Fee claim of a site manager from a simple partnership: missing fee agreement, appeal dismissed, remittal due to party designation

Facts

Parties and proceedings: The appellant [A.] (site manager and plaintiff) brought an action for payment before the Meilen District Court against his four co-partners. The defendants were [B.] (defendant 1), the engineering firm [C.] (defendant 2), [D. AG] (defendant 3) and [E. AG] (defendant 4, legal successor of [H. AG] ). The parties formed a construction consortium in the form of a simple partnership (Art. 530 et seq. CO) for the acquisition, development and sale of condominium units on building land in [U.] .

Consortium agreement: Pursuant to no. X para. 2 of the consortium agreement of 17 January 2008, each partner may take on work within its own trade at medium competitive prices. The management determines the medium competitive prices from the offer of the partner and three independent companies; the contract for work is to be submitted to the partners' meeting for approval.

Procedural history: By conciliation authorisation of 26 June 2012 and statement of claim of 27 July 2012, the plaintiff demanded CHF 40'018.30 or a higher amount according to the evidence, as well as reimbursement of expenses of CHF 7'248.15, plus interest; further CHF 103.-- in debt enforcement costs and provisional debt enforcement against defendant 1. The defendants raised an arbitration objection, which the Federal Supreme Court rejected in judgment 4A_562/2013 of 30 June 2014. On 21 August 2014 the Superior Court set the second-instance court fee at CHF 5'300.-- and left the regulation of costs of the proceedings to the District Court.

First-instance decision: On 28 December 2018 the District Court ordered the defendants to pay CHF 7'248.15 plus interest; otherwise it dismissed the action. It held that proof of a fee agreement dependent on construction costs failed on account of the form requirement in no. X para. 2 and was otherwise not established. It rejected compensation based on time spent because the plaintiff had not substantiated the necessity and reasonableness of the approximately 2'000 hours claimed. Costs were allocated 85% to the plaintiff and 15% to the defendants.

Superior Court decision: On the plaintiff's appeal and costs complaint, the Superior Court of the Canton of Zurich, by decision of 17 February 2020, established the finality of the District Court's decision to the extent it had been upheld and dismissed the request for removal of the objection to payment order and the debt enforcement costs. Otherwise it dismissed the appeal. It held that, in the absence of writing, no valid fee agreement could exist; an oral or implied agreement did not need to be examined. The substantiation requirements imposed by the District Court were not excessive.

Applications before the Federal Supreme Court: The plaintiff essentially applied for the annulment of the Superior Court's judgment and remittal for further treatment of the appeal or for a new assessment; in the alternative, a party compensation award of CHF 5'730.--, imposition of the second-instance court fee on the defendants with reimbursement of the advance on costs of CHF 4'750.--, and equal division of the first-instance fees. The respondents applied for dismissal. The Superior Court waived a response; the plaintiff filed a reply.

Considerations

Party designation (consid. 1): The Superior Court designated defendant 4 as '[G. AG] ', whereas the District Court had listed '[E. AG] ' as the legal successor of [H. AG] . The deviation was not justified in the contested decision. The Federal Supreme Court restored [E. AG] in the heading; the designation in the Superior Court's judgment is either an oversight or insufficiently reasoned (Art. 112 para. 1 let. b and para. 3 FSCA).

Requirements for the appeal (consid. 2-5): Since the appeal in civil matters is reformatory (Art. 107 para. 2 FSCA), a substantive request with a specified amount for monetary claims must in principle be made. A request for remittal suffices exceptionally where the Federal Supreme Court cannot itself decide for lack of findings of fact; this was the case for the main point here. The first-instance decision is not the object of the appeal (Art. 75 para. 1 FSCA). The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA), but examines only the complaints raised, subject to the requirements of reasoning (Art. 42 para. 1 and 2 FSCA). Complaints about findings of fact are subject to the strict principle of complaint (Art. 106 para. 2 FSCA); arbitrariness exists only where a decision is manifestly untenable (Art. 105 para. 2 FSCA). The Federal Supreme Court is not an appellate court.

Formal defects (consid. 5): The appeal is largely deficiently reasoned. First, it makes appellate criticism of the view that the remuneration was agreed by conduct. Second, it extensively criticises the first-instance decision, which is not open to appeal. Third, precise references to the file are lacking for claimed supplementation of the facts (e.g. regarding the assertion of an implied conclusion of contract or the novelty of submissions in the appeal proceedings). Fourth, the assertion of notoriety, that the parties are construction professionals, is not substantiated. Fifth, the plaintiff does not address the respondents' position that a non-written contract was insufficient.

Substantive examination of the fee agreement (consid. 6): Even if no. X para. 2 contained no writing reservation, the circumstances relied on by the plaintiff were not sufficient to infer a fee agreement dependent on construction costs.…