. Co., 101 Ga. 80, 83, 28 S.E. 634 (1897); Villani, 251 Ga.App. at 294(1), 554 S.E.2d 184. Significantly, however, these cases are distinguishable since their rulings were based upon an interpretation of the provisions of OCGA § 15-19-14(b), which by its terms applies to "actions, judgments, and decrees for money." To the contrary, in this case, the lien pertains to "the recovery of real ... property" governed distinctly by subsection (c) of the statute. See OCGA § 15-19-14(c). As explained in Smith, because Brown and its progeny, including Howe & Assoc., P.C. and Villani, "did not involve a lien arising under the same subsection of the statute governing the lien in this case," their rulings are inapplicable here. Smith, 234 Ga.App. at 263-264, 506 S.E.2d 427. Instead, this case is controlled by subsection (c) of the statute and, therefore, the precedent of Smith pertinently applies to require a conclusion that the lien on the real property was not extinguished by the settlement and dismissal of the underlying lawsuit. Id.

(b) Potts's claim that he was not a party to the underlying lawsuit and the Legal Representation Agreement between Carragher and his wife also affords no basis for relief. Because Carragher filed his claim of lien within 30 days after the property was recovered in the settlement, the lien was also governed by the provisions of OCGA § 15-19-14(d), providing that "[i]f an attorney at law files his assertion claiming a lien on property recovered in an action instituted by him, within 30 days after a recovery of the same, his lien shall bind all persons." Based upon this provision, Carragher's lien on the real property was binding against all persons, including Potts. See generally Hester v. Chalker, 222 Ga.App. 783, 784(2), 476 S.E.2d 79 (1996) ("A properly filed attorney's lien binds all persons including future lienholders and purchasers for value.").

(c) Potts further contends that the lien was unenforceable since he is a bona fide purchaser without notice of the lien within the meaning of OCGA § 15-19-14(c). But, because conflicting evidence was presented as to this issue, the entry of summary judgment was unauthorized.

While Potts and his wife both submitted affidavits stating that they had not been informed of the claim of lien before the property was transferred to Potts on September 21, 2006, Carragher submitted an affidavit with a copy of a letter that had been faxed to Potts's...