Shepherd v. Greer

• Decision Date: 26 November 2013
• Docket Number: No. A13A1035.,A13A1035.
• Citation: 750 S.E.2d 463
• Court: Georgia Court of Appeals
• Parties: SHEPHERD v. GREER, KLOSIC & DAUGHERTY.

750 S.E.2d 463

SHEPHERD

v.GREER, KLOSIC & DAUGHERTY.

No. A13A1035.

Court of Appeals of Georgia.

Nov. 14, 2013.

Reconsideration Denied Nov. 26, 2013.

Stuart Bradley Houck, Atlanta, for Appellant.

John Fox Daugherty, Atlanta, for Appellee.

McMILLIAN, Judge.

Appellant Kathleen Ann Shepherd appeals from the trial court's order denying her motion for partial summary judgment and granting partial judgment to the law firm of Greer, Klosic & Daugherty (“GKD”) on its suit to enforce an attorney's lien. As more fully set forth below, we now reverse.

After a bus hit the car she was operating, Shepherd retained GKD to represent her in pursuing personal injury claims against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”). Shepherd signed an “Attorney–Client” contingency fee contract (“Contract”), which included a provision setting out the compensation GKD was entitled to receive from Shepherd in the event she terminated the firm's employment prior to recovery on her claims. Prior to settling, Shepherd, in fact, terminated GKD's representation, and GKD filed an attorney's lien pursuant to OCGA § 15–19–14.

Shepherd subsequently reached a settlement with MARTA, and GKD sent Shepherd a demand for payment. Shepherd, however, refused to pay the amounts included within the lien that were allegedly attributable to time spent by a GKD paralegal working on her case, asserting that the termination provision only required her to pay for the time spent by John Daugherty, the GKD attorney working on her case. GKD then filed a petition to enforce its lien in the approximate amount of $54,000, which included over $37,851 in attorney fees, $13,512 in paralegal fees at the rate of $125 an hour and $2,658 in expenses. In response to GKD's motion for partial summary judgment, Shepherd maintained her position that the amount sought for paralegal fees should be excluded from the lien.

The trial court, citing Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), found that the “Contract unambiguously includes the time that [GKD's] paralegal spent performing work traditionally done by an attorney [(hereinafter referred to as ‘professional services') ] at the rate of $125.00 per hour” and, after deducting a duplicate entry and subtracting the charges for the time the paralegal spent working on non-professional services, ordered Shepherd to pay $50,459.31 to GKD. Shepherd then filed the present appeal.

The sole issue on appeal is whether the termination provision of the Contract requires Shepherd to pay GKD for services performed by a GKD paralegal. Because our review is at the summary judgment stage and the interpretation of a contract, including the existence or nonexistence of any ambiguities in the contract, usually involves a question of law for the court to resolve, our review is de novo. Freund v. Warren, 320 Ga.App. 765, 768, 740 S.E.2d 727 (2013). Reynolds Properties, Inc. v. Bickelmann, 300 Ga.App. 484, 487, 685 S.E.2d 450 (2009).

The overarching principle that guides our construction of the Contract is to effectuate the intent of the parties as set out in the language of the agreement. Homelife Communities Group v. Rosebud Park, LLC, 280 Ga.App. 120, 122, 633 S.E.2d 423 (2006). Moreover,

[I]f that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Further, the construction which will uphold a contract in whole and in every part is to preferred, and the whole contract should be looked to in arriving at the construction of any part. Moreover, no construction is required or even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation....

(Citation omitted.) Id. See also Freund v. Warren, 320 Ga.App. at 768–769, 740 S.E.2d 727;White v. Kaminsky, 271 Ga.App. 719, 721, 610 S.E.2d 542 (2004). In determining whether the contract language is “plain, unambiguous, and capable of one reasonable interpretation,” we have defined ambiguity to mean “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretation.” (Punctuation omitted.) McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga.App. 595, 602(2)(b), 660 S.E.2d 397 (2008). Freund, 320 Ga.App. at 769, 740 S.E.2d 727. In other words, “[a] word or phrase is ambiguous when its meaning is uncertain and it may be fairly understood in more ways than one.” Id. at 769, n. 4, 740 S.E.2d 727.

Accordingly, we turn first to the relevant terms of the Contract, which provide:

In the event there has been no settlement, verdict or judgment prior to the termination of attorneys, client(s) agree(s) to pay attorneys the sum of two-hundred-seventy-five ($275.00) dollars per hour for services rendered, or the percentage of the last highest offer for compromise or settlement by the responsible party, or the insurance indemnity carrier of the responsible party, whichever, when calculated, is higher.¹

Shepherd contends that the $275 per hour for services rendered refers only to the services provided by her attorney, consistent with what her attorney explained to her would be paid upon termination of the Contract prior to settlement. GKD, on the other hand, asserts that “attorneys” as defined in the Contract refers to the firm as a whole, and that “services rendered,” which is not defined, includes all professional services rendered by the firm. GKD further contends that it should not be penalized for voluntarily charging less than $275 per hour for paralegal services.

As more fully explained below, we find that an ambiguity exists concerning the services that were compensable under the termination provision of the Contract. Although GKD argues correctly that the first paragraph of the Contract appears to use the term “attorneys” to refer to the law firm of GKD and not an individual attorney or attorneys, we do not agree that this means that the term attorneys unambiguously encompasses all GKD employees, at least to the extent they are rendering professional services. In fact, the term attorneys is used throughout the Contract, and many of these other instances clearly pertain to legal work that could only be performed by a licensed member of the bar.² Further, although the term “services” is not specifically limited in the Contract to professional services performed by an attorney, we agree with Shepherd that the insertion of a specific dollar amount for those services that corresponds with the rate Daugherty charged at that time for his services calls into question whether the parties intended for “services rendered” to be limited to those performed by the attorney or whether they intended that term to be more broadly applied to include the work performed by paralegals on her case. Accordingly, we find that the term “services,” as used in the termination provision, is uncertain and open to more than one meaning.

Moreover, unlike GKD, we do not believe that the United States Supreme Court's holding in Jenkins and Richlin Security Svc. Co. v. Chertoff, 553 U.S. 571, 128 S.Ct. 2007, 170 L.Ed.2d 960 (2008), which involved issues of federal statutory interpretation, should be engrafted onto this Attorney–Client contingent fee contract in the absence of any indication that the parties intended to use the federal definitions in the Contract. See Jenkins, 491 U.S. at 285, 109 S.Ct. 2463 (recovery of paralegal fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 USC § 1988); Richlin, 553 U.S. at 573, 128 S.Ct. 2007 (in which the court decided a similar issue under the Equal Access to Justice Act, 5 USC § 504(a)( l ) (2006 ed.) and 28 USC § 2412(d)(1)(A) ...