Monk v. Parker

• Court: Georgia Court of Appeals
• Writing for the Court: BARNES, Presiding Judge.
• Citation: Monk v. Parker, 331 Ga. App. 736, 771 S.E.2d 424 (Ga. App. 2015)
• Decision Date: 30 March 2015
• Docket Number: No. A14A1603.,A14A1603.
• Parties: MONK v. PARKER et al.

331 Ga.App. 736

771 S.E.2d 424

MONK

v.PARKER et al.

No. A14A1603.

Court of Appeals of Georgia.

March 30, 2015.

Harriss & Hartman, Joseph T. Leman, for Appellant.

Levy & Thompson, Richard Scott Thompson, for Appellees.

Opinion

BARNES, Presiding Judge.

We granted this discretionary appeal to the former counsel for a workers' compensation claimant to consider whether the superior court properly affirmed the decision of the Workers' Compensation Appellate Division granting the current counsel's motion to dismiss the former counsel's attorney fee lien. Because the superior court did not err in affirming the Appellate Division, we in turn affirm the superior court.

We note first that the record on appeal as it pertains to the issue before us is incomplete.¹ The appellate record contains the superior court record, which in turn contains documents filed in the superior court and the record transmitted to the superior court from the Workers' Compensation Board. While the Board record contains numerous documents, including 20 Notices of Hearing issued by the Board after the claimant's former counsel withdrew from the case, it includes only some of the pleadings filed by the parties with the Board. For example, the record includes none of the parties' Requests for Hearing (Forms WC–14), which would indicate who asked for the hearings and for what purpose, information that is not included in the Board's hearing notices. Additionally, the record does not include the former counsel's attorney fee lien, the current counsel's motion to dismiss the lien, the former counsel's response to the motion to dismiss, or any exhibits that might have been attached to any of those documents. While the former counsel cites to the exhibits he attached to his application for discretionary appeal, those documents are not part of the official record transmitted to this court from the clerk of the superior court.

Our rules specifically preclude consideration of “[d]ocuments attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court.” Court of Appeals Rule 24(g) ; see Williams v. Fed. Nat. Mg. Assn., 299 Ga.App. 574, 575, 682 S.E.2d 630 (2009). No different standard applies to exhibits attached to an application for review. “Allegations of fact appearing only in appellate briefs and unsupported by evidence in the record will not be considered on appeal.” Williams, 299 Ga.App. at 575, 682 S.E.2d 630. Further, “[i]t is the appellant's responsibility to ensure that the appellate record contains the information necessary to decide the issue. Otherwise, he may not meet his burden of showing error from the record.” (Citation and punctuation omitted.) Nye v. State, 279 Ga.App. 347, 348(1), 631 S.E.2d 386 (2006).

Thus, to the extent that the former counsel asks us to review the specific language of a Stipulation and Agreement between the claimant and the employer or the Board's approval of that Agreement to determine whether either document established his right to fees or expenses regardless of his fee lien, we cannot do so. Based on the limited record before us, however, we can determine that the superior court did not err in affirming the decision of the Appellate Division, which held that the former counsel failed to perfect his lien as required by Board rules.

The evidence establishes without dispute that in November 2004, Tom Monk (“Former Counsel”) began representing a workers compensation claimant whose injury was eventually categorized in 2009 as catastrophic. The claimant terminated Former Counsel's representation in February 2012, and Former Counsel filed an “Attorney Withdrawal/Lien,” Form WC–108b, via the Board's electronic filing system, but did not serve copies of the form on the other lawyers. As noted earlier, this document is not in the record. The claimant hired Linda Parker and Larry Hanna (“Current Counsel”), who negotiated a Stipulation and Agreement (“the Agreement”) that was approved by the Board in August 2012. Neither the Agreement nor the Board order affirming it is included in the record, but the ALJ subsequently described the Agreement as “resolving indemnity issues but leaving medical open.” The Board order also directed Current Counsel to hold in escrow $77,385.74 in attorney fees and expenses pending “resolution of all attorney lien disputes.”

The Board issued a notice of mediation in January 2013, apparently related to the attorney fee dispute as it notes that “[f]ailure of former counsel to appear and present argument and evidence in support of any fee lien will result in the dismissal of the lien.” The date for the mediation was reset several times; the reason it was reset is not apparent from the notices in the record. The next record item is an ALJ order issued in June 2013, which states that Current Counsel had moved for an order dismissing Former Counsel's lien for failing to serve a copy on all counsel, which was required by Board Rule 108(e). Current Counsel had also sought permission to disburse the funds they held in escrow.

The ALJ found that Former Counsel had committed a technical violation of the rules in that he “[did] not deny that he failed to properly serve a copy of the Form 108b on all represented parties [sic], as is required by the Rule,” but held that the unserved parties were not harmed because they had received actual notice of the filing through the Board's electronic filing system.² The ALJ also found that Current Counsel had demonstrated “a certain lack of diligence” in failing to move for the lien's dismissal until more than a year after it was filed, and set the matter for a hearing “as to the issue of the satisfaction of [Former Counsel's] attorney fee lien.” The ALJ granted Current Counsel's request for a certificate of immediate appeal, which the Appellate Division granted, and Current Counsel filed a notice of appeal.

After being briefed and hearing oral argument, the Appellate Division reversed the ALJ's decision to deny Current Counsel's motion to dismiss Former Counsel's attorney fee lien.³ After observing that the legislature had granted the Board the authority under OCGA § 34–9–59 to adopt rules of procedure to govern the exercise of its functions, the Appellate Division held:

With regard to an attorney fee lien, if an employee and/or his attorney terminate their contract, the former attorney still is entitled to recover a fee if he has perfected his fee lien. See OCGA § 34–9–108 and Board Rule 108(e). In order to perfect his attorney fee lien, the former attorney must file written notice of the contended value of services and/or expenses with the Board on Form WC–108b within twenty (20) days after (i) withdrawal from the case, or (ii) notice of termination in writing by the employee. Board Rule 108(e). The former attorney “shall” serve a copy of the WC–108b on “all unrepresented parties and counsel.” Id. Failure to attach supporting documentation will result in the lien being denied. Id. The rule further adds “failure to perfect a lien in this manner will be considered a waiver of further attorney[ ] fees.” Id.

Additionally, Board Rule 61(24) provides, in part, that an attorney withdrawing from a claim must file a WC–108b and follow the procedures outlined in Rule 108(b). Also, an attorney who chooses to file a lien for services and/or expenses “shall file this form [WC–108b] with supporting documentation, and serve a copy on all counsel and unrepresented parties.” See Board Rule 61(24).

The Appellate Division concluded that Former Counsel put forth no evidence disputing Current Counsel's “allegation as to insufficient service of the attorney fee lien,” and held that notice from the Board's electronic filing system was not a substitution for the service requirement contained in Board Rule 108(e). Absent proper service, it concluded, the lien had not been perfected. The Division thus reversed the ALJ and granted Current Counsel's motion to dismiss Former Counsel's attorney fee lien.

Former Counsel appealed to the superior court, which affirmed the Appellate Division “based on the ‘any evidence’ standard of review,” and this court granted Former Counsel's application for discretionary appeal.

1. Former Counsel contends that the superior court erred in reviewing the ALJ's decision under the “any evidence” standard. When reviewing a workers' compensation ruling, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the Appellate Division of the Board, and must affirm findings of fact as to disputed evidence if they are supported by any evidence. Ray Bell Constr. Co. v. King, 281 Ga. 853, 854, 642 S.E.2d 841 (2007). Both levels of court apply a de novo standard of review when considering the Appellate Division's application of law to the facts. Trax–Fax, Inc. v. Hobba, 277 Ga.App. 464, 465, 627 S.E.2d 90 (2006).

Here, Current Counsel argues that the record does not establish that they received a computer-generated notice when Former Counsel...