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Tolson v. Sistrunk

Court of Appeals of Georgia

May 6, 2015

TOLSON et al.
v.
SISTRUNK et al

Page 417

Attorney's lien. DeKalb State Court. Before Judge Hydrick.

Turkheimer & Hadden, John D. Hadden; FordHarrison, F. Carlton King, Jr., Katherine T. Parvis, for appellants.

Caplan Cobb, Michael A. Caplan; Huff, Powell & Bailey, M. Scott Bailey; Weathington Smith, Paul E. Weathington, for appellees.

OPINION

Page 418

Barnes, Presiding Judge.

This case involves a dispute between counsel over the validity of an attorney's lien filed pursuant to OCGA § 15-19-14 (b) and the apportionment of fees under the lien. Following an evidentiary hearing, the trial court apportioned 30 percent of the attorney fees to Cochran, Cherry, Givens, Smith & Sistrunk, P.C. (the " Cochran Firm" ), concluding that it was entitled to 25 percent of the fees for originating the case and 5 percent of the fees for the pre-suit legal work it performed. Audrey Tolson and the Tolson Firm, P.C. (collectively, " Tolson" ) appeal the trial court's fee award, arguing that the attorney's lien filed by the Cochran Firm was invalid and that the firm should not have been awarded a percentage of the fees for originating the case. Tolson also argues that there was insufficient evidence to support the trial court's award of 5 percent of the fees to the Cochran Firm for its pre-trial legal work.

For the reasons discussed below, we conclude that the attorney's lien filed by the Cochran Firm was valid and that there was evidence to support the trial court's award of 5 percent of the fees to the firm for its pre-trial legal work. However, we also conclude that the trial court erred in awarding the Cochran Firm 25 percent of the fees for [332 Ga.App. 325] originating the case, and we therefore reverse that portion of the trial court's fee award and remand with the direction that those fees instead be distributed to Tolson.

The 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. See Woods v. Jones, 305 Ga.App. 349, 353 (3) (699 S.E.2d 567) (2010). 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. See McRae, Stegall, Peek, Harman, Smith & Manning, LLP v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga.App. 526 (729 S.E.2d 649) (2012) (hereinafter " McRae " ); Cannon v. Wesley Plantation Apts., 256 Ga.App. 244, 246-247 (2) (568 S.E.2d 137) (2002). However, " [t]he plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact." (Citation and punctuation omitted.) McRae, 316 Ga.App. at 526. Mindful of these principles, we turn to the record in the present case.

Construed in favor of the trial court's judgment, the record reflects that Sistrunk, Lamberti, and Williams partnered with the national law firm founded by Johnny Cochran and currently operate the Atlanta branch of the Cochran Firm. In October 2009, when his wife died after undergoing gastric bypass surgery, Quincy Bryant contacted the Cochran Firm to discuss the possibility of a medical malpractice claim. Bryant knew of the national reputation of Johnny Cochran and was encouraged by his mother-in-law to contact

Page 419

the Atlanta branch of the firm Cochran had founded. Following an initial consultation with Tolson, who was an associate at the Cochran Firm, Bryant hired the firm to investigate and pursue a potential medical malpractice claim against his wife's doctors. Bryant signed a contingency fee agreement in October 2009, agreeing that the Cochran Firm would receive 45 percent of any recovery as its fee and would be reimbursed for its expenses incurred in investigating and preparing the case. The agreement did not specify how the Cochran Firm would be paid if the firm was discharged before any recovery was obtained.

Over the next approximately 19 months, the Cochran Firm investigated and developed Bryant's case. The Cochran Firm procured the relevant medical records, researched medical issues relating to the care and treatment of Bryant's wife, consulted with three potential experts, developed a theory of the case, and drafted a complaint. The Cochran Firm spent $8,805.50 on its pre-suit legal work. Tolson was assigned to the Bryant matter and performed " the workup of the case" under the direction and supervision of partner Lamberti, and Tolson served as Bryant's primary contact at the firm.

[332 Ga.App. 326] Tolson resigned from the Cochran Firm by e-mail on May 9, 2011. The previous day, Tolson had contacted a number of the firm's clients with whom she had closely worked, including Bryant, and advised them that she was leaving the Cochran Firm and that they would need to choose whether to allow her to represent them going forward or to have the Cochran Firm continue to represent them. Tolson could not recall whether she told Bryant and the other clients on that date that, if they chose to discharge the Cochran Firm, they might be liable for the fees and expenses that the firm had already incurred. During his conversation with Tolson, Bryant decided that he wanted her rather than the Cochran Firm to continue to represent him. In her May 9 resignation e-mail, Tolson informed the Cochran Firm of her contact with the clients and of the decision by several of them to be represented by her.

Associates at the Cochran Firm were compensated for their work by receiving a percentage of any recovery obtained once the case was resolved. Tolson did not receive any pay from the Cochran Firm for her work on the Bryant matter before or after her resignation.

After Tolson's resignation, Bryant contacted the Cochran Firm, terminating the firm's representation and requesting that his case file be transferred to Tolson. He also entered into a contingency fee agreement with Tolson and her firm under which they would receive a fee representing 40 percent of any future recovery.

In July 2011, Tolson associated the personal injury firm of Cash, Krugler & Fredericks, LLC (the " Fredericks Firm" ) to assist her in the Bryant matter, and in October 2011, Tolson and the Fredericks Firm filed suit on behalf of Bryant, as surviving spouse and administrator of his wife's estate, against several defendants for medical malpractice in the State Court of DeKalb County. The Fredericks Firm assumed the role of lead counsel, with Alwyn Fredericks performing the " vast majority of the work" on the case, including the drafting of the pleadings and discovery and conducting multiple depositions. In prosecuting the case, Tolson incurred $3,002.02 in expenses, while the Fredericks Firm incurred $83,298.30. Because the Fredericks Firm was performing a majority of the work and incurring most of the expenses, Tolson ultimately agreed to split the contingency fee with the Fredericks Firm on a 60/40 basis, with the Fredericks Firm receiving 60 percent of the fee and Tolson receiving 40 percent.

In November 2012, the Cochran Firm filed its notice of attorney's lien in the Bryant case for payment of the $8,805.50 in expenses it had incurred and for a reasonable portion of the attorney fees under quantum meruit if there was a recovery for Bryant. In addition to filing its attorney's lien notice in the Bryant case, the Cochran Firm [332 Ga.App. 327] filed a separate action against Tolson in May 2013 in the Superior Court of Fulton County, alleging that Tolson had improperly procured clients, including Bryant, while she was still an ...


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