Smith v. Millsap

Citation364 Ga.App. 162,874 S.E.2d 184
Decision Date07 June 2022
Docket NumberA22A0429
Parties SMITH et al. v. MILLSAP et al.
CourtUnited States Court of Appeals (Georgia)

Hawkins Parnell & Young, Kathryn S. Whitlock, Stephen William Rothring, Charles G. Foster; Krevolin & Horst, Halsey George Knapp, Jr., Jessica G. Cino, for Appellants.

Anderson Tate & Carr, Thomas T. Tate, Robert Dewitt Thomas, Tyler Austin Dillard, Duluth, Jaletta Long Smith, for Appellee.

Markle, Judge.

Attorney John Da Grosa Smith represented Ryan Millsap in a business dispute between Millsap and his former partner, James Schulz. While that case was still pending, Smith became concerned that he would not be fully compensated for his work, and he filed an attorney's lien under OCGA § 15-19-14 (b). Millsap moved to have the lien cancelled, and the trial court granted the motion. In this appeal, Smith challenges the trial court's order, asserting that this Court has jurisdiction over his appeal under the collateral order doctrine despite the lack of a final order in the underlying lawsuit. For the reasons that follow, we disagree, and therefore, we dismiss this appeal for lack of jurisdiction.

[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. 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. With respect to questions of law, however, we employ a de novo standard of review.

(Citations and punctuation omitted.) McWay v. McKenney's, Inc. , 359 Ga. App. 547, 547-548, 859 S.E.2d 523 (2021). Because jurisdiction is a question of law, we apply a de novo standard of review. In re Estate of Cornett , 357 Ga. App. 310, 313 (1), 850 S.E.2d 790 (2020).

So viewed, the record shows that this case originated as a dispute between former business partners, Millsap and Schulz, in connection with the creation of a movie studio on property in Atlanta. Smith was general counsel for Blackhall Real Estate, one of the companies holding the property on which the studio was built. During the course of the litigation between Millsap and Schulz, Smith and his firm Smith LLC (collectively ‘‘Smith’’) also became counsel of record for Millsap and the other named defendant companies.1 Eventually, the trial court ordered the dispute between Millsap and Schulz to arbitration and stayed the proceedings, but it retained jurisdiction to enter final judgment following the conclusion of arbitration.

Thereafter, Schulz and Millsap entered into an agreement to permit the sale of Blackhall Real Estate's land, with a portion of the proceeds distributed to Millsap and Schulz, and the remainder placed in the court registry. Smith moved to withdraw as counsel, and he filed an attorney's lien pursuant to OCGA § 15-19-14 (b), seeking compensation for his services rendered in negotiating the real estate transaction and defending Millsap in Schulz's suit.2

Millsap filed an emergency motion to cancel the lien, arguing that it was invalid, and that if it was not removed, the real estate deal would not close. Following a hearing, at which Millsap was represented by new counsel, the trial court granted the motion and cancelled the lien, but reserved ruling on the merits of any claim Smith might have for attorney fees against the defendants. Smith filed the instant appeal, and then filed a motion for reconsideration of the trial court's order cancelling his lien, which the trial court also denied.3

1. Before we consider the merits of Smith's arguments regarding the cancellation of his lien, we first address whether we have jurisdiction over this appeal because there was no final order in the underlying case between Millsap and Schulz. Smith argues that we have jurisdiction under the collateral order doctrine because the issue of an attorney's lien has been completely decided and is separate from the underlying suit, and there is a likelihood that he will lose access to the funds if he has to wait for a final judgment in the underlying litigation. He compares the cancellation of an attorney's lien to the cancellation of a lis pendens, which would be directly appealable.

"It is well established that this Court has a solemn duty to inquire into our jurisdiction to review the errors enumerated on appeal, and it is a duty we do not take lightly." (Citation and punctuation omitted.) Ford v. Ford , 347 Ga. App. 233, 818 S.E.2d 690 (2018). Generally, we have jurisdiction over a direct appeal from a final order. OCGA § 5-6-34 (a) (1). Where there is no final order, a party must comply with the rules for an interlocutory appeal, which require obtaining a certificate of review from the trial court and permission from this Court to bring the appeal.4 OCGA § 5-6-34 (b).

Nevertheless, in limited circumstances, a party may bring an appeal from an interlocutory order as if it were subject to a direct appeal under the "collateral order doctrine." See Rivera v. Washington , 298 Ga. 770, 774, 784 S.E.2d 775 (2016) (acknowledging that "a very small class of interlocutory rulings are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.") (citation and punctuation omitted); see also Cohen v. Beneficial Indus. Loan Corp. , 337 U. S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). When we consider whether a party may bring a direct appeal in this manner, our Supreme Court has directed that

[t]he collateral order doctrine applies where an order (1) resolves an issue that is ‘‘substantially separate’’ from the matter to be tried, (2) would result in the loss of an important right if review had to wait for a final judgment in the overall case, and (3) completely and conclusively decides the issue such that nothing in the underlying action can affect it.

State v. Rowe , 308 Ga. 806, 810 (2) (b), 843 S.E.2d 537 (2020) ; see also City of Dublin School Dist. v. MMT Holdings , 351 Ga. App. 112, 115 (2), n. 3, 830 S.E.2d 487 (2019) (concluding that order denying request for release of tax funds would not be directly appealable under collateral order doctrine); Drain v. Lee , 350 Ga. App. 327, 825 S.E.2d 927 (2019) (creditor's post-judgment motion to compel discovery not directly appealable as collateral order). As we have explained, "[t]he crucial question in the context of the collateral order doctrine, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. " (Citation and punctuation omitted; emphasis in original.) Expedia v. City of Columbus , 305 Ga. App. 450, 453 (1), 699 S.E.2d 600 (2010). More specifically,

[t]he fact that a ruling may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final trial court judgment is not sufficient to satisfy the requirement that an order be effectively unreviewable. Where effective relief would be available on appeal from a final judgment, therefore, Georgia's appellate courts have routinely required litigants to wait until after final judgment to vindicate even those rights that are central to our adversarial system.

(Citations and punctuation omitted.) Settendown Pub. Utility v. Waterscape Utility , 324 Ga. App. 652, 656, 751 S.E.2d 463 (2013) ; see also Firestone Tire & Rubber Co. v. Risjord , 449 U. S. 368, 376 (II), 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (with regard to the "effectively unreviewable" prong, the Court explained that "[t]o be appealable as a final collateral order, the challenged order must constitute a complete, formal, and, in the trial court, final rejection, of a claimed right where denial of immediate review would render impossible any review whatsoever") (citations and punctuation omitted). Although we may consider federal law when determining whether the collateral order doctrine applies, Warren v. State , 297 Ga. 810, 811, n. 2, 778 S.E.2d 749 (2015), our Supreme Court has also cautioned that "the jurisdiction of the courts of Georgia is not a federal issue upon which the decision of [federal courts] would be controlling, but derives from the constitutional and statutory law of this state."5 (Citation and punctuation omitted.) Rivera , 298 Ga. at 775-776, 784 S.E.2d 775.6 With these guiding principles in mind, we turn to whether an order cancelling an attorney's lien is directly appealable under the collateral order doctrine.

This question presents an issue of first impression in our courts. Attorney's liens are authorized under OCGA § 15-19-14. "Being in derogation of the common law, lien laws, including the attorney's lien statute, must be strictly construed." Ellis, Funk, Goldberg, Labovitz & Dokson, P.C. v. Kleinberger , 235 Ga. App. 360, 361 (1), 509 S.E.2d 660 (1998). As we have explained, "liens exist to ensure that an attorney is compensated for the fruits of his labor and skill whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions." (Citation and punctuation omitted.) Tolson v. Sistrunk , 332 Ga. App. 324, 329 (1), 772 S.E.2d 416 (2015).

Here, Smith sought to impose the lien under OCGA § 15-19-14 (b) on any money obtained as part of the real estate deal. Under OCGA § 15-19-14 (b), an attorney has 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."7 (Citation and punctuation omitted.)

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3 cases
  • Phillips v. Almont Homes NE, Inc.
    • United States
    • Georgia Court of Appeals
    • August 19, 2022
    ... ... (explaining that whether property satisfied requirements of ... OCGA § 44-14-610 was a question of law); Smith v ... Millsap, __ Ga.App.__, __ (874 S.E.2d 184, 186) (June 7, ... 2022) (explaining that this Court applies de novo ... review to ... ...
  • Claybrooks v. Claybrooks
    • United States
    • Georgia Court of Appeals
    • June 7, 2022
  • Phillips v. Almont Homes NE, Inc.
    • United States
    • Georgia Court of Appeals
    • August 19, 2022
    ...(2001) (explaining that whether property satisfied requirements of OCGA § 44-14-610 was a question of law); Smith v. Millsap , 364 Ga. App. 162, 163, 874 S.E.2d 184, 186 (2022) (explaining that this Court applies de novo review to questions of law).4 See OCGA § 44-14-610 ("No action, whethe......

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