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Fox v. Drozd

January 13, 2010

JAMES A. FOX, PLAINTIFF-APPELLANT,
v.
VIVIAN FRANCIS DROZD, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1635-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued December 9, 2009

Before Judges Grall, Messano and LeWinn.

Plaintiff James A. Fox appeals from a judgment entered on his claim alleging that defendant Vivian Francis Drozd breached her contract to pay for legal services rendered by Fox at the rate of $250 per hour; committed fraud by assuring him that payments due would be made; and, alternatively, alleging entitlement to be "fairly compensated" for services rendered at the contract rate. Fox sought payment in the amount of $53,029.25 for fees and costs, interest due under the terms of the retainer agreement in the amount of $11,130, plus pre- and post-judgment interest and counsel fees. Drozd filed an answer in which she acknowledged the contract but denied breach, fraud and any outstanding debt. She also asserted affirmative defenses seeking offset on the ground that the fees were excessive and the services unnecessary.

The matter was tried to the court. At the close of plaintiff's case, he voluntarily dismissed his claim for fraud. Following trial, the judge concluded that plaintiff's billing records were inadequate to establish a breach of the contract or that plaintiff rendered services for which he had not been fairly compensated. Accordingly, the judge dismissed the complaint with prejudice.

In reviewing a trial court's decision after a trial to resolve a dispute under a retainer agreement for legal services, appellate courts accord "traditional deference . . . to a trial court's conclusions on credibility" and "also defer to the trial court's findings of fact" that are "supported by credible evidence." Cohen v. Radio-Elecs. Officers Union, 146 N.J. 140, 157 (1996). After reviewing the record in light of those standards, we affirm the judgment because it is supported by the judge's assessment of credibility and the evidence presented at trial.

In October 2004, plaintiff and defendant executed an agreement for plaintiff to provide legal services to defendant in two matters. Under its terms, defendant agreed to pay an advance of $3550 to "be used to pay [her] fees and expenses according to this Agreement." The "fee" included a $2000 "minimum fee" payable "regardless of the amount of time actually spent on this case." Otherwise, defendant agreed to pay for services rendered at the rate of $250 per hour plus fees and costs for necessary expenses. Plaintiff was required to "send [defendant] itemized bills from time to time," and defendant's payments were "due upon receipt" and subject to interest on any balance unpaid within thirty days of the date of the bill assessed at a "yearly rate of 18%." The agreement expressly provides that if defendant needs services related to matters other than the two specifically designated, "you and the Law Firm may make a new agreement to provide the other services."

At trial, plaintiff testified to the difficulties he encountered in representing defendant in the matters covered by the retainer agreement and defendant's recalcitrance in paying her bills. Because defendant had not made payments, plaintiff did not file a brief in support of defendant's appeal from one of the judgments, and that appeal was dismissed. By plaintiff's account, at the time of trial defendant owed about $95,000, which included more than $31,000 interest due under the terms of the agreement.

On cross-examination, plaintiff acknowledged that he had included his client's social security number in the caption of his complaint in this action to collect fees due in order to make it more difficult for defendant to deny that she was the person named in the complaint. He admitted that the bills he gave defendant included billable hours that he estimated, without notes, months after providing the services. In addition, plaintiff agreed that bills of June 9 and October 26, 2005 included duplicate billings for the same services. Plaintiff also identified a charge for four hours he spent in municipal court in response to a subpoena, but defendant testified that she was represented by a public defender in that case.

Plaintiff also presented the testimony of the attorney who was his adversary in the one of the proceedings for which he was retained by defendant to establish the reasonableness of the fees plaintiff charged. That attorney described the nature of that litigation and the fees he earned, $60,000, in representing his client.

Defendant testified about her efforts to acquire documentation upon receiving the bills plaintiff submitted for payment and her frustration with plaintiff's failure to provide that additional information. She had complained in writings transmitted to plaintiff on two separate occasions. Further, defendant contended that she and plaintiff did not speak by telephone with the frequency reflected in the bills he alleged and testified that his records omitted two $500 payments she had made.

The judge delivered an oral opinion detailing her findings of facts and legal conclusions. The judge determined that defendant's testimony was credible, especially when contrasted with plaintiff's testimony, and the judge concluded that plaintiff failed to establish his claim that defendant breached the contract. In the judge's view, the plaintiff's admitted billing mistakes and his acknowledged practice of estimating ...


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