The Court Should Obtain An Expert’s Report Considering The Unjust Dismissal Of The Plaintiff – Decision Regarding The Rejection Of The Case Regarding The Attorney Fee Regarding The File Of The Execution Directorate Is Contrary To The Procedure And The Law
T.C. JUDICIARY
13th Civil Chamber
Main article: 2015/2853
Decision 2016/7239
Date of Decision: 08.03.2016
LAWSUIT FOR RECEIVABLES – THE COURT SHOULD OBTAIN A REPORT FROM AN EXPERT CONSIDERING THAT THE PLAINTIFF WAS UNFAIRLY DISMISSED – THE DISMISSAL OF THE LAWSUIT IN TERMS OF ATTORNEY’S FEE RELATED TO THE FILE OF THE EXECUTION DIRECTORATE IS CONTRARY TO THE PROCEDURE AND LAW – REVERSAL OF THE JUDGMENT
SUMMARY: The court, taking into consideration that the plaintiff was dismissed unfairly, if necessary, by obtaining a report from an expert in his field; considering that the plaintiff was right to demand the attorney fee he deserved in the file numbered 2013/1744 of the … Enforcement Directorate, in which the plaintiff represented the defendant as his attorney, while the court should make a decision in accordance with the result, the rejection of the case in terms of the attorney fee related to the file numbered 2013/1744 of the … Enforcement Directorate is contrary to the procedure and the law and requires reversal.
(1136 S. Code Art. 174) (6098 S. Code Art. 389, 390)
Lawsuit and Decision: At the end of the trial of the receivable lawsuit between the parties, the file was examined and discussed upon the appeal of the judgment given for partial acceptance and partial rejection of the lawsuit for the reasons written in the judgment, by the plaintiff’s lawyer and the defendant within the time limit.
The plaintiff, based on the power of attorney dated 03.09.2008, represented the defendant as his attorney in the file numbered 2008/649 of the … Civil Court of First Instance, in this context, it was decided to accept the case as a result of the expropriation without expropriation lawsuit filed against the General Directorate of DSI in the capacity of the plaintiff’s attorney, in line with the decision, a proceeding was initiated with the file numbered 2013/1744 of the …. Execution Directorate, while he had no fault in this process, he was dismissed with the dismissal letter dated 20.11.2013, the dismissal was unfair, …. The contractual and counter attorney fee due to the attorneyship service he carried out in the file numbered 2008/649 of the Civil Court of First Instance, again …. Execution Directorate’s file numbered 2013/1744 and requested a decision to collect a total of 40.108,25 TL, including 21.786,25 TL contractual attorney fee, 9.021,60 TL legal attorney fee and 9.300,40 TL execution attorney fee, from the defendant together with the interest to be accrued from the date of dismissal.
The defendant requested the dismissal of the case.
The court ruled that the defendant lost confidence in the plaintiff who filed a lawsuit on his behalf without authorization and power of attorney, that the dismissal was justified, that the dismissal was justified, and that the plaintiff was entitled to 30.807,85 TL attorney’s fee due to the file numbered 2010/449Esas 2012/473 Decision of the … Civil Court of First Instance, which was understood to have become a final judgment before the date of the dismissal. 807,85 TL attorney fee receivable, and the attorney fee receivable requested with the file numbered 2013/1744 of the … Execution Directorate should be rejected, it was decided to partially accept the lawsuit, to take the 30.807,85 TL receivable from the defendant together with the legal interest to be processed from the date of the lawsuit and to give it to the plaintiff, and to reject the request regarding the excess, and the judgment was appealed by the parties.
1- Although the defendant appealed the court decision dated 04.11.2014 regarding the partial acceptance of the case with the appeal petition dated 16.12.2014, it was decided to reject the defendant’s appeal petition due to the waiver of the appeal with the petition dated 21.10.2015.
2- In the examination of the appellate objections of the plaintiff; the lawsuit is related to the claim for the collection of unpaid attorney fee receivables due to unfair dismissal. The attorney’s obligations as an attorney are set out in Articles 389 and following of the Code of Civil Procedure, and first of all, the attorney is obliged to fulfill the attorneyship with loyalty and diligence towards his client according to Article 390 of the Code of Civil Procedure. In accordance with the duty of loyalty, the agent is obliged to act in the best interest of his/her client and to refrain from acts that may harm him/her. If the attorney has not shown the necessary care and attention while fulfilling his duty and has not performed the attorneyship with loyalty, the attorney is justified in dismissing the attorney. According to Article 174 of the Attorneyship Law, if the dismissal is justified, the attorney’s fee does not have to be paid, and in case of unjustified dismissal, the attorney is entitled to the full fee. After these explanations, when the concrete case is examined; the primary dispute between the parties is whether the dismissal is justified or not. While the plaintiff claims that the dismissal was unjustified, the defendant claims that he appointed the non-suit … as his attorney with a power of attorney dated 01.09.2008, and that this person authorized the plaintiff on his behalf on 03.09.2008. 2008, that the power of attorney only covers the authorization given for the immovable property in the nature of a field registered in parcel 5/412 in the … Village … Forest, and that afterwards, although the plaintiff was not authorized, he represented himself as an attorney in the case file numbered 2010/882 Esas of the … Civil Court of Peace, and that at the sales stage, an agreement was suddenly reached with the other party, and that he was forced to agree to the agreement, and therefore the dismissal was justified. According to the contents of the documents titled “Consent Agreement” dated 01.11.2013 and “Fee Agreement” dated 01.03.2012, which are available in the file and signed by the defendant; the defendant stated as the reason for the dismissal and claimed that the plaintiff was represented by the plaintiff by proxy although he did not authorize him to represent …. In the file numbered 2010/882 Esas of the Civil Court of Peace; it is understood that the plaintiff gave consent for the plaintiff to act as an attorney for him, since the documents in question …. It is seen that the documents in question are the fee agreement regarding the file numbered 2010/882 of the Civil Court of Peace and the consent letter regarding the authorization of the plaintiff and a lawyer outside the lawsuit to transfer his share in the immovables related to the case in question for 200.000,00 TL. In this case, since it can no longer be mentioned that the plaintiff represented the defendant without his consent and therefore the defendant lost confidence in the plaintiff, it should be accepted that the dismissal was unfair. As such, the court, in the light of the above explanations, considering that the plaintiff was dismissed unfairly, if necessary, by obtaining a report from an expert expert in his field; Considering that the plaintiff is also entitled to demand the attorney fee he deserves in the file numbered 2013/1744 of the … Enforcement Directorate, where the plaintiff represents the defendant as his attorney, the rejection of the case in terms of the attorney fee for the file numbered 2013/1744 of the … Enforcement Directorate is contrary to the procedure and the law and requires reversal.
Conclusion: For the reasons explained in subparagraph (1) above, the defendant’s appeal petition should be rejected due to the waiver of the appeal, and for the reasons explained in subparagraph (2) above, the judgment should be DISMISSED in favor of the plaintiff, and the prepaid fees should be returned to the parties upon request, it was unanimously decided on 08.03.2016.