Jones v. Westrex Corp...

• Decision Date: 21 June 2011
• Docket Number: No. A11A0321.,A11A0321.
• Court: Georgia Court of Appeals
• Parties: JONES, MARTIN, PARRIS & TESSENER LAW OFFICES, PLLCv.WESTREX CORPORATION.

310 Ga.App. 192

712 S.E.2d 603

11 FCDR 1977

JONES, MARTIN, PARRIS & TESSENER LAW OFFICES, PLLC

v.WESTREX CORPORATION.

No. A11A0321.

Court of Appeals of Georgia.

June 21, 2011.

Womble, Carlyle, Sandridge & Rice, Adam Scott Katz, Jennifer Saffold Collins, Atlanta, George William Long III, for appellant.L. Matt Wilson, Atlanta, Richard Kopelman, Decatur, Clinton W. Sitton, for appellee.BARNES, Presiding Judge.

This case involves the value of a discharged law firm's attorney fee lien and the proper procedures and evidence for determining that value. Martin & Jones ¹ had a contingency fee contract which provided it was entitled to a “reasonable fee for the work performed up to that time” if the client dismissed it before the case ended. The client dismissed Martin & Jones, which filed an attorney fee lien in the underlying case. After six months, the case settled for $2.5 million, and the new firm moved to discharge the lien. The fee lien was tried before a jury, which awarded Martin & Jones $20,750 in fees. Martin & Jones appeals, and for the reasons that follow, we affirm the judgment entered on the verdict.

Martin & Jones enumerates six errors on appeal, contending that the trial court erred in (1) denying its motion to intervene in the underlying suit as a party, (2) ordering it to trial on the attorney fee lien on less than 24 hours notice, (3) concluding as a matter of law that the firm was required to present evidence of hours and rates to establish the value of its services, (4) “excluding evidence of work performed and results accomplished,” and (5) failing to charge the jury on quantum meruit. It also argues that (6) the evidence did not support the judgment.

1. Martin & Jones contends the trial court erred in denying its motion to intervene as a party in the underlying suit and in requiring it to proceed to trial on reasonable fees when it did. It asserts that it had a right to intervene because it had an interest in the settlement proceeds, and that its rights were impaired because, as a non-party, it was unable to conduct discovery. It also argues that it was harmed by the denial of the motion because neither the former client—Westrex Corporation—nor the opposing party—the City of Atlanta—had an interest in establishing Martin & Jones's attorney fee claim.

The attorney lien statute, OCGA § 15–19–14(b),

confers upon an attorney at law the right to impose a lien upon actions, judgments, and decrees for money, and prevents the satisfaction of such an action, judgment, or decree until the claim of the attorney for his fees is fully satisfied. The lien arises upon the institution of the suit; it is fixed as soon as the suit is filed and may not be divested by any settlement or contract, it matters not by whom the settlement may have been made or attempted. After suit has been filed it can not be settled so as to defeat the lien of the attorney for his fees.

(Citations, 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 which is the subject matter of the action” and is “so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.” However,

[i]ntervention must be timely, whether asserted as a right or as a matter of discretion.... The decision whether application for intervention is timely and the showing sufficient are matters within the sound discretion of the trial court. The most important factor is whether intervention will prejudice existing parties in the case.

(Citations omitted.) Sta–Power Indus. v. Avant, 134 Ga.App. 952, 958(3), 216 S.E.2d 897 (1975).

We find no abuse of discretion in the trial court's denial of the motion to intervene. Sta–Power Indus., 134 Ga.App. at 958(3), 216 S.E.2d 897. Martin & Jones was discharged from the case on October 28, 2009 and filed its lien on November 18, 2009. The firm knew before May 3, 2010 that its former client Westrex and the City had reached a settlement agreement, but did not move to intervene as a party until June 30, 2010. Martin & Jones was allowed to prosecute its fee lien to the jury as a party, making opening statements, calling witnesses, introducing evidence, and arguing in closing. The only additional benefit Martin & Jones could have obtained as an intervener was the ability to conduct discovery as a party. Granting the motion and reopening discovery, as discussed further in Division 2, would have prejudiced the existing parties—Westrex and the City—who were only days from being able to exchange the settlement check for a final release, but whose case could not be fully resolved until the lien was discharged. Accordingly, we find no abuse of discretion in the trial court's denial of the motion to intervene.

2. Martin & Jones also asserts the trial court erred in denying its motion for continuance and ordering it “to trial on less than 24 hours notice,” arguing it was denied adequate notice of trial or the opportunity to conduct discovery. “[T]he time for conducting discovery rests in the sound discretion of the trial court, ... [which] has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” (Citations and punctuation omitted.) Lawrence v. Direct Mtg. Lenders Corp., 254 Ga.App. 672, 673(1), 563 S.E.2d 533 (2002). Further, “trial courts have discretion to set their trial calendars and manage the call of cases for trial[,] ... limited by the due process requirement ... that notice be reasonable ... under the totality of the circumstances.” Thornton v. Nat. American Ins. Co., 269 Ga. 518, 518–519(1), 499 S.E.2d 894 (1998). Our Supreme Court in Thornton held that, as a general rule, trial courts should provide at least two business hours notice to parties on a trial calendar that the case was being called for trial. Id. at 519(3), 499 S.E.2d 894.

The record indicates that the firm had notice that the underlying case was included on trial calendars in February and April 2010, and was continued to the July 2010 trial calendar after Westrex announced the settlement in open court. Martin & Jones received Westrex's May 28, 2010, motion to discharge the fee lien promptly so the case could be settled, and received the company's “Notice of Hearing” asking that the motion be heard on July 6, 2010.

The trial court sent Westrex and the City notice that their case was set for a calendar call on July 6, 2010 to determine the schedule for the court's July 2010 civil trial calendar, and ordered the recipients “to ensure that all Parties and Counsel have adequate notice of the Calendar.” ² Counsel for Westrex had informed Martin & Jones of its intention to announce ready for trial at the July 6, 2010, calendar call and offered it the opportunity to inspect and copy all of Westrex's files related to this litigation. Westrex had also offered to permit the deposition of its president and both of the attorneys from the new firm, but Martin & Jones made no effort to conduct any discovery.

Finally, the firm argues that by being put on trial so quickly, it was denied the opportunity to develop and present expert testimony regarding the value of its services. However, both the managing partner of the parent firm and the Atlanta partner of Martin & Jones were present and testified at trial. Based on their testimony, either lawyer could have testified as an expert about the value of the firm's services.

The trial court did not err in denying Martin & Jones's motion for a continuance. The firm received more than two business hours of notice. While the firm argues that the lien was not published on a trial calendar, the underlying case was. Martin & Jones had known for two months that the case had been settled and that the lien was the only issue remaining. As the trial court noted before the trial began, the firm had made its own determination of the lien's value. In its final judgment, the trial court found that by July 6, 2010, Martin & Jones had “virtually all of the relevant facts” regarding the value of the work it had performed before its discharge, which was the issue presented at trial for the jury to resolve. Notice was adequate and reasonable considering the totality of the circumstances, and the trial court did not abuse its discretion in requiring Martin & Jones to present its lien claim during the trial calendar on which the underlying case was set.

3. In related enumerations of error, Martin & Jones argues that the trial court erred in concluding as a matter of law that establishing the value of the firm's services required presentation of hours and rates, in excluding evidence of the “results obtained,” the value of the case, or the amount of the settlement, and in declining to give its requested charge on quantum meruit. In essence, Martin & Jones asserts that the jury should have been allowed to determine the amount of its reasonable fee for work performed before its discharge in light of the new firm's $2.5 million settlement, rather than a reasonable fee based upon an hourly rate multiplied by the number of hours spent on the case.

All parties agreed that Martin & Jones was not entitled to a contingency fee, because it was discharged before the contingency occurred. All parties also agreed that the firm was entitled to a reasonable fee for the work it performed before discharge. The dispute is about the evidence a jury should be able to consider when evaluating the amount of the fee. “Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will...