NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5202-17T3
SCHWARTZ SIMON EDELSTEIN & CELSO, LLC,
Plaintiff-Respondent,
v.
CITY OF JERSEY CITY,
Defendant-Appellant. ____________________________
Submitted October 28, 2019 – Decided August 12, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4590-16.
Peter J. Baker, Corporation Counsel, attorney for appellant (Philip Samuel Adelman, Assistant Corporation Counsel, on the brief).
Respondent has not filed a brief.
PER CURIAM In this breach of contract matter, defendant City of Jersey City appeals
from a November 17, 2017 order denying its cross-motion for partial summary
judgment to dismiss plaintiff Schwartz Simon Edelstein & Celso, LLC's claims
against it, arising from defendant's non-payment of legal services rendered
pursuant to the parties' written agreement. After a dispute as to payment arose,
defendant asked plaintiff to accept $89,311.27 as full payment for its
outstanding balance of $144,278.57. Plaintiff accepted the payment but claimed
it only did so because it believed defendant would pay the outstanding balance
during the subsequent fiscal year. According to plaintiff, defendant agreed to
pay plaintiff the balance out of the contract for the following fiscal year, and
defendant had paid plaintiff in this manner in previous years. As defendant
denied any such agreement, the judge found this to be a material factual issue to
be considered at trial. We agree, and we affirm the denial of defendant's motion.
In 2006, plaintiff and defendant began a longstanding business
relationship, in which plaintiff provided legal services to defendant in
connection with various employment matters. On April 22, 2009, the parties
entered into a written legal service contract, to cover the period of July 1, 2009
through June 30, 2010 (the 2009 fiscal year). Defendant agreed to pay plaintiff
at a rate of $125 per hour, not to exceed $250,000 for the 2009 fiscal year. On
A-5202-17T3 2 February 17, 2010, defendant passed a resolution increasing this amount to
$475,000.
On May 25, 2010, defendant wrote to plaintiff, stating it had "absolutely
no money" and requesting that plaintiff "cease doing any billable work for the
time being" and "review the bills for January and March [of 2010] to see if they
can be discounted." Plaintiff claimed that defendant had continued to send work
despite the May 25 request, and because plaintiff had an ethical duty to complete
the particular matters it had been handling, it continued to bill defendant for
services rendered. Defendant wrote to plaintiff again on August 6, 2010,
informing plaintiff that defendant had received an invoice for June 2010, even
though plaintiff was not authorized to perform any billable work for defendant
at that time. However, defendant ended the letter by adding, "Let's resolve the
outstanding invoices so we can authorize a new [c]ontract for [fiscal year]
2011."
On October 1, 2010, defendant wrote to plaintiff again, informing plaintiff
it had exceeded the maximum billing amount, as it had billed defendant
$517,698.52. Defendant acknowledged its outstanding balance of $144,278.57
for the 2009 fiscal year and requested that plaintiff "accept $89,311.27 as full
payment." As it did in the August 6 letter, defendant again advised of its desire
A-5202-17T3 3 to resolve the outstanding bills so the parties could discuss a contract for the
following year.
Thereafter, defendant sent plaintiff a payment voucher for $89,311.27.
Plaintiff executed the voucher and returned it to defendant, whereupon
defendant issued two checks to plaintiff as payment. According to plaintiff,
defendant often did not adhere to the parties' payment terms and would regularly
shift unpaid fees to the next fiscal year. Therefore, plaintiff "was willing to
acknowledge full payment from the expired contract" because it expected to be
paid for the balance in the contract for the subsequent fiscal year.
On November 18, 2016, plaintiff filed a complaint against defendant,
asserting breach of contract and related equitable counts, based on defendant's
failure to pay plaintiff for certain legal services rendered. On August 21, 2017,
plaintiff filed a motion for summary judgment, and on September 19, 2017,
defendant filed a cross-motion for partial summary judgment.
On November 17, 2017, Judge Jeffrey R. Jablonski heard oral argument
and issued an oral decision, denying both motions. In addressing defendant's
motion, the judge determined there was a genuine issue of fact regarding
plaintiff's representations as to conversations with defendant about continuing
the contract, notwithstanding the terms of the parties' written agreement. With
A-5202-17T3 4 respect to plaintiff's equitable claims, the judge found they could only be
decided "in light of the factual record established as well as the credibility
determinations that have to be made in order to assess whether . . . the work that
was contracted for was actually performed and the quality of it sufficient to
permit the requested relief."
Following a bench trial on April 16 and 17, 2018, the judge issued a
written decision in plaintiff's favor. On May 16, 2018, the judge entered an
order awarding plaintiff $156,936.07 in unpaid legal fees and prejudgment
interest. On June 26, 2018, defendant satisfied the May 16 order. This appeal
ensued.
We review a decision granting summary judgment under the same
standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment
is appropriate "if 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); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The judge neither
weighs the evidence nor assesses credibility, Brill, 142 N.J. at 540; rather, he or
A-5202-17T3 5 she "must accept as true all the evidence which supports the position of the party
defending against the motion and must accord him [or her] the benefit of all
legitimate inferences which can be deduced therefrom," id. at 535 (alteration in
original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).
At the outset, we note that defendant did not provide us with transcripts
from the two-day bench trial, the judge's post-trial decision, or the invoices
forming the basis for this dispute, hindering our review of the issues presented.
Having reviewed the limited record before us, in a light most favorable to
plaintiff, we conclude that the judge properly denied defendant's motion for
partial summary judgment, as there was a genuine dispute as to whether
Free access — add to your briefcase to read the full text and ask questions with AI
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-5202-17T3
SCHWARTZ SIMON EDELSTEIN & CELSO, LLC,
Plaintiff-Respondent,
v.
CITY OF JERSEY CITY,
Defendant-Appellant. ____________________________
Submitted October 28, 2019 – Decided August 12, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4590-16.
Peter J. Baker, Corporation Counsel, attorney for appellant (Philip Samuel Adelman, Assistant Corporation Counsel, on the brief).
Respondent has not filed a brief.
PER CURIAM In this breach of contract matter, defendant City of Jersey City appeals
from a November 17, 2017 order denying its cross-motion for partial summary
judgment to dismiss plaintiff Schwartz Simon Edelstein & Celso, LLC's claims
against it, arising from defendant's non-payment of legal services rendered
pursuant to the parties' written agreement. After a dispute as to payment arose,
defendant asked plaintiff to accept $89,311.27 as full payment for its
outstanding balance of $144,278.57. Plaintiff accepted the payment but claimed
it only did so because it believed defendant would pay the outstanding balance
during the subsequent fiscal year. According to plaintiff, defendant agreed to
pay plaintiff the balance out of the contract for the following fiscal year, and
defendant had paid plaintiff in this manner in previous years. As defendant
denied any such agreement, the judge found this to be a material factual issue to
be considered at trial. We agree, and we affirm the denial of defendant's motion.
In 2006, plaintiff and defendant began a longstanding business
relationship, in which plaintiff provided legal services to defendant in
connection with various employment matters. On April 22, 2009, the parties
entered into a written legal service contract, to cover the period of July 1, 2009
through June 30, 2010 (the 2009 fiscal year). Defendant agreed to pay plaintiff
at a rate of $125 per hour, not to exceed $250,000 for the 2009 fiscal year. On
A-5202-17T3 2 February 17, 2010, defendant passed a resolution increasing this amount to
$475,000.
On May 25, 2010, defendant wrote to plaintiff, stating it had "absolutely
no money" and requesting that plaintiff "cease doing any billable work for the
time being" and "review the bills for January and March [of 2010] to see if they
can be discounted." Plaintiff claimed that defendant had continued to send work
despite the May 25 request, and because plaintiff had an ethical duty to complete
the particular matters it had been handling, it continued to bill defendant for
services rendered. Defendant wrote to plaintiff again on August 6, 2010,
informing plaintiff that defendant had received an invoice for June 2010, even
though plaintiff was not authorized to perform any billable work for defendant
at that time. However, defendant ended the letter by adding, "Let's resolve the
outstanding invoices so we can authorize a new [c]ontract for [fiscal year]
2011."
On October 1, 2010, defendant wrote to plaintiff again, informing plaintiff
it had exceeded the maximum billing amount, as it had billed defendant
$517,698.52. Defendant acknowledged its outstanding balance of $144,278.57
for the 2009 fiscal year and requested that plaintiff "accept $89,311.27 as full
payment." As it did in the August 6 letter, defendant again advised of its desire
A-5202-17T3 3 to resolve the outstanding bills so the parties could discuss a contract for the
following year.
Thereafter, defendant sent plaintiff a payment voucher for $89,311.27.
Plaintiff executed the voucher and returned it to defendant, whereupon
defendant issued two checks to plaintiff as payment. According to plaintiff,
defendant often did not adhere to the parties' payment terms and would regularly
shift unpaid fees to the next fiscal year. Therefore, plaintiff "was willing to
acknowledge full payment from the expired contract" because it expected to be
paid for the balance in the contract for the subsequent fiscal year.
On November 18, 2016, plaintiff filed a complaint against defendant,
asserting breach of contract and related equitable counts, based on defendant's
failure to pay plaintiff for certain legal services rendered. On August 21, 2017,
plaintiff filed a motion for summary judgment, and on September 19, 2017,
defendant filed a cross-motion for partial summary judgment.
On November 17, 2017, Judge Jeffrey R. Jablonski heard oral argument
and issued an oral decision, denying both motions. In addressing defendant's
motion, the judge determined there was a genuine issue of fact regarding
plaintiff's representations as to conversations with defendant about continuing
the contract, notwithstanding the terms of the parties' written agreement. With
A-5202-17T3 4 respect to plaintiff's equitable claims, the judge found they could only be
decided "in light of the factual record established as well as the credibility
determinations that have to be made in order to assess whether . . . the work that
was contracted for was actually performed and the quality of it sufficient to
permit the requested relief."
Following a bench trial on April 16 and 17, 2018, the judge issued a
written decision in plaintiff's favor. On May 16, 2018, the judge entered an
order awarding plaintiff $156,936.07 in unpaid legal fees and prejudgment
interest. On June 26, 2018, defendant satisfied the May 16 order. This appeal
ensued.
We review a decision granting summary judgment under the same
standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment
is appropriate "if 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); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The judge neither
weighs the evidence nor assesses credibility, Brill, 142 N.J. at 540; rather, he or
A-5202-17T3 5 she "must accept as true all the evidence which supports the position of the party
defending against the motion and must accord him [or her] the benefit of all
legitimate inferences which can be deduced therefrom," id. at 535 (alteration in
original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).
At the outset, we note that defendant did not provide us with transcripts
from the two-day bench trial, the judge's post-trial decision, or the invoices
forming the basis for this dispute, hindering our review of the issues presented.
Having reviewed the limited record before us, in a light most favorable to
plaintiff, we conclude that the judge properly denied defendant's motion for
partial summary judgment, as there was a genuine dispute as to whether
plaintiff's acceptance of defendant's checks constituted satisfaction of the
balance due for services rendered during the 2009 fiscal year.
Defendant argues that its offer and plaintiff's acceptance of the two checks
created an accord and satisfaction. See Loizeaux Builders Supply Co. v. Donald
B. Ludwig Co., 144 N.J. Super. 556, 564 (Law Div. 1976) ("The general rule is
that where a check bearing a notation that it is offered in full settlement of a
disputed claim is delivered to a creditor, who then retains the check and makes
use thereof, an accord and satisfaction may be found."). However, "an accord
and satisfaction requires a clear manifestation that both the debtor and the
A-5202-17T3 6 creditor intend the payment to be in full satisfaction of the entire indebtedness."
Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997)
(emphasis added). It is not clear from the record before us that plaintiff's
acceptance of the checks was intended to extinguish defendant's outstanding
balance for the 2009 fiscal year. Plaintiff certified that defendant promised to
pay the balance under the renewed contract for the following fiscal year, as it
had done in previous years. Assuming plaintiff was found credible, a fact-finder
could logically conclude that plaintiff did not accept the $89,311.27 as an accord
and satisfaction; rather, it accepted this amount as a novation, where defendant
agreed to pay the outstanding balance out of the contract for the following fiscal
year. See Wells Reit II-80 Park Plaza, LLC v. Dir., Div. of Taxation, 414 N.J.
Super. 453, 466 (App. Div. 2010) (explaining that a novation occurs when
parties to a contract agree to extinguish one contract and replace it with a new
contract). Because such a conclusion would require a determination of
credibility, summary judgment would have been inappropriate.
To the extent we have not addressed defendant's remaining arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5202-17T3 7