Camp v. Peetluk

• Decision Date: 15 July 2003
• Docket Number: No. A03A0176.,A03A0176.
• Citation: 585 S.E.2d 704,262 Ga. App. 345
• Parties: CAMP et al. v. PEETLUK et al.
• Court: Georgia Court of Appeals

585 S.E.2d 704

262 Ga. App. 345

CAMP et al. v. PEETLUK et al.

No. A03A0176.

Court of Appeals of Georgia.

July 15, 2003.

Certiorari Denied November 10, 2003.

Rich & Smith, Randolph G. Rich, Lawrenceville, for appellants.

Kasowitz, Benson, Torres & Friedman, Michael E. Hutchins, Frank A. Ilardi, Atlanta, Clinton W. Sitton, for appellees.

SMITH, Chief Judge.

Attorneys Scott Camp and David Whitman filed suit against attorneys Ellis W. Peetluk and Robert H. Benfield, Jr. Camp and Whitman alleged that Peetluk breached their joint representation agreement. They further alleged that both Peetluk and Benfield breached an oral escrow agreement and converted the funds that were to be set aside under that agreement. Peetluk and Benfield obtained summary judgment on all claims. Because we find that jury issues remain as to whether Peetluk breached the joint representation agreement and failed to exercise good faith in the performance of his duties under that agreement, we reverse, in part, the judgment as to Peetluk only. We affirm the portion of the trial court's order granting summary judgment to both Peetluk and Benfield on the claims for breach of the escrow agreement and conversion.

This case arises out of a multi-vehicle collision that occurred in September 1996 and that involved a tractor-trailer operated by an employee of Ingles Markets, Inc. Two children died as a result of the collision. Peetluk represented the children's father, Mr. Harper, in a civil action against Ingles.¹ The Harper case settled in mid-trial in June 1998.

Meanwhile, in October 1996, John Williams, who was injured in the same collision, retained the law firm of Camp & Camp to represent him in a personal injury action. Whitman was associated to help with the lawsuit. In October 1997, Whitman filed suit in Fulton County State Court on behalf of Williams against Ingles and the driver. The action was removed to federal court.

After the Harper case settled, Peetluk contacted Whitman and suggested that Whitman associate him in Williams's case. The parties executed a joint representation agreement drafted by Peetluk, which provides in relevant part:

The undersigned attorneys hereby agree that all of the attorney's fees recovered in the above referenced civil action are to be divided as follows. Of the 33 1/3 of the recovery by settlement or judgment 23 1/3 is to be paid to Scott Camp and David Whitman and 10% of the recovery is to be paid to Ellis W. Peetluk & Associates, P.C. It is agreed that Ellis Peetluk will take over as lead trial counsel with all of the corresponding duties as such. Scott Camp and David Whitman will remain involved in the case as co-counsel.

Camp testified that he agreed to associate Peetluk because Peetluk offered to share all the discovery material from the Harper case. Whitman testified that Peetluk "was brought into the case for discovery and settlement. I don't believe that Ellis [Peetluk] has ever tried a civil case."²

Peetluk assumed the role of lead counsel and entered an appearance in December 1998. Near the date scheduled for mediation, Peetluk allegedly told Williams that Whitman and Camp had "irreparably damaged" his case by failing to obtain continued medical treatment for him. Williams, who cannot read or write, apparently became increasingly upset and disturbed by Peetluk's statement to him and blamed Whitman and Camp for damaging his claim.

On November 10, 1999, Williams sent a letter, which was handwritten by his daughter-in-law, to Camp. In the letter, Williams complained, "It was not until Mr. Peetluk began working on my case that I went to a doctor. He has gotten me to see four Doctors." The letter closed saying, "I do not want you or Mr. Whitman to be my attorneys any more. You are both fired and if that means I lose Mr. Peetluk than [sic] so be it." (Emphasis in original.)

In early January 2000, Peetluk associated Benfield to help him with the case. On January 12, Williams executed a new fee agreement under which Peetluk and Benfield, the new lead counsel, would each receive 20 percent of any gross recovery. The fee contract stipulated that any funds applicable to any attorney fee dispute with Whitman and Camp "shall come from the attorney fee portion of any gross recovery, specifically from that portion allocated to the Peetluk firm."

Whitman and Camp filed a lawsuit against Peetluk in Gwinnett County in July 2000 seeking, among other things, a declaratory judgment that Peetluk had breached the joint representation agreement and damages. Peetluk and Benfield tried Williams's personal injury case in late October 2000 and obtained a verdict in favor of Williams. In late November, the parties in this case, their attorneys, and counsel for Williams met to try to resolve a lien previously filed by Whitman and Camp. Alleging that Benfield breached an escrow agreement reached at that meeting and converted the funds that were to be escrowed, Whitman and Camp added Benfield as a defendant in this action.

The trial court granted summary judgment to Peetluk and Benfield, concluding that "when Mr. Williams terminated his contract with plaintiffs, he also severed his professional relationship with defendant Peetluk. This termination of the plaintiffs as attorneys for Mr. Williams ended any joint representation agreement between plaintiffs and defendant Peetluk." The court further found that the recovery of a judgment in Williams's favor "was a result of the efforts [of] defendants Peetluk and Benfield. Any claim plaintiffs may have would be against their former client, John Williams, in quantum meruit for services rendered prior to being fired." On the claim for breach of the agreement to escrow part of the funds to safeguard them during this lawsuit and the claim for conversion, the trial court also found for Peetluk and Benfield. Noting that the formation of the escrow agreement was in dispute, that there was no writing, and that no evidence showed a meeting of minds, the trial court decided "there is no enforceable agreement that defendants could breach." The trial court also found "there is no valid conversion claim against either defendant." Whitman and Camp appeal from these rulings.

1. Whitman and Camp contend that the order granting summary judgment is void because jurisdiction and venue were not proper. Apparently relying on Peetluk's pleadings in a pending divorce action in Florida, which recited that he was a resident of Florida, Whitman and Camp filed suit under the Georgia Long Arm Statute in Gwinnett County, where the joint representation contract was signed. Following an evidentiary hearing, the trial court found that Peetluk was a resident of Cobb County and entered an order transferring the case to Cobb County.

"[F]or purposes of venue and other jurisdictional questions, a person's residence at the time of filing of suit is the determining factor." Franek v. Ray, 239 Ga. 282, 285, 236 S.E.2d 629 (1977). In deciding the issue of venue, the trial court acts as factfinder. McLendon v. Albany Warehouse Co., 203 Ga.App. 865, 866(1), 418 S.E.2d 130 (1992). When the record contains any evidence to support the trial court's finding on venue, that determination will not be disturbed unless the evidence demands a contrary finding. Id. Here, a contrary finding is not demanded.

Conflicting evidence was presented concerning Peetluk's residence at the time the lawsuit was filed. But this court is not the factfinder and cannot determine which evidence of Peetluk's residence is more credible. Instead, it was within the exclusive province of the trial court to weigh the conflicting evidence presented at the transfer hearing and to determine whether venue in Gwinnett County was proper under the Long Arm Statute or whether venue was proper in Cobb County. Some evidence was presented that Peetluk resided in Cobb County on the day this lawsuit was filed, and we are not authorized to disturb the trial court's ruling on this issue. ³

2. Whitman and Camp contend that the trial court erred in finding that the joint representation contract terminated as a matter of law. Because the record contains a number of disputed issues, we agree.

The facts of this case are similar in many respects to those in Roberson v. Eichholz, 218 Ga.App. 511, 462 S.E.2d 382 (1995). In that case, attorney Eichholz sued attorney Roberson for breach of a joint representation agreement. Id. Their client obtained other counsel and received a settlement of $1,300,000, of which Roberson received a fee of $300,000. Id. The trial court granted partial summary judgment to Eichholz on the ground that a letter agreement between the two attorneys constituted a valid contract. Id. This court affirmed, finding that the agreement

contain[ed] all terms and conditions necessary to form a valid and binding contract, and it is enforceable. The contract provisions did not require future negotiations or indicate that an agreement had not been reached on the essential conditions. The provisions contained the agreed-upon subject matter, consideration, terms, and the uncontroverted mutual assent by both parties to its terms. [Cits.]

Id. at 513, 462 S.E.2d 382. Applying OCGA § 13-4-23, we also found that Roberson's conduct excused Eichholz from performance. Id. That statute provides, "If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance." OCGA § 13-4-23.

Although a client has an absolute right to discharge his lawyer, the enforceability of Williams's contract with Camp & Camp is not at issue. Rather, the issue is the enforceability of the joint representation agreement entered into by Whitman and Camp, on one hand, and Peetluk, on the other. For nearly 100 years, our courts have enforced such agreements between attorneys. Bennett v. Burkhalter, 128 Ga. 154, 155(1), 57 S.E. 231 (1907). See also Roberson, supra. Here, as...