In Cases Of Settlement, The Lawyer Is Entitled To Legal Fees Based On The Amount Of The Settlement And To Agency Fees From The Opposing Party.
Summary:
It must be accepted that the plaintiff has the right to claim both the contractual attorney’s fees specified in Article 164/4 of the Attorney’s Law and the “attorney’s fees of the opposing party” specified in Article 164/final of the same Law from the amount awarded to the client through the settlement agreement. In this case, the court should consider the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance, the case file numbered 2009/8277 of the Fethiye 2nd Enforcement Directorate, and the case file numbered 2009/8277 of the Fethiye 2nd Enforcement Directorate as the subject of the attorney’s fees. Considering that the amount of 5,500 TL was awarded to the plaintiff’s client through the settlement agreement between the parties in both cases, the following fees shall be calculated separately for each case: In accordance with Article 164 of the Lawyers’ Law, a contractual attorney’s fee of between 10% and 20% of the amount, which shall not be less than the proportional fee calculated according to the Minimum Attorney’s Fee Schedule, and the calculation of the opposing party’s legal attorney’s fee in accordance with the Minimum Attorney’s Fee Schedule, In the other case of the Fethiye Enforcement Court of First Instance, file no. 2010/201, the contractual and opposing legal fees should have been calculated as a fixed amount in accordance with the Minimum Attorney Fee Schedule, but instead, a written decision was made contrary to this, which is contrary to procedure and law and requires reversal.
T.C.
Supreme Court
13th Civil Chamber
Case No.: 2013/28635
Decision No.: 2014/4819
Date: 24.2.2014
COURT: Fethiye 2nd Civil Court of First Instance
DATE: 16/07/2013
NUMBER: 2012/193-2013/488
Following the trial of the case for the cancellation of the objection between the parties, the judgment was rendered partially in favor of the plaintiff and partially in favor of the defendant for the reasons stated in the judgment. Upon the appeal filed by the defendant’s attorney within the prescribed time limit, the case file was reviewed, and the necessary deliberations were made.
DECISION
The plaintiff, acting as the representative of Ülker Korkan, who is not a party to the case, filed a lawsuit against the defendant based on the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance, the case file numbered 2009/8277 of the Fethiye Enforcement Directorate, and the case file numbered 2010/201 of the Fethiye Enforcement Court of First Instance. Enforcement Directorate’s case file No. 2009/8277, and Fethiye Enforcement Court’s case file No. 2010/201. However, due to the settlement between the defendant and the client, the defendant is also liable for the contractual and legal attorney’s fees under Article 165 of the Attorney’s Law. and that he initiated enforcement proceedings against the defendant for the collection of contractual and statutory attorney’s fees. He further claims that the enforcement proceedings were suspended upon the defendant’s objection to the enforcement proceedings and requests that the objection to the enforcement proceedings be dismissed and that the defendant be ordered to pay enforcement denial compensation.
The defendant argued that the plaintiff acted in bad faith by filing a lawsuit to cancel the objection against them, even though the third party Ü..K.., who was a party to the power of attorney agreement with the plaintiff, did not object to the enforcement proceedings and there was an opportunity to collect the debt. The defendant also argued that the amount agreed upon with the plaintiff’s client was 5,500 TL and that they could only be held liable for the legal attorney’s fees.
The court decided to partially accept the case, and the defendant appealed the ruling.
The plaintiff represented his client Ü.. During the proceedings, the defendant and the plaintiff’s client, who was not a party to the case, reached a settlement agreement. Based on this settlement agreement, it was decided that even if the appeal of the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance were to be upheld, it would not be pursued. it was decided that there was no basis for a decision on the grounds that the enforcement case file was waived and the case pending before the enforcement court became moot due to this agreement, however, it is understood that the plaintiff was not paid the attorney’s fees for this enforcement and litigation and that there was no written fee agreement.
Article 164 of the Lawyers’ Law states that “in cases where there is no written fee agreement between the parties, in cases and matters whose value can be measured in monetary terms, the competent authority authorized to review fee objections shall determine the attorney’s fee for the won portion of the case based on the attorney’s effort, at a rate of between 10% and 20% of the value of the claim as of the date the judgment becomes final, provided that it does not fall below the minimum fee schedule.” 10% to 20% of the value of the claim as of the date the judgment becomes final, provided that it does not fall below the minimum fee schedule.“ Article 165 of the Attorney Law states that ”in cases that are settled by mutual agreement between the parties, whether by settlement or otherwise, and are not pursued, both parties are jointly and severally liable to the attorney for the payment of the attorney’s fee.” When the case is settled, the attorney may request the amount agreed upon in the fee agreement with the client, as well as the attorney’s fees imposed on the other party based on the amount settled in the case. (See the decision of the Supreme Court of Appeals dated February 16, 1994, No. 1993/13-810 E., 1994/60 K.) Pursuant to joint and several liability, the same liability applies to the opposing party who settled with the client. If there is no fee agreement between the attorney and the client (or if the agreement is invalid), the client and the opposing party who reached a settlement agreement with the client shall be liable for the attorney’s fees based on the amount settled, under the attorney’s fees stipulated in Article 164/final of the Attorney’s Law (to be imposed on the opposing party) and the attorney’s fees stipulated in Article 164/4 of the Attorney’s Law (to be paid by the client to the attorney).
In the specific dispute, the lawsuits and enforcement proceedings pursued by the plaintiff as the attorney were concluded in accordance with the settlement protocol dated December 30, 2010, titled “Mutual Release Agreement in Exchange for Settlement Agreement,” between the plaintiff’s client, Ülker Korkan, and the defendant, and it is understood that the parties reached a settlement agreement on the amount of 5,500 TL. It must be accepted that the plaintiff is entitled to claim both the contractual attorney’s fees specified in Article 164/4 of the Attorney’s Law and the “attorney’s fees of the opposing party” specified in Article 164/final of the same Law from the amount obtained for his client through the settlement agreement. Under these circumstances, the court should consider the case file numbered 2006/519 of the Fethiye 1st Civil Court of First Instance, the case file numbered 2009/8277 of the Fethiye 2nd Enforcement Directorate, and the case file numbered 2009/8277 of the Fethiye 2nd Enforcement Directorate as the subject of the attorney’s fees. Considering that the amount of 5,500 TL was awarded to the plaintiff’s client through the settlement agreement between the parties in both cases, the following fees shall be calculated separately for each case: In accordance with Article 164 of the Lawyers’ Law, a contractual attorney’s fee of between 10% and 20% of the amount, which shall not be less than the proportional fee calculated according to the Minimum Attorney’s Fee Schedule, and the calculation of the opposing party’s legal attorney’s fee in accordance with the Minimum Attorney’s Fee Schedule, In the other case of the Fethiye Enforcement Court of First Instance, file no. 2010/201, the contractual and opposing legal representation fees should have been calculated as a fixed amount in accordance with the Minimum Attorney Fee Schedule, but instead, a written decision was made contrary to this, which is contrary to procedure and law and requires reversal.
CONCLUSION: For the reasons explained above, it was decided by unanimous vote on February 24, 2014, to REVERSE the appealed judgment in favor of the appellant defendant and to refund the advance fee upon request.