PASHMAN STEIN WALDER HAYDEN, P.C. v. JACQUELINE CHASSMAN (L-2847-19, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1417-20

PASHMAN STEIN WALDER
HAYDEN, P.C.,

Plaintiff-Respondent,

v.

JACQUELINE CHASSMAN,

Defendant-Appellant.

Argued January 25, 2022 – Decided March 9, 2022

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2847-19.

Jacqueline Chassman, appellant, argued the cause pro
se.

Bruce J. Ackerman argued the cause for respondent
(Pashman Stein Walder Hayden, PC, attorneys; Bruce
J. Ackerman, on the brief).

PER CURIAM
 Defendant appeals from the trial court's January 14, 2021 order granting

summary judgment to plaintiff on its claim for unpaid legal fees. We affirm.

Defendant represented herself in an underlying matter she filed against

her condominium association. After the court granted summary judgment to the

defendants in the underlying case, defendant contacted plaintiff to represent her

in the appeal.

Bruce Ackerman, a partner with plaintiff, emailed defendant regarding the

representation. The email stated, in pertinent part:

The meeting and review would require an initial
payment of $2,500 at our meeting, which would be
applied towards your appeal retainer of $15,000. So
that there is no misunderstanding, the appeal retainer is
not a flat fee but an initial payment, and the appeal may
cost far more depending on how it goes. I can explain
more when we meet.

Defendant met with Ackerman in December 2016 and signed a retainer

agreement. The agreement was accompanied by an engagement letter intended

to "confirm the terms of [plaintiff's] engagement and . . . billing arrangements

. . . ." The letter indicated Ackerman's $475 hourly rate was "subject to

adjustment by the firm from time to time," and it was not plaintiff 's "practice to

notify clients of such changes other than through monthly billings." It further

indicated plaintiff would "bill for out-of-pocket disbursements and certain other

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expenses and service charges," and would require "clients to pay substantial

disbursements in advance or to pay them directly to outside vendors." The

engagement letter also stated that plaintiff "expect[ed] to bill on a monthly

basis", "[a]ll bills are payable upon receipt[,] and payment is not contingent

upon the outcome of a matter." Finally, the letter informed defendant that

plaintiff "would seek to consult [defendant] in advance before undertaking any

major new task in [its] representation, and to keep [defendant] informed where

our fees, disbursements and other charges stand on an ongoing basis."

In addressing the retainer agreement, the engagement letter specified

plaintiff was "requiring a retainer of $15,000.00 at the present time" and

expected to "expend approximately $2,500 of that amount to review the file and

determine the nature of the issues that can be appealed, if at all." Moreover,

"based upon that review," plaintiff could "determine that [it] cannot proceed in

the matter depending upon the status and issues ruled upon, or that the nature of

the work anticipated is much more than originally planned, in which event

[defendant] will be required to pay an additional amount to be mutually agreed

upon . . . ." If no agreement could be reached, plaintiff would "terminate [its]

representation . . . and refund to [defendant] the remaining balance of the initial

retainer . . . ." Plaintiff further reserved the right to "require the replenishment

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of the retainer, and [defendant agreed] to replenish the retainer when it falls

below $2,500." And the "retainer requirement may increase from time to time

as the level of service needs changes."

Prior to receiving plaintiff's first invoice, defendant emailed Ackerman in

January 2017, requesting an estimate for "the entire cost" of the appeal.

Ackerman responded: "I cannot yet tell you what the whole appeal will cost, but

I expect it to exceed the retainer somewhat. How much is 'somewhat' I cannot

yet determine." Defendant replied that she was "limited to the $15,000" and

would "have to let go" unless plaintiff agreed to charge no more than that

amount. Ackerman responded, reminding defendant he had "told [her] from the

start that [he] could not cap the cost in any way" and that while he did not expect

the total cost to "exceed the retainer by 'a lot'," it would "likely exceed it" once

he wrote a reply brief and argued the case. The email exchange then ended with

defendant stating: "Yes, . . . please continue with the appeal and do your best."

Plaintiff sent defendant a detailed invoice each month until defendant

stopped making payments in August 2017. In December 2017, Ackerman

emailed defendant to "remind [her] to please restart monthly payments towards

[her] legal fee arrears." Defendant responded that she was "unable to make an

additional payment at this time." She asserted that although Akerman informed

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her the cost of the appeal would "be somewhat over the initial payment of

$15,000.00", the actual amount charged—approximately $21,000—"came as a

seriously painful surprise . . . ." Defendant stated that "[o]nce the appeal is

concluded," she would "resume scheduled payments."

The case was scheduled for oral argument before this court on May 1,

2018. As of April 2018, defendant had an unpaid balance of $14,757.44.

Accordingly, on April 3, Ackerman emailed defendant and asked her to "please

show some good faith" by making even a "small monthly payment[] . . . ."

Defendant responded, asserting she had been misled as to the cost of the appeal

and was "unable to make payments at this time." The next day, Ackerman

replied, disputing defendant's assertion that she was misled; he also advised

defendant that unless she was willing to "commit now to some payment either

weekly or monthly," plaintiff could not "represent [her] any longer" in the appeal

and the firm would have to initiate collection proceedings. Ackerman sent

defendant another email a few days later, advising he "strongly recommend[ed]"

defendant not argue the appeal herself but stating that "[u]ltimately, that is your

decision if you wish to argue the case."

The following day, defendant emailed Ackerman and informed him she

had "determined that it is best for [him] to present the oral arguments." She also

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requested that he "reduce the $475.00 hourly fee and not charge" for the time he

spent addressing certain procedural errors in the opposing party's brief.

Ackerman responded later that day and indicated he was "agreeable" to a ten

percent discount, but only if defendant made a commitment to "make partial

payments on a regular basis towards [her] balance due."

In her reply, defendant requested an estimate of the time Ackerman would

require preparing for and attending oral argument. He estimated he would

require three to five hours "to prepare for oral argument, [two] hours at the court,

. . . and around [three] hours driving round trip." He also explained in a

subsequent email that he only charged driving time "one way."

On April 11, defendant replied and stated: "I agree to the charges and time

as provided in this chain of emails regarding oral arguments . . . . I will make

monthly payments." After Ackerman asked defendant to "provide an amount

and date when" she would begin to pay each month, she clarified that she would

make a payment of $100 on April 18 and "monthly payments of $75.00 by the

21st of each following month."

Defendant paid plaintiff $100 on April 18. In the invoice issued following

oral argument, plaintiff charged defendant $4845—reduced to $4095—more

than the agreed-upon discount. Defendant made a payment of $75 on May 31.

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 On June 7, 2018, this court issued its opinion in the underlying matter,

affirming the grant of summary judgment to defendant's adversary. Chassman

v. Longview at Montville Condo. Ass'n, Inc./Bd. of Trs., No. A-1660-16 (App.

Div. June 7, 2018) (slip op. at 1). Thereafter, defendant made only two more

payments—$50 each in September and November 2018.

For the first time, defendant also began expressing dissatisfaction with

plaintiff's representation of her in the appeal. For instance, on January 6, 2019,

defendant emailed Ackerman, stating she believed that the "oral argument [he]

presented in court was very weak and [did] not reflect the amount of time

recorded on the bill." In an email sent a few days later, defendant told Ackerman

she thought "$21,375.00 covers the time and work you spent on the briefs related

to the appeal" and she did not intend to pay anything more.

Plaintiff filed a collection action against defendant for the unpaid legal

fees. Plaintiff sought a total of $18,677.44—$14,682.44 for unpaid fees accrued

before April 2018 and $3,995.00 for fees after that date. At the close of

discovery, plaintiff moved for summary judgment.

The trial court granted plaintiff's motion in a written opinion and order on

January 14, 2021. The court found there were "no genuine issues of material

fact", plaintiff had "established an agreement to pay the balance owed . . . , and

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the monthly statements constitute[d] a book account and an account stated." The

judge noted that defendant's arguments in opposition to the motion "relate[d]

solely to the value of the time and effort made on her behalf." And that

defendant had not contested the invoices in which "the services rendered were

detailed at length" until she "determined not to pay any longer . . . using bald

contentions."

Therefore, the court found that because the "April 2018 agreement is clear,

and leaves no doubt as to what the parties agreed to at that time", once defendant

defaulted under it, "[p]laintiff became entitled to judgment on [the] account

balance, and . . . summary judgment is fully warranted."

Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,

529 (2019) (citation omitted). We consider "whether the competent evidential

materials presented, when viewed in the light most favorable to the non-moving

party in consideration of the applicable evidentiary standard, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523

(1995).

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 "If there is no genuine issue of material fact, [this court] must then 'decide

whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)

(citations omitted). We review issues of law de novo and accord no deference

to the trial judge's conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Defendant contends on appeal that the trial court erred in granting

summary judgment because disputed issues of material fact existed regarding

the reasonableness of the time Ackerman expended during her appeal, the

effectiveness of the rendered services, and plaintiff's compliance with the ethical

requirements for lawyer-client contracts. For example, she notes that Ackerman

billed 7.4 hours of "prep time" for oral argument, his argument before this court

was "contrary to the premise of the appeal" and did not "incorporate any of

[defendant]'s suggestions." She further asserts that the December 2016 retainer

agreement clearly specified that she would not be charged "a lot" more than

$15,000, and that plaintiff unethically "compelled" her to agree to the payment

schedule outlined in the April 2018 email thread, violating her trust.

"It is well-established that '[a] lawyer is required to maintain the highest

professional and ethical standards in his dealings with his clients.'" In re Humen,

123 N.J. 289, 299-300 (1991) (quoting In re Gavel, 22 N.J. 248, 262 (1956)).

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Given the "unique and special relationship between an attorney and a client,

ordinary contract principles governing agreements between parties must give

way to the higher ethical and professional standards enunciated by our Supreme

Court." Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.

Super. 510, 529 (App. Div. 2009) (internal quotation marks and citation

omitted).

"Attorneys and clients can agree to fee arrangements of their choice,

provided they do not violate the Rules of Professional Conduct." Balducci v.

Cige, 240 N.J. 574, 597 (2020). "The paramount principle guiding every fee

arrangement is that '[a] lawyer's fee shall be reasonable.'" Id. at 592 (alteration

in original) (quoting RPC 1.5(a)). "The most conventional fee agreement is for

a client to pay an attorney on an hourly basis." Id. at 597.

Under RPC 1.5, lawyers have a duty to "present a client the attorney has

not regularly represented, in writing, at the time of the retention, all of the fees

and costs for which the client will be charged, as well as the terms and conditions

upon which the fees and costs will be imposed." Alpert, 410 N.J. Super. at 532.

"The client will then be able to make an informed decision as to whether he or

she desires to retain the attorney, and the chances for misunderstanding and

fraud will be greatly diminished." Ibid.

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 "Agreements between attorneys and clients concerning the client-lawyer

relationship generally are enforceable, provided the agreements satisfy both the

general requirements for contracts and the special requirements of professional

ethics." Cohen v. Radio-Elecs. Officers Union, Dist. 3, NMEBA, 146 N.J. 140,

155 (1996). When a fee dispute arises, courts "ordinarily defer to the parties '

agreement and the fee charged thereunder if it appears that they meet a prima

facie test of fairness and reasonableness." Alpert, 410 N.J. Super. at 538. "If

that test is met and the client utterly fails to come forward with anything of

substance to rebut the prima facie showing and no expert is produced to

challenge the invoice as unreasonable, the court appropriately should enforce

the agreement." Ibid.

Here, defendant signed a written retainer agreement after meeting with

Ackerman in December 2016. Defendant has presented no evidence

demonstrating the agreement failed to meet the standards governing attorney -

client contracts. The agreement specified Ackerman's hourly rate and explained

he would bill hourly. It also indicated defendant would be billed for "out-of-

pocket disbursements and certain other expenses and service charges," and

clarified payment was "not contingent upon the outcome of a matter." The

agreement required an initial $15,000 retainer and, based on plaintiff's review

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of the case, defendant could be "required to pay an additional amount . . . ." This

figure reflected what Ackerman told defendant during their email

correspondence; he quoted her the $15,000 figure and advised it was "not a flat

fee but an initial payment, and the appeal may cost far more depending on how

it goes."

Moreover, when defendant—prior to receiving her first invoice—asked

Ackerman to estimate "the entire cost" of her appeal, he provided greater clarity.

He advised: "I expect it to exceed the retainer somewhat. How much is

'somewhat' I cannot yet determine." He further stated that while he did not

expect to "exceed the retainer by 'a lot'," he would "likely exceed it" once he

wrote a reply brief and argued the case. Defendant encouraged him to "please

continue with the appeal and do your best." Thereafter, plaintiff sent defendant

monthly invoices with detailed descriptions of services rendered and the

amounts charged.

Accordingly, the retainer agreement and defendant's promise to pay in

accordance with its terms were valid. Plaintiff complied with its obligations

under the Rules of Professional Conduct by providing defendant all the

information she needed to make an informed decision. Alpert, 410 N.J. Super.

at 532.

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 The parties' April 2018 agreement to settle defendant's outstanding

balance under the retainer agreement is similarly enforceable. Through a series

of emails, Ackerman agreed to offer a ten percent discount going forward in

exchange for defendant's commitment to monthly payments of $75.00.

Defendant did not contest the amount owed, the reasonableness of the fees, or

the adequacy of Ackerman's representation. The terms in the April 2018

agreement are unambiguous and thus enforceable. See Schor v. FMS Fin. Corp.,

357 N.J. Super. 185, 191 (App. Div. 2002) ("where the terms of a contract are

clear and unambiguous there is no room for interpretation or construction and

the courts must enforce those terms as written.").

In granting plaintiff summary judgment, the trial court correctly held that

plaintiff was entitled to recover under theories of "book account and an account

stated." Under either theory, account records constitute prima facie evidence as

to the account stated. Sears, Roebuck & Co. v. Merla, 142 N.J. Super. 205, 208

(App. Div. 1976). And if the opposing party fails to offer anything in rebuttal

beyond bald contentions to dispute the records, the evidence can be sufficient

for an award of summary judgment. Gruhin & Gruhin, P.A. v. Brown, 338 N.J.

Super. 276, 280-81 (App. Div. 2001).

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 Here, defendant unambiguously agreed in April 2018 to make monthly

$75 payments towards her outstanding balance in exchange for plaintiff

providing a ten percent discount on future charges. Defendant did not contest

owing plaintiff $14,857.44, as set forth in the invoices. And it was only after

this court denied her appeal that defendant began to express dissatisfaction with

plaintiff's services.

Defendant now raises arguments regarding the reasonableness of

plaintiff's billing and the effectiveness of its representation. However,

defendant requires expert testimony to opine as to the competency of the

representation. See Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer and

Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1 (App. Div. 2001), abrogated on

other grounds by Segal v. Lynch, 211 N.J. 230, 261-62 (2012). Without such

testimony and any evidence countering the reasonableness of the bills, defendant

cannot sustain her claims or rebut the prima facie showing of an enforceable

agreement. Alpert, 410 N.J. Super. at 538-39. We, therefore, affirm the trial

court's order granting plaintiff summary judgment.

Affirmed.

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