On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-14142-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Plaintiff Curtis J. Romanowski appeals from a February 8, 2008 judgment of the Special Civil Part in the amount of $1692.90, including costs, representing attorneys fees due and owing from defendant Stacy Mace. Plaintiff's original complaint sought recovery of fees of $14,099.47 together with interest, additional counsel fees and costs. In his February 8, 2008, thorough and thoughtful oral decision, Judge Gelade made discrete findings, including credibility. He found that although plaintiff and defendant had entered into a written retainer agreement pursuant to Rule 5:3-5(a) (the Rule), regarding plaintiff's representation of defendant in a dissolution action, there was an oral agreement between them regarding "coaching" in a domestic violence action that did not obligate defendant to incur additional fees. The judge further concluded that the representation in this domestic violence action, which generated fees significantly in excess of the dissolution action, required a writing to memorialize any fee agreement. Since the judge's decision rested primarily on the credibility of the parties, we need not decide whether plaintiff's alleged representation of defendant in the domestic violence action violated the Rule. We are satisfied that the judge's factual determinations, including credibility, were supported by sufficient evidence in the record, and we affirm.
These are the relevant facts derived from the record. Plaintiff is a New Jersey attorney who specializes in the practice of family law. On June 22, 2005, defendant, a securities litigation court clerk, consulted with plaintiff about the dissolution of her marriage. On that date, the parties executed a retainer agreement for legal services in connection with the dissolution of marriage. The retainer agreement also contained a "statement of client rights and responsibilities in civil family actions," as required by law, and a "schedule" of "fixed time charges." Defendant also advanced a $5,000 retainer and promised to pay $1,000 on September 22, 2005. Plaintiff claims that defendant never paid the $1,000.
According to plaintiff, his "protocol" was to "sit down . . . and . . . go literally paragraph by paragraph through the whole retainer agreement," and he did this with defendant. Defendant admitted that she just "glanced" at the retainer agreement and has no recollection if the plaintiff went in detail over the retainer agreement. Judge Gelade found that plaintiff had given defendant "every opportunity to understand each and every provision of the retainer agreement and to ask him any questions."
The retainer agreement described the fee arrangement, a schedule of hourly rates, fixed fees, one-time charges and also contained a provision stating:
[Defendant] and [plaintiff] may make additional agreements to provide for legal services not covered by this agreement.
Without such agreements, which may be oral, [plaintiff] is not required to do any of the following: (a) real estate transactions; (b) appeal any decision of the trial court; (c) Municipal Court appearances; (d) any aspect of this case involving a domestic tort or third-party action; (e) domestic violence proceedings; or prepare [defendant's] will. [(Emphasis added)].
Plaintiff commenced representation of defendant on September 2005. On October 24, 2005, the dissolution complaint was filed and was docketed as FM-12-776-06H*fn1 . On September 22, 2005, plaintiff sent defendant his first bill for services rendered.
During the course of plaintiff's representation, defendant became involved in a domestic violence dispute with her husband. Defendant stated that she wanted to appear pro se but "expressed an interest in [receiving] coaching" from plaintiff. Plaintiff acknowledged that he planned to ask the trial judge for "compensatory damages . . . in connection with a domestic violence finding." The domestic violence matter was docketed as FV*fn2 -12-1231-06. Defendant appeared pro se at the domestic violence hearing and prevailed. During the domestic violence proceedings, plaintiff filed a certification in support of the award of compensatory damages, and the "FV" court awarded plaintiff $2,100, representing counsel fees. This was accomplished even though plaintiff had not entered an appearance in the domestic violence matter and despite his reliance in his certification to the court on the retainer agreement, which by its terms, did not encompass the domestic violence matter.
On December 22, 2005, plaintiff sent defendant a second quarterly invoice, which, for the first time, contained services related to the domestic violence matter. Although the record is not clear, apparently sometime in early 2006, a motion was filed requesting enforcement of provisions of the domestic violence order and a modification of a parenting schedule, also set forth in the domestic violence order. The two cases were consolidated with each retaining its own docket number. On March 8, 2006, the domestic violence trial judge, under both FM and FV docket numbers, issued an order enforcing the domestic violence order, awarding various support payments in favor of defendant and enforcing plaintiff's $2,100 compensation of damages award. The March 8, 2006 order also contained a provision that denied plaintiff's application for "additional counsel fees and costs in connection with enforcing previous Orders of [the trial court] . . . pending receipt of the certification of counsel fees and services from plaintiff."
At the same time, defendant's husband's attorney filed a motion before the "FM" trial judge to vacate some of the provisions awarded by "FV" trial judge.
On March 31, 2006, defendant, without notifying plaintiff, dismissed the FV or domestic violence complaint against her husband. On April 14, 2006, defendant notified plaintiff that she wanted to dismiss the dissolution complaint because she wished to reconcile with her husband. It was then that plaintiff learned that defendant had dismissed the "FV" complaint. At this point the parties' relationship deteriorated, and plaintiff sent defendant a bill, invoice 1771, on May 18, 2006, with an e-mail notifying defendant that a final bill would be ...