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Cole v. Cole

February 8, 2010

JUSTINE P. COLE, PLAINTIFF-RESPONDENT,
v.
JOSEPH R. COLE, DEFENDANT-APPELLANT.
BUDD LARNER, P.C., PETITIONER-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-1608-03A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2010

Before Judges Rodríguez, Yannotti and Chambers.

Defendant Joseph R. Cole appeals from the order of October 17, 2008, enforcing the judgment entered against him on August 8, 2008. That judgment, in the sum of $50,000, was for the attorney's lien of petitioner Budd Larner, P.C. (Budd Larner).*fn1

Defendant contends that the trial court should not have entered and enforced this judgment, in part, due to the legal malpractice action he had pending against Budd Larner. We find no error in the court resolving the attorney's lien issue within the context of the matrimonial litigation, since defendant did not request a stay of the attorney's lien proceeding nor did he seek to consolidate it with the malpractice action until after a decision was rendered. The trial court expressly carved out the malpractice issue from its decision, and it made no findings on those allegations. Finding no error, we affirm.

I.

We will not review the complex procedural and factual history in this matrimonial litigation that spanned a period of over five years, but rather will focus on those facts pertinent to resolving this appeal. On April 28, 2003, defendant retained Budd Larner to represent him in matrimonial litigation, and he entered into a written retainer agreement with that firm. Defendant discharged Budd Larner on November 4, 2005. By that time, he had paid the firm $60,684.17 in legal fees, and the firm contended that additional fees were due.

On February 10, 2006, a consent order was entered permitting a substitution of attorney for defendant and providing that the firm had "an enforceable charging lien" in the sum of $53,347.76 for services through November 5, 2005. An order dated March 30, 2007, vacated the charging lien, but provided that the proceeds of any resolution of the matrimonial litigation in defendant's favor be held in escrow until the amount of the lien was determined. The order of May 14, 2007, set forth the parties' resolution of their financial issues, and among its provisions, defendant agreed to pay his wife the sum of $75,000 from his share of marital assets being held in escrow, and she agreed to waive her right to alimony. The order of September 21, 2007, required that the $75,000 be held in escrow until defendant had established an escrow account as security for the attorney's lien. In the interim, defendant was required to make alimony payments of $300 per week until the $75,000 was released to his wife.

After the financial disputes in the divorce litigation had been resolved, the trial court held a plenary hearing to determine the amount of Budd Larner's attorney's lien. At the hearing, the trial court heard testimony from Thomas D. Baldwin, Esq., defendant's former attorney from the Budd Larner firm, and from defendant, who was appearing pro se.

About two and one-half months prior to the commencement of the plenary hearing, defendant had filed a pro se legal malpractice complaint against Budd Larner and Baldwin. While Budd Larner and Baldwin denied service of the complaint, they and the trial court were aware, during the plenary hearing, that defendant had asserted a malpractice case against Budd Larner and Baldwin which was pending.

At the plenary hearing, Baldwin presented evidence that the total fee, calculated pursuant to the written retainer agreement, was $124,547.81, and that with payments and write-offs the balance due was $53,663.89. In addition, Budd Larner sought interest at the rate of twelve percent per year compounded monthly.

In its oral decision, the trial court noted that defendant had not challenged any specific entry in the bills. Defendant had not contended that any specific amount charged was excessive or in error. The trial court found that Budd Larner had provided the services, and that there was no evidence of overbilling, overcharging, or charging for work that was not done. However, the trial court did not allow the interest sought by Budd Larner. Due to some irregularities in the invoices, the trial court reduced the fee to $50,000 and entered a judgment in favor of Budd Larner and against defendant in that sum.*fn2

The trial court expressly indicated that it had not decided the question of whether Budd Larner or Baldwin had committed malpractice in connection with their representation of defendant. While defendant indicated his unhappiness with the quality of the representation he had received from Budd Larner, the trial court rebuffed his efforts to litigate those issues during the plenary hearing. At the conclusion of the hearing, Baldwin expressly asked the trial judge to comment on whether the firm had been negligent, ...


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