BRIAN W. KIM VS. EDWARD S. PELL (L-0472-12, WARREN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4763-17T1
BRIAN W. KIM and JONG
HWA KIM,
Plaintiffs,
v.
EDWARD S. PELL and
DIANA PELL,
Defendants.
_____________________________
Argued telephonically March 12, 2019 –
Decided April 16, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Warren County, Docket No. L-0472-12.
Lane M. Ferdinand argued the cause for pro se
appellant Law Offices of Lane M. Ferdinand, PC.
David M. Wassserman argued the cause for pro se
respondent Law Offices of Andrew Park; David M.
Wassserman, on the brief.
PER CURIAM
This appeal concerns a fee dispute between attorneys who represented
plaintiffs 1 at different times in the course of a personal injury action. After the
trial court awarded fees and prejudgment interest to plaintiffs' initial attorney,
the superseding attorney filed this appeal. For the reasons below, we vacate the
motion judge's ruling and remand for further findings.
In October 2012, plaintiff sustained injuries in an automobile accident.
Plaintiffs initially retained the Law Offices of Andrew Park (Park) to pursue
claims against the driver of the other vehicle. After arbitration, Park obtained
an offer to settle plaintiffs' claims for a total of $55,000.
Park claims plaintiff later informed him she underwent surgery on her
ankle. Park stated he "began preparations to obtain the medical records"
regarding the surgery and to reopen discovery, but was discharged before he
could file the motion.
After discharging Park, plaintiffs retained the Law Offices of Lane
Ferdinand (Ferdinand). At the time of the discharge, Park had incurred $570 in
expenses, in addition to his time in handling the case.
1
In this opinion, we refer to Jong Hwa Kim and Brian W. Kim collectively as
"plaintiffs," and Jong Hwa Kim individually as "plaintiff." Plaintiff's husband
sues per quod.
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Ferdinand reopened discovery and obtained additional medical records,
before eventually settling the case for $150,000. Park later filed a motion to
recover attorney fees and costs for the work he completed before his discharge.
Before deciding the motion, the court scheduled a plenary hearing and heard
testimony from plaintiff and both attorneys. According to plaintiff, Park advised
her to accept a $55,000 settlement offer, telling her "that he could not do well
with the court or jurors because he and I [are] Asians." During the phone
conversation, plaintiff made hand-written notes, which she identified at the
hearing. Plaintiffs took steps to secure a new attorney the next day. According
to plaintiff, Park did not keep her "up to date" regarding her case and never
informed her when her case was scheduled for arbitration.
In his testimony, Park not only denied pressuring plaintiff to accept the
$55,000 settlement offer, but claimed, "I told her not to accept it." Park did
admit that he was not aware that plaintiff had undergone ankle surgery at the
time her case went to arbitration. Park also acknowledged his firm could not
locate a copy of a retainer agreement with plaintiffs.
The court then allowed both attorneys to submit briefs setting forth their
positions as to the appropriate amount Park should receive. Park argued in favor
of an award of one-third "of the $55,000 settlement offer" obtained for plaintiff,
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plus over $2000 in prejudgment interest. Ferdinand argued against any award
in favor of Park, contending the former firm badly mishandled the case.
On May 31, 2018, the court awarded Park $18,150, or "33 and 1/3% of
the original $55,000 settlement offer obtained for the client," plus "pre-judgment
interest in the amount of $2014.63." The trial court's statement of reasons
merely recited that "the best available measure of a predecessor attorney's
contribution is the contingent fee percentage of a settlement offer procured by
the predecessor attorney," and that the court should also consider "the length of
time each of the firms spent on the case relative to the total amount of time
expended . . . the quality of the representation . . . the result of each firm's efforts
. . . [and] the reason the client changed attorneys . . . ." Significantly, the courts
one-page statement of reasons failed to make any credibility determinations
regarding plaintiff's allegation that Park pressured her to settle or Ferdinand's
claim that the file Park transferred was "a disaster," and represented "gross
malpractice." This appeal followed.
We use the equitable doctrine of quantum meruit to determine counsel fee
awards. La Mantia v. Durst, 234 N.J. Super. 534, 537 (App. Div. 1989). The
analysis is fact-sensitive. Ibid. Although there are no "hard and fast" rules
governing the analysis, we have identified several factors the trial courts should
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apply. Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 75 (App.
Div. 2004) (citing La Mantia, 234 N.J. Super. at 540-41). A trial court should
consider: (1) the amount of time an attorney spent on the case in relation to the
total amount of hours spent to resolve it; (2) the quality of representation; (3)
the results achieved by each lawyer's efforts; (4) the reason the client switched
representation; (5) the viability of the client's claims at the time of transfer; and
(6) the amount of recovery ultimately realized. La Mantia, 234 N.J. Super. at
540-41.
This analysis is not a mathematical exercise, however. "[I]f the
predecessor's work, no matter how extensive, contributed little or nothing to the
case, then the ceding lawyer should receive little or no compensation." Glick v.
Barclays De Zoete Wedd, Inc., 300 N.J. Super. 299, 311 (App. Div. 1997). The
relationship between the client and the attorney is also a significant factor to be
considered in a quantum meruit determination. Bruno, 371 N.J. Super. at 75.
Here, the trial court noted some of this authority, but simply concluded
Park should receive a third of the original settlement offer. The trial court
mentioned it could consider the contingent fee arrangement between the parties,
but Park could not produce its retainer agreement and the opinion does not state
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the agreed-to percentage. Further, Park did not submit an affidavit of services
to the court.
Further, the statement of reasons does not indicate the monetary value of
the lawyer's time, identify the approximate time spent on each task, nor set forth
the overall hours devoted to plaintiff's case. The court's specific findings of fact
and ultimate conclusions of law must be based on this evidence, and explained
on the record. R. 1:7-4. Conclusory statements not supported by or specifically
linked to the competent evidence in the record do not satisfy the rule's mandate.
Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562 (App. Div. 2009).
Here, the trial court's findings lacked the specificity required and are
therefore not amenable to appellate review. R. 1:7-4; Curtis v. Finneran, 83 N.J.
563, 570 (1980). From the record before us, we cannot determine the basis for
the court's award to Park. We are thus compelled to vacate the award and
remand the matter for further analysis consistent with this opinion. On remand,
the trial court should develop a factual record that includes the evidence
necessary to determine what level of compensation, if any, Park is entitled to
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receive based on the amount of time he spent on plaintiff's case, and the quality
of that professional effort relative to the results achieved. 2
Reversed and remanded. We do not retain jurisdiction.
2
On remand, the trial court should consider requiring Park to submit an affidavit
of services complying with RPC 1.5(a).
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