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Int'l Bhd. of Police Officers Local 623, Inc. v. Brosnan

Opinion

DOYLE, Presiding Judge.

Devin Brosnan filed suit against the International Brotherhood of Police Officers, Local 623, Inc., ("the Union") alleging that it breached an agreement to provide legal representation to him and seeking reimbursement for private representation. The parties filed cross-motions for summary judgment, and the trial granted partial summary judgment in favor of Brosnan, finding the Union breached an enforceable contract to provide representation and leaving the issue of damages for determination by a jury. The Union now appeals, and we affirm for the reasons that follow.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant." On Line, Inc. v. Wrightsboro Walk, LLC, 332 Ga. App. 777 (775 SE2d 161) (2015) (punctuation omitted).

So viewed, the record shows that in 2020, Brosnan worked as a police officer for the City of Atlanta, and he was also a member of the Union. While Brosnan was in the police academy in 2019, representatives from the Union presented information to him and other cadets to convince [*2] them to join, distributing several documents along with membership and dues authorization forms. The documents included: "The [Union] offers its members legal services that include;" "Why [the Union];" "Member Benefits;" and an untitled list of questions and answers. The legal services included, among other things, "[r]epresentation on work-related matters in which officers must appear before third parties on grievances when they have been charged with breaching their sworn responsibilities as police officers;" "representation on matters that result from an officer acting in the capacity as a duly sworn police officer;" dedicated staff attorneys; "emergency response 24/7 to critical incidents involving officer shootings or high-speed chases resulting in death or serious bodily injury;" and engagement of outside counsel if the Union determines it is in the member's best interests. The document stated that the Union would not represent an officer in a criminal matter in which they were not acting in their official capacity or wished to reach a plea deal or settlement. On a page of questions and answers, the Union stated that it represented officers for "criminal matters on job-related [*3] issues;" attorneys respond "immediately" "anytime, day or night, 24 hours a day, 365 days a year" in cases of officer-involved shootings and high-speed chases; and the initial request for an attorney had to come through a Union representative. Additionally, the Union did not cap legal fees it would spend on behalf of an officer.

It is undisputed that Brosnan joined the Union at the 2019 presentation, and he was in good standing regarding dues payment during the time at issue. Brosnan graduated from the police academy in February 2020, and in March 2020, he was involved in an incident in his official capacity. During the March 2020 incident, Brosnan and several other officers responded to an active-shooter situation that resulted in the shooter being killed by officers. Although Brosnan did not shoot the individual, he and approximately 30 other officers contacted the Union, after which a representative met with the officers at a police department precinct. Brosnan did not remember how quickly he met with an attorney after the March incident, but he believed he met with one or two attorneys "possibly a day or two later" and was told they "would be in touch" if necessary. Brosnan received [*4] the phone number for one of the Union attorneys at that time.

A few months later, on the night of June 12, 2020, Brosnan was on duty and responding to a call from a fast-food restaurant when Officer Garrett Rolfe shot and killed Rayshard Brooks. Brosnan contended that he was injured by Brooks, which resulted in Rolfe shooting Brooks, but Brosnan did not draw or fire his own weapon. Thereafter, Brosnan was taken to a precinct where he called the same Union number he had used after the March incident. That night, Union representative Ken Allen arrived at the precinct and spoke with Brosnan and Rolfe, at which time Brosnan requested a Union attorney. Although Brosnan stated that he had a concussion and did not have the "clearest" memory of the discussion, he recalled that Allen told him that a Union attorney would be in contact immediately.

Allen prepared an officer-involved-shooting summary about his meeting with Brosnan in the early hours of June 13, stating that he told Brosnan that either he or a Union attorney would contact Brosnan within 24 hours. Allen averred, however, that he did not tell Brosnan that the Union would provide an attorney within 24 hours.

A homicide investigation [*5] was opened that same night of the Brooks shooting. When Brosnan did not hear from an attorney, he called and texted Allen repeatedly. On June 15, he sought representation for himself, agreeing to pay a fee of $250,000 to a criminal defense firm. Brosnan was arrested and charged within seven days of the incident and just a couple of days after retaining the firm, but the criminal charges against him were eventually dropped.

Of the $250,000 fee, $27,580 was written off by the firm, $100,000 was paid by Brosnan's father, and the remainder was paid out of donations to Brosnan from a law enforcement organization and individual donors. Brosnan's father expected to be reimbursed for the $100,000 payment, but the two did not document this expectation in a promissory note or otherwise. Brosnan gave nothing to his father in exchange for the payment besides an oral promise to repay the sum and affection. Brosnan had not reimbursed his father any portion of the payment by February 2025, but he considered his father's payment "an open debt." Brosnan also admitted that no Union representative told him that he would be reimbursed for any legal fees paid to the criminal defense firm.

Brosnan sought [*6] reimbursement from the Union in 2021, but the Union denied his request as explained in the following letter:

As Officer Brosnan was made aware through his former attorney in or around June 2020, [the Union] will not consider requests for payment for outside counsel when such counsel is retained without the [U]nion's advanced knowledge and approval. Whenever possible, according to our practice, the [Union's] Atlanta office utilizes its in-house attorneys due to their value and expertise in representing our members in personnel and criminal matters. The use of or approval for reimbursement for outside counsel is the limited exception rather than the rule. Despite what you have stated in your letter, Officer Brosnan was well aware that [the Union] maintains staff attorneys and how to contact our office, having benefitted from union attorney representation in the past.

Officer Brosnan failed to contact our office for representation related to the Rayshard Brooks incident before engaging the services of [the private firm], and now appears to have again hired outside counsel without requesting [Union] representation or coordinating with [the Union]. Accordingly, [the Union] denies your request. [*7]

Thereafter, Brosnan sued the Union, alleging breach of contract and promissory estoppel for its failure to provide immediate representation for the criminal charges related to Brooks's death. The parties filed cross-motions for summary judgment, which the trial court reviewed without a hearing. The trial court granted partial summary judgment in favor of Brosnan as to his breach of contract claim based on the documents and statements to him regarding the Union's promise to provide immediate contact with an attorney after an officer involved shooting and representation in proceedings related thereto. The court concluded that a question of fact existed as to damages, finding nominal damages could be awarded and a question of fact as to whether Brosnan was obligated to repay $100,000 to his father or if it was a gift. Based on its determination on the breach of contract claim, the court granted summary judgment in favor of the Union on Brosnan's promissory estoppel claim.

(1) 1. Addressing two of its enumerations of error together, the Union argues that the trial court erred by finding that it breached a contract with Brosnan to provide immediate legal representation, resulting in him hiring [*8] a private law firm. We disagree.

"To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate." OCGA § 13-3-1. "Under Georgia rules of contract construction, where multiple documents are executed at the same time in the course of a single transaction, they should be construed together." Callahan v. Cox, 279 Ga. App. 368, 369-70 (631 SE2d 405) (2006). "[E]ven when the terms of an agreement are too indefinite to be enforceable, it may later become enforceable by virtue of the subsequent acts, words, or conduct of the parties." Gill Plumbing Co. v. Jiminez, 310 Ga. App. 863, 871(2) (b) (714 SE2d 342) (2011) (punctuation omitted).

Based on the record and depositions, we discern no error in the trial court's determination that the Union agreed to provide legal representation to Brosnan under the circumstances presented, which it failed to do. In exchange for his membership and dues payments, the Union presented material to Brosnan stating that it would provide representation to officers in matters arising from officer-involved shootings. Compare with Harris v. Baker, 287 Ga. App. 814, 817 (652 SE2d 867) (2007) (documents did not contain adequate information to form a written contract). The Union represented that it would provide an immediate [*9] response from an attorney, both in its own documents and based on Allen's statements, and it failed to have an attorney follow up after Allen's meeting and failed to respond to Brosnan's repeated additional requests. See Jiminez, 310 Ga. App. at 871(2) (b) (a party's subsequent words may make precise an indefinite contract term). That time was essential to the legal response is supported by the Union's own documents and the fact that Brosnan was arrested within a few days of the incident.

Although Brosnan did not request prior approval or assurance from the Union that it would reimburse him in the event that he hired private counsel for representation in the matter, the need to pay for private counsel arose from the Union's failure to respond to his requests prior to his arrest and indictment in the matter. See OCGA § 13-6-2 ("Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach."). Therefore, the determination of the amount of damages for the breach is appropriate to go to a jury. Accordingly, we affirm the trial court's grant of partial summary judgment [*10] to Brosnan on the breach of contract claim.

(2) 2. The Union also argues that the court erred by denying its motion for summary judgment on the basis that Brosnan did not provide consideration to his father for the $100,000 provided for the retainer. Again, we disagree.

First, Brosnan provided consideration to the Union in the form of his dues payments. For this breach, the trial court correctly determined that nominal damages are available at the least. See OCGA § 13-6-6. With regard to the $100,000 retainer payment by Brosnan's father, the trial court found that a jury question existed as to whether Brosnan promised to repay the retainer or whether the payment was a gift. We agree that if a jury determines that Brosnan promised to repay his father, then consideration exists as to the $100,000 retainer payment, allowing a jury to award that amount of damages. See Patel v. Patel, 365 Ga. App. 184, 186(1) (877 SE2d 846) (2022) ("to constitute consideration, a performance or a return promise must be bargained for by the parties to a contract") (punctuation omitted). Accordingly, the Union has failed to identify error.

Judgment affirmed. Markle and Padgett, JJ., concur.

End of Document