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Calcagno & Associates, Attorneys At Law, LLC v. Therapeutic Devices

June 9, 2011


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-000799-10.

Per curiam.


Submitted March 15, 2011

Before Judges Wefing and Koblitz.

Defendants appeal from a judgment entered against both of them in plaintiff's favor for $1205 following a non-jury trial in the Special Civil Part. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

Defendant Therapeutic Devices, Inc. (TDI) supplies medical devices to individuals who have suffered injuries. Defendant Michael Golowski is the president of TDI. In the case of injuries incurred in motor vehicle accidents, TDI looks to the party's Personal Injury Protection (PIP) carrier to pay its charges. In the event of a dispute with the PIP carrier with respect to whether TDI was entitled to reimbursement, the matter would be arbitrated under N.J.S.A. 39:6A-5.1. Plaintiff law firm had represented TDI for a period of time at these PIP arbitrations, but eventually their relationship ruptured and TDI retained a new attorney.

On July 24, 2007, Golowski, on behalf of TDI, instructed plaintiff to do no further work on the files in its possession and to forward those files to TDI's new attorney, Christopher J. Costello, Esq. Plaintiff objected because it had already performed work on certain of the files and wanted to be reimbursed for that. Although it returned the files as TDI had requested, it also sent a bill for the services performed to date.

On August 17, 2007, TDI's new attorney, Costello, wrote to plaintiff. In this letter Costello wrote that he had spoken to defendant Golowski and that Golowski had agreed that plaintiff could represent TDI at nine specified arbitrations. Costello said in this letter that he was returning those files to plaintiff by overnight delivery. Costello's letter also contained the following sentence: "Additionally, Mr. Golowski has agreed to reimburse you your filing fee as a result of a losing arbitration award in any of the above matters." The letter also indicated that a copy had been forwarded to Golowski.

Plaintiff proceeded with these nine arbitrations, five of which were unsuccessful. When TDI did not reimburse plaintiff for the filing fees for these five arbitrations, plaintiff filed suit.

At the outset of the trial, defense counsel moved for a change of venue. After the trial court denied the motion, the trial proceeded to the merits. Two witnesses testified at the trial - Andrew Calcagno, Esq., plaintiff's principal, and Golowski. During the course of Calcagno's testimony, Costello's letter was received into evidence. Golowski testified that he did not see Costello's letter until more than a year after it was written and that he never agreed to reimburse Calcagno's filing fees for an arbitration at which TDI did not prevail. Golowski testified that Calcagno had represented TDI on a purely contingency basis, under which if TDI prevailed at the arbitration, plaintiff would be paid by the carrier-defendant; if TDI did not prevail, plaintiff would not receive a fee. He insisted that there had been no agreement to reimburse plaintiff for filing fees because that would have been contrary to TDI's longstanding practice in this area.

At the end of the trial, the court, in a brief oral statement, found for plaintiff. The court said it was basing its decision on the testimony and on the letter. Following entry of judgment, defendants appealed.

On appeal, defendants renew the contention made at trial, that Costello's letter of August 17, 2007, was not admissible against defendants. They also argue that the trial court improperly denied the motion to transfer the venue of the matter.

Although the trial court engaged in no legal analysis when defense counsel objected to the admission of this letter but simply admitted it into evidence, we are satisfied the document was ultimately admissible under N.J.R.E. 803(b)(3). Under that rule, a statement by a declarant is admissible against a party if it was made "by a person authorized by the party to make a statement concerning the subject." Costello had been retained by TDI to represent it in connection with PIP arbitrations, and plaintiff relied upon Costello's statements. If indeed Costello exceeded his authority by assuring plaintiff that TDI would reimburse it for filing fees, recourse for defendant is against Costello, not to deny recovery to plaintiff.

As to venue, although defendants' position that venue was improper under Rule 6:1-3(a) is correct, defendants' motion to transfer venue, made on the day of trial, was untimely. Although venue may have been ...

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