*1 JONES, & PERRIE, BUKER, STAGG A97A2081. SCHLUTER v. P.C. Judge. Beasley, Stagg P.C., firm, sued its client Jones, a law Perrie, Buker, complained attorney unpaid fees. Schluter John Schluter to recover the part performed and in unautho- excessive amount of work summary judgment. granted The issue the firm The trial court rized. is whether undisputed billed for fell work the evidence agreement. parameters parties’ of the within the principal firm, in the executed Jones, a and Richard W. Schluter authorizing pre- agreement Jones to the firm’s letterhead a letter offering necessary private placement pare of lim- afor the documents dining partnership and entertainment club. It in a new ited interests proposed offering legal will entail for the stated: “The work preparation placement private preparation memorandum, of a regulatory preparation appropriate subscription fil- documents, agreement, partnership ings, preparation of limited of amendment cleanup organization partnership work and other collateral agreed pay consist of Schluter to invoices which would work.” hourly per- expenses for the services and fees calculated on an basis hourly forth an rate of for Jones’ $140 formed. The time. set project take about two It stated as “estimates” that the would range $12,000 $18,000. to The and that the fees would weeks experi- agreement explained were on Jones’ that the estimates based any guarantee, nature, did not constitute ence in matters of the same and could be greater. the assistance of Within four weeks prepared the documents to Schluter’s associate, a firm son and delivered Douglas partner, Schluter, had the documents and business copied firm Schluter which and bound. The submitted invoices to expenses. $1,559.94 in Schluter $17,579.50 to in fees and amounted brought pay $10,203.85. firm suit in two more than refused quantum open meruit, of contract and counts, account/breach bringing sought the suit. The court in addition fees for granted open of contract on the account/breach claim. procedure open simplified pleading “An account is a action on justly equitably party entitled a can recover what he was
where to without regard special agreement pay such amount they reasonably goods dispute there exists no or services as were worth when goods An or services received. as to the amount due or the open brought for materials furnished and action on account be dispute performed. to the ser- However, if there is a as to assent work vices performed proper procedure. acceptance work was to be or to of the work done or as what open cost, an action on account is not
and the then must be based either on an A suit on account implied or an contract.”1 express
Schluter has the firm’s which takes the case challenged billings, of an action on account. The simplified parameters open outside the firm’s claim must as a breach of contract action. proceed factual exist as to four matters. urges disputes
Schluter First,' agreed he claims the the fees and keep expenses *2 end of the identified in the This contradicts the range agreement. low Jones could not the provides promise written fees stay Similarly, even within the estimated Schluter’s range. would the the take argument parties agreed project longer would no stating than two weeks is inconsistent with the written terms the an figure only project might two-week estimate the take longer.
But oral cannot be admitted contradict understandings writ- ten terms.2 Georgia “Well-established law that matters provides outside a contract cannot be used to vary explain unambiguous the While, terms of an agreement. generally, ambiguity an in a contract by evidence, be explained parol parol evidence is inadmissible to (OCGA to, add take from or a vary (1); written 13-2-2 24- §§ contract. 24-6-2.) 6-1; and Where the contract is complete its face and the evidence offered explain the ambiguity contradicts the terms of the instrument, written it Moreover, should not be admitted. evi- parol dence of a mere understanding arrived at subsequent the contract as to meaning the of the prior writing is inadmissible.”3
Second, Schluter claims the tax research and analysis exhibited
in the documents “was neither
nor
appropriate” and the
extent of it was unauthorized.
personal
Schluter’s
that the
testimony
detailed tax analysis was excessive legal work is not competent evi-
dence for the reason that he
a
degree.
lacks
law
The law presumes
lawyers perform
services in
legal
ordinarily
an
skillful manner.4
“This presumption remains with the attorney until
the presumption
by expert legal
otherwise,
rebutted
testimony;
grant
the
of a sum-
mary
in favor of
is proper.
pre-
Should this
sumption
be rebutted
expert legal testimony there is
presented
v. Davis6
Findley
jury
question of fact.”5
applied this presump-
tion where the client claimed the fees exceeded the
value of
ser-
1 (Citations omitted.)
(b) (485
Contracting Corp.,
App. 21,
Watson v. Sierra
226 Ga.
563) (1997) (physical precedent).
SE2d
(424
887) (1992).
Steel,
App.
See Loveless v. Sun
206 Ga.
248-249
SE2d
3 (Citations
omitted.)
and.punctuation
Fields,
Ocmulgee
Choice Hotels Intl. v.
222 Ga.
(1) (474
56) (1996).
App.
SE2d
591) (1987).
Langdale,
Roberts v.
Hughes Malone,
185 Ga.
SE2d
107)
(1978);
Davis,
Findley
v.
146 Ga.
see
(2) (b) (414
317)
grounds,
202 Ga.
rev’d on other
vices opinion presumption, personal Schluter’s does Aside from this evidentiary legal provide legal for his defense that the tax basis not work was requires opinion legal prove inflated. of a To such expert Jones, the affidavit of who in the field. The submitted opinion practiced qualified give he had law for 14 because was years offerings. similar securities Because in connection with over 60 necessary, opinion that the work was reasonable and it was his contrary competent testimony present dissolved Schluter’s failure to this defense.7 allegations dispute factual merit.
Schluter’s other two have meetings appearing First, three with “Mr. Schluter” he testified that place, them, and as to he was out on the invoices did not take of two day hearing response, In the firm on the before the filed an town. sought explain unsworn “affidavit” invoiced Douglas meetings son, Schluter. were with regarded are Because unsworn statements not as affidavits and do competent support not constitute evidence to a motion for judgment,8 later,9 and because the document was filed the trial court correctly Moreover, did not it. struck and consider two of dis- days puted meeting entries on successive each refer to a *3 partnership agreement, Schluter,” “Mr. of a conference call revision meeting “Douglas Schluter,” Schluter,” “Mr. with memorandum. ings with work on imply that there This would were two different meet- day each with two different individuals. Because Schluter testi- meetings, disputed fied he attended no such issue of fact exists. points by apparently Second, “CVS,” Schluter to hours worked firm, firm associate claims he never authorized the anyone agreement allow other that Jones to work on the matter. The ambiguous signed is by on this issue. It is on the firm’s letterhead but is any express designation signing
Jones without that he is on behalf agreement billing policies of the firm. The refers to the of the firm complete preparation “I but states will strive to of the documents necessary your proposed offering expeditiously possible to effect as as you.” only at a fair and cost to reasonable refers hourly Ambiguities agreements against Jones’ rate. are construed light testimony the drafter.10In of Schluter’s that he did not intend to anyone matter, authorize Jones to besides work on the the fact is dis- puted. This a need determine obviates whether evidence from 7 45) Walker, 406, generally (1978); Findley See v. Howard 242 Ga. SE2d v. (2) (1) (361 Davis, supra, (b); Jones, App. 202 Ga. at 337 Graves v. 184 Ga. 129-130 19) (1987). SE2d (2) (27 Mfg. (1943); See Huiet v. Schwob 196 Ga. SE2d Barrett v. 603) (1990). Wharton, 196 Ga. (2) (427 507) (1993). Corry Robinson, See v. 207 Ga. 341) (1993). Wilkinson, Corp. Gram v. affida- to her. Her the work attributed prove “CVS” was filed too late. being as vit was struck on summary judgment precluded issues of fact
The disputed thus, it was error. granting Count enu- to review in connection with ruling 2. There is no 2, the on Count summary judgment grant meration as error only summary judgment firm meruit claim. The moved quantum account, and the trial court awarded 1, the claim on an on Count that count alone. on summary judgment Smith, J, J., McMurray, specially. P. concurs
Judgment reversed. only. in the judgment concurs Presiding Judge, concurring specially.
McMurray, reversing I Court’s the trial judgment concur Although (“the Perrie, Buker, P.C.’s Stagg court’s judgment granting firm”) I do I must write as summary judgment, separately motion reasoning holding and the limited agree my colleague’s not with (1) fact the firm only issues of material remain as whether genuine (without John Schluter for work that improperly authority) charged attorney, an associate whether allegedly performed attorney the firm John Schluter for three overcharged meetings Richard I of law and agree respective questions W. Jones. While issues, I fact remain as to these would reverse the trial court’s sum- mary entirety proba- in its because the record reveals fatal (hearsay hearsay) only proffer tive defects and double the firm’s — billing attorney sheets and invoices attached to Richard damages materials do not unimpeachable disputed W. Jones’ affidavit. These law, a matter of of the firm’s claim for prove, any part past-due as attorney attorney-client engagement {attached fees under the letter Richard W. Jones Appendix) pre- as an hereinafter pared and John Schluter executed. See v. Fed. Bryan Express Corp., Damages Summary Judgment. plaintiff- As a Proof summary judgment damages, movant on for breach of contract there remains no of material fact genuine must show issue Fed. alleged Bryan as to the amount of John Schluter’s debt. See *4 (3), 164 to meet Express Corp., App. supra. Attempting burden, firm filed the of Richard W. this affidavit [John] that he “was the for Schluter’s deposed billing attorney time and responsible reviewing spent he] that accounts costs matter, maintained [incurred an] in this and that account was “all Attorney deposed Schluter. . . .” Jones also time [John] [John account] and costs contained were reasonable is reflected in necessary [and that]” John Schluter’s account balance billing “invoices” attached to his affidavit. This exhibit includes unpaid expenses sheets lists of John Schluter’s comprising 780 time
vaguely reflecting annotated entries time for work allegedly by attorney attorney, Jones and an associate performed who is iden- tified in the firm’s sheets as “CVS.” billing that, with the firm’s is problem proffer absent an opportu nity for John Schluter reporting attorneys’ test entries via (Southern Banks, cross-examination 401, Cellular Telecom v. 209 App. Ga. (433 606)), 402 SE2d the entries are hearsay, hearsay, “and even objection, when admitted into evidence without lacks probative value any to establish fact. Howell Mill/Collier Assoc. 194 Pennypacker’s, 257).” App. Blalock, Ga. 171 Mitcham v. cert, (2), 83), denied, 32 214 Ga. Indeed, the cross-examining attorney value of Jones punctuated judice by case sub an absence of proof regarding his personal of knowledge the work that was purportedly performed by associate attorney “CVS.”11Also telling regard with to the billing proba sheets’ shortage tive is John Schluter’s opposing affidavit challenging three Schluter) for meetings entries (according John never (in occurred. While the firm attempts explain away this proof its brief) by arguing that these time entries must have been for meetings son, Schluter, with John Schluter’s Douglas the point remains that evidentiary confidence cannot be in such placed self-serving billing without, least, entries at the very an opportunity to cross-examine the reporting professionals. circumstances,
Under these and recognizing the unimpeachable nature of affidavits such as those proffered judice, the case sub I go cannot along my colleague’s tacit recog nition that most of the time entries in the firm’s sheets billing consti tute irrefutable of the proof reported work therein. Saying that of any billing these entries proves the of the performance matters reported ignores therein this Court’s directive in Southern Cellular Telecom v. Banks, 401, 402, 209 Ga. App. supra, vaguely annotated billing (or statements must be tested cross-examination proffer least a cross-examination) of before such entries constitute proof of the exe cution, function or substance any of task. See also Southern Co. v. Hamburg, Ga. 467), cert. denied, 220 Blalock, Ga. Mitcham v. Ga. supra. Compare Ins. Co. North Allgood America v. Elec. 229 Ga. App. 728), majority where a of this Court held that a cli ent’s attorneys activities with her before trial authenticated her per- hearsay This is so because evidence is defined as “that which does not derive its value solely mainly veracity from the credit of the but competency witness rests on the (a). persons.” encompasses other proof, many § OCGA 24-3-1 And while this definition classes hearsay, proffered sheets, it is fundamental such as that in the firm’s fol speaks something scope per lows when witness to the truth of outside the his her (4th Green, knowledge. ed.), 217, 226; Wigmore, Evidence, sonal Ga. Law of Evidence §§ (Chadbourn § rev. *5 by these reportedly that was performed of work knowledge sonal declarants, billing in other out-of-court as as several attorneys, well at trial. into evidence that were admitted sheets case sub Because the Exception. Records Business Georgia’s in the trial court for further proceedings remanded judice must be under Geor- billing its sheets to appears proffer and because (OCGA 24-3- hearsay rule § to the Exception Business Records gia’s attorney he “was the Jones by having attorney depose (Peachtree North Co. v. Arkhora Apts. account” [John] 83)), I find it Assoc., 140 Ga. Santora v. American Com- to confusion raised resolve
appropriate 34), (3), bustion, 771, 774 901), N.D.T., Connor, 196 Ga. Inc. v. sheets under this admissibility attorney billing of regarding rule. hearsay Compare to the Exception state’s Business Records 666, 669 Inc., Ga. Ford-Mercury, Oden v. Legacy 43). subject is not a rule Exception Business Records “Georgia’s a venerable exception but statutory application, indifferent Fielder, and trustworthiness. necessity from ascending principles 24-3-1’s Collier, require- 499. See OCGA Bros. & Co. v. Ga. § in cases from ‘(h)earsay only specified evidence is admitted ment (b). 1517- Wigmore, 24-3-1 Also see 5 Evidence necessity.’ §§ OCGA § (Chadbourn rev. a volume of cotton Fielder, proof shipped “In a case involving Florida, Chief Justice Liverpool, England, Apalachicola, court) that a fac- large for the reasoned Lumpkin (writing H. Joseph records, hearsay, while were shipping and commission house’s torage transaction, in the kept evidence of the when best business, it would have been impractical course of because regular ‘(t)he numer- wharfingers, and expect weighers, and unreasonable (to recall) the multitude of ous subordinates who handled this cotton Id. at 499. The court also rea- occurring every day.’ transactions thus agent between the fiduciary relationship shipping soned that the Id. at 500.” trustworthy. rendered the records shipping the defendant Elec. 722- Allgood Ins. Co. North America v. logic I do not believe similar (b), (dissenting opinion). supra in sub applies judice. the case Fielder, lawyers in the firm’s
Unlike the out-of-court declarants
clerks,
nor
recording agents
“weighers,”
are neither disinterested
“CVS” are but
attorney
Jones and associate
“wharfingers.” Attorney
discharge
professional
lawyers
purportedly reported
two
Schluter,
now
for those
expect payment
for John
but who
services
billings
for their
having
without
to answer
services
purported
Jones
it
be inconvenient
cross-examination. While
cross-examination,
there is no
under oath for
appear
and “CVS” to
in
that,
indication
the case sub judice
like “the weighers, wharfin-
gers, and numerous
subordinates who handled . . .
cotton”
case,
Fielder
it would be
“impractical
unreasonable”
for these
professionals
appear
trial and recall
the services which they
allegedly charged against John Schluter’s account. Billings for pro-
services,
fessional
at rates exceeding
hour,
per
simply
$100
do not
compare
type
of work or “multitude of transactions”
contem-
plated
Moreover,
Fielder.
unlike the fiduciary
relationship
*6
Fielder between
parties
neutral
that rendered the shipping records
in question trustworthy,
the action in the case sub
demon-
judice
strates that any remaining fiduciary
between the firm
relationship
and John Schluter cannot lend credibility to the billing sheets which
the firm now
proffers
support
its motion for summary judgment.
Under
these circumstances,
I find no reason
necessity
which
relieves the two lawyers in the
judice
case sub
duty
of their
answer, before a jury, for the specific
billings
now
proffers
attorney Jones’ affidavit. As set forth in the dissent
in Ins.
Co. North America v. Allgood
Co.,
Elec.
715,
229
723,
Ga.
“I
supra,
would adhere to the principle initially recognized in South-
ern Cellular Telecom Banks,
v.
401, 402,
209 Ga. App.
supra,
possible deficiencies, suppressions and sources of error which may lie
within
billing records are tested
by
best
confrontation and
cross-examination.
It thus appears elemental
to me that
recording
legal services is not merely a matter of mechanical
which,
routine
alone, establishes
the indicia of reliability required for admission of
records under Georgia’s Business Records Exception. The recording
of time and expenses
by
opposing party’s agent or legal represen-
tative,
in my view, necessarily involves an account of judgment
which, when embraced in a
memorandum,
business
is not admissible
under
OCGA 24-3-14. See Wesley State,
22,
§
v.
23
SE2d 719); Knudsen v. Duffel-Freeman,
Inc.,
(2),
95 Ga. App.
875
(99
370).
879-881
I,
therefore, believe that Georgia’s Business
Records Statute, as suggested in Santora v.
Combustion,
American
225
(3),
Ga. App.
775-776,
N.D.T.,
supra,
Connor,
Inc. v.
Ga. App.
supra, must ‘not
togo
the extent of
rendering
(the)
admissible self-serving memorandums of
[iden-
kind
tified
judice
case sub
in attorney Jones’
Young
affidavit].
v.
Landers,
Appendix. Richard W. Jones PERRIE, BUKER, 115 Perimeter Center Attorneys Atlanta, STAGG Georgia 804-0500 Place. At Law Suite 170 JONES, P.C. FAX
March Mr. John Landmark: 659 Peachtree Atlanta, Georgia A. Partners, Schluter Street, L.P. N.E.
Re: Private Placement Memorandum
Dear John: It is offering for me to have to work with pleasure you opportunity proposed *7 dining/encenainmenc
of limited interests in new club a I am firm partnership your concept. establishing understanding believer with a clients at the outset mutual of the business details Accordingly, of the attomey/client I like to take would this to discuss relationship. opportunity rendering the and this firm follows in services. procedures policies professional . will smve I to the of the documents to effect complete necessary preparation your offering as at a and as fair reasonable proposed cost to expeditiously My possible you. offering is that the an of normal time to securities is about experience complete usually required two significant weeks finish, however, start to that are I understand under time you offering Accordingly, to as soon as I will strive pressure complete your to possible. complete offering in an time your trust, however, in order to accommodate needs. I your frame expedited wiii timing changes understand that if initiate or matters you which or others of over you I little have be or no control this time frame modified. may cause delays, legal offering The work will entail the a preparation the of necessary private proposed documents, memorandum, of placement of preparation preparation subscripción appropriate regulatory filings, agreement, of of limited amendment preparation partnership partnership organization and Based the work and other collateral work. on prior my cleanup experience, legal Regulation fees offerings involving full are D limited partnerships approximately to agent 512,000 518,000. does If the it your and by you partnership prepared significant not considerations, work to with tax this require any on our comply part appropriate range be will reduced 53,000. to The firm's is to bill on hourly policy stricdy S2.000 basis for services rendered. A. Schluter Mr. John 17, 1993 March Page 2 my prior experience estimates noted above are based on of the involved in The time however, nature; guarantee that the these I cannot total costs exceed matters of this will not you monthly will send a detailed statement for Because The firm services rendered.
estimates. matter, intensity legal necessary the effort at the outset of securities we ask that all of relationship through payment of a especially retainer. This is true new clients initiate the your we case where will have to set aside other matters to meet time schedule. in this 53,000 charged Accordingly, we Fees appropriate. expenses feel that a retainer is and will be your payment expenses against up. retainer until it is used The second for all accrued fees and Thereafter, we delivery placement at will private will be due the time of of the memorandum. simply you through monthly billing process, upon receipt. due payment bill our normal understand, reason, course, legal offering any You is not consummated for fees if the monthly expenses contingent payable incurred are would be in the course of our not billing cycle. charge outstanding thirty days. We any interest on balance over behalf, long your expenses it is as When for the to advance on such calls, fees, filing will be telephone photocopying, expenses travel those expenses, distance monthly you added to the firm's so that each month will have detailed statement legal your do expenses appropriate services it is rendered and advanced behalf. When so, any may you directly pay parties. the firm ask costs to third Tne firm will not incur significant discussing you. out-of-pocket expenses these with without first time, may although My hourly per rate time to is S140 hour. This rate be modified from any monthly you anticipate changes. at this moment I do not statements to will reflect billing. in effect rates time of you regarding any you any questions questions If have or if have on these matters future, may Any you respect have with please questions matters in the feel free to contact me. administrator, billing computation Ms. Lisa office be discussed with the firm’s herein, sign Stansberry. you please agree engagement proposed If as described to the terms of copy this office. I am signature it to the enclosed line indicated and return this letter on the you are' proceed you prepared immediately offering when indicate will do so on the forward, ready go upon receipt discussed above. of the retainer *8 A. Schluter John Mr. 17, 1993 March Page 3 you hope long-term, looking working and I this will lead forward I am rewarding relationship.
mutually February Decided 26, 1998. Helm, C. for appellant. & Elizabeth Knight,
Holland Buker, Bunner, Perrie, appellee. Robert L. Stagg