SUPREME COURT 13th Civil Chamber 2016/2647 E., 2016/12131 K.
At the end of the hearing for the cancellation of the appeal case between the parties, the defendant’s lawyer objected to the decision to partially accept and partially reject the case on the grounds stated in the petition without a hearing, and notifications were sent to the relevant parties. On a specific date, the hearing commenced with the arrival of the attorneys representing the defendant and the appellant, Asil. After hearing the oral statements of the attorneys and the parties present, the decision was postponed to another date. This time, the file was reviewed, the appeal petition was found to be in accordance with the procedure, and it was discussed and evaluated on the grounds deemed necessary.
Decision
The plaintiff requested that the appeal be dismissed and that compensation be awarded at a rate of 40%; he claimed that the fee payable under the attorney fee agreement signed between the defendants and Murisi had not been paid, that Murisi had been unfairly dismissed, and that the enforcement proceedings initiated to collect the receivables were condemned.
T he defendants requested that the case be dismissed on the grounds that their attorneys did not have a legal license.
The decision to dismiss the case was overturned by our Chamber’s decision dated 7.2.2013, numbered 2012/8048/2012/2583, because the court did not have a driver’s license at the time the Murisi contract was signed. and it was decided to partially accept and partially dismiss the case in accordance with the court’s decision; the plaintiff and defendants appealed this decision.
1-
Based on the items in the file, the evidence on which the decision is based, the necessary legal grounds, and in particular the absence of any error in the evaluation of the evidence, the plaintiff should reject all other objections of the defendants.
Article 2-173/2 of the Bar Association Law states: “All taxes, fees, charges, and expenses necessary for the performance of the work entrusted to the attorney or for obtaining the result after completion are the responsibility of the business owner and shall be paid to the attorney upon first request or when necessary. In order for these expenses to be covered by the attorney, the business owner must pay a sufficient advance.”
According to this provision, all expenses necessary for the performance of the work are presumed to have been paid by the business owner to the attorney at the outset of the work; an attorney who claims otherwise, i.e., who claims not to have received an advance for expenses from the client, is also obliged to prove this claim. Since the plaintiff’s attorney did not fulfill the burden of proof that “the expenses were not paid at the beginning of the case,” it must be assumed that the expenses related to the case were paid to the attorney at the beginning of the case. however, the court ruled that the court costs of TL 1,461.90 included in the plaintiff’s attorney’s claim were contrary to procedure and law and should be overturned.
3-
The plaintiff initiated enforcement proceedings against Melahat E…, the defendant’s heir, to collect the portion not paid by the defendant’s deceased relative for the legal services provided to the defendant’s deceased relative, and requested the cancellation of the appeal and compensation for the appeal.
The court partially accepted the case, decided to cancel the appeal, and to collect the 40% enforcement compensation of 12,431.90 TL, which was the unaccepted portion of the claim, from the defendant heirs. Article 67/3 of the Enforcement Law states that “the right of the objecting parent, guardian, or heir to compensation against the debtor depends on the degree of bad faith.” In the present case, it was alleged that the defendant objected in bad faith, but this was not proven. Consequently, the court’s rejection of the claim for enforcement compensation constitutes a violation of the written judgment, contrary to procedure and law.
CONCLUSION:
For the reasons explained in the first paragraph above, the plaintiff objects to all defendants; the defendants’ objections regarding the poet’s rejection, for the reasons explained in the second and third paragraphs, a decision of corruption in favor of the defendants, the collection of 1350.00 TL from the plaintiff and the defendants as an advance payment from the trial attorneys, the plaintiff shall be refunded 141.60 TL in fees, the defendant shall be refunded 387.10 TL in fees, which was refunded as an advance upon the defendant’s request for a refund, was decided unanimously on 03/05/2016.