August 13, 2008
JUDITH E. BALL, PLAINTIFF-RESPONDENT,
MARIE GORDON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-005742-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2008
Before Judges Skillman and LeWinn.
Defendant Marie Gordon appeals from the order of the trial court entered on August 8, 2007, awarding judgment to plaintiff Judith E. Ball in the amount of $12,830.20. Plaintiff had been defendant's matrimonial attorney. At the conclusion of plaintiff's services, an outstanding balance remained on her fee in the amount of $12,830.20. Defendant declined arbitration, and plaintiff filed suit on March 9, 2007. Defendant, representing herself, filed an answer and "cross complaint" on April 15, 2007, claiming legal malpractice and challenging the amount of the outstanding fee.
On July 18, 2007, the parties appeared for trial. At that time, defendant requested an adjournment in order to hire an attorney and stated that she "would like to file a counterclaim." The judge noted that the case had been filed in March and the discovery period had ended. However, the judge granted a two-week adjournment, and advised defendant: "If you don't retain the services of an attorney, understand though the next time you come back to court there's going to be no more adjournments based on that I need an attorney."
On July 31, 2007, defendant filed a counterclaim stating: "Plaintiff made agregious [sic] and costly errors throughout my case, resulting in ten months of counterproductive procedures and unnecessary legal fees." Plaintiff filed an answer to this counterclaim on August 2, 2007.
The parties appeared for trial on the adjourned date of August 8, 2007. Defendant stated that she had not retained counsel; however, she represented that she had "consulted with an expert witness[,]" and requested an adjournment to enable her expert to review discovery just received from plaintiff. On July 23, 2007, defendant had sent a letter to plaintiff stating:
"[K]indly send me a copy of the judgment from the amended pendente lite motion from April, 2005 as well as copies of the above-listed invoices[.]" Plaintiff sent defendant the requested discovery on August 2, 2007.
The judge denied defendant's request for an adjournment, finding that defendant's July 23, 2007 discovery demand was "not timely." The judge told defendant: "[Y]ou have been dilatory, you've been trying to stall this trial as long as possible. You're going to trial today."
The parties were then referred for trial before another judge.
At the outset of trial, defendant stated that she did not "file a case of malpractice anywhere in [her] complaint." She was not seeking "damages for malpractice." Rather, she "countered for the unnecessary legal fees that [she had] paid for mistakes that [she] can prove here that [plaintiff] has written."
Defendant proffered a letter plaintiff had written to the judge in the matrimonial proceeding, dated June 10, 2005, which stated, in pertinent part:
To be fair to [adversary counsel], I did throw a monkey wrench into the negotiations when on June 1, 2005 I realized that there was a fundamental flaw in the conception of the case. . . .
Previously, I had mistakenly been assuming there was a set off between Mr. Gordon's share of the equity in the marital residence due and his share of the marital mortgage debt. This would have been true if the house was an active, not a passive asset; the marital mortgage amount would have been subtracted from the increase in value during the marriage . . . . . . . .
I apologize to [adversary counsel] and the Court if I did not correct the mistake I had made in considering settlement of this matter. To be fair to my client, she had been raising the issue with me almost since the [Matrimonial Early Settlement Panel (MESP)] finished and I had not understood her point.
. . . I apologize to the Court if my belated brainstorm upsets its calendar.
Plaintiff testified that defendant retained her in August 2004. The parties ultimately negotiated a final settlement, following a day and a half of trial, in August 2005.
Plaintiff explained the misunderstanding about the marital residence as follows. Defendant had owned the property prior to the marriage, either by gift or inheritance. The parties "had been married quite a significant period of time and the value of the house had increased[.]" Mr. Gordon had claimed a right to one half the value of the house in equitable distribution, even though his name was never on the deed, because he claimed the parties had a verbal understanding that he would share in the value of the home and he claimed that he had made improvements that increased the home's value.
Defendant raised that issue with plaintiff "early in [the] relationship[.]" Plaintiff advised defendant that it was "a very difficult issue" because, "even though [plaintiff] adamantly felt that he didn't have any right to the increase in the value of the house that there was a risk that a judge might decide that that was indeed the case."
According to plaintiff, the MESP panel "felt that that was the case because he had supported the family, it was an active asset and not a passive asset, that the increase in the value was subject to equitable distribution but that he should not get 50 percent perhaps of the increase in the value." The parties also met with an economic mediator who "saw the issue the same way."
Plaintiff stated that defendant was extremely frustrated by this and eventually she used the phrase to me that they had used the house like a credit card and it was not until she used that phrase that I could explain or could see clearly that not only if we were successful in there not being any increase in value, that was indeed a passive asset and that indeed he had nothing . . . coming out of it, that not only did he get nothing out of it, of the increase in the value, but also, that he owed half the value of those mortgages, so he had a negative result coming out of it all. Of course, he was adamantly opposed to that position although ultimately at trial we were able to convince the judge not to find that he had part of the increased value and we were able to negotiate a settlement based on what [defendant] had wanted.
Defendant testified that the MESP panel "actually . . . did not see it the way [plaintiff] described it. They actually told my ex-spouse that he had absolutely no interest in the equity in the house because it was a passive immune asset, that the growth was due to market value increases."
Plaintiff thereupon acknowledged that defendant was "correct in that the panel's opinion was he had very few dollars to come out of the house, that he didn't have a lot of money coming out of the house." Plaintiff also acknowledged that one panel member stated that the house was a passive asset, "but ultimately they came to the same conclusion which was he got very few dollars out of the house."
The judge questioned defendant about the six-page answer and "cross complaint" she had filed on April 16, 2007. Defendant responded: "Well, my counterclaim obviously as you told me is a malpractice suit, so . . . I guess I'll have to come back with the affidavit of merit on that[.]" The judge advised defendant that she did not "get to come back. This is it. You have what you have at this point in time and we're proceeding."
Defendant protested that she was "not being allowed to present the errors that were made in [her] case." The judge advised her:
An affidavit of merit is required. If you don't have it, you don't have an expert.
You cannot come back and keep retrying.
There's going to be finality here, so forgive me for being somewhat dogmatic. I'm trying to find out in regard to your statements what you agree she did do or did not do in the context of services.
Defendant stated that she should not have to "pay for the proposals that were made under the wrong premise or have to pay this amount to turn it around." The judge asked: "Assuming that that is true how much time was spent doing that as opposed to other pendente lite items[?]" The judge asked defendant to identify "what percentage of time" she claimed plaintiff spent pursuing the mistaken approach to equitable distribution of the marital residence.
Defendant responded: "It was a large, large bone of contention in our case[.]" The judge pressed defendant to review the bills and identify "what hours and time and what would be attributable in regard to the house alone, just the house." Defendant responded: "I would say more than 50 percent of efforts were on that house. . . . It was a huge, a huge issue that we talked about all the time."
Defendant raised an additional claim, sounding in malpractice, that plaintiff had filed a pendente lite support motion but did not request that the support "be paid retroactively[.]" The judge declined to consider this as a deviation, stating that it was within the matrimonial judge's discretion to determine whether such pendente lite awards should be prospective or retroactive.
Defendant identified fifteen charges in the bills related to this pendente lite motion, which she considered "exorbitant[.]" The judge reviewed the individual items and disagreed that they were exorbitant.
In his decision, the trial judge extensively reviewed the history of the matrimonial litigation and the legal bills. He concluded:
I find clearly there's no doubt that $7,500 of the $12,000 due and payable was due for the trial three days thereby.
I find in regard to services being rendered there's nothing to indicate a breakout of those expenses. This is something that is hotly contested and a decision being made by a judge given in that matter notwithstanding the disposition thereby. You may have misgivings. There's nothing to indicate that she did not act prudently in this matter or did not act in accordance to the [retainer] . . . agreement. I have to find . . . it is a book account. I find that the monies are in fact due and payable thereby to the plaintiff at this point in time. . . . . . . .
Judgment is for the plaintiff since these are normal and reasonable expenses. These are issues that take time . . . to resolve . . . . What happened is that the amount of the contribution is at issue . . . . These are issues that have to be decided. . . . [S]ervices were rendered at this point in time and I do not see any breakout where they were misused at this point in time. Surely you could have gone to arbitration to hack out this point in time, but based on the book account rationale they've proven their case, so I have to give them a judgment in regard to the $12,380.20 plus the filing fee. . . . .
[B]ased on the more credible testimony here I find for [plaintiff] and the documents being submitted.
On appeal, defendant raises the following two issues for our consideration:
POINT ONE: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT ALLOWING DEFENDANT TO HAVE AN ADJOURNMENT TO GET AN EXPERT WITNESS TO SUPPORT HER DEFENSE AND NEWLY FILED COUNTERCLAIM.
POINT TWO: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING DEFENDANT'S COUNTERCLAIM AND DEFENSE FOR LACK OF AN AFFIDAVIT OF MERIT.
"[T]he request for an adjournment is addressed to the trial judge's discretion[.]" Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). Defendant filed her first counterclaim in her answer and "cross claim" on April 16, 2007. That six-page document set forth at length all of her allegations as to plaintiff's malpractice. Notwithstanding that filing, when defendant appeared on the first trial date, July 18, 2007, she had made no effort either to request discovery from plaintiff or to obtain an affidavit of merit from a malpractice expert as required in N.J.S.A. 2A:53A-27. Notwithstanding that the discovery period had ended, the judge granted defendant's request for a two-week adjournment.
Thereafter, the parties appeared for trial on August 8, 2007. Defendant had not retained an attorney and had still not provided an affidavit of merit. The judge denied her second adjournment request and the matter proceeded to trial.
"Ordinarily, we do not interfere with a . . . judge's denial of a request for an adjournment unless it appears that an injustice has been done." Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 343 (App. Div. 2000). We find no such injustice here. Defendant first raised malpractice allegations in her "cross claim" filed in April 2007. Her later counterclaim, filed in July 2007, was merely a one paragraph summary of the prior six-page pleading. Given this lapse of time between her April pleading and the August trial date, we conclude the trial judge did not abuse his discretion in denying her second adjournment request.
Moreover, the trial judge did not dismiss defendant's counterclaim, as she contends. Defendant testified extensively as to all of the allegations set forth in that counterclaim. Defendant stated that she was not seeking "damages for malpractice." Rather, she was seeking an offset against the outstanding fee balance for time she claimed plaintiff spent inappropriately. However, defendant was unable to identify with any degree of specificity the charges related to such activity.
The Affidavit of Merit statute, N.J.S.A. 2A:53A-27, "on its face, applies to 'any action' involving professional malpractice." Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 393 (2001). As noted, defendant essentially abandoned a malpractice action against plaintiff. Defendant sought no "damages for personal injuries[,]" only a reduction in the outstanding balance due on plaintiff's bill.
Under the circumstances, we conclude the trial judge did not abuse his discretion in denying defendant another adjournment to obtain an affidavit of merit. Moreover, we conclude the judge permitted defendant to proceed on her counterclaim, through her own testimony criticizing her attorney's performance that resulted in what she considered to be an "exorbitant" balance due.
Finally, we conclude the judge's findings were "supported by adequate, substantial and credible evidence" and therefore, are binding on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
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