Mcway v. Mckenney's, Inc.

• Decision Date: 21 May 2021
• Docket Number: A21A0341
• Court: Georgia Court of Appeals
• Parties: MCWAY v. MCKENNEY'S, INC. et al.

359 Ga.App. 547

859 S.E.2d 523

MCWAY

v.MCKENNEY'S, INC. et al.

A21A0341

Court of Appeals of Georgia.

May 21, 2021

Certiorari Denied October 19, 2021

Timothy John Santelli ; The Hadden Law Firm, John David Hadden, for Appellant.

Morse & Edwards, Robert C. Edwards ; Gray Rust St. Amand Moffett & Brieske, Michael J. Rust, David Christopher Sawyer, for Appellees.

Rickman, Presiding Judge.

In this appeal, Floyd McWay challenges the trial court's order granting his former attorney's motion to foreclose an attorney's lien. McWay contends that the trial court erred in awarding attorney fees in excess of the amount sought in his former attorney's notice of lien. For reasons that follow, we affirm.

At the outset, we note that "[t]he validity and enforceability of an attorney's lien, and the amount of fees to award the attorney enforcing the lien, are matters for the trial court to decide." Tolson v. Sistrunk , 332 Ga. App. 324, 325, 772 S.E.2d 416 (2015). "Where the trial court is the factfinder, we construe the evidence in the light most favorable to support the court's judgment and will uphold the court's factual findings on appeal if there is any evidence to support them." Id. With respect to questions of law, however, we employ a de novo standard of review. See Vasile v. Addo , 341 Ga. App. 236, 240 (2), 800 S.E.2d 1 (2017).

Construed in favor of the trial court's judgment, the record reflects that in January 2017, McWay entered into a contract for legal services with the law firm of Morse and Edwards, LLC ("Edwards"), to represent him in connection with claims for personal injuries resulting from a motor vehicle collision (the "Contract"). The terms of the Contract provided that, after suit was filed, Edwards would be paid 40 percent of the gross amount recovered for McWay. The Contract also addressed payment for services rendered in the event that McWay terminated the Contract:

[W]e shall be entitled to payment for services rendered before the date of termination. If termination occurs with an offer pending, or after settlement or verdict, we shall be entitled to our full percentage of the recovery as provided in the attorneys’ fees section above, with the understanding that those fees were earned. In the alternative, or in the event no offer is pending and there has been no settlement or verdict or award, we may elect to charge a reasonable percentage based upon the amount of work performed or may elect to receive payment based upon the time devoted to the case at an hourly rate of $250.00 for attorneys and $100.00 for support staff. In any event, you grant us a lien and security interest against any proceeds for all unpaid costs, expenses and fees.

During its representation of McWay, Edwards investigated the case, sent a demand letter with an initial settlement demand of $750,000, consulted with McWay about a $15,000 pre-suit settlement offer, filed suit on McWay's behalf, and conducted written discovery. Edwards also facilitated treatment for McWay's injuries, including cervical spine surgery, and subsequently made a pre-mediation settlement demand of $3,500,000. In October 2018, McWay terminated Edwards’ services. In February 2019, Edwards filed a notice of attorney's lien in the amount of $8,263.54.¹

In August 2019, while represented by new counsel, McWay settled the lawsuit for $800,000. In November 2019, McWay filed a motion for interpleader in which he asserted that he would not disburse any funds to satisfy the attorney's lien of Edwards without a court order. Edwards subsequently filed a motion to foreclose attorney's lien and asserted a lien for fees based on the value of the services rendered to McWay in an amount to be determined by the court.

Following a hearing, the trial court determined that Edwards was entitled to $43,200 in attorney fees, which constituted 5.4 percent of the overall settlement of $800,000 or 13.5 percent of the original contingency fee, plus incurred costs of $763.54.² The trial court based its ruling on the language of the Contract and awarded what it considered to be a reasonable percentage based upon the amount of work performed.³ McWay appeals and contends that the trial court erred in its award of attorney fees because Edwards never made an election for anything more than the amount included in the notice of attorney lien, which constituted an admission as to the amount of the lien, and that there was a pending offer at the time of termination that triggered the Contract provision relied upon in the notice of lien.⁴

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. v. Daniels , 280 Ga. 803, 804, 631 S.E.2d 356 (2006). Where a contingency fee contract provides for an attorney's entitlement to fees if discharged by his client before the case ends, the language of the contract provides the basis for determining the value of the attorney fee lien. See Jones, Martin, Parris & Tessener Law Offices v. Westrex Corp. , 310 Ga. App. 192, 712 S.E.2d 603 (2011) (contingency fee contract providing that law firm was entitled to a "reasonable fee for the work performed up to that time" if the client dismissed it before the case ended provided basis for determining value of attorney fee lien).

1. McWay contends that the trial court erred by...