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Rudolph v. Bello


June 24, 2008


On appeal from the Superior Court of New Jersey, Law Division, Morris County, DC-002237-07.

Per curiam.


Submitted June 10, 2008

Before Judges Coburn and Waugh.

Appellants Robert and Angela Bello appeal from the award of $2,912.75 in counsel fees to their former attorney, respondent Michael C. Rudolph. We affirm as to liability and remand for further consideration concerning damages.

Briefly stated, the underlying facts are as follows. Appellants retained respondent to help them resolve a notice of violation issued by the New Jersey Department of Environmental Protection (DEP). There was conflicting testimony about whether appellants received a written retainer agreement mailed to them by respondent. Appellants contend that they did not, adding that they forwarded a $5,000 retainer check based upon an oral request from respondent.

Respondent attempted to resolve the issue with DEP. He negotiated what he believed was an acceptable resolution. The appellants, however, rejected the proposed resolution because it did not include an admission that DEP issued the violation in error, either its own or that of the municipality.

A fee dispute eventually ensued. Respondent submitted time records demonstrating that the value of his recorded time exceeded the $5,000 retainer. He sought an additional $4,912.75 in fees and expenses. Although he failed to submit regular billings, the record demonstrates awareness on the appellants' part that the retainer had probably been exceeded.

Respondent eventually filed suit for the additional fees. Appellants counterclaimed for the return of the $5,000, arguing that it had not been earned because respondent failed to pursue the case the way appellants wanted it handled.

The trial court granted respondent's motion to dismiss the counterclaim on the basis that appellants failed to procure an affidavit of merit. Following a bench trial, the trial judge issued a written decision, containing his findings of fact and conclusions of law and awarding counsel fees in the amount of $2,912.75, plus costs.

Appellants appeal, arguing that the respondent's failure to comply with RPC 1.5(b), which requires an attorney to communicate in writing to a new client "the basis or rate of the fee," precludes an award of counsel fees. Contrary to appellants' contention, failure to comply with the requirements of RPC 1.5(b) does not preclude respondent from recovering the reasonable value of legal services rendered, although it does preclude enforcement of the fee set forth the in proposed retainer agreement. Starkey v. Estate of Nicolaysen, 172 N.J. 60 (2002).

On appeal, a trial judge's findings of fact following a bench trial are generally "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). See also In re John Seward Johnson 1961 Charitable Trust, 194 N.J. 276, 284 (2008). Having reviewed the record, we see no basis to disturb the trial court's findings. The record amply supports his determination that appellants knew that the $5,000 retainer had been exceeded and that respondent represented them "effectively and in good faith."

However, we must vacate the judgment and remand to the trial court for additional findings with respect to the counsel fees actually awarded. There is no articulation of the number of hours and hourly rate the trial court deemed reasonable in making his quantum meruit award. Without such an articulation of reasons, we are unable to determine whether the amount awarded was reasonable under the circumstances. See Starkey v. Estate of Nicolaysen, supra, 172 N.J. at 68 ("Where an attorney performs legal services for another at his request, but without any . . . understanding as to the remuneration, the law implies a promise on the party who requested such services to pay a just and reasonable compensation." (internal citation and quotations omitted)).

We affirm the trial court's decision on liability. Judgment vacated and remanded for further proceedings with respect to damages not inconsistent with this opinion.


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