LENNARD CHARLES v. 1170 APARTMENT CORP., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5842-04T15842-04T1

LENNARD CHARLES,

Plaintiff-Appellant,

v.

1170 APARTMENT CORP., MICHAEL

SANTIMAURO, THOMAS DAWSON, STEPHEN

O'CONNOR, MATTHEW BAILIN, BERT

ROSENBLUTH, NOEL ALBERT, MAUREEN

KEIGHER, GERI POWDER, GILBERT

SPEARS, DAVID LEOPOLD, CLAIRE

POLETTI, LINDA BROWN, MARVIN

BURTON, SONDRA TEICHMAN, KEITH

KRENITSKY, MARIO YAZIDJIAN, CARLO

MONTESA, and MATTHEW SHAPIRO,

Defendants,

and

JEROME LIEBOWITZ,

Defendant-Respondent.

______________________________________

 

Argued March 15, 2006 - Decided April 28, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. BER-L-5521-04.

Jeffrey A. Bronster argued the cause for

appellant.

Michael R. Scully argued the cause for

respondent.

PER CURIAM

Plaintiff appeals from an order entered by the Law Division awarding a non-party fact witness a deposition appearance fee. The witness, Jerome Liebowitz ("Liebowitz"), is an attorney who represented the Co-op Board of 1170 Apartment Corp. for many years prior to the start of this litigation.

In the course of conducting discovery, plaintiff issued a subpoena to compel Liebowitz to testify at a deposition as a fact witness. Liebowitz was no longer the Co-op Board's counsel when the subpoena was issued. After testifying at the deposition, Liebowitz demanded that he be compensated for the 4.5 hours he spent at the deposition, at his standard hourly rate of $275. Plaintiff refused to pay, and the matter came before the trial judge managing the underlying litigation. After hearing oral argument, the trial court awarded Liebowitz $900 ($200 per hour for 4.5 hours). At some point thereafter, plaintiff and defendants in the underlying dispute entered into a settlement agreement resolving all issues. Without notice to Liebowitz, the parties specifically preserved the right to seek appellate review of the court's fee order. Liebowitz was then named as a "nominal defendant."

Plaintiff now argues that the trial court erred in awarding Liebowitz any fee for the time he spent answering questions at the deposition. According to plaintiff, Rule 4:14-7(b)(1) was only "meant to protect such individuals as hourly employees, when attendance at a deposition incurs an actual, documented loss of income." We disagree.

Under R. 4:14-7(b)(1):

The party subpoenaing a witness, other than one subject to deposition on notice, shall reimburse the witness for the out-of-pocket expenses and loss of pay, if any, incurred in attending at the taking of the depositions.

In our view, Liebowitz's application falls within the scope of the Rule. First, as a non-party to the underlying litigation, Liebowitz was not subject to deposition on notice. Second, although the Rule uses "loss of pay" as the standard for determining compensation, we are satisfied that a literal application of this language would defeat the underlying intent of the Rule. In the words of Justice Heher:

A statute is not to be given an arbitrary construction, according to the strict letter, but such as will advance the sense and meaning fairly deducible from the context. The reason and spirit of the law, i.e., the motive which led to the making of it, prevails over the literal sense of terms; its obvious policy is an implied limitation of the sense of general terms and a touchstone for the expansion of narrower terms. Words are but symbols of thought and expression which of necessity take color and significance from their surroundings and the evident purpose of the law. Reason is the soul of law; the reason of the law being changed, the law is also changed. And where the reason of the regulation is general, though the provision is special, it has a general acceptation. The end design of construction is to bring the operation of the statute within the apparent intention of the Legislature.

[Sayreville v. Pennsylvania R.R. Co., 26

N.J. 197, 218 (Heher, J., dissenting), appeal dismissed, 358 U.S. 44, 79 S. Ct. 43, 3 L. Ed. 2d 45 (1958) (citations omitted).]

Here, the overarching purpose of the Rule is to provide a measure of compensation to individuals who are compelled to appear and to answer questions at a deposition in connection with a controversy to which they have no stake in the outcome.

Whether by happenstance, as in the case of an eyewitness to an accident, or by prior professional association, as in this case, these fact-witnesses possess information valuable to one or both parties in the controversy. By compensating these individuals for the time they spend conveying this information to the interested parties, the Rule strikes a proper balance between the needs of the litigants and the impairment of the witness's rights caused by the compulsion to appear.

Here, Liebowitz's status as an attorney, whether as a member of a firm, or as a single practitioner, in no way affects his right to be compensated for the time he spent at this deposition. The term "loss of pay" includes an actual loss of income, as in the case of a salaried employee, or, as here, a professional's loss of billable time. As noted by President Lincoln "a lawyer's time and advice are his [or her] stock in trade." Here, Liebowitz is entitled to be compensated for the loss of professional time he spent, not in furtherance of his economic interest, but as a result of a subpoena to testify at a deposition under R. 4:14-7(b)(1). Because Liebowitz has not cross-appealed the trial court's reduction of his initial application, and plaintiff only argues that Liebowitz was not entitled to any fee, we need not address whether the amount of compensation awarded was fair and reasonable.

 
Affirmed.

We denied plaintiff's motion seeking interlocutory review of this order. In this light, Liebowitz argues that plaintiff is not permitted to appeal the matter as a final judgment, because the settlement agreement subsumed the issue. We are satisfied that the question presented by plaintiff here is properly before us. Denial of a motion for interlocutory appeal does not affect a party's right to seek appellate review once a final judgment has been entered.

The term "nominal defendant" is not a recognized party designation. It seems obvious to us that by using this appellation, the parties' intended to confer upon Liebowitz the legal status necessary to create a justiciable issue with respect to the reasonableness of his witness fee.

(continued)

(continued)

5

A-5842-04T1

April 28, 2006