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Monk v. Parker

Court of Appeals of Georgia

March 30, 2015

MONK
v.
PARKER et al

Workers' compensation. Bartow Superior Court. Before Judge Howell, Senior Judge.

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

Levy & Thompson, Richard S. Thompson, for appellees.

OPINION

Page 425

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. Mtg. Assn., 299 Ga.App. 574, 575 (682 S.E.2d 630) (2009). No different

Page 426

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. Further, " [i]t is the appellant's responsibility [331 Ga.App. 737] 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], [331 Ga.App. 738] 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 ...


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