AMERICAN ESTATES WINES, INC. v. THE NEW ZEALAND WINE FUND LIMITED LOMURRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4915-08T34915-08T3

AMERICAN ESTATES WINES, INC.,

a Pennsylvania Corporation,

Plaintiff-Respondent/

Cross-Appellant,

v.

THE NEW ZEALAND WINE FUND LIMITED,

Defendant.

________________________________________

LOMURRO, DAVISON, EASTMAN & MUNOZ, P.A.,

Appellant/Cross-Respondent.

_________________________________________

 

Argued December 15, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3372-06.

James M. McGovern, Jr., argued the cause for pro se appellant/cross-respondent Lomurro, Davison, Eastman & Munoz, P.A.; (Jaime R. Ackerman, of counsel and on the brief).

Donna Ross (The Ross Law Firm) of the New York bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Law Offices of David C. Bendush, and Ms. Ross, attorneys; David C. Bendush, on the brief).

PER CURIAM

Lomurro, Davison, Eastman & Munoz, P.A., (the law firm) appeals from the April 30, 2009 order that granted plaintiff American Estates Wines, Inc.'s, motion to enforce litigant's rights, compelling the law firm to pay certain expenses pertaining to plaintiff's depositions of defendant New Zealand Wine Fund Ltd.'s witnesses in New Zealand. Plaintiff cross-appeals from that part of the order denying its request for an award of counsel fees and costs on the motion. We reverse the appeal, affirm the cross-appeal, and remand for further proceedings consistent with this opinion.

The law firm represented defendant in the underlying commercial action. On April 11, 2008, the trial court entered an order granting plaintiff's motion to take the de bene esse depositions of defendant's witnesses in New Zealand. The order directed that the law firm could appear via videoconferencing equipment, rather than having to travel to New Zealand. The order also directed that plaintiff's counsel could take the depositions by way of videoconferencing equipment if she so chose. Lastly, the order directed that each party bear its own costs with respect to the depositions.

Plaintiff's counsel proceeded to take the depositions in person. The law firm chose to attend the deposition by way of videoconferencing from its office in Freehold. Following the completion of the depositions in August 2008, the parties settled the action on September 24, 2008. The settlement agreement provided in relevant part that "[e]ach party shall bear its own costs and expenses in connection with this matter, including legal fees and expenses." On September 30, 2008, defendant paid the proceeds of the settlement.

On January 20, 2009, plaintiff filed a motion to enforce litigant's rights seeking to compel defendant "to pay its share of the expenses related to the New Zealand depositions" pursuant to the April 11, 2008 order. Plaintiff agreed to pay for the videography, that is, for the videotaping of the depositions, and for the sound recording of the depositions by the videographer via the eight-track FTR technology, which enables one to create a transcript from a digital recording. Plaintiff sought to compel defendant to pay for the costs of the videoconferencing requested by the law firm, rather than attend the deposition in person; the costs for use of the New Zealand videoconference room, because plaintiff could have conducted the depositions at her hotel rather than at an off-site office to accommodate the videoconferencing of the depositions; and for the costs for a duplicate set of transcripts.

The law firm opposed the motion, contending that: 1) service of the motion on the law firm's office was defective as the law firm had been discharged by defendant as its counsel after settlement, and the case had settled three and one-half months before plaintiff filed the motion; and 2) notwithstanding the April 2008 order, plaintiff, through its counsel, had verbally agreed to bear all costs of the depositions, except for any excess fees charged by the court reporter for night or weekend services. The law firm asserted that defendant had paid its portion of the court reporter's invoices.

The trial court directed the law firm to appear on the return date of the motion. The court determined that the law firm was still the attorney of record, not having filed a motion to be relieved of counsel, and ruled that the parties were bound by the April 2008 order. The court directed defendant to pay the deposition costs, "whether they pay it through their attorneys or themselves, I don't care." Following oral argument on the motion, plaintiff's counsel submitted a form of order, together with a certification of services in support of plaintiff's application for counsel fees and expenses on the motion in the amount of $3,010.50.

On April 30, 2009, over objection of the law firm, the court entered the order directing that the law firm: 1) comply with the court's prior order of April 11, 2008; 2) pay the invoice from Tranzscript in the amount of $5,965 NZ dollars "for defendant's costs and expenses in connection with the depositions conducted in Auckland, New Zealand, in August 2008"; 3) pay $4,227 to DepoLink for all charges that plaintiff paid to Veritext for duplicate transcripts; and 4) pay DepoLink for all excess rate and hourly charges on five of DepoLink's invoices. The order also denied plaintiff's application for counsel fees and costs. It is from this order that the law firm appeals and plaintiff cross-appeals.

We conclude that the trial court erred in entering the order compelling the law firm to pay the expenses of the depositions. The April 2008 order directed defendant to bear those expenses. Plaintiff's motion only sought to compel defendant to pay the expenses. In ruling on the motion, the court directed defendant to pay the deposition expenses, "whether they pay it through their attorneys or themselves, I don't care." However, for unknown reasons, the court altered the relief requested by plaintiff and entered an order directing the law firm, not defendant, to pay the expenses.

Plaintiff argues that the court's order compelling the law firm to pay the deposition expenses is consistent with the principle that "[i]n the ordinary course, it is the attorney who arranges for the deposition, and not his client who is primarily liable to the reporter for his fees." (quoting Pressler, Current N.J. Court Rules, comment 3.1 on R. 4:42-8 (2010)). Although we agree with the general principle cited, we disagree that it is applicable to this matter.

Rule 4:42-8 authorizes the Court Clerk to tax certain costs of suit against a party. The comment referenced by plaintiff qualified the holdings in cases that reaffirmed "the rule that deposition costs are ordinarily not allowable as part of taxed costs." Ibid. Moreover, the phrase extrapolated by plaintiff from the court rule's comments cites Roberts, Walsh & Co. v. Trugman, 109 N.J. Super. 594 (Dist. Ct. 1970), a case distinguishable from the present matter.

In Roberts, a court reporter sued an attorney who had requested the court reporter's services in taking depositions in a matrimonial action. Id. at 596. The attorney cross-claimed against the parties in the matrimonial proceeding. Ibid. The court held that the attorney was responsible for the payment of the deposition fees in the first instance, having requested the court reporter's services, and the court reporter having extended credit to the attorney for his or her services. Id. at 597-99. The court also determined that the attorney's client in the matrimonial action was obligated to indemnify the attorney for the costs of the depositions. Id. at 599.

Here, unlike Roberts, it is plaintiff who seeks to compel payment of deposition expenses that it incurred pursuant to the court's order of April 8, 2008. This is not a separate action brought by the court reporter or another third party who rendered services in taking the New Zealand depositions. Each party's obligation to bear those expenses was determined under the April 8, 2008 order. Accordingly, defendant, not its attorneys, is obligated to pay its share of the expenses.

We now address plaintiff's cross-appeal wherein it argues that the trial court erred in denying its application for counsel fees and costs on the motion to enforce litigant's rights. We decline to interfere with the trial court's decision on the application. The award of counsel fees and costs on a motion to enforce litigant's rights lies within the discretion of the trial court. R. 1:10-3. Under these facts, we find no abuse of discretion in the trial court's denial of plaintiff's application.

 
We reverse on the appeal, and remand for the trial court to enter an amended order compelling defendant to pay the deposition expenses. We affirm on the cross-appeal.

It appears that plaintiff had transcripts produced from the FTR technologically, and the court reporter, who had attended the depositions at the law firm's office in Freehold, also prepared a set of transcripts.

Plaintiff also argues that the law firm directly contributed to plaintiff incurring increased costs of the depositions by failing to instruct DepoLink not to prepare a duplicate set of the deposition transcripts, having already received a copy from plaintiff's counsel. Plaintiff contends that since it may not be able to recover the deposition costs from the defendant, "it would be unjust for [p]laintiff to be held responsible for the payment of two invoices sent by two different companies for the same transcripts, due to [d]efendant's improper action." We do not address whether plaintiff has a viable cause of action against the law firm for expenses incurred by plaintiff based upon the law firm's alleged failure to take appropriate action to prevent plaintiff from incurring duplicate transcript costs.

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A-4915-08T3

January 25, 2010