ANTHONY MONTAGNA v. LAURA MORRIS (2013)

Defendant Laura Morris appeals from a judgment entered on September 26, 2011, following a bench trial in the Law Division, Special Civil Part. For the reasons that follow, we reverse.

Plaintiff's complaint, filed on January 11, 2011, asserted a claim for counsel fees and consisted of the following:

Defendant contracted with me to provide legal services to her pursuant to a retainer agreement wherein she agreed to pay me an hourly rate of $200.00 with regard to a guardianship matter.   She further agreed to pay me on a monthly basis on any balance owed.   Defendant owes me $8,540.00 and has ceased making payments.

The parties appeared pro se at trial, and they were the only witnesses to testify.   There is no indication in the transcript that plaintiff was sworn before he testified.   Plaintiff explained the professional services he provided and claimed defendant owed him $8540 for 42.7 hours of work.

When plaintiff completed his unsworn testimony, the trial judge said to defendant, “All right, now it's your turn ma‘am.”   Defendant was not advised of her right to cross-examine plaintiff, and she did not ask him any questions.

Defendant testified that plaintiff was “paid in full.”   She also asked the court to dismiss the complaint, because plaintiff failed to serve her with a pre-action notice and he failed to allege in his complaint that he had complied with the pre-action notice requirement.   See R. 1:20A–6 (“The attorney's complaint shall allege the giving of the notice required by this rule or it shall be dismissed.”).

The court denied defendant's motion and ultimately decided plaintiff was entitled to fees and costs in the total amount of $8940.   However, the court also found that defendant should receive a credit of $5500 for money she paid to plaintiff.   Accordingly, the court entered a judgment in favor of plaintiff “for attorney fees in the amount of $3,440.”

On appeal, defendant argues that plaintiff's complaint should have been dismissed because plaintiff failed to comply with the provisions of Rule 1:20A–6.   We agree.   In addition, for the sake of completeness, we note that testimonial evidence must be presented by witnesses who are under oath, N.J.R.E. 603, and subject to cross-examination.  N.J.R.E. 611.

Reversed.

PER CURIAM