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DeGraaff v. Fusco

July 5, 1995


On appeal from Superior Court of New Jersey, Law Division, Union County.

Approved for Publication July 5, 1995.

Before Judges Villanueva, Braithwaite and Bilder. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA


Plaintiff appeals from a jury verdict of no cause for action on her complaint against defendant, *fn1 her former lawyer, to recover all or part of a $15,000 retainer that she paid to him to defend her son. She alleges that the lawyer misrepresented that her son "was in serious trouble with the U.S. Government and that it wasgoing to be very expensive since this was a 'Federal' case." She also alleges that the United States Government on their own and without the intervention of the defendant discovered that they had made a mistake and dropped the investigation. Therefore, she alleges that $15,000 is an unreasonable fee. We reverse and remand for retrial.

Plaintiff's son, a military policeman, had been contacted by the United States Secret Service who demanded that he surrender his service weapons due to their ongoing investigation of allegations that he had threatened the life of President Ronald Reagan. Apparently, two co-employees of the son had notified the Secret Service about statements made by the son. Plaintiff's son surrendered his weapons to the Secret Service on September 22, 1988.

After plaintiff made a telephone call to defendant Anthony J. Fusco, Jr. on September 23, 1988, she conferred with him on September 24, 1988. Defendant agreed to accept the case on condition that plaintiff paid a $15,000 retainer. Plaintiff's understanding was that she was to pay the $15,000 so her son would not go to prison. On September 26, 1988, plaintiff paid defendant $15,000 by check.

Ultimately, plaintiff's son was never charged with any offense, and the weapons were returned to the son on September 30, 1988. There is nothing in the record to show the time expended by defendant other than two short conferences, several telephone calls and one or two trips to Morristown to pick up the weapons. In fact, other than defendant's testimony, there is nothing in the record to show that he was in any way responsible for the end of the investigation which obviously was no later than September 30, 1988.

Plaintiff testified that after her very brief appearance at defendant's office to deliver the $15,000 retainer on September 26, 1988, the next time she knew anything was happening was when the Secret Service called her son and asked him to come to Morristown to pick up his weapons. After the weapons were picked up, she made several telephone calls to defendant, but defendantnever returned her calls. When she did finally speak with defendant, he kept telling her that he was still working on the case.

Three years later, after defendant had handled other legal matters for plaintiff and her family, plaintiff filed for fee arbitration. Two years after filing for fee arbitration, plaintiff dropped her fee arbitration action on January 6, 1993, to file this lawsuit in the Superior Court for compensatory and punitive damages.

Defendant filed an answer which denied all the allegations and asserted seven affirmative defenses, none of which was raised at the trial. The answer did not include any set-offs as affirmative defenses nor did the answer include a counterclaim. At trial, despite defendant's failure to include any set-offs in the affirmative defenses or file a counterclaim, defendant was permitted to assert set-offs which he ultimately abandoned.

Plaintiff says that defendant promised to furnish a receipt and a retainer agreement but never did. Defendant countered that the $15,000 was an agreed-upon flat fee for services to be rendered up until an indictment was returned. Defendant also stated that plaintiff agreed to the $15,000 fee because she wanted to know what the cap was. At the Conclusion of plaintiff's proofs, the court dismissed her claim for punitive damages. After defendant's proofs, the jury found no cause for action.

On appeal, plaintiff argues that the trial court erred when it refused to permit the jury to be informed of R.P.C. 1.5(b), which reads:

When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable ...

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