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Cesar v. John A. Macconi Jr. LLC

Court of Common Pleas of Delaware, New Castle

October 9, 2017

UBALDO CESAR, Plaintiff-Below/Appellant,
JOHN A. MACCONI JR. LLC, Defendant-Below/Appellees.

          Submitted: August 30, 2017

          Ubaldo Cesar Plaintiff, Pro Se

          John A. Macconi, Jr., Esquire John A. Macconi, Jr., LLC Attorney for Defendant


          ALEX J. SMALLS, C.J.

         Plaintiff-Below/Appellant Ubaldo Cesar ("Plaintiff, " "Cesar") brings this appeal pursuant to 10 Del. C. §9571 and Court of Common Pleas Rule 72.3, from a decision by the Justice of the Peace Court ("JP") order of February 11, 2016 granting Defendant-Below/Appellee John A. Macconi Jr. LLC ("Defendant, " "Macconi") Motion to Dismiss. The JP Court held that the issues involved in this case did not fall within that Court's limited jurisdiction because the issues involve a dispute between former attorney and former client.

         On February 25, 2016, Plaintiff filed a Complaint in this Court alleging that Defendant failed to return Plaintiffs money after properly withdrawing from legal representation. Plaintiff alleges that the parties entered into an agreement where Defendant would represent Plaintiff in a civil matter for a flat fee of $5, 000.00. Plaintiff avers that he paid Defendant $3, 200.00 of the agreed $5, 000.00 price prior to the time of Defendant's withdraw. Plaintiff claims Defendant failed to represent him in court, return documents, and refused to reimburse him the $3, 200.00, which he seeks in this action. On February 20, 2017, Defendant filed a response to the complaint which he denied the allegations and brought several affirmative defenses..

         Trial was held on August 30, 2017 where the Plaintiff and witness Ramonita Aviles testified in support of his case. Plaintiff introduced nine (9) exhibits. Defendant testified and introduced one (1) exhibit. At the conclusion of trial, the Court reserved decision. This is the Court's decision after trial.


         On or about February 18, 2013, Cesar's condominium filed a complaint against Cesar for unpaid condominium fees. On September 12, 2014, Cesar retained Macconi to represent him in the Condominium dispute. Plaintiff introduced as exhibit #2 the retainer agreement where Macconi agreed to represent Cesar for a flat fee of $5, 000.00, on a non-hourly basis. The docket in case CPU4-13-000565 "Linden Green Condominium Ass'n. v. Ubaldo Cesar indicates that on September 18, 2014, Macconi entered his appearance on behalf of Cesar, Also on that date the docket reflects that Macconi filed three motions: motion to amend the answer, motion to amend the scheduling order, and motion to continue the trial. On October 23, 2014, Macconi filed a letter with the Court on behalf of both parties requesting a new trial date. Cesar introduced as exhibit #3 an email from Macconi to him dated May 2, 2015, where Macconi was requesting that Cesar contact him to discuss the case because the trial was scheduled for May 12, 2015.

         Plaintiff introduced exhibit #4; a series of cancelled checks which reflect payments to Defendant totaling $3, 200.00. Plaintiff exhibit #5 is a WSFS bank statement indicating Plaintiff had a loan of $35, 083.23 with WSFS bank. Plaintiff exhibit #6 is an email from Defendant to Plaintiff inquiring of the status of how Plaintiff was proceeding with accumulating the documents they previously discussed. Plaintiff exhibit #7 is an email dated May 5, 2015 from Defendant following up on a twenty-five minute telephone conversation with Cesar. This email indicates that the parties have reached an impasse on their attorney/client relationship. Plaintiff exhibit #8 is a collective of two emails between Defendant and the Court regarding trial and the need of Plaintiff to appear. In this email Defendant stated he had a copy of Cesar's email address and that he will call Cesar immediately to follow up with Court dates.

          On May 5, 2015, Macconi filed a Motion to Withdrawal as Counsel on the basis there had been a lack of communication, responsiveness, and a lack of production for reasonably requested information. Macconi maintains that there is a "fundamental disagreement" between Cesar and himself with respect to how the case should proceed. Moreover, Macconi claims that "representation up to the present time has been unreasonably difficult, but going forward, even with the scheduled trial on May 12, 2015, it would be nearly impossible, at a minimum with respect to his ethical duties to act in Cesar's best interests." Macconi indicated that he filed the motion to withdraw as soon as he learned that there was no chance he and his client could form a solution to their disagreement about how the case should be handled.

         On May 8, 2015, Macconi was granted leave to withdraw from the case but was ordered to appear on May 12, 2015, at the trial, to address any notice issues. The trial was scheduled for 9:00 am and at 9:13 am Cesar having failed to appear without notice, the court entered judgment for the Condominium Association, dismissed Macconi and dismissed all counter claims. Cesar subsequently appeared at 9:33 a.m. that morning and moved to vacate the judgment. Cesar argued that Macconi failed to tell him the time of trial, failed to answer his calls, and had retained all his materials he needed to proceed. On May 18, 2015, Macconi advised the court that he left a voicemail and email with Cesar on May 7, 2015 informing him of the trial date and time. Macconi further indicated he received a voicemail from Cesar at 6:30 a.m. on May 8, 2015 confirming his receipt of the call and requesting that Macconi cease all further communication with him.

         On Cesar's Motion to Vacate the court found that it was unreasonable to believe that Cesar was not aware of the trial date due to communication provided by Macconi, in writing, on two separate occasions. Furthermore, Cesar was correct that he did not have the documents to move forward in his case but the situation was his own making. Macconi had attempted to return the documents to Cesar at the earlier court proceeding but Cesar failed to appear. In addition, Cesar told Macconi to cease all communications with him before Cesar received the documentation he needed for court. On July 7, 2015 the Motion to Vacate the Judgment was denied.

         On February 25, 2016, Cesar filed a complaint against Macconi alleging misrepresentation and demanded he be reimbursed for the funds paid to Macconi for his representation. On February 20, 2017, Defendant filed an answer to the complaint which included affirmative defenses. At trial, Defendant introduced Defense exhibit #1, a document which indicates "Client Billing Escrow Summary" ...

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