Hutchins v. Cochran, Cherry, Givens, Smith & Sistrunk, P.C.

• Decision Date: 26 March 2015
• Docket Number: No. A14A1828.,A14A1828.
• Citation: 770 S.E.2d 668,332 Ga. App. 139
• Court: Georgia Court of Appeals
• Parties: HUTCHINS v. COCHRAN, CHERRY, GIVENS, SMITH & SISTRUNK, P.C.

332 Ga.App. 139

770 S.E.2d 668

HUTCHINS

v.COCHRAN, CHERRY, GIVENS, SMITH & SISTRUNK, P.C.

No. A14A1828.

Court of Appeals of Georgia.

March 26, 2015.

Reconsideration Denied April 14, 2015.

Lacrecia Gayon Cade, Taylor English Duma, Foy R. Devine, Kyle Matthew Baker, Atlanta, for Appellant.

Polsinelli PC, William Bradley Hill Jr., Atlanta, Alexander Joseph Bartko, for Appellee.

Opinion

McMILLIAN, Judge.

Markel Hutchins appeals following the trial court's grant of summary judgment to Cochran, Cherry, Givens, Smith & Sistrunk, P.C.(the “ Cochran Firm”) on Hutchins's claim for quantum meruit/unjust enrichment and for attorney fees connected to that claim.¹We affirm in part and reverse in part for the reasons set forth below.

This case arises out of the fatal shooting of Kathryn Johnston on November 21, 2006 by undercover Atlanta Police Department(“APD”) officers serving a no-knock warrant at Johnston's home.Johnston's estate (the “Estate”) filed a lawsuit against the City of Atlanta(the “City”), the police chief, and several APD officers asserting claims, inter alia, for Johnston's wrongful death and pain and suffering (the “Lawsuit”).The suit was eventually settled in August 2010 for $4.9 million (the “Estate Settlement”), and the settlement checks were made payable in two installments to both the Estate's administrator, Sarah Dozier(“Dozier”), who was Johnston's niece, and the Cochran Firm.SeeIn re Estate of Johnston,318 Ga.App. 324, 324–325, 733 S.E.2d 856(2012).²

Approximately one year after the Estate Settlement, Hutchins filed a petition for injunctive relief and damages against Dozier, individually and as administrator of the Estate; the Estate itself; and the Cochran Firm (collectively the “Defendants”), alleging that he had an oral agreement with Dozier to provide public relations and media-related services for the Estate and that he was entitled to compensation from all the Defendants for public relations and media-related services he had performed in connection with the Lawsuit.The Defendants first moved to dismiss the petition, but the trial court denied that motion.³

Subsequently, in December 2012, Dozier passed away, and Hutchins ultimately entered into a “Confidential Agreement of Settlement Release and Assignment of Claims and Causes of Action” with Dozier's estate, releasing all his claims against Dozier individually and as the administrator of the Estate (the “Dozier Settlement”).

Following discovery, the Cochran Firm moved for summary judgment⁴ on Hutchins's claims, asserting that the claim for quantum meruit/unjust enrichment failed because (1) Hutchins admitted that during the pendency of the Lawsuit, he had no expectation of payment from the Cochran Firm over and above that arising from his alleged oral agreement with Dozier to act as spokesperson for the Johnston and Dozier families; (2) the evidence showed that Hutchins conferred no benefit upon and performed no services for the Cochran Firm in relation to the Lawsuit; and (3) Hutchins was reasonably compensated for any services he performed in connection with the Estate Settlement when he accepted consideration for releasing his claims against Dozier.Following briefing and a hearing,⁵the trial court granted summary judgment without explaining its reasoning.Hutchins argues that the trial court erred in concluding that no genuine issue of material fact remained as to his claim of quantum meruit/unjust enrichment and that he is not entitled to recover attorney fees arising from that claim.

On appeal, “[w]e review de novo a trial court's grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.”Latson v. Boaz,278 Ga. 113, 598 S.E.2d 485(2004).“To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law.OCGA § 9–11–56(c).”Id.However, because the Cochran Firm would not bear the burden of proof at trial on the claim for quantum meruit, it must only “point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of [that claim]” in order to obtain summary judgment.(Citations omitted.)Cowart v. Widener,287 Ga. 622, 623(1)(a), 697 S.E.2d 779(2010).If the Cochran Firm is able to carry that burden, Hutchins “cannot rest on [his] pleadings[ ] but rather must point to specific evidence giving rise to a triable issue” in order to survive summary judgment.(Citation and punctuation omitted.)Id.

Construing the evidence in favor of Hutchins, the record shows that since 1993, Hutchins “[has] concentrated [his] work in the area of public, media, and community relations, with an emphasis on social justice.”In that regard, he established MRH, LLC(“MRH”), a consulting firm engaged in public affairs, public relations, crisis communication, inner city development, and management consulting.

On the night that Kathryn Johnston was killed by APD officers, Hutchins saw a woman he later learned was Dozier on television and observed that she appeared very upset.Concerned that the situation could lead to neighborhood unrest, or even violence, Hutchins got into his car and drove to the scene where he approached Dozier and offered to pray with her.She replied that if he really wanted to help, he could talk to the gathered media on behalf of the family.Dozier told Hutchins that the press had made her look like a fool and she would never talk to them again.At Dozier's request, Hutchins then gave a statement on the family's behalf.Dozier called him the next day and asked how much he would charge to be the family's media spokesperson.Hutchins told Dozier that he would accept ten percent of whatever the family recovered in any civil lawsuit they filed arising out of Johnston's death, and Dozier agreed to his terms.⁶

Additionally on the night of Johnston's shooting, Hutchins called attorney Hezekiah Sistrunk of the Cochran Firm from the scene of the incident to discuss the matter, and Hutchins subsequently referred Dozier to the Cochran Firm for legal representation.Hutchins understood that he had a pre-existing arrangement with Sistrunk, beginning with another high-profile case he referred to the Cochran Firm, that he would be paid for public relations, public affairs, crisis communication and related work he performed “ specifically with the firm” in connection with the caseshe referred.He based that understanding on Sistrunk's representation, on more than one occasion, that when a case was over the firm would “take care” of Hutchins.⁷When Sistrunk told Hutchins that the Cochran Firm would “take care” of him after the Johnston case was over, Hutchins understood this representation to mean that the Estate's pursuit of the Lawsuit was a team effort, with Hutchins and his associates “managing the public aspects of [the case] to support the civil position and the lawyers ... taking care of the legal aspects of it.”

However, Hutchins could not recall that he ever discussed with Sistrunk the amount of any compensation he would receive.And Hutchins never represented himself to the public as a consultant to the Cochran Firm or that he was “anything other than what I was”: “the spokesperson for the Estate of Kathryn Johnston, who is a civil rights activist, human rights activist, minister, consultant, [and] business owner.”

Hutchins asserts he performed a number of services for the Cochran Firm, including attending meetings with public officials, giving interviews, coordinating press conferences and news coverage, organizing commemorative ceremonies and a march, and traveling to Washington, D.C. to speak with federal officials to encourage a federal investigation into the case.Although these services were performed primarily in connection with the criminal investigation of the officers involved in the Johnston shooting, Hutchins asserted that they helped “create[ ] an atmosphere among those officers and their attorneys that was conducive [to] the development of evidence” in the Lawsuit.He took these actions with the intent to achieve a result that “would criminally predicate a strong civil position.”Hutchins also states that through such actions he acted as a liaison between the media and the Cochran Firm.And “on each and every occasion,”he asserts that he conferred with Cochran Firm attorneys to obtain their approval “for the actions and statements [he] made on behalf of the Johnston family and the claims and legal actions asserted against the City of Atlanta and others.”Additionally, during the pendency of the Lawsuit, Hutchins also asserts he kept public pressure on the City to resolve the case by holding press conferences, giving interviews, and hand-delivering a letter to City officials urging them to settle the case.

In contrast, the Cochran Firm attorneys⁸ and employees assert that although Hutchins was “a friend of the firm,” it never hired him as a consultant or expert or pre-approved his actions.Rather, Hutchins held himself out as the Johnston family's spokesperson, and the Cochran Firm viewed him as a community activist attempting to raise awareness of issues in the community and to promote himself.The firm's lawyers did not view Hutchins's actions as helping the litigation, although they may have been good for the community.In fact, the Cochran Firm lawyers and personnel stated that at times, some of the things Hutchins said were not helpful and he became a hindrance.For example, attorneys for the United States and the City expressed reservations about Hutchins's access to information, asking that he be excluded from attending certain meetings.

Hutchins admits that he did not attend the mediation or settlement negotiations between Cochran Firm lawyers and City attorneys that ultimately resulted in the Estate Settlement.In fact, he never spoke with any of the City attorneys in the civil...