Opinion
A05A2283.
DECIDED FEBRUARY 6, 2006.
Attorney fees. Fulton Superior Court. Before Judge Bedford.
Barry B. McGough, for appellant.
Davis, Matthews Quigley, Baxter L. Davis, Pope, McGlamry, Kilpatrick, Morrison Norwood, William U. Norwood III, for appellees.
The law firm of Kirschner Venker, P.C. (KV) appeals from the trial court's order granting partial summary judgment to its former co-counsel, Taylor Martino, P.C. (TM) and Tyler McCaine, Esq., in this dispute over attorney fees. KV argues that the trial court erred in concluding that it was only entitled to receive quantum meruit for its legal services after being discharged from the case by the parties' common client before any contingency fee became due. We discern no error and affirm.
On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 ( 562 SE2d 731) (2002).
Viewed in the light most favorable to KV, the relevant evidence of record reveals that TM and McCain were hired on a contingency fee basis to represent a plaintiff in a personal injury action. TM, an Alabama firm, served as lead counsel and hired KV as local counsel in Georgia. Although KV worked with TM on the case for several months, the two law firms never reached an agreement as to how any fee ultimately recovered would be divided between them.
The client eventually fired both McCain and KV from the case. TM thereafter reached a settlement with the defendants in the underlying action, resulting in a $1.5 million payment in attorney fees. KV filed an attorney's lien, seeking half of the attorney fee. McCain intervened, arguing that KV was only entitled to recover the reasonable value of its services to the client prior to being discharged. All of the attorneys agreed to place the $1.5 million fee into an escrow account until the fee dispute could be resolved. KV moved for summary judgment on its claim for equal division of the fee. TM and McCain filed cross motions for partial summary judgment, arguing that quantum meruit was the proper measure of KV's recoverable fees. The trial court granted TM and McCain's motions for partial summary judgment, and KV now appeals.
It is well settled that an attorney who is discharged prior to earning a contingency fee is entitled to recover fees from the client based on quantum meruit. Greer, Klosik Daugherty v. Yetman, 269 Ga. 271, 274 (2) ( 496 SE2d 693) (1998); Ellerin Assoc. v. Brawley, 263 Ga. App. 860, 862-863 (2) ( 589 SE2d 626) (2003). When the contingency justifying a fee has not yet occurred, the discharged attorney has no basis for collecting a fee connected to that contingency. Ellerin, supra, 263 Ga. App. at 862 (2). Since KV was fired before any settlement was reached in this case, and no express agreement existed through which it could obtain fees in the event of termination, it was only entitled to recover a fee in quantum meruit based on the reasonable value of the services that it had rendered to the client before being fired. Greer, supra, 269 Ga. at 274 (2).
We find no merit in KV's argument that, because this case involves a dispute between attorneys and not a dispute between itself and the client, the lack of an agreement between KV and TM regarding how to divide the contingency fee entitles KV to an equal share of the fee. In the cases cited by KV, all of the attorneys remained employed by the client until the case was concluded. See Kilgore v. Sheetz, 268 Ga. App. 761 ( 603 SE2d 24) (2004) (deceased co-counsel had never been fired, nor had new counsel been hired); Nickerson v. Holloway, 220 Ga. App. 553 ( 469 SE2d 209) (1996) (co-counsel jointly employed through conclusion of case); Glover v. Maddox, 98 Ga. App. 548 ( 106 SE2d 288) (1958) (same). Here, on the other hand, KV was fired by the client before any fee became payable. KV therefore was not entitled to a cause of action against its former co-counsel for an equal share of the contingency fee. See Greer, supra, 269 Ga. at 274 (2) (discharged counsel in contingency fee arrangement only entitled to quantum meruit). We believe, however, that the circumstances here would allow KV to recover in quantum meruit against its former co-counsel. See Glover, supra, 98 Ga. App. at 557 (1) (acknowledging certain circumstances may exist where remedies other than equal division are available in fee disputes between attorneys "as for instance by an action for money had and received"). To allow a discharged attorney to collect an equal share of a contingency fee as if the attorney were still involved in a case would render the discharge meaningless. In effect, the discharged attorney would be rewarded with a potential windfall of additional fees without doing any additional work on the case. We decline to adopt a holding that would authorize such a result.
We also note that this court's recent decision in Joseph H. King, Jr., P.C. v. Lessinger, 276 Ga. App. 145 ( 622 SE2d 381) (2005) is distinguishable from the present case. In Lessinger, we held that former counsel did not have a cause of action for fees against subsequent counsel, because the former attorneys were never co-counsel with the client's new attorneys. Id. at 147. Here, KV was hired by TM to work as co-counsel for the mutual benefit of their client, and KV and TM continued working as co-counsel until KV was fired by their common client before TM obtained a settlement. Under these circumstances, we hold that the discharged counsel may have a cause of action in quantum meruit in an action against the remaining counsel who continues with the case until its conclusion.
The trial court properly concluded that quantum meruit represented the proper measure of fees recoverable by KV, and accordingly committed no error in granting partial summary judgment to TM and McCain on this issue.
Judgment affirmed. Blackburn, P.J., and Bernes, J., concur.