Gilbert v. Montlick & Associates, P.C.

Citations: 546 S.E.2d 895; 248 Ga. App. 535; 1 Fulton County D. Rep. 1123; 2001 Ga. App. LEXIS 326Docket: A00A2284, A00A2286

Court: Court of Appeals of Georgia; March 9, 2001; Georgia; State Appellate Court

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Fred A. Gilbert appeals two orders from the trial court related to attorney's liens filed against his former law firm, Gilbert, Montlick, P.C. Following a business dispute, arbitration ruled against Gilbert, terminating the law practice and awarding him over $1.8 million, with payments structured in quarterly installments. Efforts by Gilbert to vacate this award were unsuccessful at both the superior court and appellate levels. 

Two law firms, Kilpatrick Stockton (KS) and Erck, Dever, Merlin, LLC (EDM), represented Gilbert during arbitration but withdrew in 1997, after which Gilbert proceeded pro se. In August and September 1997, both firms filed attorney's liens against Montlick Associates (MA) for unpaid amounts from the arbitration award, prompting MA to initiate an interpleader action to resolve the conflicting claims. Gilbert countered with claims of legal malpractice against both firms.

The trial court ordered MA to deposit the quarterly payments due Gilbert into the court registry and barred further suits against MA regarding the liens. In Case No. A00A2286, Gilbert challenged the June 9, 1998 order, which partially granted summary judgment favoring EDM for legal fees and acknowledged MA’s entitlement to attorney fees. Gilbert contended that MA's interpleader claim was unjustified and that both KS and EDM's claims were invalid. The court affirmed the trial court's decisions.

The right to interpleader under OCGA 9-11-22 is contingent upon the stakeholder's genuine concern over conflicting claims, regardless of the claims' merits or the stakeholder's beliefs about them. A stakeholder's offer to deposit disputed funds into court to avoid litigation should not be denied solely due to the perceived weakness of a claimant's case. Gilbert argues that the trial court wrongly dismissed MA from the interpleader action and barred him from suing MA, claiming insufficient evidence for these actions. However, precedent indicates that once adverse claims are interpleaded, dismissing the holder of the disputed funds is appropriate if no additional relief against them is sought. Thus, the dismissal of MA was justified. Gilbert's assertion that the trial court erred by not hearing his summary judgment motion alongside MA's dismissal motion is unfounded, as trial courts have discretion over their calendars, and there was no sign of abuse in this instance. 

Additionally, Gilbert's challenge to the trial court's finding that MA was entitled to reimbursement for attorney fees is premature, as the court has yet to determine the responsible party for those fees. Lastly, Gilbert's sixth enumeration of error is abandoned due to lack of reference or support in the record. In Case No. A00A2284, Gilbert appeals a March 8, 1999 order that granted KS partial summary judgment against him for $123,694.23 and denied Gilbert's corresponding motions. He contends that the court misapplied his objection to KS's attorney's lien, arguing that the lien was invalid as the underlying judgment had been assigned to a third party. He emphasizes that attorney's lien statutes must be strictly interpreted, adhering only to their specified conditions.

The statute establishes that attorneys have a lien for fees that is superior to all liens except for tax liens, and no party can satisfy a judgment until the attorney's lien is fully satisfied. This lien applies even to existing creditors, and KS's lien remains valid despite assignment. Gilbert's reliance on OCGA. 15-19-14(c) regarding real property recovery is unfounded, and his argument about improper fees does not invalidate the lien since non-lienable items can be separated from lienable ones. The trial court found that disputed charges remain factual issues and granted summary judgment on KS's cross-claim, adjusting for the contested fees. Gilbert challenges the summary judgment regarding malpractice, which requires proving three elements: attorney employment, failure to exercise due care, and that such negligence caused damage. The trial court found Gilbert did not meet these elements, particularly lacking evidence that KS's alleged errors changed the original litigation outcome. Gilbert's claims about KS’s breach of fiduciary duty, including failure to provide his file and limiting depositions, are irrelevant to the malpractice claim as they pertain to actions post-representation. His brief lacks substantive legal argument or citations to support his claims, leading to their abandonment. In arbitration, Gilbert's chosen representative, Michael Elkourie, became a witness, and the arbitration proceeded with only one arbitrator after the other arbitrator stepped down.

Gilbert contends he was inadequately informed about Elkourie's transition from arbitrator to witness and overcharged for Elkourie's arbitration fees despite Elkourie's non-participation. Susan Cahoon, a partner at KS, testified that the neutral arbitrator proposed the change and discussed its practicality with Gilbert, who eventually consented after initial resistance. Gilbert acknowledged accepting his counsel's recommendation regarding this strategy. The court noted that attorneys' professional judgment in litigation cannot result in liability, and Gilbert's counsel acted within this framework by designating Elkourie as a witness. Additionally, arbitrator Smith stated that the arbitration outcome would not have changed with the inclusion of two more arbitrators. 

Gilbert also claimed he was unaware of a conference among KS, MA, and arbitrator Smith concerning Elkourie's status but did not demonstrate how this lack of knowledge impacted the arbitration's result. Regarding KS's alleged malpractice for failing to uncover an 'off-book' asset valued at approximately $900,000, Gilbert admitted he and his representatives were unaware of the firm’s hidden financial position, indicating that KS could not be deemed negligent in this instance. The court affirmed summary judgment for KS on the malpractice claim.

Furthermore, Gilbert raised two discovery-related errors. Trial judges possess broad discretion over discovery, and such rulings are only overturned for clear abuses of discretion. Gilbert sought to depose KS attorney Trotter but was denied, as Trotter's limited billable time did not warrant an extended discovery period. The court found support for its decision, indicating no abuse of discretion. Lastly, Gilbert's motion for sanctions against KS for failing to produce specific documents was also denied, as he argued he was denied access to his file information.

The court mandated KS to provide Gilbert with referenced correspondence from McRae's letter by December 1, 1998. Gilbert subsequently filed a motion for sanctions on February 13, 1999, which the court denied without a hearing or KS's response, stating that further examination of KS's billing entries was unnecessary. The court found evidence of KS's attempt to comply with the order and noted the absence of any willful failure to do so, concluding that there was no clear abuse of discretion in denying Gilbert's request for severe sanctions, including striking KS's attorney fee claim and defense against Gilbert's malpractice claims. Gilbert's second argument was abandoned due to a lack of supporting authority, merely reiterating previous claims without a substantive rationale against the partial summary judgment favoring KS. The court's decisions were affirmed, with Judges POPE and MIKELL concurring.

Attorneys possess a lien on all client papers and funds in their possession for unpaid services, allowing them to retain those papers and apply funds to settle claims (OCGA 15-19-14(a)). Gilbert's appeal from an April 1998 order was dismissed due to noncompliance with discretionary appeals procedures (OCGA 5-6-34(b)). Various case law precedents, including Algernon Blair, Inc. v. Trust Co. of Ga. Bank of DeKalb and others, reinforce the attorney's lien and appeal procedures. OCGA 15-19-14(b) emphasizes the attorney's rights, and further rulings clarify the implications of discovery order violations, suggesting that severe sanctions may apply for willful disregard. The rules of the Court of Appeals provide procedural guidelines relevant to these issues.