Smith Mack Lamarsh v. One Call Contractor Inc., 2012 ABQB 363

Court of Queen ’ s Bench of Alberta Citation: Smith Mack Lamarsh v. One Call Contractor Inc., 2012 ABQB 363 Date: 20120531 Docket: 1101 12969 Registry: Calgary Between: Smith Mack Lamarsh Plaintiff (Appellant) - and - One Call Contractor Inc., One Call Solution Incorporated and Wayne Watson Defendants (Respondents) _______________________________________________________ Endorsement of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ [ 1 ] The Plaintiff law firm appeals the Judgment of the Learned Provincial Court Trial Judge dismissing the Plaintiff’s claim against the Defendants for legal fees. The Defendant hired the law firm and paid a retainer to the Plaintiff in the amount of $2,000.00. In total the Plaintiff provided legal service to the Defendants and the bill is $14,400.05.

The outstanding amount of the claim therefore is $12,400.05. [ 2 ] On September 3, 2009, the Defendant Watson met with Michael James, then a student-at-law with the Plaintiff regarding a dispute that Watson had with a fellow shareholder of the Defendant, One Call Contractor Inc. At this meeting, Watson gave the Plaintiff law firm a retainer of $2,000.00. [ 3 ] In his decision, the Trial Judge said this:

There’s no argument here that the parties entered into a retainer agreement whereby the plaintiff agreed to provide legal services at the request of the defendants, for which the defendants agreed to pay. ...Mr. Watson said he told Mr. James that he would have no problem paying a retainer of $2,000...I find that it was an express term of the verbal agreement, or retainer agreement, entered into between the parties that once the initial retainer of $2,000 had been applied to services and expenses, that the defendants were to be advised and further funds placed in trust.

And that as a result of the plaintiff’s failure to do so, the agreement, in effect, has been breached by the plaintiffs, and the only amount that – that I find Mr. Watson to be liable to pay was the $2,000 which he paid on September the 3 rd , 2009. [ 4 ] After hearing all of the evidence, was there evidence upon which the Learned Provincial Court Judge could come to the conclusions that he arrived at with respect to the nature of the contract between the parties. There is.

At page 35 of the transcript, at line 2 the Defendant Watson said this during his evidence: ...once that $2,000 is gone I want to know where we’re going from there. His comment to me was [referring to counsel], when the retainer is spent we will call you in, we will give you a full accounting of where that money went and we’ll lay out a plan of where we’re going from here. And repeated it again at page 51, line 14: ...he and I were explicit about this.

We’ll spend the $2,000, we’ll call you in, we’ll give you a full – I recall his words explicitly – ... – we will give you a full accounting of where that money went and we will lay out a plan of where we’re going from there. [ 5 ] I am therefore satisfied that there was evidence upon which the Trial Judge could come to the conclusion he did based on the evidence that he accepted at the trial and that there is no palpable or over riding error therefore and that the application of the facts to the law is correct. [ 6 ] The appeal is dismissed. Heard on the 25 th day of May, 2012.

Provided orally at the City of Calgary, Alberta this 31 st day of May, 2012. W.P. Sullivan J.C.Q.B.A. Appearances:

C. Michael Smith for the Plaintiff (Appellant) John S.D. Kong for the Defendants (Respondents)