FOURTH DIVISION

BARNES, P. J.,

RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 14, 2015

In the Court of Appeals of Georgia

A15A0670. SMITH et al. v. WILLIAMS et al.

RAY, Judge.

This case stems from the breakup of a law firm, Smith, Hall & Williams, LLP.

Luanne Bryant Smith andLuanne Bryant Smith, P. C. (collectively “Smith”) filed this

direct appeal from three trial court orders entered in a suit between Smith and her

onetime law partner, Jennifer E. Williams, and Jennifer E. Williams, LLC

(collectively “Williams”). For the reasons that follow, we affirm in part and reverse

in part.

The firmhandled domestic, personal injury, and workers’ compensation cases,

among others. In November 2012, Williams alleges that, without notice, Smith

packed up her things, took case files, and left the office. After Smith left,

1 Williams

1 The parties do not agree on the issue of when the partnership actually ended. 
sued,seeking dissolution of the partnership and alleging breach of contract. She also

moved for an injunction. The portion of their dispute that is before this Court turns

primarily on issues related to a division of the fees earned from certain workers’

compensation cases where the clients elected to retain Smith as their counsel after

Smith and Williams ceased practicing together. Williams seeks 50 percent of those

fees.

1. Smith contendsthat the trial court erred in denying her motion to dismissfor

lack of subject matter jurisdiction.

2 The gravamen of Smith’s argument is that this

case involves a dispute over attorney fees in workers’ compensation cases and that

the State Board of Workers’ Compensation (the “Board”) has exclusive jurisdiction

over such disputes. The trial court did not err.

We review a trial court’s ruling on a motion to dismiss de novo. Aetna v.

Workers’ Comp Access, LLC v. Coliseum Medical Ctr,, 322 Ga. App. 641, 644 (1)

(746 SE2d 148) (2013). An examination of the nature, jurisdiction, and authority of

the Board is instructive here.

2 Smith has not answered Williams’ complaint, but rather has entered a special

appearance without submitting to the jurisdiction of the trial court. 

2
The Board is a “creature of statute” with only the jurisdiction, power,

and authority conferred upon it by the General Assembly. See OCGA §

34-9-40 (“The [B]oard shall have full authority, power, and the duty to

promulgate policies, rules, and regulationsfor the administration of this

chapter.”) . . . The Board performs all the powers and duties relating to

the enforcement of the Workers’ Compensation Act (the “Act”), and the

Act shall be liberally construed only for the purpose of bringing

employers and employees within the provisions of this chapter and to

provide protection for both.

(Citations and footnote omitted; emphasis supplied.) Id. See also OCGA § 34-9-58.

The action between Smith andWilliamsis clearly not one between an employer

and an employee within the Act’s provisions. However, thisCourt hasrecognized that

the Board also has jurisdiction to resolve ancillary issues relating to an employee’s

compensation rights under the Act. See Builders Ins. Group, Inc. v. Ker-Wil

Enterprises, Inc., 274 Ga. App. 522, 523-524 (2) (618 SE2d 160) (2005) (if a dispute

is ancillary to an employee’s right, the Board has authority to act; when the rights of

an employee in a pending claim are not at stake, the Board may disavow jurisdiction

when, for example, the dispute is over an insurer’s duty to pay a particular share of

an award but the award itself is not under attack).

3
The question here is whether Williams’ claims against Smith are ancillary to

the determination of the rights of the employee-claimants since attorney’s fees are at

issue, thus falling within the Board’s exclusive jurisdiction. While it is true that

specific claimants are referenced in these cases, neither party points to any claimant

“whose claim of benefits would be affected by [the] resolution of [Williams’] claim

against [Smith]. Accordingly, we do not find these allegations implicate the benefits

to be paid to any individual injured employee, but instead allege a systemic failure

within [the erstwhile law firm of Smith, Hall & Williams].” Aetna, supra at 645 (1).

It is true that OCGA § 34-9-108 (a) requires Board approval of attorney fees

in excess of $100 and limits attorney fees to 25 percent of a claimant’s award.

However, the statute by its own terms clearly deals with the Board’s protection of the

rights of employee-claimantsin relation to their attorneysrather than the rights of one

attorney in relation to another attorney. 

The State Board of Work[er]’s Compensation has authority to examine

and approve contracts between claimants and their counsel as to the

amount of attorneys fees but it has no authority, statutory or otherwise,

to set the fees of the attorneys, nor to examine and approve contracts

between attorneys as to the division of their fees when associated to

represent claimants. 

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(Citations omitted; emphasis supplied.) Feldman v. Edwards, 107 Ga. App. 397, 397

(1) (130 SE2d 350) (1963). The trial court did not err.

2. Smith argues that the trial court erred in denying her motion for partial

summary judgment. 

On appeal from the grant or denial of summary judgment, this Court applies a

de novo standard of review. Summary judgment is proper when there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter

of law. We must view the evidence, and all reasonable inferences drawn from it, in

the lightmostfavorable to the nonmovant. Woodcraft by MacDonald,Inc. v. Ga. Cas.

and Sur. Co., 293 Ga. 9, 10 (743 SE2d 373) (2013). 

Smith alleges that Williams was notified, in writing and by September 19,

2013, at the latest, that claimants in the contested cases had terminated Williams’s

services. She argues that because Williams failed to file attorney fee liens on these

cases with the Board in accordance with State Board of Workers’CompensationRule

108 (e) (“Board Rule”), she has waived any claim for fees in the contested cases. 

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It is undisputed that Williams did not file attorney fee liens with the Board in

the disputed cases.

3 When an employee and his or her attorney terminate their

contract as outlined below, Board Rule 108 (e) provides, in pertinent part, that

[a]n attorney of record who chooses to file a lien for services and/or

expenses must do so by filing written notice of the contended value of

such services and/or expenses with the Board . . . within 20 days after

(i) withdrawal from the case, or (ii) notice of termination of the contract

in writing by the client. . . . Failure to perfect a lien in this manner will

be considered a waiver of further attorneys’ fees.

The trial court, however, denied Smith’s motion for partialsummary judgment,

finding, in a narrowly tailored order, that “several cases settled prior to the

‘termination’ letters sent by [Smith] and that said cases are assets and . . . are for a

determination at a final trial.” (Emphasis supplied.) 

Viewing the factsin the light most favorable to Williams asthe nonmovant, the

casesthe trial court references were assets and assuch may be subject to enforcement

through the partnership agreement because there remains a material factual dispute

as to when the partnership terminated. Smith argued that the partnership ended when

3 Williams sent a letter and attorney fee lien to opposing counsel in one case,

however. 

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she left the office November 24, 2012. Williams argued that the partnership was not

terminated merely by Smith’sleaving the office, and there is evidence that the parties

split fees even after the date that Smith alleges the partnership ended. There also is

evidence that as of June 16, 2014, the partnership affairs had not been wound up. See

OCGA § 14-8-30 (“On dissolution the partnership is not terminated, but continues

until the winding up of the partnership affairs is completed”). As a result, and as

determined by the trial court, in an action such as this that seeks to end a partnership,

the determination of the value of assets and liabilities is properly reserved until the

main determination of the case. Rogers v. McDonald, 224 Ga. 599, 601 (1) (163 SE2d

719) (1968). See generally Jordan v. Moses, 291 Ga. 39, 41 (727 SE2d 460) (2012)

(“A partner may not dissolve a partnership to gain the benefits of the business for

himself, unless he fully compensates his co-partner for his share of the prospective

business opportunity”) (citation omitted). 

Contrary to Smith’s argument, the trial court’s order by its own terms does not

cover cases in which the contingency justifying the fee had yet to be earned, as the

cases covered by the order were previously “settled,” so Smith’s reliance on The

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Eichholz Law Firm, P.C. v. Tate Law Group, LLC, 310 Ga. App. 848, 850-853 (1)

(714 SE2d 413) (2011) is misplaced. The trial court did not err.

3. Smith argues that the trial court erred in granting Williams’ motion to have

Smith place additional attorney fees in trust because doing so modified a prior

consent order for an interlocutory injunction that required each party to place 50

percent of attorney fees from contested cases in escrow. 

The granting and continuing of injunctions shall alwaysrest in the sound

discretion of the judge, according to the circumstances of each case. The

discretion of the trial judge is a discretion based on the law and the

evidence before him. A petition to modify an interlocutory injunction

cannot be granted in the absence of a meritorious showing that such

modification should be made.

(Citations and punctuation omitted.) Kelley v. Kelley, 228 Ga. 639, 640 (187 SE2d

284) (1972). OCGA § 9-5-8 (granting and continuing injunctions rests in the sound

discretion of the trial court and should not be used other than in clear and urgent

cases). 

The initial injunction required that 50 percent of attorney fees from specific

listed cases be deposited in trust accounts and not disbursed except by written

agreement of the parties and their lawyers, or by court order. Williams sought a

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modification to add in fees from two other cases, the Dishman case and the Keller

case, which had settled and from which fees had been disbursed to Smith’s operating

account prior to the initial injunction.

In the modification order appealed from, the trial court determined that Smith

was “about to settle a large case” and should place “those funds in trust” to apply to

“one-half of the fees,” specifically on the Dishman and Keller cases, within 10 days

of the entry of the order. Smith filed a motion for clarification, and the trial court

entered a new order identifying the “large case” as the “Jose Hernandez” case, and

requiring Smith to place $43,750 from that case in trust within 10 days of the time

Smith received the funds. The trial court specified that the $43,750 was the amount

that Williams claimed she was entitled to from the settlement of the earlier Dishman

and Keller cases. As Smith points out, Williams’ claim to half the fees in the

Hernandez case already is protected by the original injunction.The clarification order

would essentially have Smith deposit additional money from the Hernandez case,

once it settles, in order to protect Williams as to the unrelated Dishman and Keller

cases.

4

4 The trial court’s order is, to a degree, philosophically analogous to a

prejudgment attachment (OCGA §§ 18-3-1, 18-3-9, 18-3-10); however, such

prejudgment actions must meet certain requirements and offer certain safeguards not

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However, an exhibit attached to the motion for clarification is an e-mail from

counsel for Hernandez’s employer stating that the employer “has elected not to settle

the claim at this juncture.” 

Based on the information before us, there is no way to know whether – or for

what amount – the Hernandez case will settle. In the event that it does settle and,

hypothetically, results in $50,000 in attorney fees rather than the larger amount the

trial court apparently anticipates, Smith would be required to place half of that

$50,000, or $25,000, in trust under the terms of the original injunction, and then to

satisfy the clarification order, would have to place an additional $43,750 – more than

the amount collected from the Hernandez case – in trust as well. 

A trial court may issue an interlocutory injunction to maintain the status

quo until the final hearing if, by balancing the relative conveniences of

the parties, it determinesthat they favor the party seeking the injunction.

That is because an interlocutory injunction is a device to keep the parties

in order to prevent one from hurting the other whilst their respective

rights are under adjudication. There must be some vital necessity for the

injunction so that one of the parties will not be damaged and left without

adequate remedy.

present here.

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(Citation omitted). American Mgmt. Svcs. East, Inc. v. Fort Benning Family

Communities, LLC, 318 Ga. App. 827, 832-833 (3) (734 SE2d 833) (2012). Here, the

modification does not “maintain the status quo,” and may put Smith at risk of injury.

Further, there has been no showing that Williams would be left without an adequate

remedy absent this modification. Id. Finding error, we therefore reverse the trial

court’s clarification order modifying the injunction.

Judgment affirmed in part; reversed in part. Barnes, P. J., and McMillian, J.,

concur.

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