The Court Should First Examine And Evaluate All The Reasons For Dismissal Stated By The Defendants, Including At The Hearing Stage, And Make A Decision Accordingly
T.C. JUDICIARY
13th Civil Chamber
Basis: 2015/7350
Decision: 2015/31650
Decision Date: 03.11.2015
LAWSUIT FOR RECEIVABLES – THE COURT MUST FIRST EXAMINE AND EVALUATE ALL THE REASONS FOR THE DISMISSAL OF THE DEFENDANTS, INCLUDING THE HEARING STAGE, AND MAKE A DECISION ACCORDINGLY – INCOMPLETE AND INCORRECT EVALUATION
SUMMARY: While the court should first examine and evaluate all the grounds for dismissal stated by the defendants, including the hearing phase in the Court of Cassation, and make a decision accordingly, the fact that a judgment was established with incomplete and incorrect evaluations is contrary to the procedure and the law and requires reversal.
(6098 S. Code Art. 505, 506, 512) (818 S. Code Art. 389) (1136 S. Code Art. 34, 174)
Case and Decision: At the end of the trial of the receivable lawsuit between the parties, the judgment given for the partial acceptance and partial rejection of the lawsuit for the reasons written in the judgment was appealed by the defendant A.. Ş… attorney appealed with a hearing and a summons was sent to the relevant parties. On a certain day, the appellant defendant A.. A.. Ş. and his attorney S.. K…, the other defendants N… Y…, K… T… and counsel for the plaintiff M.. M.. Çe…, and after the oral statements of the attorneys present were heard, the hearing was adjourned to another day for a decision. This time, it was determined that the petition of appeal was in due time and the file was examined and the necessity was discussed and considered.
The plaintiff, defendants A.. Ş., N.. Y… and R… Y… as the attorney of the defendants A. Ş., N… Y… and R… Y…, the plaintiff pursued the files numbered 2011/418 of the Bursa 1st Civil Court of First Instance and 2010/382 of the Bursa 6th Civil Court of First Instance, the decisions were approved by the Court of Cassation, the 9th Directorate of Execution of Bursa initiated proceedings with judgment through the files numbered 2012/6559 and 2012/7223, but at this time he was dismissed from the attorneyship, the defendants A… Ş.. Ş…, N… Y… and R… Y… from both litigation and execution attorney fees, and the other defendant K.. T… is responsible for both the lawsuit and the execution attorney fee and the other defendant K… T… is only responsible for the execution attorney fee, also claiming that the follow-up expenses for both execution files were incurred by him, without prejudice to his rights related to the surplus, a total of 11.991,00 TL execution attorney fee for both files of Bursa 9th Directorate of Execution in respect of all defendants and K… T… T… for the defendants other than K… T…, a total of 5.560,00 TL litigation attorney fee and 5.660,00 TL counterparty attorney fee due to the lawsuit, together with legal interest, and increased the claim to 49.391,07 TL with the amendment petition.
The defendants claimed that the plaintiff attorney did not represent the defendants K… T… in the files numbered 2011/418 of Bursa 1st Civil Court of First Instance and 2010/382 of Bursa 6th Civil Court of First Instance. T…, the plaintiff attorney was not the attorney of the defendants K.. T…’s lawsuit rights to the enforcement proceedings, their trust in the plaintiff was shaken upon realizing this situation, they also argued that the plaintiff did not attend the hearings of the ecrimisil case, as well as the hearing held at the Court of Cassation during the appeal phase, and that the lawyer who was rightfully dismissed cannot demand a fee, and they requested the dismissal of the lawsuit.
The court stated that “especially the plaintiff’s failure to attend the hearing at the Court of Cassation was claimed as a just cause of dismissal, but the proceedings of the cases at the Court of Cassation require a separate fee, therefore this statement was not taken into consideration, moreover, the reason for dismissal was not specified in the dismissal letters, the receivables were secured in the execution files, the dismissals after the approval decisions of the Court of Cassation were not justified, and the plaintiff lawyer was entitled to full fee”, and the lawsuit was partially accepted, 6.719,85 TL was deducted from the defendant A.. Ş. from the defendant A… Ş., 6.719,85 TL from the defendant N… Y…, TL 2.479,60 from the defendant R.. Y…, 6.410,62 TL from the defendant K.. T… from the defendant K… T… together with the legal interest to be accrued as of the date of the lawsuit, and to reject the claim for the excess, and the judgment was appealed by the defendants.
1- The attorney’s obligations as an attorney are set out in Article 505 of the Turkish Code of Obligations (Article 389 of the Abrogated Code of Obligations) and its subsequent articles, and the attorney is obliged to fulfill the attorneyship against his client with loyalty and diligence according to Article 506 of the said Code. Pursuant to the duty of loyalty, the attorney is obliged to act in the best interest of his/her client and to refrain from acts that may harm him/her.
The provision in Article 34 of the Attorneyship Law regarding the “duty of care”, which reads as follows: “Attorneys are obliged to fulfill the duties they have undertaken with diligence, integrity and honor in a manner befitting the sanctity of this duty and to act in a manner befitting the respect and trust required by the title of attorney.” is a much more comprehensive and special provision compared to the duty of care of the attorney regulated in Article 506 of the Turkish Code of Obligations (Article 390 of the Abrogated Code of Obligations), since the attorneyship profession is a public service.
Accordingly, the lawyer is obliged to carry out and conclude the work undertaken by the lawyer diligently and for the benefit of the client, as well as scrupulously avoiding attitudes and behaviors that may cause the client’s trust in the lawyer to be shaken. Otherwise, if the client, who has no confidence in his lawyer, dismisses his lawyer, it must be accepted that the dismissal is justified. Indeed, if the lawyer has not shown the necessary care and attention in the performance of his duty, and has not performed the attorneyship faithfully, the client’s dismissal of the attorney is justified.
Article 174 of the Attorneyship Law states, “In the event of dismissal of the attorney, the full fee shall be paid. However, if the attorney is dismissed due to fault or negligence, the fee need not be paid.” According to this provision, the client is not obliged to pay the attorney’s fee if it is proven that the dismissal is based on just cause. According to the well-established jurisprudence of our Chamber, in case of justified dismissal, attorney’s fee can only be requested for the works concluded and finalized as of the date of dismissal. Because the attorneyship relationship is a whole and the dismissal will spread to all lawsuits and proceedings between the parties, if the dismissal is accepted to be justified, it is not possible for the plaintiff to claim attorney’s fees for the works that have not been finalized as of the date of dismissal. On the other hand, in case of unjust dismissal, the lawyer has the right to demand the entire attorney fee for the work undertaken, regardless of the stage.
After these explanations, if we look at the case subject to the lawsuit, the plaintiff lawyer filed the present lawsuit for the collection of the attorney fee receivable, claiming that he was unfairly dismissed from the attorneyship, and the defendants defended that the dismissal was justified. In this case, the first issue to be resolved in the case is whether the dismissal was justified. Although the defendants did not rely on any reason for dismissal in the notice of dismissal with the statement “upon the necessity I have seen”, in their defense in this case, the plaintiff did not show due diligence as an attorney, acted contrary to the obligation of loyalty, did not attend the hearings, did not attend the hearings on behalf of the defendants K… T… on behalf of one of the defendants K… T… without his instruction, and that they rightfully dismissed the plaintiff for all these reasons.
In the expert report taken as a basis for the judgment, it was stated that “the grounds for dismissal were not shown in the letter of dismissal, the abstract statement of dismissal should be accepted as unfair dismissal”, and the court made a judgment without examining and evaluating all the reasons for dismissal stated by the defendants in their defenses. However, Article 512/1 of the Turkish Code of Obligations (Article 396/1 of the abrogated Code of Obligations) states that dismissal and resignation from the attorneyship are permissible at any time, and the declaration of the will to dismiss is not subject to any limitation in terms of both the reasons for dismissal and the time. The provision in Paragraph 2 of the said Article regarding the obligation to indemnify the damage incurred by the other party in the event that the dismissal and resignation take place at an inappropriate time, does not limit or restrict the dismissal and resignation in any way, on the contrary, it confirms the freedom to exercise this right and regulates the possible consequences of this right only if it takes place at an inappropriate time. Again, Article 174 of the Attorneyship Law stipulates different consequences for dismissal or resignation from the attorneyship, depending on whether they are based on justified reasons or not. For all these reasons, in the concrete case, it should be accepted that the defendant is not bound by the grounds for dismissal stated in the notice of intention to dismiss, that he may state new and other grounds for dismissal in the pending lawsuit, and that he may base his defense that the dismissal is justified on these grounds. Acceptance to the contrary would result in the restriction of the right of defense, which is regulated and guaranteed by the Constitution. In fact, this interpretation is in line with the legal nature of the power of attorney contract, especially the element of ‘mutual trust’, which constitutes a prerequisite for the establishment of the power of attorney relationship, and moreover, the ‘obligation to keep secrets’, which is closely related to this element, which is not explicitly regulated in the law, but is accepted as one of the obligations of the attorney in the doctrine and judicial practices, and which is adopted to continue its existence even after the termination of the power of attorney relationship.(See HGK’s T. 11.10.2006, E.2006 /13-610, K.2006/639)
In that case, the court should examine and evaluate all the grounds for dismissal put forward by the defendants in this case regarding the issue of “whether the dismissal is justified”, which is the primary dispute between the parties.
On the other hand, although the court has stated that “the plaintiff lawyer’s failure to attend the hearing at the Court of Cassation”, which is one of the grounds for dismissal relied upon by the defendant in this case, cannot be a justified reason for dismissal, this acceptance of the court is also not correct. Because the lawyer is obliged to follow the work undertaken until the end, and if the subject of legal assistance is a lawsuit, he/she is obliged to follow this lawsuit until it is finalized, including the appeal and decision correction stages. Contrary to the court’s acceptance, the award of a separate hearing attorney fee in favor of the prevailing party as a result of the appeal request made with a hearing at the Court of Cassation stage does not result in the conclusion that this stage of the case is a separate work. Again, although the court has mentioned that the receivable subject to legal aid has been secured, the fact that the receivable belonging to the client has been secured is not sufficient to accept that the dismissal is unfair for this reason alone.
For all these reasons explained, while the court should first examine and evaluate all the reasons for dismissal stated by the defendants, including the hearing phase at the Court of Cassation, and make a decision accordingly, the fact that a written judgment was established with incomplete and incorrect evaluations is contrary to the procedure and the law and requires reversal.
2- According to the reason for reversal, it is not necessary to examine the other objections of the defendants at this stage.
Conclusion 1. For the reasons explained in subparagraph 1, the appealed judgment is reversed in favor of the defendants, 2. According to subparagraph 2, it is not necessary to examine the other appellate objections of the defendants, 1100,00 TL trial attorney’s fee should be taken from the plaintiff and paid to the defendant, 381,34 TL prepaid appeal fee should be returned upon request, it was decided unanimously on 03.11.2015.