CREDITORS AND DEBTORS RIGHTS: Attorney's Lien; CIVIL PRACTICE: Law of the Case Rule
Alert: Client's claim that her affair with her attorney affected his representation in her divorce case was evidence that the attorney's lien for his fees was improper.
Subject Matter Index: Denial of plaintiff's motion to foreclose attorneys' lien affirmed; court properly determined that lien was invalid and void because amount of lien was in dispute; client may have a public policy defense to enforcement of lien arising out of her retainer agreement with plaintiff, because she engaged in a meretricious relationship with attorney who worked for plaintiff which adversely affected her divorce settlement before she signed the agreement; plaintiff could not contest court's authority to determine merits of lien because that issue was decided against plaintiff in a prior appeal.
Headnote: Affirming the denial of D. Robert Autrey Jr. PC's motion to foreclose its attorney's lien arising from Robert Autrey's representation of Elena S. Baker in her divorce, the Court of Appeals held that Autrey did not sufficiently prove the amount of the lien. Furthermore, Baker might have a public policy defense to the enforcement of the lien because she contended that she and Autrey had a meretricious relationship which adversely affected her divorce settlement before she signed the retainer agreement with his professional corporation. The Court also held that Autrey could not contest the trial court's authority to determine the merits of the lien because that issue was decided against him in his former appeal.
Text: Andrews, Gary Blaylock, JudgePursuant to this Court's prior decision in this matter, D. Robert Autrey, Jr., P.C. v. Baker, 228 Ga. App. 396 (492 SE2d 261) (1997), the trial court conducted a final hearing on D. Robert Autrey, Jr., P.C.'s motion to foreclose its lien for attorney fees arising from representation of Elena S. Baker in her divorce. From the trial court's decision concluding that the lien was improper and failed, Autrey (P.C.)1 appeals.
Pursuant to OCGA § 44-14-550 (5), a final hearing in a lien foreclosure proceeding on an attorney's lien (OCGA § 15-19-14 (b)) is held "on the validity of the debt if a further determination of the validity of the debt is desired." See P & B Corp. &c. v. One 1983 BMW, 175 Ga. App. 462 (1) (333 SE2d 633) (1985).
Because lien laws, including the attorneys' lien statute, are in derogation of the common law, they must be strictly construed. Ellis, Funk, Goldberg, &c., P.C. v. Kleinberger, 235 Ga. App. 360, 361 (1) (509 SE2d 660) (1998). Further, on appellate review, a trial court's determination of facts when acting as fact finder must be affirmed if there is any evidence to support them. OCGA § 9-11-52 (a); Brandon v. Newman, __Ga. App.__ (Case No. A99A1776, issued March 28, 2000) (2000 Ga. App. Lexis 434); Neal v. Natural Gas of Tennessee, 222 Ga. App. 774 (1) (476 SE2d 73) (1996).
Viewing the evidence in favor of the trial court's factual findings, it was that Autrey was brought into the Baker divorce by Baker's lead counsel, Koehler, in late May 1995, solely for the purpose of providing insight and advice concerning tax consequences of proposals for resolving the divorce, as well as to serve as liaison with certified public accountants involved. At stake in the divorce were several million dollars.
From the beginning of his participation until November 16, 1995, no bills were submitted by Autrey (P.C.) to Baker for legal fees. Mrs. Baker did pay Autrey $7,000 via two checks on June 1 and September 19, 1995. At some point, Autrey and Baker began to have an affair. By late October, Koehler and Autrey began having disagreements about the handling of the divorce and, without Koehler's knowledge, Autrey began negotiating with Kaufman, Mr. Baker's attorney, concerning all aspects of the divorce. Koehler withdrew and Mrs. Baker did eventually sign the divorce and custody agreement negotiated by Autrey. Asked by Autrey why she signed if she did not believe it was a fair and equitable settlement, Mrs. Baker answered:
[b]ecause I had had a sexual relationship with you and you told me I could not go to court because a jury would find out about it because I had been followed and indeed, I had been followed. My husband had a private investigator following me for two months and he knew about our relationship, so because of that, I had to sign and you had advised me that if I went to court, I would get nothing, because I had committed adultery with you and I wouldn't get alimony and you said that I may possibly lose custody of my children, . . . .
Only on November 6, 1995, after the settlement with her husband had been finalized, did Autrey (P.C.) and Mrs. Baker sign the Representation Agreement upon which the lien is premised. On November 16, 1995, the day the Bakers' divorce decree was finalized, Autrey hand-delivered to Mrs. Baker at her home a letter, including a bill, time sheets, and a demand for payment of $31, 221.94, the amount included in the lien.
The trial court concluded that, according to testimony at the hearing as well as comparison of the respective bills presented by Koehler, Braver (CPA), and Autrey, "Autrey charged Baker in excess of the time actually spent on the matters the three of them together worked on in the case." Further, the court found "conduct on the part of Autrey during his representation of [Baker] that persuaded the Court to call the debt into question. . . . There was also a social relationship between the parties aside from the divorce case."
1. Autrey (P.C.)'s first enumeration is that the trial court erred in determining the merits because Baker, his former client, "never filed any defenses or defensive pleadings challenging the merits of the attorney fee liens."
This claim was determined adversely to Autrey (P.C.) in D. Robert Autrey, Jr., P.C., supra at 396-397 (1). That holding is the law of the case and cannot be further contested by Autrey (P.C.). Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730 (514 SE2d 201) (1999); Dicks v. Zurich American Ins. Co., 231 Ga. App. 448 (499 SE2d 169) (1998).
2. The second and third enumerations are that the court erred in finding the lien invalid and void because there were differences in the amount actually owed and the amount of the claimed lien and that there was insufficient evidence to reach such a conclusion. They are addressed together.
There is more than enough evidence of record to support the trial court's conclusion that the amount of the lien, as claimed, was disputed and had not been sufficiently proven for foreclosure. Despite Autrey (P.C.)'s argument to the contrary, such specific proof of amount is required in order to bring the claimant clearly within the law in order to foreclose on a lien. Shirah Contracting Co. v. Waite, 143 Ga. App. 355, 357 (1) (238 SE2d 728) (1977); Bowen v. Collins, 135 Ga. App. 221 (217 SE2d 193) (1975); Jackson's Mill &c. Co. v. Holliday, 108 Ga. App. 663, 665 (5) (134 SE2d 563) (1963); see Ramsey v. Sumner, 211 Ga. App. 202, 205 (5) (438 SE2d 676) (1993); Esquire Carpet Mills, Inc. v. Kennesaw Transp., 186 Ga. App. 367, 368 (1) (367 SE2d 569) (1988); Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191 (190 SE2d 131) (1972).
Also, an additional impediment to Autrey's recovery under the contract between his professional corporation and Mrs. Baker's Retainer Agreement exists. She and he, prior to the signing of the agreement, had engaged in an illicit and meretricious relationship which Mrs. Baker contended adversely affected Autrey's representation of her. Such conduct on the part of an attorney may present a client with a defense to a claim of attorney's lien based on public policy. Brandon v. Newman, supra at (1). Reading the trial court's order as a whole, we conclude that this was an additional basis upon which the lien was found improper. There was evidence to support this conclusion also.
Judgment affirmed. Ruffin and Ellington, JJ., concur.
1For clarity, the professional corporation will be referred to as "Autrey (P.C.)" while the individual is referred to as "Autrey."
Trial Judge: Isaac Jenrette, Fulton Superior Court.,
Attorneys: D. Robert Autrey Jr., Marietta, for appellant. Stephen E. Boswell (Boswell & Teske LLP), Jonesboro, and Philip S. Coe, Fayetteville, for appellee.,