William Hill (John Disney/Daily Report)
The Georgia Court of Appeals has partially revived a lawsuit by a community activist and self-described pastor seeking payment for his services to the family of Kathryn Johnston, the 96-year-old woman slain by Atlanta police in 2006.
After Johnston’s estate settled with the city of Atlanta for $4.9 million, Markel Hutchins said he was due 10 percent of the money according to an purported verbal agreement with Johnston’s niece and estate administrator, the late Sarah Dozier.
Hutchins sued both the estate and its lawyers, claiming that one of the lawyers for the estate, Hezekiah Sistrunk of Cochran, Cherry, Givens, Smith & Sistrunk (“the Cochran Firm”) promised to “take care” of Hutchins after the case settled. Hutchins subsequently dropped his claims against the estate.
The law firm has denied it had any agreement to pay Hutchins or that he provided it any services, and Fulton County Superior Court Judge Jerry Baxter threw the case out in 2013.
But the appellate court on March 26 partly reversed Baxter, ruling that Hutchins had provided enough evidence that he performed “certain, isolated services” for the firm to raise a question for the jury as to whether he deserved compensation.
Polsinelli partner William Hill, who with associate Alexander Bartko represents the Cochran firm, said the opinion “primarily affirms 99.9 percent of the trial court’s grant of summary judgment to my client.”
The ruling, he added, “basically finds that Markel Hutchins has no legal or factual basis for the claims he made for a pastor’s tithe of 10 percent of the settlement.”
Hill said that he was already drafting a motion for reconsideration because the appellate record is missing a key transcript of Sistrunk’s deposition, during which he categorically denied Hutchins’ assertions. Hill said that Hutchins’ lawyer, who took the deposition, had repeatedly assured Hill the document would be forwarded to the appeals court.
“My client’s problem is that the Court of Appeals didn’t have a fully fleshed out record,” said Hill. “I’m not laying aspersions at anyone’s feet, but I have reasonably relied on representations by a fellow member of the bar—not once, not twice, but three times that the record would be supplemented.”
Taylor English partner Foy Devine, who with firm colleague Kyle Baker represents Hutchins, said he thought the missing deposition had been provided.
“We’ve done everything we could do to get the record complete on appeal,” said Devine. “We filed the original with the clerk’s office. I haven’t researched where and how the transcript didn’t make it.”
Devine noted that Hill had a copy of the transcript, and “he could have supplemented the record just as easily as I could.”
Asked for his take on the appellate order, Devine said, “We’re going to have a trial. The scope of that trial is up for discussion.”
According to Hutchins’ filings, his relationship with Dozier, the estate administrator, began the night her aunt was killed. He saw coverage of the incident on television and rushed to the scene, where he offered to pray with Dozier and speak to the media on the family’s behalf. The next day, he claimed to have reached a deal with Dozier whereby he would serve as family spokesman in return for 10 percent of whatever settlement they reached from a civil lawsuit.
Hutchins also claimed to have steered Dozier to Sistrunk, whom he knew from an unrelated “high-profile” case.
Hutchins, according to his filings, believed he would be paid by the firm for public relations and media communications, and said Sistrunk had on multiple occasions said the firm would “take care” of him.
On at least two occasions, Hutchins testified that the firm paid him in connection with the Johnston case: A $5,000 payment in 2007, and a $20,000 “retainer” in 2008.
The Cochran firm countered that the payments “were not paid to compensate for any service performed by Hutchins but were paid for other reasons, including as a donation to Hutchins’ campaign for Congress,” the appellate order said.
After the city settled with Dozier in 2010, Hutchins sued Dozier and the firm for $490,000, claiming Dozier had agreed to pay him a “tithe” of any settlement as payment for his services as family spokesman and representative. Hutchins’ suit included claims for breach of contract, fraud, tortious interference with business relations and racketeering, among other things.
Dozier died in 2012, and in 2013 Hutchins announced that he had reached a confidential settlement with her three sons. A subsequent filing revealed that no money had changed hands, but that Hutchins had agreed to drop Dozier’s heirs from the suit in exchange for their assigning him any legal claims Dozier had against her lawyers.
Hutchins eventually dismissed all but these claims against the firm: unjust enrichment and quantum meruit, defined by Black’s Law Dictionary as “the reasonable value of services,” and a claim for attorney fees from the quantum meruit claim.
Baxter dismissed those claims in August 2013.
Last week, Judge Carla Wong McMillian wrote for a panel partially reversing Baxter; Chief Judge Herbert Phipps and Judge John Ellington concurred in the judgment only, but they did not offer additional commentary.
McMillian wrote that Hutchins claimed to have aided both Dozier’s civil suit against the city and to have influenced the dealing Fulton County District Attorney Paul Howard’s office had with federal law enforcement authorities investigating Johnston’s death.
“But Hutchins has failed to produce any evidence that his activities contributed to the estate settlement and thus had any value to the Cochran firm,” wrote McMillian. “The only evidence that Hutchins’ efforts led officials to make certain decisions or aided in resolving the lawsuit come from conclusory and self-serving testimony in his own affidavits and deposition.”
Indeed,” she wrote, “the evidence in the record, from Cochran firm attorneys who had firsthand involvement in the settlement negotiations, is to the contrary.” She added that there was no evidence that the firm requested that Hutchins engage in “general public relations activities” or that it knowingly accepted those services.
“In fact,” she wrote, “the Cochran firm lawyers and personnel stated that at times, some of the things Hutchins said were not helpful and became a hindrance. For example, attorneys for the United States and the city expressed reservations about Hutchins’ access to information, asking that he be excluded from attending certain meetings.”
Because of that, she wrote, Baxter was correct in dismissing any claims related to Hutchins’ assertions that his “community activities, media interviews, interactions with government officials, or other activities” had created “an ‘atmosphere’ conducive to or a ‘predicate’ for a favorable resolution” of Dozier’s suit.
But there was evidence that Hutchins helped review or draft press releases and statements on Dozier’s behalf at the request of Cochran firm staff members on at least two occasions, she wrote. Hutchins also claimed to have appeared at a press conference announcing the 2010 settlement at the request of Tiffany Cochran, the firm’s communications director.
“Although the Cochran firm disputes that it asked Hutchins to perform at least some of this work, the evidence is sufficient to raise a jury issue as to whether such work was performed at the firm’s request and/or knowingly accepted by the firm,” McMillian wrote.
“Jury issues also arise as to whether the payments Hutchins received from the Cochran firm were intended as compensation for this work, and if so, whether such payments provided Hutchins sufficient compensation.”
McMillian’s order reversed Baxter’s dismissal on Hutchins’ quantum meruit/unjust enrichment claims “as to the specific work Hutchins assets he performed at the request of the Cochran firm” and to the claims for attorney fees related to litigating those claims.