On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-5309-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Fasciale.
This is an appeal and cross-appeal arising out of a fee dispute and counterclaim alleging legal malpractice. Defendant, Deborah Post, appeals the denial of her motion for reconsideration of the final judgment and the dismissal of her counterclaim. Defendant also appeals the denial of her motion for an extension of time to file an affidavit of merit. Plaintiff, Steele R. Chadwell, an attorney, cross-appeals the judgment and the orders denying his motions to amend the judgment amount and for sanctions pursuant to Rule 1:4-8. Because we conclude the court erred when it dismissed defendant's counterclaim, we reverse and reinstate defendant's counterclaim. In light of this reversal, we are also constrained to reverse the judgment entered in favor of plaintiff.
Defendant initially consulted plaintiff in July 2002. According to plaintiff, defendant discussed a variety of issues during this first meeting, including a potential guardianship of her father. Defendant contends the only issue discussed was whether she could legally prevent her father from driving. Following this meeting, defendant paid plaintiff $400 for this initial conference. The parties had a telephone conversation in September related to defendant's contention that an Adult Protective Services (APS) worker improperly entered her home in an attempt to interview her father.
Apparently, defendant and APS were unable to reach a mutual agreement concerning defendant's father. As a result, APS filed a petition for protective services and an order to show cause (OTSC). APS served defendant with the petition on October 2, 2002. Defendant forwarded the petition to plaintiff, who in turn forwarded a retainer agreement to defendant on October 9. Defendant denied receiving the agreement before October 11, although a male at defendant's address signed for the delivery on October 10.
Also on October 10, despite not having a fully executed retainer agreement, plaintiff negotiated an alternative to the petition hearing with the assistant county counsel. The hearing was scheduled for the next day, and defendant claims that plaintiff had not prepared her for the hearing nor filed a response to the petition, as he told her he would do. Instead, defendant contends plaintiff told her that if she wanted to submit anything to the court, she would have to draft it herself. As a result, defendant drafted an eleven-page letter to the court, responding to the allegations in the petition.
At the hearing on October 11, plaintiff did not want to proceed on defendant's behalf without a retainer agreement, which defendant had not brought with her. Defendant wrote the following on a legal pad: "I hereby retain, Steele R. Chadwell, to represent me in connection with the matter of John Post, alleged to be a victim of neglect. Said retention will be on an hourly basis at the rate of $200 per hour."
No witnesses were presented at the hearing. The court admitted the report from APS and permitted defendant to submit her eleven-page letter, which the court reviewed when it took a recess. During the recess, plaintiff continued to engage in negotiations on behalf of defendant with the assistant county counsel, which were reportedly contentious. Nonetheless, when the proceedings resumed, counsel advised the court that they had reached a resolution, which was then placed on the record.
Subsequent to the hearing, defendant sent plaintiff a letter confirming that she had retained plaintiff to represent her in connection with the APS matter but that "[t]he need for future services [beyond the October 11 hearing] must await the outcome of the two evaluations that I have agreed to procure for my father." Defendant also reiterated her agreement to compensate plaintiff at the $200 hourly rate and enclosed a check for $2000, which she described as "an initial payment."
Plaintiff returned defendant's check and requested that she execute the October 9, retainer agreement and remit a check to him for $3500 as the initial retainer agreement. Defendant returned an executed retainer agreement but modified it by striking any references to any proposed guardianship proceeding.
In the interim, defendant had also directly contacted the assistant county counsel. Plaintiff, upon learning from the assistant county counsel what defendant had done, sent a letter dated October 22, requesting that defendant notify him, in writing, that she would not again contact any other attorney involved in the petition, or the court, except through him, and "sign, date, fax and mail to my office, in its original form, the complete Retainer Agreement . . . together with your check in the amount of $3500." The letter also stated:
If you cannot allow me to represent you according to the terms of that Retainer Agreement, including by refraining from direct communication with the court or my adversaries in this case, then I am sorry to say that you and I can no ...