Howe & Associates, P.C. v. Daniels
| Decision Date | 28 June 2005 |
| Docket Number | No. A05A0420.,A05A0420. |
| Citation | 274 Ga. App. 312,618 S.E.2d 42 |
| Court | Georgia Court of Appeals |
| Parties | HOWE & ASSOCIATES, P.C. v. DANIELS. |
Scott Stevens, Howe & Associates, P.C., Alpharetta, for Appellant.
Tony Taylor, Daniels & Taylor, Lawrenceville, for Appellee.
Jerry Daniels, Daniels & Taylor, Lawrenceville, pro se.
Howe & Associates, former attorneys of Nikki C. Taylor and William D. Taylor,1 appeal the trial court's order enforcing an attorney fees lien in favor of Jerry A. Daniels, the attorney who originally filed the Taylors' tort action against Harmon B. Anderson III, and other defendants. Sometime after the action was filed, Daniels negotiated a settlement with the tort defendants, but the Taylors were not satisfied with the settlement proposed. Consequently, they discharged Daniels and retained Howe & Associates to represent them. Daniels had a contingency fee contract with the Taylors that called for him to be paid on an hourly basis if he were discharged from the case. After he was discharged as counsel, Daniels filed an attorney fees lien on November 22, 2002, and served a notice on the Taylors, the defense attorneys in the tort action, and the insurance company involved.
Thereafter, Howe & Associates negotiated a new settlement, which the Taylors accepted, and on January 24, 2003, Howe and Associates filed a dismissal of the action, without prejudice, on behalf of the Taylors. The settlement proceeds were disbursed without honoring Daniels's lien. As the Taylors had dismissed their claims against the defendants and the defendants' cross-claims were contingent upon recovery by the Taylors, the trial court on January 31, 2003, directed the clerk of court to close the file.
On February 10, 2003, however, Daniels moved to reopen the case and foreclose his attorney fees lien. Daniels relied upon Brown v. Ga., Carolina & etc. R., 101 Ga. 80, 28 S.E. 634 (1897), and Nodvin v. Fabian, 153 Ga.App. 716, 266 S.E.2d 253 (1980), as authority to reopen the case.
Howe & Associates opposed the motion, contending that Daniels knowingly gave up his files on the case to Howe & Associates and that by doing so he relinquished his control of the files and the lawsuit. They further contended that Howe & Associates had authority to dismiss the action and that upon the dismissal, "Daniels lost any and all rights under the attorney lien statute," and "[a]ccordingly, Daniels' motion for attorney's fees or to perfect lien is no longer actionable." Howe & Associates contended that Daniels's remedy was to
Thereafter, the trial court scheduled a show cause hearing to consider Daniels's motion. Following the hearing, the trial court ruled that pursuant to Smith, Bassett etc. v. Word of God Ministries, 234 Ga.App. 263, 506 S.E.2d 427 (1998), Daniels could still pursue his attorney fees lien, and vacated the dismissal of the case.
Subsequently, after an evidentiary hearing, the trial court ruled that Daniels was entitled to recover on his lien. The court found that Daniels had established that he had expended efforts in the case with a value exceeding the amount of attorney fees he claimed, and that the Taylors, the original tort claim defendant Anderson, and Howe & Associates were jointly and severally liable for the fees, with each Taylor "only being jointly and severally responsible for the fees in his or her particular matter, as each [Taylor] had a separate fee contract with Attorney Daniels." Thus, the court ordered that Daniels was entitled to a joint and several judgment in the amount of $1,000 against Nikki Taylor, defendant Anderson, and Howe & Associates and a separate joint and several judgment in the amount of $6,000 against William Taylor, defendant Anderson, and Howe & Associates. This appeal followed.
Howe & Associates enumerated only two errors. First, the firm argues that the trial court erred by permitting Daniels to reopen the case and assert his allegedly non-existent attorney's lien after Howe & Associates had settled the case and filed a voluntary dismissal of the action, and, second, that the trial court erred by doing so because Daniels had no standing to assert the lien in a dismissed case from which he had been discharged before the settlement. We disagree and affirm.
1. Howe & Associates's contention that the trial court had no authority to reopen the case is without merit. The Code section applicable to attorneys liens in this State provides:
Upon actions, judgments, and decrees for money, attorneys at law shall have a lien superior to all liens except 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. Attorneys at law shall have the same right and power over the actions, judgments, and decrees to enforce their liens as their clients had or may have for the amount due thereon to them.
OCGA § 15-19-14(b). This "special, or charging, lien is the equitable right of [an] attorney to recover his fees and costs due him for his services, and may be satisfied out of the judgment obtained by his professional services." Law Office of Tony Center v. Baker, 185 Ga.App. 809, 366 S.E.2d 167 (1988). This Code section "provides for a lien in favor of an attorney against judgments or funds recovered for the attorney's client, to secure the fee earned by the attorney." Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274(1), 496 S.E.2d 693 (1998).
Although merely retaining counsel to prosecute a claim does not give rise to an attorney's lien upon the cause of action, Winslow Bros. Co. v. Murphy, 139 Ga. 231, 234, 77 S.E. 25 (1913), the lien is "fixed as soon as the suit [is] filed, and could not be divested by any settlement or contract, it matters not by whom the settlement may have been made or attempted." Payton v. Wheeler, 13 Ga.App. 326, 328, 79 S.E. 81 (1913). Even though our Supreme Court held in Brown v. Ga. Carolina, etc., R. Co., supra, 101 Ga. at 83, 28 S.E. 634, that an attorney's lien did not attach to the cause of action, but "only arises upon the institution of the suit," the court also held in Brown that the proper remedy in this circumstance would be to move the court to vacate a dismissal and seek to reinstate the original action. Id. See also Smith, Bassett etc. v. Word of God Ministries, supra, 234 Ga.App. at 264, 506 S.E.2d 427 ()(citation omitted). The statement in Brown that the lien did not attach to the...
To continue reading
Request your trial
-
Cardwell v. Bankr. Estate of Spivey (In re Douglas Asphalt Co.)
...services ... [that] may be satisfied out of the judgment obtained by ... [those] professional services.” Howe & Assocs., P.C. v. Daniels, 274 Ga.App. 312, 314, 618 S.E.2d 42, 44 (2005)(citing Law Office of Tony Center v. Baker, 185 Ga.App. 809, 366 S.E.2d 167 (1988)) (internal quotation mar......
-
McRae, Stegall, Peek & Co. v. Ga. Farm Bureau Mut. Ins. Co.
...settlement may have been made or attempted.’ Payton v. Wheeler, 13 Ga.App. 326, 328, 79 S.E. 81 (1913).” Howe & Assocs., P.C. v. Daniels, 274 Ga.App. 312, 314(1), 618 S.E.2d 42 (2005), aff'd 280 Ga. 803, 631 S.E.2d 356 (2006). More specifically, “[a]fter suit has been filed it can not be se......
-
Jones v. Westrex Corp...
...punctuation and footnote omitted.) Howe & Assocs., P.C. v. Daniels, 280 Ga. 803, 804, 631 S.E.2d 356 (2006), aff'g 274 Ga.App. 312, 618 S.E.2d 42 (2005). Under OCGA § 9–11–24(a)(2), a party may intervene as a matter of right if it has “an interest relating to the property or transaction whi......
-
Woods v. Jones
...punctuation, and footnote omitted.) Howe & Assocs., P.C. v. Daniels, 280 Ga. 803, 804, 631 S.E.2d 356 (2006), affirming 274 Ga.App. 312, 618 S.E.2d 42 (2005). See also Ruth v. Herrmann, 291 Ga.App. 399, 401-402(2), 662 S.E.2d 726 (2008). It is clear that a valid lien for attorney fees had a......
-
Legal Ethics - Patrick Emery Longan
...S.E.2d at 113. 166. Id. at 513, 627 S.E.2d at 113. 167. Id. at 514, 627 S.E.2d at 113. 168. Id. at 514 n.1, 627 S.E.2d at 113 n.1. 169. 274 Ga. App. 312, 618 S.E.2d 42 (2005), affd, 280 Ga. 803, 631 S.E.2d 356 (2006). 170. Id. at 313, 618 S.E.2d at 43. 171. Id. at 315, 618 S.E.2d at 45. 172......