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King v. Lessinger9/29/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Appellants Joseph H. King, Jr., P.C. and Louis R. Feingold appeal from the trial court's order granting the motion to dismiss their complaint filed by appellees Howard M. Lessinger and McLain & Merritt, P.C. For the reasons set forth below, we affirm.
The facts as alleged in the appellants' complaint are as follows. Appellants are attorneys licensed to practice law in the State of Georgia. On February 26, 2002, Olivean and Simon Slattery entered into a contingency fee contract with appellant King under which he would represent them in a personal injury action against a trucking company and its insurer. As contemplated by the contract, appellant Feingold was associated as an attorney to assist King with the lawsuit. Appellants thereafter filed suit on behalf of the Slatterys in the Superior Court of Hall County.
In November 2002, the Slatterys discharged appellants as their counsel. The Slatterys entered into a new contingency fee contract with appellees to represent them in the Hall County lawsuit from that point forward. Appellee Lessinger, a partner at appellee McLain & Merritt, subsequently negotiated a settlement with the trucking company and its insurer on behalf of the Slatterys for $995,000. Based on their contingency fee contract with the Slatterys, appellees received a fee totaling 1/3 of the settlement amount, or $331,666.67.
On August 3, 2004, appellants filed suit against the Slatterys and appellees, among others. Appellants alleged that they were entitled to enforce their original contingency fee contract against the Slatterys, or, alternatively, to recover from them in quantum meruit. With regard to appellees, appellants alleged that they "should be required, under equitable principles, to disgorge all or part of the fee they received because that fee should have been paid to [appellants]."
Appellees moved to dismiss appellants' action as to them, contending that appellants had failed to state a claim upon which relief could be granted. The trial court agreed and entered an order granting the motion to dismiss. The trial court later amended its order to provide that, pursuant to OCGA ยง 9-11-54 (b), the order be treated as an entry of final judgment with regard to appellees. Appellants now appeal from the trial court's amended order.
We apply a de novo standard of review to the trial court's grant of a motion to dismiss. Croxton v. MSC Holding, Inc., 227 Ga. App. 179, 180 (489 SE2d 77) (1997). "A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim." Id. Even under this flexible standard, we conclude that appellants have failed to state a claim against appellees. To the extent that appellants have a cause of action in equity to recover all or part of their attorney fees, their cause of action does not lie against appellees under the particular circumstances of this case.
In Georgia, an attorney discharged by his client is not entitled to collect a contingency fee, if the attorney "is discharged before the occurrence of the contingency specified in contingency fee contract." Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (2) (496 SE2d 693) (1998). See also Ellerin & Assoc. v. Brawley, 263 Ga. App. 860, 861-862 (1) (589 SE2d 626) (2003). Absent express contractual provisions addressing fees in the event of termination, the discharged attorney is limited to pursuing the equitable remedy of quantum meruit, under which he can recover the "reasonable attorney fees for his services that have been rendered on b
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