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Tirgan v. Farmer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 14, 2008

M. HOSSEIN TIRGAN, M.D., PLAINTIFF-RESPONDENT,
v.
GEORGE L. FARMER, ESQ., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
EASTSIDE ONCOLOGY, INC., EASTSIDE ONCOLOGY ASSOCIATES, INC., THIRD-PARTY DEFENDANTS.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. L-3671-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2008

Before Judges Wefing, Parker and LeWinn.

Defendant third-party plaintiff George L. Farmer, Esq. appeals from a judgment entered following a bench trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff M. Hossein Tirgan, M.D., is a physician licensed to practice medicine in New Jersey. Defendant is an attorney admitted to the practice of law in New Jersey. Tirgan sued defendant for fees allegedly earned for services he performed as an expert witness in medical malpractice matters for defendant. Defendant denied any liability and filed a third- party complaint for fees he allegedly earned for legal services he performed for Tirgan and his professional corporation in connection with a dispute Tirgan had with another company that performed billing services for his medical practice.

Farmer originally contended he was owed approximately $190,000 for those services. He later reduced that amount to $181,455.82 to reflect certain credits due to plaintiff. The trial court concluded that Farmer was owed $174,455.82 for his legal services. It also concluded that Tirgan was entitled to fees totaling $145,872.50, leaving Tirgan owing Farmer $28,583.32. Tirgan had paid $15,930.82, leaving a balance due of $12,652.50. The trial court entered judgment in favor of Farmer and against Tirgan for $12,652.50.

Farmer has appealed from that judgment. Tirgan has not participated in this appeal. Farmer filed a motion seeking leave to proceed on the merits of his appeal without a transcript of the trial proceedings. The order granting this motion included the following provision:

The motion is granted, subject to the right of the panel to which the appeal is assigned for disposition on the merits to determine that one or more of appellant's arguments cannot be decided without the trial transcript.

Accordingly, Farmer has supplied to us only the following transcripts:

1) transcript of the proceedings on April 29, 2005, when the trial court heard oral argument on Farmer's motion for summary judgment and denied the motion, finding there were disputed material issues of fact;

2) transcript of July 27, 2006, when the trial court placed its decision on the record following the end of the bench trial;

3) transcript of November 17, 2006, when the trial court heard Farmer's motion for reconsideration;

4) transcript of February 16, 2007, when the trial court placed on the record its tentative decision to enter final judgment.

On appeal, Farmer raises the following arguments:

A. THE TRIAL COURT ERRED IN ITS AWARD OF FEES TO PLAINTIFF.

(1) THE TRIAL COURT MISINTERPRETED THE LAW BY RULING THAT PLAINTIFF SATISFIED HIS BURDEN BY MAKING A PRIMA FACIE SHOWING THAT HE PERFORMED THE WORK HE SAID HE DID, THEN SHIFTING THE BURDEN TO THE DEFENDANT TO PROVE PLAINTIFF'S FEES WERE EXCESSIVE.

(2) THE TRIAL COURT MISINTERPRETED THE LAW BY NOT MAKING A CREDIBILITY DETERMINATION IN ARRIVING AT ITS DECISION.

B. THE TRIAL COURT MISINTERPRETED THE LAW BY NOT AWARDING INTEREST TO THE DEFENDANT.

(1) THE TRIAL COURT MISINTERPRETED THE LAW IN THAT IT IS NOT THE FUNCTION OF THE COURTS TO MAKE CONTRACTS, BUT TO ENFORCE THEM.

(2) AMOUNT OF INTEREST.

C. THE TRIAL COURT MISINTERPRETED THE LAW BY NOT AWARDING ATTORNEY'S FEES AND COSTS TO THE DEFENDANT.

D. THE TRIAL COURT MISINTERPRETED THE LAW IN NOT AWARDING DEFENDANT FEES FOR PARALEGAL TIME.

E. THE TRIAL COURT ERRED IN NOT MAKING A DECISION WITH RESPECT TO DEFENDANT'S FRAUD CLAIM.

F. THE TRIAL COURT MISINTERPRETED THE LAW WHEN IT DID NOT ALLOW DEFENDANT TO BRING IN DEFENDANT'S CLIENTS AS NECESSARY PARTIES IN THE TIRGAN V. FARMER MATTER.

We are satisfied that none of these contentions can be fairly analyzed without a review of the trial transcript.

Without that transcript, we are in no position to determine whether Tirgan did indeed establish a prima facie case. Farmer contends that the trial court erred in not awarding interest in light of the fact that the retainer agreement Tirgan signed contained a provision for such interest. The trial court, however, concluded that the parties had, in essence, entered an oral contract which modified the retainer agreement and that there was no evidence that the provision for interest survived that modification. Considering whether that determination is correct requires a review of the trial transcript. We reach the same conclusion with respect to each of the arguments Farmer has put forth.

We thus affirm the judgment on appeal.

20081014

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