CHESTER A. LUSZCZ, ESQUIRE VS. CRAIG A. ALTMAN, PC (DC-004627-18, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5960-17T2
CHESTER A. LUSZCZ,
ESQUIRE,
Plaintiff-Respondent/
Cross-Appellant,
v.
CRAIG A. ALTMAN, PC,
Defendant-Appellant/
Cross-Respondent.
_________________________
Submitted September 25, 2019 – Decided October 2, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. DC-004627-18.
Law Offices of Craig A. Altman, PC, appellant/cross-
respondent pro se (Allan J. Aigeldinger, III, on the
briefs).
Chester A. Luszcz, respondent/cross-appellant pro se.
PER CURIAM
Defendant Craig A. Altman, PC appeals from an August 22, 2018
judgment following a trial in favor of plaintiff Chester A. Luszcz, Esquire for
$4878 in this special civil matter. Plaintiff cross-appeals from the judgment.
We affirm.
We take the following facts from the record. Defendant represented
Veronica McAllister in a trip and fall case and obtained a $65,000 default
judgment against Mordechai Cohen, the owner of the structure where McAllister
had her accident. Defendant had difficulty collecting the judgment and hired
plaintiff to pursue the collection efforts. The parties signed a retainer
agreement, stipulating plaintiff would be compensated on a contingency basis
and paid twenty percent of all funds collected. McAllister signed the agreement
as well.
Plaintiff filed a substitution of attorney and began collection efforts. He
served a writ of execution on five banks, conducted a property search, issued
two information subpoenas, and finally located Cohen. As a result of plaintiff's
efforts, Cohen turned the matter over to his insurer, who provided a defense.
The insurer vacated the default judgment and defendant settled the case with the
insurer for $45,000. McAllister signed a sheet approving the $45,000
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settlement, less distributions of $1094.80 in costs and $14,635.07 representing
defendant's one-third contingency fee.
Following the settlement, plaintiff communicated with defendant
requesting $9000, representing his twenty percent contingency fee from the
$45,000 settlement. Defendant responded it would not pay plaintiff because he
did not collect the judgment.
Plaintiff filed a complaint for breach of contract, implied contract, and
quasi-contract. At trial, plaintiff testified, as did an attorney from defendant's
office who signed the retainer agreement with plaintiff. The trial judge rendered
oral findings. He concluded plaintiff performed the "lion's share" of the
collection work which ultimately produced the settlement. The judge cited
plaintiff's thirty-five years of experience as a collection attorney and use of
information subpoenas to track down Cohen.
However, the judge found awarding plaintiff twenty percent of the total
recovery was unreasonable. Citing the standard attorney fee rate of thirty-three
percent for contingency cases, the judge awarded plaintiff $4878, representing
thirty-three percent of defendant's counsel fee recovery.
On appeal, defendant argues the judge erred by awarding plaintiff a
portion of the recovery because plaintiff did not collect the claim, keep accurate
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time records, prepare McAllister's case, or file any pleadings. He repeats the
argument he made to the trial judge that plaintiff was barred from recovery by
the entire controversy doctrine, because he did not name McAllister in his suit
as an indispensable party. Plaintiff cross-appeals and argues the judgment
should have been for $8781.04, reflecting the agreed-upon twenty percent
contingency.
"The factual findings of a trial court are reviewed with substantial
deference on appeal, and are not overturned if they are supported by 'adequate,
substantial and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217
N.J. 99, 115 (2014) (citations omitted). Such deference is especially due when
a trial judge's findings "are substantially influenced by [the judge's] opportunity
to hear and see the witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." Zaman v. Felton, 219 N.J. 199, 215-16 (2014) (alteration
in original) (internal quotation and citation omitted).
We reject defendant's arguments and affirm substantially for the reasons
expressed by the trial judge. The record supports the judge's finding that
plaintiff's efforts resulted in a recovery for McAllister. Moreover, as the judge
noted, because this was a contingency matter, it was not unusual for plaintiff not
to have kept time sheets.
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Defendant's argument that plaintiff must name McAllister to recover his
fees lacks merit. The judge found that although plaintiff could have named
McAllister as a party, she was not a necessary party to the dispute between
plaintiff and defendant. Plaintiff testified he did not pursue a claim against
McAllister because she signed his retainer solely to confirm she was aware of
the fee sharing arrangement between plaintiff and defendant. Moreover,
plaintiff explained he did not pursue McAllister because she was only
responsible to pay her attorneys their one-third share of the $45,000 settlement
and fulfilled her obligation.
"The entire controversy doctrine is an equitable principle and its
application is left to judicial discretion." 700 Highway 33 LLC v. Pollio, 421
N.J. Super. 231, 238 (App. Div. 2011) (citation omitted). The doctrine is
designed to promote fairness to the parties, judicial efficiency, and complete and
final dispositions by avoiding piecemeal litigation. DiTrolio v. Antiles, 142 N.J.
253, 267 (1995). In applying the doctrine, the "polestar . . . is judicial 'fairness.'"
Wadeer v. New Jersey Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (quoting
DiTrolio, 142 N.J. at 272).
The trial judge did not err when he concluded McAllister was not a
necessary party to resolve this dispute. Employing the entire controver sy
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doctrine to bar plaintiff's ability to recover from defendant for the work he
performed would work an inequitable and unfair result.
Finally, we reject plaintiff's argument on cross-appeal that the trial judge
should have awarded him $8781.04. The testimony at trial revealed the
combined efforts of the parties yielded the settlement for McAllister. Plaintiff
pursued Cohen, which produced the insurer, who defendant then negotiated with
to secure a recoverable judgment for the client. In view of our deferential
standard of review, the judge did not abuse his discretion when he determined
plaintiff should not recover what amounted to sixty percent of the fees belonging
to defendant, who tasked him only with recovering the judgment. The judge's
findings are supported by the substantial credible evidence in the record and we
decline to disturb them.
Affirmed.
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