The Requirement To Determine Whether The Parties Have Receivables From Each Other Between The Previous Period And The Contract Period – Decision Regarding The Obtaining Of A Detailed Expert Report Based On The Parties’ Claims And Judicial Audit
T.C. JUDICIARY
13th Civil Chamber
Basis: 2015/37944
Decision: 2015/34696
Date of Decision: 30.11.2015
ANNULMENT OF THE OBJECTION – THE NECESSITY OF DETERMINING WHETHER THE PARTIES ARE CREDITOR FROM EACH OTHER BETWEEN THE PREVIOUS PERIOD AND THE CONTRACT PERIOD – A DETAILED EXPERT REPORT WILL BE OBTAINED IN TERMS OF THE CLAIMS OF THE PARTIES, WHICH WILL BE THE BASIS FOR PARTY AND JUDICIAL REVIEW
SUMMARY: Whether the balance receivable from the pre-contractual period and the net consultancy fee of … TL, which was agreed in the contract and which should be paid in advance between the 1st and 5th of each month, were paid regularly and on time, and whether the plaintiff lawyer resigned … Whether the parties are creditor from each other between the period before the contract and the contract period until the date of the contract, whether the resignation is justified or not by examining in detail, a detailed expert report should be obtained in a way that will be based on the party and judicial supervision in terms of the claims of the parties, and a decision should be made in accordance with the result that will be reached; It is contrary to the procedure and the law to have decided otherwise as a result of incomplete examination. It requires reversal.
(1136 S. K. art. 171, 174) (1086 S. K. art. 440) (YHGK 23.03.1983 T. 1981/4-562 E. 1983/156 K.) (YHGK 03.07.1987 T. 1987/3-92 E. 1987/599)
Case and Decision: At the end of the trial of the cancellation of the objection between the parties, the judgment given for the dismissal of the lawsuit for the reasons written in the judgment was appealed by the plaintiff-counter-defendant lawyer with a hearing, and a summons was sent to the relevant parties. On the appointed day, the plaintiff Asil M.. Y… and his attorney H.. T.. Ö… and the defendant M-A.. Ltd. and the defendant M… T…, and after hearing the oral explanations of the attorneys present, 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, the necessity was discussed and considered.
In the examination of the file, upon the appeal of the plaintiff-counter-defendant, the court decision on the dismissal of the main case and partial acceptance of the combined case was reversed with the decision of our department dated 21.10. 2015 dated, the decision in the memorandum and the reasoned decision of the department were signed by the chairman and members of the department, and although the decision written in the pen was this decision, due to the confusion in the Uyap system during the writing process, instead of the reversed decision, the title of another decision was written in the system and another issue that was not related to the reversal decision was written in the decision part of the judgment, It has been understood that the plaintiff has requested the elimination of the material error in this regard, and since the above-mentioned issue arises from the Uyap system during the writing phase and this situation is a material error, it is necessary to accept the plaintiff’s request for the elimination of the material error and to revoke the decision of our department dated 21. 10.2015 dated 2014/38981-2015/30868, which contains the names of the chairman and 10 members of our chamber, which is a material error, and the court decision should be reversed as the previously written and original signed judgment.
The plaintiff, in the main lawsuit, stated that he is a lawyer, he started to provide legal services to the defendant since January 2004, upon problems arising in the payment of his fees, they signed a written contract on 09.10.2009 titled Legal Consultancy Attorney’s business follow-up principles and dated 01.08.2009, with a term of 1 year, according to this contract, he will provide consultancy services to the defendant and act as an attorney in lawsuits and execution proceedings, in return, he will be paid a monthly net consultancy fee of 2.000.00 TL as of 01.08.2009. TL net consultancy fee will be paid, in addition, only the counterparty attorney fee will belong to him due to lawsuits and execution proceedings, no contractual attorney fee will be paid, from the follow-up file numbered 2008/18658 of Ankara 3rd Execution Directorate, 86.717.00.TL attorney fee receivable, he kept 50.000.00.TL made on 25.05.2009 for this file within the knowledge of the defendant by using the right of imprisonment, he had a receivable of 26.685.80.TL due to the period before the written contract was signed, after the contract was signed, 2. 000.00.TL monthly consultancy fee was not paid regularly although he requested it verbally and via e-mail, he resigned rightfully on 28.06.2010, and due to his rightful resignation, he resigned from Ankara 6th Commercial Court of First Instance’s file numbered 2008/654 for the collection of TL 57.0608.08.TL counter-side attorney fee receivable, Ankara 1st Execution Directorate’s file numbered 2012/1159 Esas, Ankara 1st Commercial Court of First Instance’s file numbered 2005/608 Esas for the collection of TL 30.037.95. TRY 30.037.95 for the collection of the counter-side attorney fee receivable in relation to the file numbered 2005/608 of the Ankara 1st Commercial Court of First Instance, 2012/6424 Esas of the Ankara 24th Execution Directorate, and 2012/796 Esas of the Ankara 30th Execution Directorate for the collection of the counter-side attorney fee receivable of TRY 11.206.16 in relation to the file numbered 2009/389 of the Istanbul 8th Commercial Court of First Instance, but the defendant unfairly objected to these proceedings, and requested the annulment of the objections to these execution files and a decision for 40% execution denial compensation.
The defendant plaintiff in the merged case, with the written contract dated 09.10.2009, the plaintiff merged case defendant lawyer, in terms of the part notified to us by the lawyer, the parties have released the parties in terms of the period before the written contract, they agreed to pay 20.000.00. TL + VAT for the period before the contract and then paid it, the monthly salary due to the plaintiff in accordance with the written contract was paid, according to the signed contract, despite the provision that the plaintiff merger lawsuit defendant “must deposit the money collected into their accounts as a business owner until the last day of that month at the latest”, the plaintiff was not informed before the contract about the 50.000.00. TL before the contract, accordingly, the plaintiff was receivable from the plaintiff merger defendant lawyer and the plaintiff lawyer resigned upon requesting this money deposited externally, the resignation was unjustified and in accordance with the unjustified resignation, the plaintiff lawyer rightfully objected to the execution proceedings since he could not ask for a counterparty attorney fee for unfinished works, in addition, the plaintiff merger defendant lawyer collected externally and unjustly kept 50. 000.00 TL, which the plaintiff attorney collected externally and wrongfully kept on it, was objected to by the defendant of the merged lawsuit, and requested the dismissal of the main lawsuit filed against him, and the acceptance of the lawsuit filed by him and the merged lawsuit, and the cancellation of the objection.
The court dismissed the main lawsuit; partially accepted the case in terms of the combined lawsuit and decided to cancel the objection to the execution file numbered 2012/6889 Esas of Ankara 11th Execution Directorate for a total of 63.241.10.TL, including 50.000.00.TL principal receivable and 13.241.10.TL accrued interest, and to apply legal interest to the principal receivable from the date of the follow-up; the judgment was appealed by the plaintiff combined lawsuit defendant.
1- According to the Code of Obligations, it is always possible to resign from the attorneyship, and this resignation is a disruptive and innovative transaction that ends the attorneyship relationship prospectively. However, if the resignation is not justified and the client has suffered damage due to this, the attorney is liable for this damage. In the Attorneyship Law, in the event of an unjustified resignation, a more severe principle of liability has been introduced for the attorney in comparison to the regulations on the same subject in the Code of Obligations. Indeed, Article 174/1 of the Attorneyship Law stipulates that “the attorney who resigns from pursuing the work he/she has undertaken without a justifiable reason cannot claim a fee.” With this provision, it is seen that the attorney who resigns from the attorneyship without a justifiable reason is held liable to the client even without any damage requirement, unlike the general regulations regarding the attorneyship contract in the Code of Obligations. According to the aforementioned regulation, the lawyer who unjustly quits his/her employment and resigns from the attorneyship is not entitled to remuneration and, unless otherwise stipulated, is obliged to return the advance fees he/she has received and the expense advances he/she has not used to the client.
Pursuant to Article 171/1 of the Attorneyship Law, “The attorney shall pursue the work undertaken by the attorney in accordance with the provisions of the law and to the end, even in the absence of a written contract.” and Article 2 of the “Attorneyship Minimum Fee Tariff”, “…the attorney’s fee is the fee for lawsuits, works and transactions until the final judgment is obtained. ”, the lawyer cannot claim his/her fee until he/she follows the case to the end and concludes it, unless there is an agreement to the contrary. (See: In the same direction, HGK. 23.3.1983 4/562-156; HGK. 3.7.1987 3/92-599; 13. HD. 2005/15433 E. 2008/3694 K.; 13. HD.2008 /6280 E. 2008/11580 K.) However, as in the case of wrongful dismissal, in the event that the attorney rightfully resigns from the attorneyship, the attorney may request payment of the attorney fee receivable due as of the date of the rightful resignation, since there is no possibility to continue the work.
On the other hand, the attorneyship relationship is a whole, and like the dismissal from the attorneyship, the resignation also extends to all lawsuits and proceedings between the parties. This is because, with the dismissal and resignation, the “relationship of trust”, which is one of the most important elements of the attorneyship contract, also ends.
After these explanations, if we look at the events subject to the lawsuit; the main lawsuit is for the cancellation of the objection to the enforcement proceedings for the collection of the counterparty attorney fee receivable, and the combined lawsuit is for the cancellation of the objection to the enforcement proceedings for the collection of the partial collection made by the attorney externally from the attorney regarding the receivable subject to enforcement proceedings, and the plaintiff, who has been a lawyer since 2004, started to provide legal assistance to the defendant, the defendant of the combined lawsuit, they signed a written contract on 09. 10.2009 and the attorneyship relationship ended with the resignation dated 28.06.2012, it is understood that none of the cases that the plaintiff lawyer followed as the defendant’s attorney and made the subject of the lawsuit as of the date of his resignation have not been concluded. The attorney-client relationship between the parties, which started as of the beginning of 2004, was bound by a written agreement dated 09.10.2009. According to this agreement, in return for the attorney-consultancy services to be provided by the plaintiff, the defendant will pay a monthly net fee of 2.000.00 TL as of 01.08.2009. TL net fee, VAT and withholding tax belongs to the business owner, the legal attorney fee imposed on the other party in lawsuits and proceedings will belong to the lawyer, no other payment will be made to the lawyer, the monthly fixed fee payment will be paid in advance between 1-5 of each month, the collection made on behalf of the business owner will be delivered to the business owner until the last day of the month at the latest after the deductions are made in accordance with the principles in the contract and no receivables and payables related to the previous period will remain. In the follow-up file numbered 2008/18658 Esas of Ankara 3rd Execution Directorate, the plaintiff, as the attorney on behalf of the creditor defendant merged case plaintiff company, filed an execution proceeding against the non-suit debtor Keçiören Municipality on 18.12.2008 for a receivable of 557.272.27. It is understood that an execution proceeding was filed over TL 557.272.277 receivable and the proceeding was finalized, that the non-suit debtor Municipality deposited 50.000.00 TL twice into the account of the defendant merging lawsuit plaintiff, and that 50.000.00 TL was deposited once on 25.05.2009 into the account of the lawyer who is the plaintiff merging lawsuit defendant. The plaintiff defendant lawyer used the right of imprisonment for the 50.000.00.TL deposited to his account on 25.05.2009 by the non-suiting Municipality on 25.05.2009 as a set-off for the attorney fee receivable and that the business owner defendant defendant merged lawsuit plaintiff was aware of the collection of this money and that it was even recorded in the commercial books of the company and knowing this situation, the parties released the parties in terms of the previous period in the contract signed on 09.10.2009, and also the balance receivable from the previous period and the net consultancy fee of 2.000.00.TL, which should be paid in advance between the 1st and 5th of each month. 000.00.TL net consultancy fee, which should have been paid in advance between the 1st and 5th of each month, was not paid regularly despite all the warnings verbally and by e-mail, and the defendant plaintiff of the merged case claimed and defended that the 50.000.00.TL, which was collected externally by the lawyer, was not notified to him before the contract dated 09.10.2009 and that he learned much later that this money was unfairly kept by the lawyer and that the balance from the previous period and the monthly consultancy fees were paid. Although the court dismissed the main lawsuit on the grounds that the monthly fee of 2.000.00 TL was paid to the plaintiff lawyer in the expert report taken as the basis of the judgment, the resignation was unjustified and accordingly, according to the Attorneyship Law and the Attorney Minimum Fee Tariff, the counterparty attorney’s fee cannot be requested before the work is finalized; in terms of the combined lawsuit, 50.000.00 TL, which was collected from the non-suit Municipality by the plaintiff defendant of the combined lawsuit on 25. On the grounds that 50.000.00.TL, which was collected on 05.05.2009, was not notified to the defendant plaintiff in accordance with the contract in a timely manner and the conditions for the use of the right of imprisonment did not occur, the combined lawsuit was partially accepted and 50. 000.00.TL principal receivable and 13.241.00.TL accrued interest, totaling 63.241.00.TL, it has been decided to cancel the objection in terms of TL 63.241.00; Especially without a detailed examination of the company books and in accordance with the contract dated 09.10.2009; whether the monthly fixed wage is paid regularly between the 1st and 5th of each month, whether it is paid regularly between the period before the contract and the contract period until the resignation dated 28. 06.2010 until the resignation dated 28.06.2010, the expert report was issued without fully examining the receipts, account statements and e-mail correspondence submitted to the file, and the expert report, which is insufficient as such, cannot be taken as a basis for the judgment. In that case, the court, again with the help of an expert or a committee of experts, should determine whether the 50.000.00.TL deposited by the non-suit Municipal Presidency on 25.05.2009 to the account of the lawyer of the plaintiff merged lawsuit defendant was recorded in the commercial books of the company, and if so, on which date it was recorded, i.e. 09.10. 2009, taking into account that the parties have released the parties in terms of the previous period with the contract signed on 09.10.2009, whether the defendant, the plaintiff of the merged lawsuit, was notified of the collection made before the contract, and also whether the balance receivable from the period before the contract and the net consultancy fee of 2. 000.00.TL net consultancy fee, which was agreed upon in the contract and which should be paid in advance between the 1st and 5th of each month, and whether the parties are receivable from each other between the pre-contractual period and the contractual period until 28.06.2010, when the lawyer of the plaintiff defendant resigned, should be examined in detail and a decision should be made in accordance with the result to be obtained by obtaining a detailed expert report that will be based on the party and judicial control in terms of the claims of the parties according to whether the resignation is justified or not; while the decision made as written above as a result of incomplete examination is contrary to the procedure and the law. It requires reversal.
2-According to the reason for reversal, it is not necessary to examine the other appellate objections of the plaintiff defendant at this stage.
Conclusion 1. For the reasons explained in subparagraph 1, the appealed judgment shall be VACATED in favor of the plaintiff defendant, 2. For the reasons explained in subparagraph 1, it is not necessary to examine the other appellate objections of the plaintiff merged defendant at this stage, 1100,00 TL hearing attorney fee should be taken from the defendant merged defendant and paid to the plaintiff merged defendant, 855,00 TL fee taken in advance should be refunded upon request, in accordance with Article 440/1 of the HUMK, it was decided unanimously on 30.11.2015, with the way of decision correction being open within 15 days from the notification.