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Rosenberg v. Rosenberg

December 15, 1995


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.

Approved for Publication December 15, 1995.

Before Judges King, Landau and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

In this appeal brought by plaintiff Rose & DeFuccio, Esqs. (Rose) *fn1, a Bergen County law firm, we shall review the relationship of R. 4:42-9(a)(1) and N.J.S.A. 2A:34-23, which permit an award of counsel fees in a family action, to the independent right of attorneys to sue a former client for breach of the client's contractual obligations delineated within a fee retainer agreement. Although the issue raised by this appeal was discussed in Cohen v. Cohen, 146 N.J. Super. 330, 369 A.2d 970 (App. Div. 1977), our decision expands Cohen and limits the scope of our subsequent decision in Argila v. Argila, 256 N.J. Super. 484, 607 A.2d 675 (App. Div. 1992).

On February 22, 1990, Nina Rosenberg, a resident of Essex County, retained Rose to represent her in a matrimonial action against her husband defendant Ira Rosenberg, an attorney and partner in a prominent Essex County law firm. The terms of that attorney-client relationship were delineated in a written retainer agreement. It is undisputed that the matrimonial litigation was acrimonious, encompassing five contested pretrial motions and four cross-motions that required four separate court appearances. Counsel appeared before the Early Settlement Panel of Essex County and thereafter the matter was scheduled for trial. The trial lasted thirteen days and upon its Conclusion the trial Judge requested written summations. After the trial Judge issued his written opinion, Nina Rosenberg requested that Rose file a post-judgment motion for reconsideration.

As a component of the trial Judge's initial opinion, Nina Rosenberg was deemed entitled to an award of counsel fees pursuant to R. 4:42-9(a)(1). Rose submitted a certification of services rendered and sought an award of $130,957.77, representing both services actually rendered by it computed on a time basis and costs expended in pursuing the litigation. The trial court, after reviewing Rose's certification of legal services and the opposing certification filed by defendant Ira Rosenberg, concluded that the reasonable fees incurred by Nina Rosenberg were $60,000. The trial Judge then concluded that defendant Ira Rosenberg would be responsible to reimburse his former wife $54,000. That sum was in fact paid. Rose then billed Nina Rosenberg $76,957.77, the amount of the total bill less the amount paid by Ira Rosenberg. Rose contends that the bill was ignored. On June 10, 1993, Rose again requested payment from its former client and advised her that she had the right to fee arbitration. The firm further advised Rosenberg that if she did not choose arbitration within the time allotted by R. 1:20A-3, it would commence legal action.

On July 21, 1993, Rose commenced suit in the Law Division of Bergen County, docket number BER-L-7264-93, to recover the unpaid legal fees. Nina Rosenberg filed an answer and counterclaim and a demand for trial by jury. In her counterclaim, Rosenberg asserted that she had paid $11,100 in fees to Rose, resulting in an overpayment to Rose of $5,100. Rosenberg insisted that she owed Rose only $6,000, the trial court's assessment of reasonable fees less the amount paid by Ira Rosenberg. Rosenberg simultaneously (October 26, 1993) filed a motion in Bergen County to consolidate the Law Division contract action with the matrimonial action that had previously been heard in Essex County. *fn2

On November 19, 1993, while the motion to consolidate and/or change venue was still pending in Bergen County, Rosenberg filed a motion in Essex County which sought: (1) consolidation of the contract action with the matrimonial action; (2) a restraining order prohibiting Rose from further litigating the issue of counsel fees; and (3) a declaration that the issue of counsel fees had been fully adjudicated in the written opinion of the Judge of the family part in the matrimonial litigation.

On December 7, 1993, the Bergen County Assignment Judge transferred venue of the Bergen County Law Division contract action to Essex County and directed that the matter be assigned to the same Judge who presided over the matrimonial action. See Salch v. Salch, 240 N.J. Super. 441, 443-44, 573 A.2d 520 (App. Div. 1990). The order memorializing that decision specifically excluded Rosenberg's request for consolidation with the matrimonial litigation. Upon receipt of the Law Division pleadings, an appropriate Essex County Law Division docket number was assigned. On February 2, 1994, Rose requested the assigned Essex County Judge to schedule a hearing on the Law Division complaint.

On May 24, 1994, without affording a hearing, the Judge assigned in Essex County rendered a written opinion declaring that Rosenberg was not responsible for any additional counsel fees as claimed by Rose and further determining that Rose had in fact been overpaid in the amount of $5,100. A judgment in favor of Rosenberg on her counterclaim was ordered. *fn3

In this appeal, Rose contends that the trial Judge erred by summarily concluding that the prior determination of the reasonableness of Rose's fee application as it pertained to Ira Rosenberg was determinative of Rose's contractual claim asserted against his former client. We agree and reverse.

R. 4:42-9(a)(1) provides:

In a family action, the court in its discretion may make an allowance [for attorney's fees] both pendente lite and on final determination to be paid by any party to the action, including if deemed to be just any party successful in the action, on any claim for divorce . . . .

The commentary to this rule states: "Note that this rule was not intended to provide a mechanism whereby an attorney could obtain an allowance of counsel fees as against his own client in a matrimonial action." Pressler, Current N.J. Court Rules, comment 2 on R. 4:42-9(a) (1995) ...

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