Bruno Kearney Architects, LLP, Appellant,v.Lisa Rose, Respondent.

Brief

N.Y.September 4, 2013

GOGICK, BYRNE & O'NEILL, LLP 304 South Franklin Street Syracuse, NY 13202 Tel: (315) 218-9590 Fax: (315) 218-9591 Attorneys at Law II Broadway, Rm. 1560 New York, NY 10004-1314 Tel: (212) 422-9424 Fax: (212) 422-9429 112 Prospect Street Stamford, cr 06901-1207 Tel: (203) 327-7561 Fax: (203) 966-1431 80 Main Street, Rm. 140 W. Orange, NJ 07052-5414 Tel: (973) 778-7074 Fax: (973) 731-9313 Robert J. Gogick' Kevin J. O'Neill' Michael J. Byrne• Stephen P. Schreckinger' Elaine C. Gange)• Albert Wesley McKee" July 1, 2013 Judges of the Court of Appeals New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Bruno Kearney Architects v Rose APL-2013-00092 New York County Clerk's Index No. 115773/08 Your Honors: John M. Rondello, Jr.• Mark R. McCauley• Bryan R. WeberD Kevin J. McGrath• Kriton A. Pantelidis• • Admitted in NY, NJ & cr 'NY,NJ&PA 'NY&NJ 0 NY&Cf •NY only This letter brief is presented in support of the position of the Appellants, Bruno Kearney Architects in the above referenced matter. QUESTION PRESENTED Whether the Appellate deference to the decision of bench trial on the breach of Division erred in failing to give the trial court reached after a full contract issues presented and instead reversed that decision, ordering a new trial. This question should be answered in the affirmative. STATEMENT OF FACTS The present matter is relatively straightforward and should respectfully be viewed as such by this Honorable Court. Through a particular course of conduct, both parties assented to the terms of the contract by which Plaintiff/Appellant, Bruno Kearney Architects, LLP ( "BKA") , a licensed architectural firm, agreed to design a house for Defendant/Respondent, Lisa Rose. In the trial court, Justice Milton Tingling, Supreme Court, New York County, after a full bench trial in July 2011 did hold that the parties had a valid agreement c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 2 for the design of the Defendant/Respondent's house in Davis Park, Fire Island, New York and found for the Plaintiff/Appellant on its breach of contract claim. See Record, page 16-18. 1 After the appeal by Ms. Rose to the Appellate Division, Second Department, that court reversed the decision of Justice Tingling, without much in the way of explanation, although the Appellate Division decision does basically view very cursorily the facts and evidence at trial and come to a different conclusion than Justice Tingling on the facts. (R. 588-591). Respectfully, that Court did not appear to give much thought or any respect to Justice Tingling's prior well thought and reasoned decision reached after a full trial, and offered no demonstration that it in any way deferred to the trial court's reasoning. The Appellate Division ordered a new trial, ostensibly to determine (in our view again) if the parties intended to be bound by the agreement at issue. Accordingly, Appellant took the instant appeal as of right pursuant to CPLR 5601 (c) based upon the ordering of the new trial by the Appellate Division. It should be noted here the reasoning which Justice Tingling employed in his decision on the trial of this matter. For example, while noting that no written agreement was executed between the parties, Justice Tingling held that "a contract may be legally formed where there is evidence that a contract existed and the parties were generating pursuant to the agreement." (R 16-18). Moreover, Justice Tingling held that there was "no question that sufficient evidence was introduced to show that both parties operated under the terms of the unexecuted agreement, including but not limited to the submission and payment of invoices; the submission and approval of renovation and construction plans submitted to the town of Brookhaven and a submission of a bid for the construction." (R 16-18) Justice Tingling simply found after weighing all the evidence and the conflicting testimony, that as a matter of law a contract was formed. Upon the appeal of this matter to the Appellate Division, the Appellate Division did not provide any reason for disagreeing with Justice Tingling, instead just nakedly stating that "[c) ontrary to the trial court's determination, plaintiff failed to demonstrate that the parties intended to be bound by the terms of the written agreement without signing the agreement." (R. 588-91) The Appellate 1 Record citations are shortened in this letter brief hereinafter as follows: (R. page number) . c:\docurnents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 3 Division did not state that it in anyway disagreed or viewed the testimony of any party differently than Justice Tingling did. Despite the Appellate Division's erroneous holding, the facts continue to demonstrate that plaintiff/appellant BKA provided and the Respondent Ms. Rose accepted various services enumerated in the contract and that the parties by their conduct intended to be bound by and actually operated under the terms of that agreement. The validity of the contract is confirmed based upon the record and Ms. Rose's own testimony which was fairly weighed and interpreted by Justice Tingling, the trier of both the fact and law in the Supreme Court bench trial. The evidence, as viewed by Justice Tingling demonstrates: 1. The contract marked as Exhibit 3 at trial (R. 329-349) was sent to Respondent at least twice (R. 234-235); 2. Respondent intended to sign a contract for received Exhibit 3, but did not sign it because time and because things were "going well" on 234-235 and R. 288); the project and she did not have the project (R. 3. Respondent paid BKA $3,000.00 initially and thereafter received the unsigned contract document, which included the terms that BKA would be operating under (R. 289); 4. The initial $3,000.00 payment is found in the contract document (R. 344); 5. BKA never guaranteed the cost of construction (R. 247) or gave a "hard" estimate (R. 295); 6. Respondent specifically authorized, accepted, and proceeded with the successive design phases of the project, i.e. the schematic design phase, the design development phase, and the construction documents phase (R. 237-243); 7. These particular phases are enumerated portions of the contract (R. 330-331); c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 4 8. There were approximately ten meetings between Respondent and BKA over the course of the relationship with respect to these various phases and the services being provided (R. 240); 9. Respondent recognized that the cost increase after the project changed from construction and confirmed that a 15% construction cost (R. 245-246); of construction would a renovation to a new fee was due on the 10. The 15% fee is also dictated by the contract (R. 343); and 11. After she terminated the project, Respondent gave BKA the go ahead to update their fee based on the final scope and budget, which was different than the original budget estimate (R. 253- 255) . Most of the testimony offered at trial by Plaintiff/Appellant came from BKA principle Joseph Bruno. He testified that he sent Ms. Rose a memorandum (R. 389) on October 21, 2005 which attached BKA's standard form agreement. The memorandum (as well as the contract itself) provided BKA's estimated or conceptual budget. Mr. Bruno and Ms. Rose also met at her home in January of 2006 and discussed the contract for her project. Ms. Rose stated that she misplaced it and requested that it be resent. (R. 121-122). Moreover, the parties reviewed in detail another contract between Ms. Rose and a different architect with respect to an unrelated project. Mr. Bruno indicated that this other contract was similar to his. As a result of this meeting and the discussions between the parties, the documents repeatedly exchanged, and the general course of the project, it was Mr. Bruno's understanding that Ms. Rose was operating under the terms of the contract. (R. 116). Moreover, according to Mr. Bruno, Ms. Rose indicated that her decision to terminate the project (January 2008) had nothing to do with the cost of construction or with the quality of the work performed by BKA. (R. 180-181). Furthermore, when Mr. Bruno indicated that the fee would be updated (after the project was terminated) to reflect the final scope/budget, she responded ~sounds good." (R 535 and R253-255). c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 5 It is also important for this Honorable Court to note that the preliminary pricing (around $900,000.00) was received by Ms. Rose in February of 2007. (R. 532). After receiving this price, certain efforts to reduce the cost (as is also mandated by the contract) were made by BKA (R. 280-284). The trial testimony illustrated above and the supporting exhibits were clearly weighed in the decision of Justice Tingling after the full trial and hearing of all the relevant testimony. The judgment entered states that "Plaintiff BRUNO KEARNEY ARCHITECTS, LLP, against Defendant LISA ROSE in the sum of $64,500.00 for breach of contract" (R. 6) and further provided for a finding of attorneys' fees. (R. 7). LEGAL ARGUMENT POINT I THE APPELLATE DIVISION FAILED TO GIVE DEFERENCE TO THE TRIAL COURT'S DECISION AFTER THE TRIAL OF THIS MATTER The conclusions reached by the Lower Court in this matter were substantially (if not almost completely) based upon the testimony of the parties and the credibility determinations necessarily made as a result of hearing that testimony. As such, these credibility determinations should have been given vast deference by the Appellate Division and should not have been disturbed in the prior appeal of this matter in the manner in which they were. The Lower Court found that "the parties operated under the terms of the unexecuted agreement" and that "the parties intended to be bound by [it]." (R. 18). Justice Tingling could only have come to this conclusion by weighing the credibility of the witnesses, accepting the statements of BKA, and discrediting the inconsistent assertions made by Ms. Rose, as was his almost unfettered right as the trier of both the facts and the law. The Lower Court would certainly not have held the contract valid if it credited Ms. Rose's inconsistent and ad hoc statements that: 1) her agreement was for the design of a house for $800,000.00 or less (R. 271); 2) that she never accepted BKA's services (R. 271); and 3) that she never entered into a contract with BKA (R. 313). These statements were ignored by the Lower Court as they are contradicted by much of Ms. Rose's other testimony noted above. c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 6 The law with respect to the applicable appellate standard of review in such situations is well settled: [T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, [This is] especially [true] when the findings of fact rest in large measure on considerations relating to the credibility of witnesses. Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 495, 606 N.E.2d 1369 (NY 1992) (emphasis added). The Second Department has previously and consistently followed the Thoreson holding (despite not doing so in this action) that when credibility determinations form the basis of the lower court's decision, a deferential standard of review is applied, and the lower court should not be overruled unless its decision was an unfair interpretation of the evidence. See Baje Realty Corp. v. Cutler, 2012 N.Y. Slip Op. 07215, 2012 WL 5258882 (1st Dep't, 2012); Hardwick v. State, 90 A.D.3d 540, 935 N.Y.S.2d 22 (1st Dep't, 2011); Garza v. 508 W. 112th St., Inc., 71 A.D.3d 567, 899 N.Y.S.2d 150 (1st Dep't, 2010); lv. State, 25 A.D.3d 324, 809 N.Y.S.2d 5 (1st Dep't, 2006); and Sullivan v. DRA Imaging, P.C., 34 A.D.3d 371, 824 N.Y.S.2d 636 (1st Dept.2006) (Upholding verdict because "The jury's findings ... required resolution of conflicting expert testimony and attendant credibility determinations, and [were] supported by a fair interpretation of the evidence") . In this action and upon the evidence at trial, the Appellate Division should not have reversed the decision of Justice Tingling because a fair interpretation of the evidence is that the parties agreed to be bound by the terms of the contract, whether that document was signed or unsigned. Because the Lower Court's holding is clearly supported by that fair interpretation of the evidence this Honorable Court should reverse the Appellate Division decision and reinstate the decision and judgment of Justice Tingling in its entirety. The Appellate Division in its decision overturning the holding and verdict of Justice Tingling did not even make any reference to the Standard of Review that it should have adhered and given reference to in its review on appeal. As such, this Court should find that the Appellate Division erred in not giving any deference to c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 7 the Supreme Court holding, after a full trial, finding a valid and enforceable contract between the parties and that the terms of that contract were contained in the unsigned document which BKA issued to Respondent, Rose, and that she received, operated under and even intended to sign. This Court should respectfully, therefore, reinstate the decision of the Supreme Court, Justice Tingling, and hold that BKA is entitled to judgment on the contract it had with Lisa Rose for the full amount as was indicated in the original judgment signed by Justice Tingling of the Supreme Court. Additionally, the Appellate Division held that "[t]o construe the agreement as plaintiff urges would mean that the estimate, and therefore plaintiff's fee (15% of the estimate), would be untethered to any objective measure, thus rendering the agreement unenforceable." (R. 589) Respectfully, these statements are clearly erroneous. This fee arrangement is contained in the contract while, admittedly unexecuted as between these parties, is a long used AIA form agreement. Additionally, the fee arrangement is in fact tethered to an objective measure - the estimated cost of construction that the parties obtained through the bidding process. In this action, the trial testimony demonstrates that the lone bidder on which the estimated cost was based was selected by Rose. Moreover, the reasoning of the Appellate Division is unfounded as even if contract was signed, the Appellate Division's reasoning could still be used to undo the agreement. POINT II THE CONTRACT BETWEEN THE PARTIES IS VALID AS A MATTER OF LAW A. Contracts Can Be Legally Valid And Enforceable Based Upon The Objective Manifestations Of The Parties, Through A Course of Conduct, Or Because Of Perfor.mance Rose has previously argued that because she did not sign or read the contract (which Appellant sent to her numerous times and discussed with her) she is not bound by it. The law of the State of New York disagrees, as did Justice Tingling. Accordingly, this Honorable Court should reinstate the decision of Justice Tingling and the judgment previously vacated in its entirety. c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 8 Independent contracts can be found based upon the actions of the parties. See Brown Bros. Elec. Contractors, Inc. v. Beam Const. Corp., 41 N.Y.2d 397, 361 N.E.2d 999 (NY 1977). Moreover, a failure to sign a contract is not necessarily fatal to its validity. See Mun. Consultants & Publishers, Inc. v. Town of Ramapo, 47 N.Y.2d 144, 390 N.E.2d 1143 (NY 1979). Furthermore, courts of this State have consistently recognized the validity of unsigned contracts when objective evidence exists (through admissions, actions, or a course of conduct) that the parties intended to bound. See God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Associates, LLP, 6 N.Y.3d 371, 845 N.E.2d 1265 (NY 2006) (Holding that American Institute of Architects contract forwarded by Architect to client and retained by client even though unsigned was the operative contract between the parties) and Smith v. 21 W. LLC Ltd. Liab. Co., 29 A.D.3d 360, 361, 816 N.Y.S.2d 23 (1st Dep't, 2006) (Upholding unsigned contract because representatives of both parties had negotiated it and performance had begun). Additional notable decisions on this issue include Mentesana v. Bernard Janowitz Const. Corp., 36 A.D.3d 769, 771, 828 N.Y.S.2d 522 (2nd Dep't, 2007) (Ruling that a purchase order can be considered a contract even if not signed); Geha v. 55 Orchard St., LLC, 29 A.D.3d 735, 736, 815 N.Y.S.2d 253 (2nd Dep't, 2006) (Stating that an unsigned contract can be enforceable if there is objective evidence that the parties intended to be bound by it); and Ruane v. Allen-Stevenson Sch., 82 A.D.3d 615, 919 N.Y.S.2d 160 (1st Dept. 2011) (Allowing Courts to look to objective manifestations with respect to a party's intent to be bound) . In the present matter, it is clear that the trial court did follow the precedent of these New York State Court decisions in its decision as the following is clear from the record: 1) Ms. Rose received the contract (R. 329-349) multiple times (R. 234-235); 2) she did not sign it because she did not have time and because things were going well on the project (R. 234-235 and R. 288); 3) she paid invoices which represented the Architect's 15% fee structure, reimbursable expenses, and engineering fees (R. 248, 390-412, and 508-531), all of which are specifically enumerated in the contract (R. 343-345); and 4) she approved the successive design phases (R. 237-243) found in the contract (R. 330-331), which was her responsibility pursuant to the contract (R. 330-331 - Sections 2.2.4, c:\docurnents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 9 2.3.1, and 2.4.3). In addition, Ms. Rose even identified the document found in the Record at 329-349 as the "contract." (R. 274). The Record before this Honorable Court evidences a course of conduct and performance between the parties which establishes the validity of the written contract that was sent to Respondent. Despite this clear and consistent record, the Appellate Division opted to undo the parties' agreement and course of conduct. We ask this Court to undo this erroneous and incorrect decision here. B. The Actions And Statements Of The Parties Sufficiently Establish A Meeting Of The Minds The evidence which the Supreme Court examined and weighed demonstrates that 1) Ms. Rose never set a fixed budget despite Appellate Division statements to the contrary, and in any event, a dollar figure or exact price is not necessary for a contract to be considered definitei 2) Ms. Rose agreed to a standard percentage fee agreement (determinable by an objective method), which has been upheld by various Courts over the past century and is common within the architectural industryi and 3) New York law does not recognize a blanketed defense to a contract based upon the possibility of a substantial price increase, in contrast to the Appellate Division's apparent holdings. 1. No Fixed Budget Existed And A Contract Is Not Indefinite Merely Because It Fails To Specify An Exact Price Or Dollar Amount BKA consistently stated and testified to the fact that that there was no guaranteed budget or guaranteed estimate. (R. 110, 117, 144, 207, and 219). In addition, the Lower Court actually determined only that a plain budget (not one that was guaranteed or fixed) was set. (R. 17). At no point did the court credit Ms. Rose's testimony that the budget discussed for the new construction was fixed or guaranteed. However, despite this fact, the Appellate Division without any citation to the record or explanation concluded that BKA was obligated to design the project within a certain fixed budget. In fact, by finding that the contract in the record was operative, the Lower Court ruled (as the contract plainly indicates) that there was no fixed budget or guaranteed cost of construction. Moreover, if the Lower Court had found that the budget was fixed and c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 10 the cost of construction was not to exceed it, it would not have granted BKA fees based upon the estimated cost of $1, 000, 000.00. These determinations - that are so clearly an implicit part of the Lower Court, s decision - can be considered by this Honorable Court although the Appellate Division treated them with such disregard. See Manning v. City of New York, 29 A.D.3d 361, 362, 814 N.Y.S.2d 611, 612 ( 1st Dep , t , 2 0 0 6 ) . The reality of the facts and testimony in this matter as adduced at trial and considered in full by Justice Tingling is that a fixed budget did not exist, which is why Rose, s purported "dispute 11 as to the budget came approximately a year and half after receiving the preliminary pricing (which was in excess of $800,000.00, R. 532), eight months after terminating the project, and 6 months after receiving BKA,s final bill (R. 193). Moreover, at no point in time - either prior to or after this "dispute~~ did she ever reduce this "fixed,, budget to writing despite the fact that the contract she received specified plainly that a fixed cost could only be established by a signed writing. (R. 275-276). In fact, Rose could not even remember how many times she gave this allegedly fixed budget to BKA. (R. 276). Therefore, it remains perplexing to counsel where the Appellate Division was able to locate and rely upon a fixed budget. Rose, s meretricious legal arguments and factual inconsistencies notwithstanding, New York law, as expressed by the Court of Appeals, is actually well settled: "a price term is not necessarily indefinite because the agreement fails to specify a dollar figure, [] leaves fixing the amount for the future, or contains no computational formula. 11 Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 N.Y.2d 475, 483, 548 N.E.2d 203, 206 (NY 1989). Moreover, the Court of Appeals stated: "at some point virtually every agreement can be said to have a degree of indefiniteness.,, In the instant matter, a meeting of the minds with respect to the cost of construction existed and is evidenced by the following: 1) the contract Ms. Rose received expressly states that there will be no fixed limit as to construction cost unless such a limit is reduced to writing and signed by both parties (R. 338); 2) Ms. Rose knew that the costs were increasing when a new house had to be built versus a renovation (R. 245-246 and 295); 3) she admitted the cost of construction was never guaranteed (R. 247-248); and 4) she admitted c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 11 the Architect's fee was 15% of the cost of construction (R. 246), which just so happens to be what is stated in the contract (R. 343). The idea that Ms. Rose's budget was fixed cost is belied by the Record. Based upon this record, the BKA has already clearly established that the parties intended to be bound by the agreement and that that agreement had no fixed budget in place at any time. Moreover, as a legal matter, the fact that the contract contains an estimate and not a fixed price or dollar amount is irrelevant. As the case law above indicates, naming a price is not necessary. See, inter alia, Cobble Hill, supra, 74 N.Y.2d 475, 483. See also Metro- Goldwyn-Mayer, Inc. v. Scheider, 40 N.Y.2d 1069, 360 N.E.2d 930 (NY 197 6) (Holding that a Court will find, enforce, and fill in the gaps of a contract even though certain material terms are left for the future if an objective method to determine those terms is stated and/or available) and Vill. of Lansing v. Triphammer Dev. Co. Inc., 193 A.D.2d 919, 921, 597 N.Y.S.2d 766, 768 (3rd Dep't, 1993) (Holding that where developer and municipality agreed to share in costs of construction, developer could not void contract because of alleged uncertainty with respect to the cost of construction and that defendant's share of the construction costs could be determined at the completion of the project). Ms. Rose's whimsical testimony with respect to "fixed" or "guaranteed" budgets was not credited by the lower court. Her admissions noted above and the credited testimony of BKA formed the basis for the lower court's determination that the parties intended to be bound by the contract - which need not specify a fixed cost to be legally enforceable. As the decision is (at minimum) supported by a fair interpretation of the evidence, it should not have been displaced by the Appellate Division and should be reinstated by this Court. 2. The Parties Agreed To BKA's Fee A contract is not considered indefinite because it fails to specify a fixed price; moreover, an agreement can be upheld without material terms if an objective way to determine those terms is stated or available. See, inter alia, Cobble Hill, 74 N.Y.2d 475, 483 and Metro-Goldwyn-Mayer, 40 N.Y.2d 1069, 1070-1071. In any event, Ms. Rose agreed to pay a definite fee: 15% of the cost of construction (R. 246), which she admitted was never c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 12 guaranteed (R 24 7-248) . This type of fee percentage contract is common in the architectural profession and is tethered to objective evidence - the construction bid. Additionally, the contract for this project is a standard form document produced by the American Institute of Architects, an organization which traces its roots in this country to the mid 19th Century. As such, this Court should respectfully reverse the Appellate Division and reinstate the verdict of Justice Tingling and the attendant judgment. In addition to the above, numerous courts have discussed such fee percentage contracts in various contexts evidencing their legality and prevalence in the industry. See Charlebois v. J.M. Weller Associates, Inc., 72 N.Y.2d 587, 531 N.E.2d 1288 (NY 1988); Westmount Health Facility v. Comm'r of New York State Dept. of Health, 205 A.D.2d 991, 613 N.Y.S.2d 965 (3rd Dep't, 1994); Harza Ne., Inc. v. Lehrer McGovern Bovis, Inc., 255 A.D.2d 935, 680 N.Y.S.2d 379, (4th Dep't, 1998); Levin v. State, 8 Misc. 2d 33, 166 N.Y.S.2d 438 (Ct. Cl. 1957); and Schieffelin v. City of New York, 65 Misc. 609, 122 N.Y.S. 502 (Sup. Ct. 1910). Interestingly enough, even the Supreme Court of the United States has recognized the custom among architects to charge their fee based upon a percentage of the total cost of construction though the Appellate Division has apparently seen fit to disturb this long established precedent. See Smithmeyer v. United States, 147 U.S. 342, 360, 13 s. Ct. 321, 327, 37 L. Ed. 196 (US 1893). Considering the above, Rose's prior (and anticipated) argument that BKA' s fee structure is legally indefinite should not be credited. Moreover, the Appellate Division decision that the unsigned contract was not binding, which was apparently arrived at without any deference to the trial court, should be reversed with the decision and judgment of Justice Tingling reinstated. This Court should note that Ms. Rose actually paid invoices which specifically define BKA' s fee as 15% of the estimated (never guaranteed) cost of construction, and which represent reimbursable expenses including engineering fees. (R. 248, 390-412, and 508-531). This evidence, produced at the trial of this matter, demonstrates that the parties did intend to be bound. c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals 3. Substantial Increase In Price July 1, 2013 Page 13 Despite its aberrant decision in this matter, the Appellate Division has specifically prior ruled that the cost of construction for a given project (which could always substantially increase} can be readily determined and is not indefinite. See Vill. of Lansing v. Triphammer Dev. Co. Inc., 193 A.D.2d 919, 921, 597 N.Y.S.2d 766, 768 (3rd Dep't, 1993} (Upholding contract where developer and municipality had agreed to share in costs of construction, despite developer's claim that the uncertainty in the cost of construction rendered the contract indefinite, and noting that defendant's share of the construction costs could be determined at the completion of the project}. New York law also specifically recognizes and enforces agreements where a party contracts to buy and/or sell products or services on a given day and pay a price to be determined on that day. Logically speaking, such contracts are always subject to substantial price increases, but New York law does not consider them too indefinite. See generally, Catlin v. Manilow, 170 A.D.2d 357, 566 N.Y.S.2d 59, 60 (1st Dep't, 1991} (Holding contract valid and indicating that parties agreed writer would be paid the fair market value of the use of his script at the time defendant's would use it}; Chase Nat. Bank of City of New York v. Manufacturers Trust Co., 265 A.D. 406, 410, 39 N.Y.S.2d 370, 374 (1st Dep't, 1943} (Ruling contract valid where price was based partially on value of good will of company stock at time of death of stock owner, especially because contract had been partially performed}; Salerno v. Leica, Inc., 258 A.D.2d 896, 685 N.Y.S.2d 368 (4th Dep't, 1999} (Stating that agreement where party was to receive severance package based upon his level of contribution and position in the company was sufficiently definite to be enforceable}; and Piven v. Wolf Haldenstein Adler Freeman & Herz L.L.P., 08CIV.10578(RJS}, 2010 WL 1257326 (S.D.N.Y. Mar. 12, 2010} (Denying motion to dismiss as contract for payment of referral fees was not too indefinite}. POINT III ATTORNEY'S FEES Respondent below has argued that the award of attorney's fees in the instant matter was improper because there is no contract between the parties. In support of this argument, Ms. Rose has asserted that "the trial court acknowledged[] [that] there was never any written c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 14 contract between the parties[.]" (AB Pgs. 29-30). This remains a mischaracterization of the lower court's decision does not transmogrify the actual words in the decision. The lower court clearly held that the contract's (R 329-349) terms were enforceable despite it not being executed (R 16-18). As such, the entire judgment should have been upheld by the Appellate Division. Respondent cannot escape the fact that the contract between the parties expressly authorizes an award of attorney's fees and costs: "In any legal proceeding to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs of defense." (R. 342, 9[8.10). Therefore, an award of attorney's fees is appropriate in the present matter and whether the client has actually paid the attorney is irrelevant. See Indus. Equip. Credit Corp. v. Green, 62 N.Y.2d 903, 467 N.E.2d 525 (NY 1984) (Holding that a recovery of attorney's fees does not require that the fees have been paid by the client). Respondent has further argued and we anticipate will again that "there is no evidence in the record to support a finding that [BKA] attorneys' fees were ... even awarded by the trial court. This is again an inaccurate statement as the lower court clearly held that BKA "is awarded judgment in its favor for the sum of $64,500.00 with interest thereon from May 2008, costs and disbursements" (R. 18). Moreover, it is undisputed that the trial court signed BKA's proposed judgment including attorney's fees and disbursements and not Ms. Rose's which did not include such costs. To claim attorney's fees were not awarded by the lower court is meretricious at best. Respondent below did argue and may again that even if the contract is upheld by this Honorable Court, the amount awarded by the lower court is inappropriate because of a lack of evidence. (AB Pgs. 32-34). As noted, two proposed judgments were forwarded to the trial court judge, and he signed BKA's which included BKA's attorneys' fees and disbursements. Considering the complexity of the present matter and the fact that it underwent a complete plenary trial, such an award should be considered reasonable. However, should this Honorable Court agree with Ms. Rose that there is a lack of evidence with respect to attorneys' fees and disbursements, it is respectfully requested that the matter be remanded for a hearing on these issues, including the costs of the c:\documents and settings\jmr\desktop\bka letter brief.doc GOGICK, BYRNE & O'NEILL, LLP Judges of the Court of Appeals July 1, 2013 Page 15 present appeal 2 • The rest of the lower court's determination should not be disturbed3 • CONCLUSION Therefore, for all of the reasons stated hereinabove, in addition to the case law and arguments included in the Appellate Division briefs, which are incorporated herein by reference, we respectfully ask this Honorable Court to reverse the decision of the Appellate Division and reinstate the Judgment which was signed by Justice Tingling of the New York State Supreme Court, after the trial of this action. Thank you for your courtesies and attention to this matter. Sincerely, M. Rondello, JMR:jmm 2 Should this Honorable Court remand with respect to the amount of attorneys' fees and disbursements, BKA is still entitled to statutory post-judgment interest on its attorney's fees/disbursements award from the date of the original decision, which determined BKA' s underlying right to compensation. See Solow Mgmt. Corp. v. Tanger, 19 A.D.3d 225, 226, 797 N.Y.S.2d 456, 458 (1st Dep't, 2005). 3 In the event this Honorable Court upholds any part of the judgment, BKA is entitled to statutory post-judgment interest on that amount until it is paid. See CPLR § 5003. See also McKinney's Consolidated Laws of New York, Practice Commentaries, Siegel, David D; Colgate v. Broadwall Mgmt. Corp., 51 A.D.3d 437, 857 N.Y.S.2d 539, 540 (1st Dep't, 2008); and Matra Bldg. Corp. v. Kueker, 19 A.D.3d 496, 796 N.Y.S.2d 709, 710 (2nd Dep't, 2005). c:\documents and settings\jmr\desktop\bka letter brief.doc