KERN AUGUSTINE CONROY AND SCHOPPMANN, P.C v. E. BRUCE DIDONATO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6290-10T2

KERN AUGUSTINE CONROY

AND SCHOPPMANN, P.C.,

Plaintiff-Respondent,

v.

E. BRUCE DIDONATO,

Defendant-Appellant.

_______________________________________

April 11, 2012

Submitted March 26, 2012 - Decided

Before Judges A. A. Rodr guez, Sabatino and

Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No. L-

3894-02.

Law Offices of Glenn R. Cochran, L.L.C.,

attorney for appellant (Mr. Cochran, on

the brief).

Kern Augustine Conroy & Schoppmann, P.C.,

attorneys for respondent (Michael J.

Schoppmann, of counsel; R. Bruce Crelin,

on the brief).

PER CURIAM

Defendant E. Bruce DiDonato appeals from the judgment of the Law Division following a bench trial awarding $305,058.16 to plaintiff Kern, Augustine, Conroy and Schoppmann, P.C., for fees owed, collection costs, and prejudgment interest. We affirm.

Plaintiff law firm filed its complaint in December 2002 alleging that it began representing defendant two years earlier in a matter involving property defendant owned in Lawrenceville, that plaintiff and defendant entered into a written retainer agreement for the purpose of that so-called "easement litigation" against Mercer County, and that plaintiff successfully and satisfactorily provided legal services to defendant until December 2002, at which time defendant retained the services of another attorney and plaintiff was permitted to withdraw as counsel of record. Plaintiff alleged that defendant failed to pay all the fees and charges he owed in accordance with the terms of the retainer agreement and that a balance of more than $140,000 was still due. Defendant filed an answer denying that he owed the amounts charged by plaintiff and a counterclaim alleging breach of contract and fraud by plaintiff.

The procedural history of the case is long and need not be detailed in this opinion. Briefly, Judge Shuster initially held in abeyance the fee dispute pending resolution of the underlying easement litigation because both parties expected that legal fees would be reimbursable by Mercer County if defendant succeeded in that litigation. Defendant eventually settled the easement litigation and recovered legal fees from Mercer County, but the amount of that recovery has not been disclosed because the settlement apparently had a confidentiality clause.1

Judge Shuster then referred the fee dispute for mediation, but mediation did not resolve the matter. When the case returned, Judge Shuster made certain pretrial rulings as to the viability of plaintiff's claims. Among other rulings not relevant to this appeal, the judge ruled that the contractual interest rate of the retainer agreement, two percent per month, was not enforceable and instead a commercially reasonable rate would be applied to any sum awarded to plaintiff for fees owed. He also ruled that plaintiff was entitled under the retainer agreement to its collection costs in filing suit to recover the underlying charges for the easement litigation.

After Judge Shuster retired, the case went to trial before Judge Sypek in April 2009. Judge Sypek heard two days of testimony, but then the trial was delayed for more than a year because of medical reasons and the unavailability of the court and the parties. Judge Sypek also retired before the trial could resume, and Judge Jacobson took over the case.

Judge Jacobson reviewed the transcripts of the testimony already presented and then heard four additional days of testimony from July through October 2010. On July 29, 2011, Judge Jacobson issued a comprehensive, thirty-nine page opinion in which she made findings of fact from the testimony and the documentary evidence and addressed numerous issues, including the issues defendant raises now on appeal.

Judge Jacobson carefully considered and made specific determinations concerning defendant's contentions that certain fees charged by plaintiff were overstated, including charges for travel time. The judge concluded that plaintiff was entitled under the parties' contract to a remaining balance due of $105,777.25 for its representation of defendant in the easement litigation.

The judge also reviewed plaintiff's timesheets and claims with respect to the so-called "collection action" and awarded $102,137.79 in fees and costs for plaintiff's expenses in bringing suit to recover the balance due on its fees.

Finally, in determining a commercially reasonable rate for prejudgment interest, the judge considered the State's "usury" limit under N.J.S.A. 31:1-1a and concluded that an interest rate of sixteen percent would apply for the time period from October 2006 to the date of judgment, that is, the time after defendant had recovered at least some of his attorney's fees in settlement with Mercer County. The judge noted that defendant had not presented any expert evidence regarding a commercially reasonable rate of interest and the retainer agreement contemplated the highest interest rate permitted by law up to the contractual rate. Applying equitable principles, the judge concluded that defendant was not to blame for delays in payment of fees before he recovered fees from Mercer County, and so, she calculated prejudgment interest from the time of the complaint in December 2002 until October 2006 at the lower rates provided by Rule 4:42-11(b). The calculations resulted in an award of $97,142.12 in prejudgment interest.

The total of the three items of compensatory damages was awarded as judgment in favor of plaintiff.

On appeal, defendant does not dispute that he failed to pay all the fees he was obligated to pay for the easement litigation, or that the retainer agreement entitled plaintiff to reasonable collection costs and prejudgment interest. At the beginning of the trial, the parties disputed about $70,000 of the total of plaintiff's claims. Defendant contested at trial and continues to contest on appeal numerous specific charges shown in plaintiff's timesheets and billing statements. He disagrees with the trial court's findings as to the reasonableness of the fees awarded. He also contends that the court erred in accepting New Jersey's usury limit as a commercially reasonable prejudgment interest rate. He seeks instead prejudgment interest at the lower rates permitted under Rule 4:42-11(b) or at the rate banks charged for deposits during the relevant time period.

Having reviewed the record and briefs, we conclude that defendant's arguments on appeal are without sufficient merit to warrant discussion in another written opinion. R. 2:11-3(e)(1)(A), (E). Judge Jacobson's opinion thoroughly and reasonably addressed all arguments and points raised by defendant at trial and re-argued before us. Her findings of fact are amply supported by the evidentiary record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and we find no legal error or abuse of discretion in any of the rulings and conclusions that she reached from the evidence. The judge's opinion covered in detail all of defendant's points of argument and granted an award for the underlying easement litigation fees that was less than plaintiff had claimed, although not the total reduction defendant was seeking.

We also find no error in the court's applying an interest rate greater than the court rate provided by Rule 4:42-11(b) for a portion of the overall time period before judgment was entered. The parties had agreed in their contract to the highest interest rate permitted by law, and defendant presented no competent evidence that a lower rate should be applied. Nevertheless, defendant received the benefit of a lower interest rate for the time period while the easement litigation was pending.

We affirm the Law Division's judgment in all respects for the reasons stated in the well-reasoned opinion of Judge Mary Jacobson issued on July 29, 2011.

Affirmed.

1 No issue has been presented in this appeal as to whether the court was bound to honor a confidentiality term of the settlement in the easement litigation. Cf. Asbury Park Press v. Cnty. of Monmouth, 201 N.J. 5, 6-7 (2010) (government entity's settlement in civil lawsuit was subject to disclosure under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13).