AMPER, POLITZINER & MATTIA P.C v. PATRICIA MANOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5921-07T35921-07T3

AMPER, POLITZINER & MATTIA,

P.C.,

Plaintiff-Respondent,

v.

PATRICIA MANOS and CHRIS MANOS,

Defendants-Appellants.

__________________________________

 

Submitted: June 3, 2009 - Decided:

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1079-07.

Scholl, Whittlesey & Gruenberg, LLC, attorneys for appellants (Franklin G. Whittlesey, of counsel and on the brief).

Law Offices of William R. Connelly, LLC, attorneys for respondent (William R. Connelly and Carole White-Connor, on the brief).

PER CURIAM

Defendants Chris and Patricia Manos appeal from denial of their summary judgment motion and grant of summary judgment to plaintiff accounting firm as to its collection of fees incurred for evaluating appellants' businesses in connection with their divorce action. Appellants contend they were entitled to summary judgment because there was no question the firm: (1) overcharged them in breach of the parties' agreement, entitling appellants to rescind the contract or, at the very least, limit its recovery to quantum meruit; and (2) violated the agreement by filing suit in the wrong county. Appellants further argue their dispute of the fees sought by the accounting firm presented a material question of fact that precluded the entry of summary judgment in favor of plaintiff for contract damages. Based on our review of the record and applicable law, we are not persuaded by appellants' arguments and affirm.

This action arose in the context of appellants' divorce action in Somerset County. By consent order of January 27, 2005, the parties agreed to utilize Theresa Simonds, CPA to evaluate their businesses, with husband responsible for the cost without prejudice to the final allocation.

The retainer agreement dated January 31, 2005, and signed by appellants on July 7 and l5, 2005, consisted of a four-page letter from Simonds on behalf of plaintiff, Amper, Politziner & Mattia, P.C., Certified Public Accountants and Consultants, detailing the limited valuation services to be provided and the availability of additional services. The agreement provided for fees based on time spent at the standard hourly rates, noting that "[o]ur current hourly rates range from $70 for administrative staff to $335 for officers. These rates are adjusted annually on June lst." It further stated that "invoices will be rendered as work progresses and are payable upon presentation" with 1% per month interest accruing on balances due over sixty days and that appellants are responsible for collection costs and counsel fees. Jurisdiction for "all issues raised" in the agreement was to be the Superior Court, Hunterdon County.

Appellants forwarded to plaintiff a $5,000 retainer as required by the agreement. Plaintiff commenced work in connection with the evaluation of the businesses in August 2005. Appellants each received detailed invoices dated September 30 ($7,867), October 31 ($1,659), and November 30, 2005 ($1,540), billing out Simonds at $350/hour and two others at $210/hour and $125/hour, respectively, totaling $11,066. On July 11, 2006, plaintiff sent appellants another detailed invoice totaling $8,478.50 based on adjusted hourly rates of $375, $230 and $140 for the same people, respectively, effective June l, 2006, and indicating a $14,953.72 balance due after crediting the retainer.

The record reflects that there was an ongoing dialogue and exchange of information between the parties and with each spouse's counsel and Simonds in which no one questioned or disputed the bills. In fact, appellants continued to request that work be performed by plaintiff. By letter of August 2, 2006, husband's attorney requested that Simonds perform an additional valuation of one of appellants' businesses as a follow-up to services reflected in the July invoice. Moreover, by letter of October 26, 2006, wife's attorney informed husband's attorney, with a copy to Simonds, that if they did not resolve the case shortly, it would be necessary for the accountant to complete her report and for appellants to complete discovery.

By letter dated December 4, 2006, counsel for husband advised plaintiff for the first time that he would not be paying the invoice. No explanation was provided. In response, plaintiff sent husband a notice pursuant to the federal Fair Debt Collection Practices Act. By letter dated January 11, 2007, husband's counsel advised plaintiff that he disputed the outstanding bill and would defend and file a countersuit if collection was pursued. Again, no explanation was provided by husband.

After unsuccessfully seeking to intervene in the matrimonial action, plaintiff filed suit for collection of its outstanding accounting fees, plus interest, counsel fees, and costs of suit. Following an arbitration hearing and appellants' application for trial de novo, the matter proceeded on cross-motions for summary judgment. Plaintiff sought a judgment in its favor and dismissal of appellants' counterclaim. Appellants sought to strike plaintiff's claim for contract damages and counsel fees.

Following oral argument, Judge Ciccone found that appellants signed a contract obligating them to pay plaintiff hourly rates of $70 for services performed by administrative staff and $335 for officers. Thus, although plaintiff was contractually entitled to fees for the services detailed in the invoices, under the express terms of the contract it was limited to the fees noted for the first year. Thereafter, however, plaintiff was entitled to annual increases. Accordingly, the court effectively reformed the invoices to reflect Simonds' hourly rate at $335 during the first year of service, increased beginning in July 2006 to $375, and extrapolated the appropriate reduced hourly rates for plaintiff's other two employees for the first year. The court further found the retainer agreement provided for interest and reimbursement of all collection costs, including attorneys' fees, costs of suit, and filing fees. The court then entered an Order for Summary Judgment dated June l7, 2008, in plaintiff's favor for a total amount of $21,491.69. This appeal ensued.

We summarily reject appellants' assertion of breach of the retainer agreement based upon plaintiff's filing of the complaint in Somerset rather than Hunterdon County as lacking sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The provision in the agreement was presumably for plaintiff's convenience based on the location of its primary office in Flemington and was of no import to appellants who resided in Somerset County and filed their underlying matrimonial action there. Moreover, Hunterdon, Somerset and Warren Counties are all part of a single vicinage (#13) in the Superior Court system.

Turning to appellants' summary judgment challenges, we are not convinced the record supports the factual disputes alleged as to the nature, quality and quantity of plaintiff's work. On the contrary, the record amply demonstrates that Simonds performed ongoing professional services that were satisfactory to the parties, and there was a reasonable explanation provided as to why she did not prepare a formal valuation report. Thus, plaintiff is entitled to be paid for the work performed, which appellants have refused to do. That the principal accountant delegated some of the duties to staff members whose hourly fees were less cannot possibly be a basis to find a breach of the agreement. Nor does plaintiff's increasing the hourly rate as of June 1, 2005, based on a mistaken belief it was entitled to do so in accordance with its retainer letter constitute a breach of contract justifying rescission. Rather, the appropriate remedy is to reform the invoices to the express terms of the hourly rate of the initial term, as was done by Judge Ciccone. As the record clearly reflects that accounting services were performed, detailed invoices were presented, and there is an outstanding fee due plaintiff, summary judgment was properly granted in plaintiff's favor.

Affirmed.

 

Plaintiff's counsel represented at argument on the summary judgment motion that Simonds had given both appellants' counsel drafts of valuation reports before the scheduled MESP; however, the accountant did not finalize any report because the parties settled their matrimonial case.

The appendix contains the complaint but not appellants' responsive pleadings.

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A-5921-07T3

June 25, 2009