October 20, 2010
EDWARD F. DRAGAN, PLAINTIFF-RESPONDENT,
DENICE S. MORGAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hunterdon County, Docket No. DC-835-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Sabatino and Alvarez.
Defendant Denice S. Morgan appeals from the denial of reconsideration of an October 6, 2008 judgment awarding plaintiff Edward F. Dragan $2891.22 plus court costs on account of a balance due for expert's fees. Both parties appear pro se on appeal, as they were at the October 6, 2008 trial which resulted in the issuance of the judgment. We affirm, albeit with a correction as to the interest included in the $2891.22 award.
Morgan filed three motions for reconsideration of the judgment. The first motion, filed November 4, 2008, violated the twenty-day time requirements of Rule 4:49-2. Initially and on the second motion for reconsideration, therefore, the court did not analyze Morgan's contentions of error on the merits. On January 5, 2009, when the judge denied Morgan's third application for reconsideration, however, he said:
Reconsideration is again denied. Neither this [c]court nor [a particular court staff member*fn1 ] has authority to extend the reconsideration deadline. Further, the [c]court has reviewed the materials submitted and finds that the defendant simply disagrees with the court's decision. There is no new significant evidence which could not have been presented at the trial.
Thus, the judge did ultimately consider Morgan's application on the merits, despite the fact it exceeded the twenty-day time frame. We will also consider the merits.
Since the matter has been on appeal, Morgan has filed at least nine motions with our court, seeking, among other things, to supplement the record, to have us reconsider the denial of her request to supplement the record, to have us reconsider the denials of reconsideration, and a motion for a stay of the appeal until we explain the reasons her application to supplement the record was denied.
Dragan testified at the trial conducted on October 6, 2008, that he was retained by Morgan as an educational expert and was still owed approximately $4860.73 on account. Morgan was involved in a dispute with the Atlanta, Georgia school authorities regarding their classification of her nephew over the ten years he had been in their system. At the administrative law hearing conducted on November 2, 2005, Dragan testified by phone as Morgan's expert. His suit was for the balance owed on account of his fees.
At the start of the trial, the trial judge disclosed on the record that he was familiar with plaintiff from some past interactions that he had with plaintiff about two decades earlier before his appointment to the judiciary. The following colloquy on that subject took place:
THE COURT: All right. Mr. Dragan, we had some dealings with you in the past but I think it was when you were still a public official. I don't think we ever used you in [your] private capacity.
DR. DRAGAN: That's correct, Your Honor.
THE COURT: Ms. Morgan, I have a [son with a] disability. Mr. Dragan had a role, I forget exactly what it was, to some of the disability. Mr. Dragan was coordinator of special services for the County at the time. This goes back probably close to 20 years. He was in a public official status at that point. I have been involved with cases that he's been involved with subsequent to that and I don't feel there is anything by virtue of that contact which is quite old that would dispose me either for or against him. But I think I needed to put it on record so that you are not blind-sided or in any way misinformed. I think it's got to go back over 20 years.
DR. DRAGAN: At least that, Your Honor.
THE COURT: So unless --
MS. MORGAN: Is there a problem with that, Your Honor?
THE COURT: I'm just -- I don't think there is. I'm telling you I had, you know from my standpoint I don't see any bias that I have either for him or against him. But I want to let you know what the situation is to see if you are troubled by it.
MS. MORGAN: Well, Your Honor, . . . I heard about your outstanding reputation. But I am nervous about the fact that you have worked with him before and he's helped you with your son. But I'm willing to see whether or not you will give me an opportunity --
THE COURT: Well, you can't -- it either works or it doesn't work I suppose. I can't decide a case with one hand tied behind my back. Either I'm deciding it or you are objecting and then I'll have to decide whether I want to sustain the objection or not. I can't --
MS. MORGAN: Well, Your Honor, I'm willing to give you the benefit of the doubt.
And the reason why I was concerned is because Dr. Dragan sent several e-mails to me making it clear, because I live in Atlanta, Georgia, and he was paid in full when he submitted civil claims.
THE COURT: Well, okay.
MS. MORGAN: But to make a long story short, he made it clear to me that he would not mediate and I got the impression that the fact that he lives in New Jersey, he's been on TV, he's got an outstanding reputation in this area, he lives in Lambertville as if I would not have a fair shake. That's the impression that Dr. Dragan gave me.
But I just wanted to be honest with you that he's been bullying me for three years and he threatened me --Nevertheless, defendant did not press to have the judge recuse himself, and implicitly acquiesced to the trial being conducted before him. The judge then proceeded to hear the testimony from both parties and considered the documents that were admitted into evidence. At the close of the proofs, the judge issued a bench ruling, awarding Dragan $2891.22. This appeal by defendant ensued. Plaintiff has not cross-appealed, despite the fact that the judgment was for a sum less than half of the amount that he had claimed in his complaint.
Morgan's brief contains a single point of error:
DEFENDANT HAS PROVEN HER CASE THAT A CLERICAL ERROR WAS MADE [IN ACCORDANCE WITH] NEW JERSEY R. 1:13-1, PROVIDED EVIDENCE THAT THERE WAS FOUR HOURS LEFT ON HER RETAINER AGREEMENT AS OF 17 NOVEMBER 2005, PER PLAINTIFF'S EMAIL DATED 17 NOVEMBER 2005, 1:41PM. PLAINTIFF CHARGED DEFENDANT $425.00 HOURLY WHICH TOTALS $1700.00 THAT REMAINS IN RETAINER ACCOUNT AS OF 2009. DEFENDANT WAS ALSO ABLE TO PROVE THAT PLAINTIFF OVER AND DOUBLE BILLED HER ACCOUNT, INCLUDING BEING UNTRUTHFUL UNDER OATH. DEFENDANT HAS SUFFERED A HARMFUL ERROR AND HER CASE SHOULD BE OVERTURNED IN HER FAVOR BY THE APPELLATE DIVISION.
Within that point heading, Morgan has included all of her contentions.
Initially, we note that our review of the trial court's fact-finding is deferential. We do not disturb the trial court's findings unless they are so lacking in support on the record as to result in a denial of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (citations omitted). Matters of credibility are binding so long as supported "by adequate, substantial" evidence. Id. at 484. Our appellate function is limited to asking whether "there is substantial evidence in support of the trial judge's findings and conclusions." Ibid.
Morgan urges us to vacate the judgment on the basis that the judge should have recused himself from hearing the matter. As we have said, before the trial began, the judge explained that approximately twenty years prior, when Dragan was acting in some official capacity, the judge interacted with him relating to his son. The judge said he did not "feel there is anything by virtue of that contact which is quite old that would dispose me either for or against [Dragan]." In fact, the judge also indicated that he has presided over other matters in which Dragan was involved in some fashion.
We agree that the judge's more than twenty-year-old interaction with Dragan does not qualify under Rule 1:12-1(f) as a reason for his disqualification.*fn2 As a courtesy to Morgan, the judge offered her the information and the opportunity to object. She chose not to do so, thereby waiving that right. Morgan objected on the basis of the twenty-year-old interaction only after the outcome of the trial was not what she had hoped it would be. As the judge rightly pointed out to defendant before the trial started, she cannot have it both ways - assenting to the judge's participation in the event that she won the case while reserving some unspoken objections to his participation in the event that she lost. Such a "wait-and-see" approach is untenable.
Morgan mistakes the meaning of the balance of the judge's comments on the subject of his prior contacts with Dragan. He merely explained that he had presided as a judge over other cases involving Dragan. He did not say that he had been personally involved with Dragan in litigation. That he had presided over other cases involving Dragan as a party, as an expert or fact witness, or in some other capacity, is not a reason for disqualification.
Morgan and Dragan entered into an agreement regarding the fees Dragan would charge, although Morgan avoided signing any written contract. It is undisputed that Morgan paid Dragan a $7500 retainer for his services, and agreed to pay an additional and separate $4000 fee for his expert testimony at the administrative law hearing. During the course of a subsequent conversation between the parties on November 15, 2005, Dragan reduced his fee for testifying to $3500. Dragan participated telephonically in an administrative law hearing conducted on November 2, 2005, which resulted in a decision favorable to Morgan's nephew.
Morgan first challenges Dragan's billing for 6.9 hours of "file review and preparation for hearing testimony," on November 1, 2005, at the agreed-upon rate of $425 per hour. Because Dragan had told Morgan in an email that he had spent much of the morning at a meeting regarding his granddaughter's education, she questioned the veracity of the charge. When she cross-examined Dragan about this disputed time, Dragan responded that he had indeed attended a meeting about his granddaughter that morning, but that he nonetheless reviewed the extensive materials forwarded by Morgan that afternoon and into the evening, actually returning to his office after dinner in order to continue to prepare for the administrative law hearing scheduled for the following day.
Dragan also testified that Morgan was charged, on November 2, 2005, 4.9 hours at the rate of $425 per hour for "review preparation" for the hearing. Morgan's second issue was that this constituted "double-billing," as Dragan was charging a $3500 flat fee for his trial testimony on November 2 and was also billing against the retainer for additional time on that date for preparation.
Morgan's third issue with the bill was that on October 28 Dragan overcharged her for the preparation of a draft affidavit forwarded to the Georgia Office of State Administrative Hearings, and that on October 29 he overcharged her for reviewing an email, composing a response, and composing a letter to the Administrative Law Judge. She characterized the resulting $850 for two hours as excessive.
To summarize her specific complaints, Morgan questioned the justification for the October 28 and October 29, 2005, billings, the November 1, 2005, time charged by Dragan because he spent part of the day on personal business, as well as whether she should have been charged for preparation time on the day of the hearing, as those costs should have been included with the flat expert testimony cost for the day.
Lastly, Morgan disputes her obligation to pay a $3500 flat fee because Dragan testified by phone and not in person. Dragan insisted that he explained to Morgan when she retained him that the flat $3500 fee would be charged regardless of whether or not he traveled to Georgia, and that he actually saved her money "because there was no airfare, there was no extra time."
By Morgan's calculations, she was owed over $2125 in refunds from her original retainer plus the cost of her travel from Georgia to New Jersey to attend trial. She based her entitlement to a refund in part on a statement she said Dragan made that he thought she had a balance of $1700 still on deposit from the original retainer. The record does not provide any substantiation for this assertion, however.
The judge began his oral decision by noting that Dragan's testimony succeeded in obtaining the change Morgan sought in her nephew's educational classification. The judge further noted that the initial retainer was $7500, to be expended at the rate of $425 per hour, and that Dragan was to be paid a flat fee of $3500 for his expert testimony. Additionally, he found that the final billing dated December 6, 2005, from which the retainer was deducted, was for $4856.22.
The judge then deleted the 4.9 hours billed for November 2, as he agreed that time should have been included in the flat fee. He reduced the October 28 and 29 billings to .9 hours. The balance due by the calculations then totaled $2391.22.
When the trial judge said he was reducing the amount Dragan sought by $2465, Morgan asked if that was the amount Dragan owed her. He explained that he was entering judgment against her for that sum, plus adding $500 as the agreed-upon interest on the unpaid balances at the rate of eighteen percent per year, resulting in a total award of $2891.22 plus court costs.
The figure the judge used for interest, however, is mathematically incorrect. Eighteen percent of $2391.22 for the two years the judge fixed as the term during which interest would be charged is equal to $430.42. Morgan therefore owes Dragan $2821.64, not $2891.22. We will exercise original jurisdiction to resolve this minor difference so as to avoid a remand which would be burdensome to both parties. See R. 2:10-5; New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 370 N.J. Super. 11, 18 (App. Div. 2004), aff'd as modified, 185 N.J. 137 (2005).
We have closely independently reviewed the record. The judge carefully considered the issues in dispute, weighed the testimony, drew reasonable conclusions from the credible evidence in the record, and gave Morgan credit for some, albeit not all, of the items she felt she had been improperly charged. The judge simply did not accept all of her arguments, and this is the real heart of her applications for reconsideration and her appeal. But the judge's factual findings and legal conclusions are supported by competent, relevant, and credible evidence. His ultimate conclusion does not offend the interests of justice.
When the trial judge decided the third application for reconsideration, he found that it was nothing more than a re- presentation of the same arguments and proofs Morgan presented at trial. We agree. In the interests of finality, like the trial judge, we have also addressed the substance of Morgan's objections to the judgment.
Affirmed, except that the total amount, principal and interest, is modified to be $2821.64, not $2891.22. The trial court shall promptly enter a corrected judgment in accordance with this opinion.