T.R.
Supreme Court
13. LEGAL DEPARTMENT
Docket No:2015/5276
Decision No: 2016/11823
K. Date: 28.4.2016
COURT: Istanbul 7th Civil Court of First Instance
DATE: 11/09/2014
NUMBER: 2009/241-2014/131
At the end of the trial of the debt lawsuit between the parties, the decision given by the plaintiff’s lawyer to partially accept and partially reject the case due to the reasons stated in the decision was appealed within the time limit, and the file was examined and the need was discussed and considered.
DECISION
Claiming that he served as the defendant company’s lawyer in various files, but resigned due to non-payment of trial expenses, the plaintiff requested the defendant to collect the attorney fees and expenses he incurred regarding the lawsuit and enforcement proceedings pursued in favor of the defendant company.
The defendant requested that the case be dismissed.
By partially accepting the plaintiff’s case, the court decided that 7,093.00 TL of 8,765.60 TL and 1,692.62 TL of 04.12.2008, together with the advance interest to be accrued from the date of the lawsuit, should be taken from the defendant and given to the plaintiff, and the request for the excess would be rejected; The decision was appealed by the plaintiff.
1- Depending on the documents in the file, the evidence on which the decision is based, and the legal reasons required, and especially if there is no error in the evaluation of the evidence, the plaintiff’s other appeal objections outside the scope of the following paragraph must be rejected.
2-The plaintiff lawyer requested attorney fees and expenses related to the lawsuit and enforcement proceedings, on the grounds that he resigned rightfully; The defendant argued that the plaintiff was not entitled to the fee; By accepting that the resignation was justified, the court decided to partially accept the case in terms of the attorney fees for the execution and case files calculated by the expert, and rejected the request in terms of the opposing side attorney fees, citing that the work has not yet been concluded.
Considering that the plaintiff’s resignation is justified, the plaintiff lawyer can now demand all opposing attorney fees from the defendant client in accordance with the provision of Article 164/last of the Lawyers’ Law, since he has withdrawn from the files. The court’s decision to reject this part of the request is contrary to procedure and law and requires reversal.
RESULT: It was unanimously decided on 28/04/2016 to reject the plaintiff’s other appeal objections for the reason explained in paragraph 1 above, to REVERSE the decision in favor of the plaintiff for the reason explained in paragraph 2, to refund the fee collected in advance upon request, with the possibility of correcting the decision in accordance with Article 440/III-2 of the Code of Civil Procedure.
President Member Member Member Member
R.Ünal A.S.Erkuş N.Özer Ş.Bozer A.Arslan
LOCAL COURT DECISION:
EVIDENCE AND RATIONALE:
The plaintiff’s attorney claimed that his client was out of the case, even though he had not signed an attorney fee agreement with the defendant company. Although he claimed that the attorney fee agreement signed with the defendant company should be applied between the parties since it would bind the defendant company, it was concluded that the attorney fee agreement dated 01.09.2002 would not be applied to the attorney fee receivable in question, since each company has a separate legal entity and the agreements to be made with these legal entities would only bind the parties.
Pursuant to Article 173/2 of the Lawyers Law, when the provisions of “All taxes, duties, fees and expenses necessary for the performance of the work entrusted to the lawyer or to obtain the result after completion are under the responsibility of the employer. They are paid by the lawyer to the lawyer or wherever necessary upon the first request” are evaluated as a whole, the failure of the employer to fully and timely fulfill the financial obligations he has undertaken towards the lawyer is accepted as a justified reason for resignation. Considering the incident in question, the plaintiff stated that Beyoğlu 19th Notary Office dated 21.11.2008 and 1…. He was requested to pay the expenses related to the enforcement files and other files he had followed up with a daily Bolu notice, but upon non-payment of this money, the Beyoğlu 19th Notary Office notified him that he had resigned from the attorneyship with a daily notice dated 16.01.2009 and numbered 00821, thus reaching the conclusion that the plaintiff lawyer’s resignation was justified.
The plaintiff’s attorney stated in his petition for correction that the counter attorney fees to be awarded from the enforcement and lawsuit files followed by his client should also be taken into consideration, and that this calculation was not made by the experts, and in total, the file numbered 2008/… E of the Bakırköy 1st Commercial Court of First Instance and the file numbered 2007/… Although he also requested the collection of a total of 8,321.00 TL of attorney’s fees from the follow-up files no. as it would arise in favor of his client; In accordance with Article 164/last of the Attorneyship Law, at the end of the case, the attorney fee to be charged to the other party based on the decision and tariff belongs to the lawyer. Therefore, it is possible for the plaintiff to be entitled to the opposing party’s attorney fees that will arise in the matters in dispute. However, for this to happen, these matters must be concluded and the decisions must be finalized. According to the established jurisprudence of the Supreme Court, when the stage of the cases is taken into consideration and the evaluation is made within the framework of Article 2 of the Civil Code, it is seen that the plaintiff resigned while the case in the Commercial Court was still in the petition stage, and in the enforcement file, a follow-up request was prepared and several requests were filed.
The plaintiff brought the enforcement proceedings and case files for which he provided legal assistance, and an expert examination was conducted on the extent of the legal assistance provided by the plaintiff, and a report was received from the expert. In the expert report also respected by our court; Since the plaintiff’s receivable was calculated to be 8,785.60 TL, it was decided to accept the plaintiff’s case based on this amount and the verdict was established as follows.
JUDGMENT: According to the reason and justification explained above,
1- With the partial acceptance of the plaintiff’s case, 7,093.00 TL of 8,765.60 TL, 04.12.2008 and 1,692.62 TL, together with the advance interest to be accrued from the date of the lawsuit, will be taken from the defendant and given to the plaintiff, and the request for the surplus will be rejected,
2- In accordance with the law on fees, the judgment fee of 598.77 TL will be deducted from the 244.00 TL received in cash and through correction, and 354.77 TL will be collected from the defendant,
3- A total of 1,308.00 TL, including 108.00 TL expenses and 1,200.00 TL expert fee spent by the plaintiff, and a total of 911.08 TL, including 667.08 TL and 244.00 TL cash and improvement fees, corresponding to 51% according to the accepted and rejected rates, will be collected from the defendant and paid to the plaintiff,
4- For the plaintiff represented by counsel, the fixed attorney fee of 1,500 TL will be collected from the defendant and paid to the plaintiff,
5- Since the defendant represented himself with an attorney in the case, the fixed attorney fee of 1,500 TL in terms of the rejected part should be taken from the plaintiff and given to the defendant.
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