Phillip J. Milligan v. Hon. Floyd G. Rogers

Phillip J. MILLIGAN v. CIRCUIT COURT of
Crawford County

97-1502                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Prohibtion, writ of -- when issued. -- Prohibition is an
     extraordinary writ that will issue only when the trial court
     is wholly without jurisdiction; the supreme court has
     traditionally issued the writ in circumstances where venue is
     improper; in deciding whether prohibition will lie, the
     supreme court restricts its review to the pleadings.  

2.   Attorney & client -- attorney's fees -- determined in court
     where action instituted. -- In Ark. Code Ann.  16-22-304(d)
     (Repl. 1994), the General Assembly expressly provided for a
     determination of attorney fees in the court where the action
     was instituted; the supreme court has long recognized the
     jurisdiction of trial courts to determine and enforce
     attorney's liens.

3.   Prohibition, writ of -- circuit court where monies held proper
     venue for complaint in intervention -- petition for writ of
     prohibition denied. -- Where the trial court granted the
     intervention for the limited purpose of establishing an
     attorney's lien, and the parties were in agreement that the
     circuit court was the proper court to enter orders disposing
     of these attorney fees, the supreme court found that the
     county court was the appropriate venue for the award of
     attorney fees; because the attorney was claiming his right to
     attorney fees against the money held in the registry of the
     county circuit court, the supreme court concluded that that
     county was a proper venue for hearing his amended complaint in
     intervention under Ark. Code Ann.  16-22-304(d); the petition
     for writ of prohibition was denied.


     Petition for writ of prohibition; denied.
     Petitioner, pro se.
     No response.

     Per Curiam.
     This is a petition for writ of prohibition filed by Phillip J.
Milligan to prevent the Crawford County Circuit Court from
exercising jurisdiction over an amended complaint in intervention
filed by the Sexton Law Firm, P.A., and Sam Sexton, Jr. (Sexton). 
We deny the writ.
     On May 9, 1996, the Crawford County Circuit Court granted
Sexton's motion to intervene in John Watson, Phyllis Watson, et al.
v. G. Ray Baker Trucking, Inc., et al. (the Watson case), for the
purpose of establishing an attorney's lien over one-half of the
attorney fees generated through Milligan's representation of the
Watsons.  In July 1996, the Watsons received a settlement of
$1,314,000, and on August 23, 1996, the Crawford County Circuit
Court entered an order placing a sum of approximately $333,000,
most of which was for attorney fees, in its court registry pending
the resolution of litigation between Sexton and Milligan in
Sebastian County Chancery Court.  On September 17, 1996, the
circuit court disbursed $30,000 to attorney John C. Everett, and on
November 7, 1996, the circuit court disbursed one-half of the
remaining money in the amount of $151,500 to Milligan for attorney
fees.     
     In Sebastian County Chancery Court, Milligan prevailed against
Sexton's complaint.  On June 30, 1997, this court issued an opinion
(1) reversing directed verdicts in favor of Milligan on Sexton's
claims for breach of fiduciary duty and fraud, and (2) reversing a
jury verdict in favor of Milligan on breach of contract and
remanding the matter to Sebastian County Chancery Court.  See
Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388
(1997).
     Following our decision, Sexton filed an amended complaint in
intervention in Crawford County Circuit Court on August 6, 1997,
seeking once more the remaining $151,500 held in the court's
registry as his share of attorney fees in the Watson case.  Sexton
also prayed for judgment against Milligan in the amount of
$1,223.20 for expenses advanced by the firm to Milligan that
remained unpaid and additional attorney fees pursuant to Ark. Code
Ann.  16-22-308 (1987).  On August 15, 1997, Milligan moved to
dismiss the amended complaint in intervention on grounds of
improper venue and further moved for Rule 11 sanctions, which were
denied.  Milligan's petition for writ of prohibition was then filed
in this court.
     Prohibition is an extraordinary writ that will issue only when
the trial court is wholly without jurisdiction.  Boatmen's Nat'l
Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997); Nucor Holding
Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).  However,
this court has traditionally issued the writ in circumstances where
venue is improper.  Boatmen's Nat'l Bank v. Cole, supra; Steve
Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955
(1995); Prairie Implement Co. v. Circuit Court of Prairie County,
311 Ark. 200, 844 S.W.2d 299 (1992).  In deciding whether
prohibition will lie, this court restricts its review to the
pleadings.  Boatmen's Nat'l Bank v. Cole, supra; Wise Co. v. Clay
Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh'g denied, 315 Ark.
336-A, 869 S.W.2d 6 (1994).
     Milligan argues in support of his petition that the amended
complaint in intervention is not a complaint to enforce an
attorney's lien but rather a complaint seeking relief for breach of
contract and breach of fiduciary duty.  Citing us to Ark. Code Ann.
 16-60-116(a) (1987), Milligan contends that venue is improper
because he neither resides nor was summoned in Crawford County. 
Sexton claims, on the other hand, that his complaint is one quasi
in rem to determine the rights to the money in the registry of the
Crawford County Circuit Court and, specifically, his rights to
attorney fees.
     We first note that in Sexton's amended complaint in
intervention, he prays for judgment against the balance of the
attorney fees.  We also note that the trial court granted the
intervention by Sexton for the limited purpose of establishing an
attorney's lien.  The parties, in addition, are in apparent
agreement that the Crawford County Circuit Court is the proper
court to enter orders disposing of these attorney fees.  We agree.
     The General Assembly has expressly provided for a
determination of attorney fees in the court where the action was
instituted:
          (d) The court or commission before which an action
     was instituted, or in which an action may be pending at
     the time of settlement, compromise, or verdict, or in any
     chancery court of proper venue, upon the petition of the
     client or attorney at law, shall determine and enforce
     the lien created by this section.
Ark. Code Ann.  16-22-304(d) (Repl. 1994).  We interpret this
provision to mean what it says, as this court has long recognized
the jurisdiction of trial courts to determine and enforce
attorney's liens.  See, e.g., Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922).  Accordingly, we have no doubt that Crawford
County was the appropriate venue for the award of attorney fees,
including Sexton's claim to part of the attorney fees in connection
with the Watson settlement.
      Because Sexton is claiming his right to attorney fees against
the money held in the registry of the Crawford County Circuit
Court, we conclude that Crawford County is a proper venue for
hearing Sexton's amended complaint in intervention under  16-22-
304(d).  This being the case, it is not necessary for us to delve
into the question of whether fraud was appropriately pled in
Sexton's amended complaint.
     Writ denied.