On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1613-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
Defendants, Robert and Marjorie Parise, appeal from summary judgment entered on October 24, 2008, awarding plaintiff Szaferman, Lakind, Blumstein, Blader & Lehmann, P.C. outstanding legal fees of $125,755.60 and dismissing defendants' counterclaim, which alleged legal malpractice and fraud. Defendants also appeal from a December 5, 2008 order denying their request for reconsideration. On appeal, defendants argue:
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF WITH REGARD TO BOTH ENTITLEMENT TO FEES AND THE AMOUNT OF THE FEES SOUGHT.
THE TRIAL COURT ERRED IN ITS DISMISSAL OF THE COUNTERCLAIM FOR FRAUD AND ERRED IN DENYING THE MOTION FOR RECONSIDERATION WHICH SOUGHT TO INCLUDE A CERTIFICATION OF DEFENDANT ROBERT PARISE INTO THE MOTION RECORD.
We set forth the facts in the underlying litigation, which gave rise to plaintiff's claims for legal fees and defendants' assertions of malpractice. Defendants retained plaintiff to perform legal services in connection with a residential construction matter entitled, Peter Sloane and Janice Sloane v. K&R Custom Homes, Marjorie Parise, President, and Robert Parise, Docket No. OCN-L-2111-03 (Sloane litigation). On April 28, 2004, defendants executed a retainer agreement prepared by plaintiff, agreeing to pay for "the actual amount of attorney time spent on their matter" along with billed costs for "[o]ut-of-pocket expenses such as filing fees, investigation costs, witness fees, deposition costs, service charges[,]" and expenses for photocopying, computer research, secretarial overtime and messenger deliveries.
The Sloane litigation has been described as "factually and legally complex," and included claims of fraud, consumer fraud, and breach of contract arising from the alleged defective construction of a single-family residence. Defendants faced potential corporate and individual liability, as owners of the construction company, K&R Custom Homes (K&R). Initially, defendants were represented by another law firm until a trial date was scheduled. Defendants then discharged their attorney and engaged plaintiff with the expectation that it would "aggressively prepare the case for trial."
Defendants agree the Sloane litigation "involved a large amount of documentation, consisting of approximately nine bankers boxes of documents." Plaintiff performed significant pretrial services, including conducting depositions, defending and defeating motions for summary judgment, and filing in limine motions to narrow the issues to be presented at trial.
On November 17, 2004, Marjorie Parise, as the owner of K&R, wrote to plaintiff instructing it to cease all legal work when the December 5, 2004 ...