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Dubois, Sheehan, Hamilton and Dubois v. Delarm

Decided: August 10, 1990.


On appeal from Superior Court, Law Division, Camden County.

Petrella, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.


In this case, concerning application of the "doctrine of necessaries" to legal expenses, plaintiff appeals from a judgment of no cause for action in favor of defendant. We reverse and remand for further proceedings.

Kenneth O. DeLarm III (DeLarm) retained plaintiff law firm in 1983 to represent him in connection with a pending custody action involving one of his two children from his then marriage. The firm was initially contacted in connection with this representation by defendant*fn1, then DeLarm's "fiance". In early 1984, custody of the DeLarm children was awarded to DeLarm. Shortly thereafter, plaintiff commenced a divorce proceeding on behalf of DeLarm. Around the same time, defendant also requested plaintiff to obtain a copy of her judgment of divorce from her prior marriage so that a marriage license could be obtained to permit the marriage of DeLarm and defendant. They were married on July 22, 1984.

Shortly before the marriage, on July 9, 1984, DeLarm, defendant and her daughter were riding in defendant's vehicle which

DeLarm was driving. They were on their way to make arrangements for wedding decorations when the vehicle was involved in an accident, killing both occupants of the other car. The following day, while DeLarm was incapacitated, defendant called plaintiff and had a conversation with James T. Hamilton, Jr., concerning representation relating to the accident. DeLarm was ultimately charged with two counts of death by auto, N.J.S.A. 2C:11-5. Hamilton represented DeLarm before the grand jury; he was subsequently indicted, and the firm undertook to represent DeLarm in the criminal proceedings, including an application for P.T.I. and trial.

During the time of plaintiff's representation of him, DeLarm was dependent upon defendant for his support, as well as the support of his children.*fn2 He was also dependent upon her for travel, including trips to the plaintiff's office, since his driver's license had been suspended. Defendant accompanied DeLarm to all meetings with attorney Hamilton, and helped with their communications because, at least initially, DeLarm was either unable to understand the conversations or unable to make himself understood. He was taking pain medication and drugs at the time as a result of the accident. According to Hamilton, defendant "participated in everything" with respect to the representation.

In May 1985, DeLarm, represented by plaintiff, was acquitted on the charges of death by auto. In July, DeLarm was acquitted in municipal court of driving on the revoked list, but convicted and fined for careless driving arising from the same incident. Subsequently, in September 1985, still represented by plaintiff, DeLarm appeared before a hearing officer of the

Division of Motor Vehicles and obtained restoration of his driving privileges which had been suspended.

Shortly after receiving plaintiff's bill for services rendered, DeLarm filed a petition for bankruptcy and received a discharge several months later. He made only $581.70 in payments to plaintiff for its services rendered in all proceedings.

According to defendant, she had no discussions with Hamilton about the payment of fees. She testified that Hamilton would ask DeLarm for "money for certain things, and then Ken got the money from his father." She further denied telling Hamilton that he would be paid or not to worry about payment. While Hamilton recalled discussing an hourly rate, he didn't testify as to any agreement with defendant, and there was no written agreement. He did testify that she was "ecstatic" about the representation because of the impact incarceration would have had on the family's economic and emotional well-being.

On September 15, 1987, plaintiff sent defendant a copy of the bill with a covering letter that stated, in part, as follows:

Your outstanding balance with regard to the criminal action as stated in the statement attached is $10,853.58. Your outstanding balance with respect to the matrimonial action is $520.80. It is my understanding that you are the initial contact with this firm and that at that time you did ...

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