Opinion
DOCKET NO. A-1279-13T3
04-16-2015
GIORDANO, HALLERAN & CIESLA, P.C., Plaintiff-Respondent, v. CHARLES DIPIERRO, Defendant-Appellant.
Charles Dipierro, appellant pro se. Giordano, Halleran & Ciesla, P.C., respondent pro se (Christopher J. Marino, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4902-12. Charles Dipierro, appellant pro se. Giordano, Halleran & Ciesla, P.C., respondent pro se (Christopher J. Marino, of counsel and on the brief). PER CURIAM
Plaintiff, the law firm of Giordano, Halleran & Ciesla, P.C., filed suit against its former client, defendant Charles Dipierro, to collect $36,152.50 in fees owed to plaintiff for legal services rendered to defendant pursuant to a written retainer agreement executed by the parties at the inception of their attorney-client relationship. Approximately two months before the case was scheduled for trial, plaintiff filed a motion for summary judgment. Defendant filed a certification opposing plaintiff's motion and a cross-motion seeking leave to amend his answer to include a counterclaim alleging fraud.
After reviewing the evidence presented and considering the legal arguments relevant to the relief requested, Judge Joseph P. Quinn granted plaintiff's summary judgment motion and denied defendant's cross-motion to amend his pleading to include a counterclaim after the discovery period had ended and the case was scheduled for trial. Judge Quinn explained his ruling in a memorandum of opinion dated October 25, 2013.
In this appeal defendant argues Judge Quinn erred in granting summary judgment because there were issues of material fact in dispute. Defendant also argues Judge Quinn should have permitted him to amend his pleading to include a counterclaim against plaintiff. We disagree and affirm substantially for the reasons expressed by Judge Quinn. Because the court decided this case as a matter of law, we will recite all of the salient facts in the light most favorable to defendant, including any rational inferences that can be drawn therefrom. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On December 23, 2003, defendant and his then partner, Harold Dower, met with Michael A. Bruno, an attorney and shareholder of plaintiff, and executed a retainer agreement authorizing plaintiff to represent both defendant and Dower "in connection with the acquisition and subdivision of property located in Monroe Township, New Jersey." The retainer agreement was formatted as a letter addressed to both defendant and Dower. The introductory paragraph requested "an initial retainer of $2,000.00[.]" Both defendant and Dower signed the retainer agreement. However, defendant made clear in his certification opposing plaintiff's summary judgment motion that Dower "elected to drop out of the partnership."
The second paragraph of the first page of the retainer agreement addressed the terms of payment. The retainer agreement identified Bruno's then "billing rate" as $300 per hour and "public appearance fee" rate as $1500. Of particular relevance here, the retainer agreement did not set a cap or give an estimate of the total amount of counsel fees. The retainer agreement also described in plain language the rights of both parties to terminate the attorney/client relationship:
You may terminate your relationship with this firm at any time you wish, for any reason whatsoever. Conversely, we reserve the right to withdraw as your attorneys, but only after giving reasonable notice to you. Any such withdrawal would also be subject to
the ethical restrictions imposed upon us by the applicable Rules of Professional Conduct. You shall still be obligated for the payment of our fees for services rendered and expenses advanced by us on your behalf prior to any such termination or withdrawal.
The appellate record provided to us by defendant contains copies of monthly invoices sent by plaintiff to defendant over a nine-year period from December 31, 2003 to April 30, 2012. These 180 pages of invoices describe the legal services plaintiff performed on defendant's behalf "in connection with the acquisition and subdivision" of the Monroe Township real estate business venture. In response to requests for admissions, defendant acknowledged plaintiff "did send frequent bills."
The record shows defendant made a number of intermittent payments over the years in partial satisfaction of the debt reflected in these documents. An accounts receivable invoice dated April 30, 2012, reflects defendant paid $3487.53 in October 2006 and $25 in February 2007. According to Bruno's certification,
Defendant last made a payment on his outstanding balance on December 3, 2009.
Defendant has paid [plaintiff] a total of $54,085.21. Defendant's outstanding balance is $36,152.50 for legal services rendered through and until April 30, 2012.
Defendant was allowed to carry a large outstanding balance because Defendant represented to me in the 2008/2009 timeframe that due to the economy he did not have the money to make his bills current. I accommodated him based on the established relationship and the oral promise that Defendant would pay all of his outstanding legal bills as soon as possible. [Plaintiff] continued Defendant's representation based upon Defendant's promise to pay until [plaintiff] learned Defendant had hired new counsel to represent him and had no intention of paying the legal bills upon closing. [Plaintiff] subsequently filed this action after seeking to collect payment from Defendant.
In his response to plaintiff's requests for admissions, defendant admitted he never requested plaintiff to stop performing legal services on his behalf; he also admitted he had not paid the full amount reflected in plaintiff's invoices. In his certification submitted in opposition to plaintiff's summary judgment motion, defendant claimed "Bruno estimated that the legal fee would be $15,000.00."
Although Dower is not a party in this case, defendant claimed plaintiff "represented both Mr. Dower and I in the dissolution of the partnership." Without identifying any particular invoice, defendant asserted that "some" of the bills plaintiff sent to him were also sent to Dower. Specifically, plaintiff averred, "I don't know what bills were sent to Mr. Dower for his legal fees, but I know that some were included on my bill." Finally, defendant claims that "[a]fter Mr. Dower was no longer involved in the subdivision of the property, the plaintiff continued to send bills addressed to Mr. Dower and myself to Mr. Dower's home address."
Defendant maintained before Judge Quinn that this case was not ripe for summary judgment because the $90,237.71 plaintiff charged him for legal services over this nine-year period exceeded the $15,000 estimate Bruno allegedly indicated to him at the inception of their attorney/client relationship. Defendant characterized this discrepancy as akin to "fraud" by plaintiff.
Judge Quinn rejected defendant's argument:
Defendant's sole argument in opposition to [plaintiff]'s motion for summary judgment is that he believes the amounts charged by [plaintiff] were fraudulent. However, [defendant] has offered no evidence in support of this allegation other than Mr. Bruno's [purported] estimate of $15,000.00 prior to [plaintiff]'s engagement. Defendant's argument that some of his legal bills were not sent to him is meritless. Defendant was clearly aware of the amounts he [owed] as he continued to pay them up until December 2009. Defendant's argument that he should be able to cross-examine Mr. Bruno in court is likewise meritless. Defendant has failed to put forth any evidence regarding the propriety or necessity of the work done by [plaintiff]. Defendant has failed to depose any witnesses and failed to obtain expert reports. Nothing in the record or submitted by Defendant's motion papers preclude this
[c]ourt from granting [plaintiff]'s motion for summary judgment.
Judge Quinn also gave the following explanation for his decision to deny defendant's motion to amend his answer to assert a counterclaim against plaintiff at this juncture of the case:
In this case, nine years have passed since [plaintiff]'s legal fees have exceeded the $15,000.00 estimate alleged by Defendant. It has also been over a year since the inception of [plaintiff]'s collection action against Defendant. The [c]ourt finds that Defendant should not be permitted to amend his answer and assert a new counter claim that has been known to him for some time, especially on the eve of trial. Defendant has offered no explanation for the delayed amendment other than he lost the arbitration because his answer did not contain any fraud allegations and that he believed he would simply come to court and tell his side of the story.
In reviewing a trial court's grant of summary judgment, we apply the same standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In making this determination, the judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Brill, supra, 142 N.J. at 540). Applying this standard to the material facts of this, we agree with and adopt Judge Quinn's analysis and ultimate decision to grant plaintiff's summary judgement motion. Defendant's allegation that Bruno estimated the legal fees associated with this real estate venture would not exceed $15,000 is both untimely and would not have affected plaintiff's claim to recover the fees it charged over nine years.
We next address Judge Quinn's decision to deny defendant's motion to amend his answer to include a counterclaim against plaintiff. Rule 4:9-1 provides:
A party may amend any pleading as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is to be served, and the action has not been placed upon the trial calendar, at any time within 90 days after it is served. Thereafter a party may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice. A motion for leave to amend shall have annexed thereto a copy of the proposed amended pleading. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders.
The Supreme Court has "made clear that 'Rule 4:9-1 requires that motions for leave to amend be granted liberally' and that 'the granting of a motion to file an amended complaint always rests in the court's sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998)). We must determine whether, in denying defendant's motion, Judge Quinn properly exercised his discretionary authority and gave due consideration to the liberal standards established by the Supreme Court. This exercise of discretion "requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Ibid.
Given the record before us, we conclude Judge Quinn correctly denied defendant's motion. Allowing defendant to assert this counterclaim two months before the scheduled trial date and after the end of the relevant discovery period would have prejudiced plaintiff's ability to mount a meaningful defense. Addressing the second prong under Notte, the record shows defendant's counterclaim grounded in common law fraud was not supported by competent evidence. Thus, defendant's efforts to prosecute such a claim would have been futile.
We affirm substantially for the reasons expressed by Judge Quinn in his memorandum of opinion dated October 25, 2013.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION