May 21, 2009
CURTIS J. ROMANOWSKI, PLAINTIFF-APPELLANT,
STACY MACE, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
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 sent shortly. Plaintiff continued sending bills from Sept. 24, 2006 to July 18, 2007 with each bill reflecting increasing interest charges.
On April 2, 2007, plaintiff sent defendant a Fee Arbitration notice, threatening litigation if the bill, which was now $13,380.95, was not paid. Defendant did not pay the bill so plaintiff filed suit on July 23, 2007.
The proofs presented to Judge Gelade on the issue of plaintiff's agreement to "counsel" defendant in the domestic violence matter, were hotly contested and critical to the outcome of the trial. Defendant offered that plaintiff "told [her] clearly from the beginning that he would get [her] husband's side to pay for the [fees associated with the domestic violence matter]." According to defendant, any coaching or assistance rendered by plaintiff to defendant in the domestic violence action was not to be charged to defendant but was going to be the subject of a fee application to the court. Defendant stated, "now what [plaintiff] did he had applied for payment, he had told me ahead of time how that was gonna [sic] work[; t]he only reason I agreed to allow any of that to even take place." According to defendant, she did much of the work including document preparation, and plaintiff did not appear in the domestic violence proceedings on her behalf.
Plaintiff contested these facts. Plaintiff claimed that he "did extensive coaching" of defendant. Plaintiff also stated that because he was planning to "ask for compensatory damages . . . [he] was very careful to designate all of the time entries that were made that had to do with the domestic violence matter as domestic violence-related." Plaintiff described in detail all the services he had provided to defendant.
Judge Gelade found defendant's testimony to be more credible on this issue. He said: "I credit the . . . defendant's testimony . . . that her understanding of the agreement was that [plaintiff] would coach her . . . would provide services to her, counsel and advice on the phone and that he would try to bill her husband, but he would not charge her for those services." (Emphasis added). The trial judge found defendant was not liable for the domestic violence charges because defendant "was not given information either verbally or in writing that she would be responsible for hourly charges with respect to the F-V, the domestic violence component of the case." The judge also found that the retainer agreement "was limited to, absolutely did not cover any responsibility by the plaintiff for performing services to the defendant in a domestic violence dispute."
Finally, Judge Gelade found that if plaintiff had intended defendant to be held personally liable for the fees associated with the domestic violence matter, the agreement should have been in writing pursuant to Rule 5:3-5, which requires that agreements for legal services in civil family actions be in writing. The trial judge found that because the agreement regarding domestic violence was oral, plaintiff's version of the agreement violated Rule 5:3-5. He denied recovery for all the fees labeled "FV" and "domestic violence."
The judge also found that the "FM" charges were valid and enforceable since defendant understood she would be bound to pay those charges. He awarded plaintiff $1,6363.90 reflecting all fees associated with the "FM" docket designation and no interest. He denied any claim for interest for counsel fees associated with the collection of these fees. This appeal followed.
On appeal, plaintiff asserts that the trial judge erred by concluding that the oral agreement was prohibited by the retainer agreement and the Rule; that the judge erred by failing to recognize that even though the services may have been rendered under the domestic violence docket, the majority of such services were covered under the retainer agreement; that the judge erred by failing to consider the other counts of the complaint; and that the judge erred by failing to award to plaintiff the costs associated with the collection of his fees.
In addressing plaintiff's claims of error, we again recognize a finding that dominates our consideration of this appeal --- as to the relationship between the parties on issues arising in connection with the prosecution of the domestic violence matter, the judge found that defendant was credible in her assertion that plaintiff was to look to defendant's husband for fees, and defendant bore no responsibility for such fees.
This finding is critical because it implicates our standard of review and, in many respects, is fatal to plaintiff's underlying cause of action.
As a reviewing court, we are obligated to afford deference to the "factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation marks omitted)). This deference is particularly appropriate when there are issues of credibility since they relate to "the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 27 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 129 S.Ct. 776, 172 L.Ed. 2d 756 (2008). A trial court's findings of fact will not be disturbed unless they are "so wide of the mark that a mistake must have been made[,]" Ibid. (quotations omitted), and it would "'offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
We recognize as well that when the issue on appeal involves the trial court's interpretation of the law, our review is de novo. See Finderne Mgmt. Co. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008) (noting that an appellate court does not owe any special deference to a trial court's legal conclusion). See also Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 656 (App. Div.), certif. denied, 187 N.J. 82, (2006).
Before addressing plaintiff's arguments on appeal, we outline certain basic principles that apply to enforcement of retainer agreements. The Supreme Court has held that "'[a]greements between attorneys and clients concerning the client-lawyer relationship generally are enforceable, provided the agreements satisfy both the general requirements for contracts and the special requirements of professional ethics.'" Tax Authority, Inc. v. Jackson Hewitt, Inc., 187 N.J. 4, 15 (2006) (quoting Cohen v. Radio-Elecs. Officers Union, 146 N.J. 140, 155 (1996)). Therefore, "[a]n agreement that violates the ethical rules governing the attorney-client relationship may be declared unenforceable." Ibid.
Because of the unique fiduciary duty attorneys owe their clients, "[t]he general rule of construction is that fee agreements between lawyers and clients will be construed against the lawyers." Starkey v. Estate of Nicolaysen, 172 N.J. 60, 67 (2002).
As family matters present unique issues and are susceptible to disagreements between attorney and client, the Court promulgated Rule 5:3-5(a) mandating written fee agreements. The Rule states in pertinent part:
Except where no fee is to be charged, every agreement for legal services to be rendered in a civil family action shall be in writing signed by the attorney and the client, and an executed copy of the agreement shall be delivered to the client.
[Ibid. (Emphasis added)].
However, Rule 5:3-5(a) includes a listing of other requirements including: "a description of the legal services not encompassed by the agreement, such as . . . domestic violence proceedings."
R. 5:3-5(2) (emphasis added).
The general purpose of Rule 5:3-5 is "to provide for the fair and prompt payment of reasonable attorney fees while at the same time curbing perceived abuses that had developed over the years." Pressler, Current N.J. Court Rules, Comment 1 to R. 5:3-5 (2009). The specific purpose of Rule 5:3-5(a) is to "eliminate potential disagreements between lawyer and client." Pressler, supra, Comment 2 to R. 5:3-5 (2009).
Plaintiff argues that the language in Rule 5:3-5(a)(2) identifying domestic violence proceedings as a legal service not encompassed by a typical family action suggests that the writing requirement mandated by the rule does not apply to domestic violence proceedings; therefore, the oral agreement between the parties is valid. Plaintiff also argues that the retainer agreement provides for such oral agreements to be made. As we previously noted, the retainer agreement states in pertinent part:
[defendant] and [plaintiff] May Make Additional agreements to provide for legal services no covered by this agreement.
Without such agreements, which may be oral, [plaintiff] is not required to do any of the following: . . . domestic violence proceedings.
Plaintiff argues that pursuant to the retainer agreement, the parties entered into an oral agreement that defendant "would handle the domestic violence proceeding as a pro se litigant, with [plaintiff's] assistance and coaching[,]" but that he "intended to, and did, submit his claim for compensation to the court hearing the domestic violence matter and to have [defendant's husband] pay for [the attorney's fees]." Plaintiff also contends that regardless of the fact that the original intention of having plaintiff's husband pay for the domestic violence proceeding fees, defendant had the "ultimate responsibility to pay for [plaintiff's] services." In support of this argument, plaintiff quotes the retainer agreement which provides in pertinent part:
It is possible that Your spouse will either agree or be require to pay for some or all of Your legal fees and costs. Any money that is actually paid by Your spouse will be applied to reduce the amount You may owe.
You will be liable until the payment is actually made by Your spouse. [Plaintiff] is not required to sue Your spouse to collect any moneys due.
The trial judge held that Rule 5:3-5(a) applied in this matter because "when the lawyer undertakes a specifically separate action in representing the client, in this case a domestic violence court action, he has to prepare a statement of services." Further, the judge concluded that because the domestic violence matter had a separate FV docket and had "specific representation which is greater . . . in legal fees . . . and costs [than] the underlying FM matter in a retainer agreement," it should have been memorialized in writing.
As we previously noted, Judge Gelade found defendant to be more credible in that he believed that the oral agreement was that plaintiff "would provide . . . counseling and advice on the phone and that he would try to bill [defendant's] husband, but he would not charge [defendant] for those services." The judge further concluded if, contrary to defendant's understanding, the scope of the agreement held her ultimately responsible for the domestic violence billings, then plaintiff should have reduced the understanding "in a retainer agreement in writing under [Rule 5:3-5(a)]."
Plaintiff's arguments are without merit. As the judge noted, domestic violence actions are normally excluded from the retainer provisions because of exigency. That was not the case here. Plaintiff asserts that he entered into an oral agreement for representation, yet he relies on the written retainer agreement to supply the terms of the oral agreement. More important, as the judge also noted, the bulk of plaintiff's claimed billing occurred under in the domestic violence action. To suggest under these circumstances that no written retainer agreement is necessary contravenes the underpinnings of the Court's enactment of the Rule. Avoidance of the very dispute in issue here is the object and focus of the Rule.
As plaintiff correctly pointed out, domestic violence proceedings are normally "done on an emergent basis and typically encompasses meeting with the client and witnesses and appearing one day for trial." In these situations, requiring this agreement to be in writing might be more impracticable. As the judge realized, that is not the case here. This was an extended proceeding where defendant asserted that she did not want plaintiff's representation.
Ultimately, this was not a domestic violence matter involving one day of trial to procure a final restraining order; it involved $9,500 worth of claimed attorneys fees, according to the trial court's calculation, and a three day trial with a substantial dispute as to the terms of the oral agreement. Even if not mandated by the Rule, certainly, the better practice would require adherence to the writing requirements of the Rule.
The failure to prevail on a fee claim such as this informs both the bench and bar of the danger of supplementary oral agreements and the benefits of written retainer agreements, especially in the family practice. The written agreement protects the lawyer as well as the client in eliminating doubt as to the respective rights of the parties. Where oral agreements subsume the written agreement, fee disputes are inevitable, and no one's interest is properly served.
We conclude that the judge's finding that plaintiff had agreed not to charge defendant for services rendered in the domestic violence matter is dispositive of his underlying claim and similarly, defeats his alternative theories of recovery.
Plaintiff's claim for relief on the theory of quantum meruit likewise fails. To recover under a theory of quantum meruit, a plaintiff must establish: "'(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.'" Starkey, supra, 172 N.J. at 68 (quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir.1994)); See also Goldberger, Seligsohn & Shinrod, P.A. v. Baumgarten, 378 N.J. Super. 244, 253 (App. Div. 2005). "Quantum meruit," literally means "as much as is deserved". Kas Oriental Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 286 (App. Div.) (internal quotations omitted), certif. denied, 192 N.J. 74 (2007). The rule "is applied when, absent a manifest intention to be bound, 'one party has conferred a benefit on another and the circumstances are such that to deny recovery would be unjust.'" Id. at 286 (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427 (1992)).
The trial judge found that there was no expectation of compensation, as plaintiff never expected to be paid by defendant. Judge Gelade found that plaintiff had not intended to charge defendant, but expected to collect the fees from defendant's husband. However, "when it became apparent that the parties were reconciling and [plaintiff] wasn't going to represent the [defendant] and the cases were gonna [sic] be dismissed, [he] became very concerned about his fees" and attempted to collect from defendant. Plaintiff cannot prevail on a theory of quantum meruit.
Plaintiff also asserts that most of the services performed were related to the dissolution proceeding rather than the domestic violence matter. Again, plaintiff is confronted with the factual determinations made by the trial judge as finder of fact. Judge Gelade carefully scrutinized the submitted bills and determined those matters falling within the scope of the retainer agreement and those falling within the scope of the oral agreement. His findings are supported by the record, and we perceive of no need for our intervention.
Finally, the judge made specific findings as to the nature of the fee enforcement action and plaintiff's claim for additional counsel fees. He declined to award such fees, and we are satisfied that he acted properly under the unique circumstances presented here.