Lewis v. Neptune Society Corp.

Opinion

ELKINGTON, Acting P. J.

This is an appeal from a judgment in favor of respondent Anne Lewis (assignee of the law firm of Goldberg, Stinnett & Macdonald) for $26,172.08 due as legal fees from appellant, The Neptune Society Corporation (hereafter Neptune). We affirm.

Respondent’s assignor served as attorney for Neptune in a bankruptcy matter beginning in 1983. Prior to rendering legal services, Attorney Dennis Davis met with Mannie Weintraub and Charles Denning, of Neptune, and orally agreed on monthly billing and payment of fees. Neptune paid $10,000 in October 1983 and $5,000 in April 1984. The amount billed in the final invoice of June 1984 was not paid. Davis’s first meeting with Neptune officials was with Weintraub and Denning, but all subsequent conversations regarding fees were with Weintraub only.

The matter was set for a half-day trial on January 28, 1985. On the day of trial, counsel for Neptune appeared and requested a one-month continuance of the trial date due to Charles Denning’s inability to attend the trial. At that time, counsel served a declaration by Denning which stated that he had undergone surgery for skin cancer in November 1984, which affected his ability to appear as a witness. Denning’s declaration also stated that he had

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been a witness in another matter between October 1984 and January 1985 and that he was physically and mentally unable to testify as a result of the prior trial. Denning’s declaration stated that his attorney advised him that his testimony was necessary on the issue of credibility.

The presiding judge denied the motion for continuance and assigned the case for trial that afternoon. Appellant renewed the motion for continuance requesting one or two days to obtain the presence of Weintraub. Counsel admitted he had instructed Weintraub not to appear because a continuance was certain, and that Denning’s testimony was merely corroborative.

The request was again denied. The matter proceeded to trial on the testimony of Attorney Davis. Neptune disputed only the time of payment, not the amount due. On February 28, 1985, the court filed its judgment for respondent, finding that Neptune breached the contract to pay for legal services.