concurring in part and dissenting in part.
I concur fully in Division 1. But because I would hold that the agreement must be construed to provide only for a flat fee and not an hourly rate, I respectfully dissent to Division 2. As cited by the majority, the agreement between the Ward and her counsel provides as follows:
Fee
The Client agrees to pay the Firm a retainer of $2,700.00 to try and cover the case through its completion. The Firm will provide the Client with periodic billing statements detailing the work performed during the billing period, the number of hours and fractions thereof expended in performing the *708work, the nature and amount of the expenses incurred during the billing period, the amount transferred out of the escrow account in payment of the services performed, expenses incurred during the billing period, and the amount remaining in the escrow account.5
The agreement contained neither a provision expressly stating that the client would pay the firm by the hour, nor any provision governing fees if the retainer were to be exhausted by hourly charges.
The Ward’s argument here turns upon the construction of the agreement, which “involves a question of law for the court to resolve based on the intent of the parties as reflected in the agreement.” Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696, 699 (1) (598 SE2d 12) (2004). And we review this issue de novo. Id. “First, we must determine if the contract language is ambiguous, and, if so, then we apply the appropriate rules of construction set forth in OCGA § 13-2-2.” Id.
While the probate court concluded that the agreement “expressly contemplate [d] an hourly rate for services,” the plain language of the agreement itself is not so clear. The “Fee” section of the agreement provides for a retainer fee of $2,700, and that counsel will present the Ward with periodic billing statements of the work performed, number of hours expended, the amount of expenses incurred, the amount transferred out of escrow, and the amount remaining in escrow. This section could be interpreted as providing for a retainer fee and contemplating payment for the number of hours expended in performing the work, i.e., an hourly rate. On the other hand, it could be interpreted to provide that the Ward would pay counsel $2,700 and that counsel would provide the Ward with billing statements to show the work performed for that amount, which was paid “to try and cover the case through its completion.”
The agreement is unclear as to whether the parties even agreed that the Ward would pay counsel an hourly rate. The fee provision is therefore ambiguous as it is open to more than one interpretation.6 See Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 190 *709(750 SE2d 463) (2013) (ambiguity means “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretations.”) (citations and punctuation omitted).
Decided March 28, 2014. John H. Skelton, for appellant. Ophelia W. Chan, for appellee.In looking to the rules of contract construction set forth in OCGA § 13-2-2 to resolve the ambiguity, and pursuant to OCGA § 13-2-2 (5) specifically, as the preceding rules provide us no resolution, “as judicially interpreted, where the construction of a contract is doubtful, the construction that goes most strongly against the drafter of the agreement is to be preferred.” Reichman, supra, 266 Ga. App. at 699-700 (1); see Dept. of Community Health v. Pruitt Corp., 295 Ga. App. 629, 632-633 (673 SE2d 36) (2009) (construing ownership provision against the drafter); see also Lewis v. Smith, 274 Ga. App. 528, 529 (1) (618 SE2d 32) (2005) (“Counsel must be held to the strict language of the instrument he prepared. [Cits.]”); Lewis v. Uselton, 202 Ga. App. 875, 879-880 (3) (416 SE2d 94) (1992) (“An ambiguous provision in a contract is construed most strongly against its maker .... The provision in this contract must be construed most strongly against the attorney who proposed it.”). Therefore, construing the agreement against counsel for the Ward as the drafter, it should be read to provide for a fee of $2,700 for counsel’s work on the case through its completion, and I would hold that the trial court erred in finding otherwise.7
For this reason, I respectfully dissent.
I am authorized to state that Presiding Judge Doyle and Judge Branch join in this dissent.
The agreement also contains a merger clause: “This agreement constitutes the entire agreement between the Firm and the Client with respect to this matter and cannot be changed except by written agreement.”
It is also unclear as to whether the counsel’s retainer fee “to try and cover the case through its completion,” means that counsel would “try,” i.e., litigate, and “cover,” i.e., handle or supervise the case for a stated fee, or that counsel would “try,” i.e., attempt or make an effort, “to cover the case through its completion.”
Although the Ward argues that extrinsic evidence shows the hourly rate, the issue here is not the rate itself, but whether the parties agreed to an hourly rate. In any case, “parol evidence cannot add to, take from, or vary a written contract, and it cannot be used to explain an ambiguous agreement if the rules of contract construction resolve the ambiguity.” Pruitt Corp., supra, 296 Ga. App. at 633. We have applied those rules here to conclude that the agreement did not provide for the payment of an hourly fee.