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Lewis v. Smith6/21/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Appellant James W. Lewis, Esq. appeals from the trial court's denial of his motion to establish and enforce his attorney's lien and its grant of appellee Sun C. Smith's motion for summary judgment against Lewis' claim for fees. We affirm the trial court's decision granting Smith's motion for summary judgment on the grounds that Lewis is prohibited from recovering attorney fees under the parties' contingency fee agreement. However, we conclude that a genuine issue of material fact exists as to Lewis' entitlement to recover a reasonable fee for his services on the basis of quantum meruit. We further conclude that the evidence clearly established Lewis' entitlement to recover the litigation expenses advanced on Smith's behalf such that summary judgment should have been granted in Lewis' favor as to the expenses claim. Therefore, we reverse the trial court's decision granting Smith's motion for summary judgment as to Lewis' quantum meruit recovery of attorney fees and recovery of expenses. We also reverse the trial court's decision denying Lewis' motion to establish and enforce his attorney's lien as to the expenses claim.
The evidence shows that Smith retained Lewis to represent her as counsel in a personal injury lawsuit. The Contract of Employment executed by Lewis and Smith provided that attorney fees would be paid based upon " contingency fee of forty percent (40%) of final recovery whether by trial or by settlement. . ." (Emphasis supplied.)
Lewis pursued the personal injury litigation on Smith's behalf for almost two years. Thereafter, he negotiated a settlement of the case for $12,500.00. Smith, a Korean citizen, spoke little English, and thus, Lewis communicated with her using interpreters. Lewis claims that Judie Lee, an interpreter for Smith, had expressed Smith's authorization of the settlement. Later, however, another interpreter called to inquire about the status of the case and indicated that Smith had not authorized the settlement. Lewis then rescinded the settlement, and ultimately, a motion seeking to enforce the settlement was successfully opposed. However, Lewis was terminated and Smith retained other counsel to further pursue the case.
Lewis filed his attorney's lien and sought recovery of $5,000 (amounting to 40% of the rejected $12,500 settlement that he negotiated) plus $883.44 in expenses that he paid during his handling of the case. Lewis alternatively sought recovery under the principle of quantum meruit. The parties filed cross motions for summary judgment as to Lewis' claim. When the cross motions were filed, the case remained unresolved and pending in the lower court. In her motion, Smith opposed Lewis' attorney's lien and argued that the non-occurrence of the contingency foreclosed Lewis' recovery of fees under the contingency fee agreement. Smith further contended that Lewis' misconduct of entering into a settlement without her prior consent prevented his recovery of any fee. The trial court entered summary judgment in favor of Smith; Lewis' motion was denied.
1. 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. OCGA § 9-11-56(c). On appeal of the grant of summary judgment, we review the evidence de novo; the evidence, and all reasonable conclusions and inferences drawn from it, are viewed in the light most favorable to the non-movant. Watts v. Promina Gwinnett Health System, Inc., 242 Ga. App. 377, 379 (1) (530 SE2d 14) (2000).
No question exists that an attorney is entitled to a fee that has been earned. OCGA § 15-19-14. When a fee contract exists and the matter is brought to a success
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