Rowe v. Law Offices of Ben C. Brodhead, P.C.
319 Ga. App. 10
Ga. Ct. App.2012Background
- On Jan 9, 2007, Rowe/MET entered a Contingent Fee Contract with Brodhead to pursue claims against DePuy/Johnson & Johnson.
- Original terms: $25,000 upfront, plus 40% of recoveries, applicability limited to work in the Case, and Brodhead could withdraw at any time.
- After signing, Johnson & Johnson pursued broad litigation, including a federal suit and arbitration, with work beyond the original Case.
- On Mar 20, 2007, the parties amended the contract, stating consideration included substantial work already performed beyond the original scope and changing payment to $1.2M plus 40% of post-Amendment recoveries, removing the Case limitation.
- Arbitration yielded a net MET recovery of $1.5M; MET signed over the Johnson & Johnson check in Jan 2008 and Brodhead held $1.8M due under the Amendment (including a $1.2M flat and 40%).
- MET/Rowe later refused repayment; Brodhead sued; trial court denied directed verdicts against enforcement of the Amendment and the Loan; jury awarded Brodhead $160,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Amendment had valid consideration on its face | MET/Rowe: amendment lacks consideration as it recited past work. | Brodhead: continued performance and post-amendment work constitute valid consideration. | There was valid consideration; continued performance and past work supported the amendment. |
| Whether continued performance after the Amendment provides consideration | MET/Rowe: no new consideration beyond past services. | Brodhead: continuation of work under a contract terminable at will provides consideration. | Yes; continued performance can constitute consideration for modification. |
| Whether the trial court should have instructed lack of consideration on the face of the Amendment | MET/Rowe: failure to charge absence of consideration was error. | Brodhead: the issue was properly decided by jury given factual questions. | Controlled adversely to MET/Rowe; issues of performance/acceptance rendered directed verdict inappropriate. |
| Enforceability of the Amendment and the Loan on cross-appeal | MET/Rowe: Amendment/Loan unenforceable as a matter of law. | Brodhead: the Amendment/Loan are enforceable; jury should decide. | Judgment affirmed; factual questions precluded directed verdict in favor of Brodhead. |
Key Cases Cited
- Gerdes v. Russell Rowe Communications, 232 Ga. App. 534 (Ga. Ct. App. 1998) (reasonable value of extra work can be recovered in quantum meruit)
- Bollers v. Noir Enterprises, 297 Ga. App. 435 (Ga. Ct. App. 2009) (consideration for contract modification; continuation of work can suffice)
- Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685 (Ga. Ct. App. 1973) (consideration for modification may arise from bargain and new terms)
- Hans Godo Frabel, Inc. v. Brennan’s of Atlanta, 151 Ga. App. 379 (Ga. Ct. App. 1979) (continuation of terminable contract can supply consideration)
- Atlanta Dairies Co-operative v. Grindle, 182 Ga. App. 409 (Ga. Ct. App. 1987) (sufficiency of consideration for contract price modification)
- Gardiner, Kamya & Assoc., P.C. v. Jackson, 369 F.3d 1318 (Fed. Cir. 2004) (contract modification consideration; Restatement guidance)
- Franklin v. UAP/GA. AG. CHEM, 237 Ga. App. 71 (Ga. Ct. App. 1999) (part performance can furnish consideration)