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Phillips v. Adams, Jordan & Herrington, P.C.

Court of Appeals of Georgia, Second Division

May 22, 2019


          RICKMAN, J., REESE and MARKLE, JJ.

          RICKMAN, JUDGE.

         In this suit for employment compensation, George Phillips appeals the grant of summary judgment in favor of his former employer, a law firm. The trial court held that the written agreement between the parties was not enforceable and that Phillips was not entitled to quantum meruit. For the reasons that follow, we affirm in part and reverse in part.

         Summary judgment is warranted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party." (Citations and punctuation omitted.) Smith v. Found, 343 Ga.App. 816, 817 (806 S.E.2d 287) (2017).

         So construed, the evidence shows that Phillips retired following a 25-year career practicing medicine, specializing in obstetrics and gynecology. Some years later, he enrolled at Mercer University School of Law, and, for the summers during law school, he obtained an unpaid clerking position with Adams, Jordan & Herrington, P.C., a personal injury law firm located in Macon comprised of three shareholder/partners, an associate, and other staff. After Phillips graduated, passed the Georgia Bar examination, and became a licensed attorney, he asked the firm about employment and was offered and accepted a job as a contract associate working primarily on medical malpractice cases that were handled on a contingency fee basis.

         The terms of the December 16, 2013 employment agreement were stated on the first page of a two-page letter.[1] The letter agreement provided that "upon successful resolution" of a case, Phillips would be paid a "portion of the fee," "on a case by case basis," based on "the extent" of his work on the case:

I am writing this letter to confirm your relationship with the firm. As of the date of this letter, you have joined the firm as a contract associate. We have agreed that in lieu of a stated salary your compensation as a contract associate will be production based and outcome determinative. You will primarily work on medical malpractice cases at the firm and you will be paid upon successful resolution of the cases in which you are involved. Your portion of the fee will depend on the extent of your work on the case and will be determined on a case by case basis. The firm will be responsible for all case expenses.[2]

The agreement provided that it could be terminated by either party "upon thirty (30) days written notice." Caroline Herrington, a partner in the firm, drafted the letter agreement.

         After working for several months, the firm paid Phillips $10, 000 as an "advance." But Phillips did not receive any other compensation during his first twelve months with the firm.

         In a meeting in late 2014 with James Jordan, another partner, Phillips explained that he needed to show a bank that he had income of at least $6, 000 a month to obtain a construction loan and subsequent mortgage to finance building a home. As a result of the meeting, Phillips understood that Jordan had agreed, on behalf of the firm, to begin paying Phillips a semi-monthly salary as an advance on compensation under the December 2013 agreement, with the understanding that his future share of compensation from successful cases would be reduced accordingly. Jordan averred, however, that Phillips simply wanted to convert to salaried employment and that the December 2013 contract terminated at that time. Jordan averred that as a consequence of the change, Phillips was "not entitled to anything" for the first eleven or twelve months that he worked at the firm, despite the fact that the firm was satisfied with Phillips's work prior to the change. As a result of the meeting, effective December 1, 2014, the firm began to pay Phillips twice a month at a rate of $80, 600 a year; Phillips, however, did not begin to receive other routine benefits of employment at that time. Also, the firm did not give Phillips written notice of termination of the December 2013 agreement, as required therein.

         At the time Phillips began to receive a salary, three significant cases upon which Phillips had worked were close to settlement. In the early months of 2015, the firm recovered on the three cases, but when Phillips asked about his share he "[n]ever got a straight answer." In July 2015, Phillips submitted a letter to the firm requesting compensation in accordance with the December 2013 agreement. Not satisfied with the firm's response, he tendered his resignation via letter on July 31, 2015. The firm responded in writing that Phillips had asked to be put on a straight salary as opposed to remaining under the December 2013 agreement.

         Phillips eventually filed suit against the firm, asserting alternative claims of breach of contract and quantum meruit. The firm later moved for summary judgment, and, following a hearing, the court granted summary judgment in favor of the firm on both claims. The court held that the dispute as to whether the salary paid to Phillips was an advance on future payments under the December 2013 agreement was not relevant to resolution of the case because the December 2013 agreement was too indefinite to be enforced. The court further held that Phillips was not entitled to quantum meruit for his work at the firm because there was no dispute that the parties had a contractual agreement, and quantum meruit is not an available remedy when there exists an express contract for the same work. Phillips appeals both rulings.

         1. Phillips contends the trial court erred by holding that the December 2013 agreement was too indefinite to be enforced.

         To be enforceable, "the promise of future compensation must . . . be for an exact amount or based upon a formula or method for determining the exact amount of the [payment]." (Citation and punctuation omitted.) Arby's, Inc. v. Cooper, 265 Ga. 240, 241 (454 S.E.2d 488) (1995). The rationale for this rule "is that the sum of money to be paid for performance of services under a contract should be definitely and objectively ascertainable from that contract." Id. Where the basis for rendering certain a payment of future compensation "is at least in part afforded by a future exercise of discretion. . ., the promise [of ...

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