The relevant facts are as follows. Gilbеrt and David Montlick were partners in the law firm of Gilbert & Montlick, P.C. After a business dispute, Gilbert
&
Montlick, P.C. initiated arbitration proceedings against Gilbert, which
The law firm of Kilpatrick Stockton (KS) represented
On August 14,1997, EDM served an attorney’s lien under OCGA § 15-19-14
2
on Montlick & Associates (MA) for $43,468.91, demanding that MA pay EDM аny money that MA otherwise owed Gilbert under the
Case No. A00A2286
In Case No. A00A2286, Gilbert appeals from the trial court’s June 9, 1998 order. In that order the trial сourt: (1) partially granted Gilbert’s motion for summary judgment finding that EDM was not retained by Gilbert until after the arbitration award had been entered, but noted that EDM’s breach of contract and quantum meruit cross-claims remain; (2) granted EDM’s cross-motion for summary judgment for legal fees totaling $43,648.57 plus 12 percent annual interest; (3) found that MA was entitled to $2,065 in attorney fees and costs, ordering one-half to be paid by EDM and the remaining one-half to be paid by either Gilbert or KS upon resolution of the action; (4) ordered MA to make a deferred compensation payment into the registry of the court sufficient to satisfy the attorney’s lien filed by KS with the remainder to be paid to Gilbert; and (5) extended the time for completion of discovery.
1. In his third and fourth enumerations of error, Gilbert argues that the court erred in finding that MA had a right to interplead and in failing to dismiss the interpleader action in its entirety. Gilbert argues that MA knew that (1) KS’s claim was not legitimate and (2) EDM had not represented him at the time the final award was entered. Thе right to interpleader under OCGA § 9-11-22, however, depends upon the stakeholder’s good faith fear of adverse claims. 4 That is regardless of the merits of those claims or what the stakeholder in good faith believes the merits to be. 5 Specifically, a stakeholder’s offer to deposit disputed funds into the registry of the court in order to be discharged from potential litigatiоn should not be denied merely because a claimant’s case is weak or rests on tenuous grounds. 6 These enumerations are without merit.
2. In his first enumeration of error, Gilbert contends that the
trial court erred in dismissing MA with prejudice from the inter-pleader action and in enjoining Gilbert from bringing any action against MA. He contends that there is no evidence to support either action. Contrary to this assertion the very case that Gilbert cites clearly explains that where “adverse claims on a fund have in fact been interpleaded, it is proper to dismiss the holder of the disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary.”
7
If no direсt personal liability is being sought and the only claims are to the funds that the party holds, his capacity in the action is that of merely a stakeholder.
8
The stakeholder’s successful
3. Gilbert’s argument that the court erred in refusing to hear his motion for summary judgment at the time it heard MA’s motion to dismiss is without merit. Subject to the constitutional rights of the litigants, the presiding judge plainly retains discretionary control of its own calendar, and an appellate court will rightly hesitate to disturb the trial court’s rulings on such matters unless it is clearly shown that this discretion was manifestly abused. 10 The transcript of that hearing clearly reveals that Gilbert’s motion for summary judgment was on the calendar to be heard on June 3, 1998. We find no abuse of discretion in the court’s refusal to hear Gilbert’s summary judgment motion at the same time MA’s motion was heard.
4. Gilbert’s second enumeration of error contends the court erred in finding that MA had established a right to be reimbursed for attorney fees associated with bringing the interpleader action. Gilbert assеrts this error prematurely as it has not yet been determined by the trial court whether it is Gilbert or KS that is to pay one-half of MA’s attorney fees and costs. Consequently, this enumeration is not ripe for appellate consideration.* 11
5. Gilbert’s sixth enumeration of error is deemed abandoned 12 as he has not referenced the record 13 nor has he supported this claim of error by any citation to authority or reasoned argument. 14
Case No. A00A2284
In Case No. A00A2284, Gilbert appeals from the court’s March 8, 1999 order. In that order the trial court granted partial summary judgment to KS on its cross-claims against Gilbert in the amount of $123,694.23 and denied Gilbert’s motion on the same claim. The court also granted KS’s motion for partial summary judgment on Gilbert’s cross-claim of legal malpractice аnd denied Gilbert’s motion for sanctions against KS.
6. Gilbert argues that the court “failed to consider, or erroneously considered” his objection to KS’s attorney’s lien. In particular he argues that because he presented evidence that the judgment upon which KS claimed a lien had been assigned to a third party, the lien did not сomply with the statute. The attorney’s lien statute is in derogation of the common law and should be strictly construed.
15
“[T]he statute will not be construed so as to apply to any factual situation not strictly within its wording.”
16
The statute clearly states that upon decrees for
money,
attorneys “shall have a lien
superior to all liens except [for] tax liens;
and no person shall be at liberty to satisfy such an action, judgment or decree until the lien or claim of the attorney for his fеes is fully satisfied.”
17
The attorney’s lien rule applies to existing creditors as the third-party assignee in this case.
18
Therefore, the
validity
of KS’s lien is unaffected by the assignment.
19
Gilbert’s argument that the lien was invalid because KS added improper fees also fails. “The inclusion of nоnlienable items, easily separable from lienable items, does not defeat the entire lien.” 20 The trial court made the specific finding that issues of fact remain with regard to the contested charges. And the disputed fees are obviously easily separable as the trial court granted summary judgment on KS’s cross-claim reduced by the amount of these fees.
7. Gilbert enumerates as error the court’s grant of summary judgment to KS on the issue of malpractice. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 21 A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. 22 To prove legal malpractice, Gilbert must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercisе ordinary care, skill, and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. 23 In practice, this effectively requires proof that Gilbert would have prevailed on the merits of the original litigation. 24 In other words, Gilbert must show that but for KS’s alleged error, the outcome would have beеn different. 25 The trial court concluded that KS met its burden of showing that Gilbert’s allegations did not prove the second and third elements of this test.
(a) Gilbert first argues that the court gave no consideration to his claim of KS’s breach of fiduciary duty. In particular, he claims that KS failed to deliver his entire file and refused to allow him to depose Michael Trotter. These arguments are without merit as they relate to KS’s actions after their representation of Gilbert had ended and cannot be the basis of a claim for malpractice. Gilbert also lists examples in his brief of how KS allegedly breached its fiduciary duty, but these are one-sentence assertiоns, most without citation to the record and all without citation to authority or argument.
Argument is defined as a reason given in proof or rebuttal, or a coherent series of reasons offered. Clearly, the central element in those definitions is reason. A mere statement of what occurred during the trial, and the contentions of the appellant, does not constitute an argument in support of such contentions. The failure to support the enumerated errors by citation of authority or argument constitutes an abandonment of such enumerated errors. 26
Here, Gilbert has stated what he feels the result should be but has not supported the reason why the trial court’s conclusions that KS breaсhed no duty or caused no harm should be set aside. Conse quently, these grounds are deemed abandoned. 27
(b) Michael Elkourie, chosen to represent Gilbert’s interests and to investigate the finances of Gilbert & Montlick, P.C., was one of three arbitrators. Both Gilbert and MA chose one interested arbitrator each, and those two selected the third arbitrator designated as a “neutral.” Prior to the arbitration,
Gilbert also argues that he was not told about a conference between KS, MA, and arbitrator Smith concerning the issue of Elkouriе’s status. He has not shown, however, how the outcome of the arbitration ruling would have been different if he had been told about the conference.
(c) Gilbert argues that KS’s failure to discover an “off-book” asset (worth approximately $900,000) of Gilbert & Montlick, P.C. constituted malpractice. After the final award was entered, Elkоurie discovered a substantial asset in the form of advances to clients that the former Gilbert & Montlick, P.C. had not listed on its financial statement. But in Gilbert’s motion to vacate the arbitration ruling, he conceded that neither he nor his representatives had reason to know or suspect that the true financial position of thе firm had been concealed. Therefore, assuming that it was within KS’s range of respon sibilities in representing Gilbert to locate Gilbert & Montlick, P.C.’s assets, it cannot be said that KS was negligent in failing to discover the hidden “off-book” assets that were not readily discoverable and of which Gilbert himself had no knowledge. The court did not err in granting summаry judgment to KS on Gilbert’s claim of malpractice.
8. Gilbert enumerates two errors involving discovery. Trial judges have broad discretion in controlling discovery, including the imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. 29
(a) Gilbert argues that the court erred in denying him the right to depose Trotter, a KS attorney. At a hearing on motions for summary judgment, Gilbert argued that even though Trotter billed him for only about an hour’s worth of services, he wished to depose him to ask him questions about a book Trotter had authored on attorney fees. Gilbert filed a notice to take deposition and subpoena for Trotter on July 1, 1998, for the deposition to take place on July 8, 1998, two days before the end of discovery. The deposition did not take place, and the court later ruled that because Trotter billed Gilbert for only 1.3 hours, it was not necessary to keep discovery open in order to take his deposition. As there was some evidence to support the trial court’s refusal to allow Trotter to be deposed, we see no abuse of discretion in the court’s ruling. 30
(b) Finally, Gilbert argues that the court erred in denying his motion for sanctions for the failure of KS to produce certain documents as ordered by the trial court. At
9. Gilbert’s second enumeration is deemed abandoned as it is not supported by citation to authority but is simply a lengthy recitation of the same arguments in other enumerations and Gilbert’s contentions without any reasoned argument as to why the partial grant of summary judgment to KS’s claim for attorney fees (in an amount omitting all specifically contested charges) is erroneous. 34
Judgments affirmed.
Notes
“Attorneys at law shall have a lien on all papers and money of their clients in their possession for services rendered to them. They may retain the pаpers until the claims are satisfied and may apply the money to the satisfaction of the claims.” OCGA § 15-19-14 (a).
Gilbert appealed the April 1998 order, but the appeal was dismissed as Gilbert failed to follow the discretionary appeals procedures of OCGA § 5-6-34 (b).
Algernon Blair, Inc. v. Trust Co. of Ga. Bank of DeKalb,
Algernon,
supra,
Id.
(Citation and punctuation omitted.)
Thompson,
supra,
Glisson v. Freeman,
Id.
Schwall v. McNeil,
See
Barger v. Garden Way,
Caring Hands v. Dept. of Human Resources,
Court of Appeals Rule 27 (c) (3) (i).
Court of Appeals Rule 27 (c) (2).
May v. May,
(Citations omitted.)
Steele,
supra,
(Emphasis supplied.) OCGA § 15-19-14 (b).
See
Ramsey v. Sumner,
See
Johnson v. Giraud,
Taverrite v. Lowe’s of Franklin,
OCGA § 9-11-56 (c).
Matjoulis v. Integon Gen. Ins. Corp.,
Walker v. Burnett,
Houston v. Surrett,
Szurovy v. Olderman,
(Citations and punctuation omitted.)
Caring Hands,
supra,
See id.
(Citation, and punctuation omitted.)
Allen Decorating v. Oxendine,
Butler v. Biven Software,
See OCGA § 9-11-26 (c) (1).
This date was later changed to February 1, 1999.
See
Loftin v. Gulf Contracting Co.,
Compare
Porter v. Buckeye Cellulose Corp.,
Court of Appeals Rule 27 (c) (2).