SUN YOUNG KIM VS. WAL-MART STORES, INC. (L-2203-15, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0909-20
SUN YOUNG KIM,
Plaintiff,
v.
WAL-MART STORES,
INC.,
Defendant.
_____________________
Argued November 29, 2021 – Decided December 10, 2021
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2203-15.
David M. Wasserman argued the cause for pro se
appellant Andrew Park, P.C.
Pasha Razi argued the cause for pro se respondent Jae
Lee Law, P.C.
PER CURIAM
The Law Offices of Andrew Park, P.C. (the Park firm), successor counsel
to plaintiff Sun Young Kim in this personal injury matter, appeals from an
October 16, 2020 Law Division order allocating the $41,666.66 contingent fee
earned between the Park firm and plaintiff's former counsel, Jae Lee Law, P.C.
(the Lee firm). Following a plenary hearing, the trial court determined the Lee
firm was entitled to two-thirds of the fee ($27,777.78), and the Park firm was
entitled to one-third of the fee ($13,888.88) based on a $125,000 settlement with
defendant Wal-Mart Stores, Inc. (Wal-Mart) resulting from plaintiff's slip and
fall accident at one of its stores. For the reasons that follow, we dismiss the
appeal.
I.
This matter comes before us for a second time. The parties are familiar
with the procedural history and facts of this case, and therefore, they will not be
repeated in detail here. Kim v. Wal-Mart Stores, Inc., No. A-3668-17 (App.
Div. Mar. 28, 2019). We remanded and directed the trial court to conduct a
plenary hearing because there were facts in dispute as to the Lee firm's quantum
meruit fee claim. Specifically, we noted that the trial court did not conduct an
analysis of the factors required under La Mantia v. Durst, 234 N.J. Super. 534,
540-41 (App. Div. 1989), or make findings of fact and conclusions of law under
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Rule 1:7-4(a).1 In addition, we directed that the two law firms "submit
certifications of services along with supporting documents" in advance of the
plenary hearing. Kim, slip op. at 10-11.
A plenary hearing was conducted on August 18 and 25, 2020, via Zoom.
The trial court heard testimony from attorney Andrew Park, the managing
partner at the Park firm; Martin Cedzidlo, an attorney employed by the Lee firm,
who was primarily responsible for handling the matter; and Brian Park, an
employee of the Lee firm for twenty-one years,2 who is fluent in Korean and
communicated with plaintiff during the pendency of the underlying personal
injury matter. The record shows the Park firm did not submit a certification of
services with supporting documents, which was essential to the court's decision,
but the Lee firm complied with our mandate. At the hearing, Andrew Park
testified he was "not sure" why his firm did not submit a certification of services
detailing the time spent on the matter but conceded the time his firm spent on
1
Rule 1:7-4(a) provides for "Required Findings" and states: "The court shall,
by an opinion or memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon in all actions tried without a jury, on every
motion decided by a written order that is appealable as of right . . . ."
2
The record indicates that Brian Park testified he is a "claims manager" at the
Lee firm. In an email to plaintiff, he described his role as a "vice-president,"
which was the closest translation he could use for the Korean language.
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the matter was "less than" the time spent by the Lee firm. During appellate oral
argument, counsel for the Park firm stated no time records were kept on this
matter, and therefore, no certification of services could be submitted to the trial
court.
On October 16, 2020, the trial court issued a twelve-page written opinion.3
The court found the Lee firm filed a complaint against defendant Wal -Mart on
May 21, 2015, and following an investigation and discovery, "procured a
$125,000 settlement offer." The trial court also determined that on October 17,
2016, plaintiff discharged the Lee firm and retained the Park firm to assume the
handling of her case. In an October 25, 2016 letter to the Park firm, the Lee
firm stated:
This letter will serve to confirm that your firm
acknowledged our lien for services rendered to
[plaintiff] and you agree that all attorney's fees shall be
held in escrow pending an apportionment hearing
before a Superior Court [j]udge or unless your firm and
my firm reach an amicable apportionment agreement.
[(alterations in original).]
The record is unclear as to whether plaintiff accepted or rejected the
$125,000 settlement offer initially. Nevertheless, on November 17, 2016, Wal-
3
The Park firm represents that the October 16, 2020 order was not served on
the parties until October 23, 2020.
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Mart filed a motion for summary judgment. The Lee firm prepared written
opposition to Wal-Mart's motion because the Park firm had not officially been
substituted as counsel of record for plaintiff. The Park firm alleges Brian Park,
on behalf the Lee firm, inappropriately emailed plaintiff during the transition of
her representation between the two law firms in violation of the Rules of
Professional Conduct (RPC). According to the Park firm, Brian Park attempted
to confuse plaintiff and give her a negative impression of the Park firm.
However, no specific RPC's were cited.
On February 3, 2017, the trial court granted Wal-Mart's motion for
summary judgment and dismissed plaintiff's complaint with prejudice. The law
firms disputed who was responsible for this adverse result and were critical of
each other's legal representation provided to plaintiff. The Park firm contends
"it was forced to present a weak theory of liability" based on "inferred
negligence and constructive knowledge by way of only circumstantial
evidence." In contrast, the Lee firm claimed the Park firm "disavowed its theory
of liability" under which the settlement offer was generated.
Following its grant of summary judgment, Wal-Mart withdrew the
$125,000 settlement offer. The Park firm appealed the February 3, 2017 order.
Thereafter, while plaintiff's appeal was pending, the Park firm engaged in
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renewed settlement negotiations with Wal-Mart, and on June 6, 2017, the matter
settled for $125,000.
The trial court found that Cedzidlo "worked on the file approximately 100
hours and his hourly rate is $450 per hour." Cedzidlo's certification of services
stated that 94.89 hours were spent on the case for a total fee of $42,750.00. 4 In
addition, Cedzidlo testified that the Park firm's handling of the matter "did not
add value" to the case because defense counsel made the $125,000 offer prior to
Wal-Mart's motion for summary judgment. He also "opined it was a mistake to
argue mode of operation theory in opposition to the summary judgment motion"
as asserted by the Park firm because Wal-Mart had "constructive and actual[]
[notice] of the spilled item [i]n the aisle[,] which allegedly caused . . . plaintiff
to fall and [the store] attempted to clean it up prior to [her] [accident]."
In addition, the trial court noted that Andrew Park testified "he did not
know how much time was spent on the file" and "he did not spend much time on
[it]." Andrew Park opined that the Lee firm "mishandled the case by not having
a liability expert, not taking the depositions of the corporate represen tatives of
Wal-Mart nor an employee on duty at the time of plaintiff's [incident]." No
4
We note that $450 per hour times 94.89 hours equals $42,700.50. This
mathematical discrepancy is not germane to our decision.
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eyewitnesses were deposed either. In addition, the trial court emphasized that
Park "repeated his testimony" about the Lee firm allegedly refusing to sign a
substitution of attorney.
The trial court concluded there was "no inadequate representation" by the
Lee firm, and no "harm" or delay was caused to plaintiff because the substitution
of attorney was "signed by both law firms" and dated October 21, 2020. There
was no evidence as to when the substitution of attorney was filed with the clerk's
office, but the trial court noted the document "would have been accepted by the
court" as of the date it was fully signed. However, the Park firm's attempt to
file the substitution of attorney on December 16, 2016, was denied by a prior
judge for "failure to comply with Rule 1:11-2(a)(2)"5 because a January 3, 2017
trial date had been set.
In its decision, the trial court awarded two-thirds of the contingent fee to
the Lee firm and one-third to the Park firm, plus interest and costs, which was
5
Rule 1:11-2(a)(2) provides for "Withdrawal or Substitution" of attorney and
provides, in pertinent part, that prior to "the fixing of a trial date in a civil action,
an attorney may withdraw without leave of court only upon the filing of the
client's written consent, a substitution of attorney executed by both the
withdrawing attorney and the substituted attorney, a written waiver by all other
parties of notice and the right to be heard, and a certification by both the
withdrawing attorney and the substituted attorney that the withdrawal and
substitution will not cause or result in delay." (Emphasis added.)
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the same apportionment it previously awarded on November 17, 2017. In
finding "[t]he representation of firms was adequate," the trial court determined
the "value produced by the Lee [f]irm was significant" because the $125,000
settlement offer was made prior to Wal-Mart's motion for summary judgment.
By rejecting the offer and defending Wal-Mart's motion, the Park firm undertook
a "risk [that] was significant" and "could have led to a zero recovery if the appeal
was not won by the plaintiff or the offer was not restored." A memorial izing
order was entered. This appeal followed.
On appeal, the Park firm argues the trial court did not comply with our
March 28, 2019 mandate and erred by arriving at the same result previously
rendered on November 17, 2017. The Park firm further contends the trial court
did not properly account for the relationship between the Lee firm's conduct of
discovery and the grant of summary judgment to Wal-Mart, and the court
disregarded the Lee firm's purported violation of the RPC's. The Lee firm seeks
affirmance and asserts the Park firm's appeal should be dismissed as untimely
under Rule 2:4-1(a) because it was filed on December 4, 2020, forty-nine days
after the date stated on the order under review—October 16, 2020.
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II.
At the outset, we address the Lee firm's argument that the Park firm's
appeal was not timely filed. Rule 2:4-1(a) provides the appeal "must be filed
within [forty-five] days of their entry." Rule 2:4-4(a) permits a maximum thirty-
day extension of time, but only if the notice of appeal was actually "filed within
the time as extended." Lombardi v. Masso, 207 N.J. 517, 540-41 (2011). When
an "appeal is untimely, the Appellate Division [lacks] jurisdiction to decide the
merits." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (quoting In
re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990)). It is well established "that
when the time for taking an appeal has run the parties to a judgment have a
vested right therein[,] which cannot subsequently be taken from them. . . . [I]t
is of the utmost importance that at some point judgments become final and
litigations come to an end." Hill, 241 N.J. Super. at 371 (second and third
alterations in original) (quoting In Re Pfizer's Est., 6 N.J. 233, 239 (1951)).
The Park firm filed its appeal on December 4, 2020, forty-nine days after
the October 16, 2020 date stamped "filed" on the order under review, and forty -
two days after the October 23, 2020 date, when the order was entered and served
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on the parties. 6 Typically, a notice of appeal that is filed out of time would be
addressed by this court by way of a motion filed under Rule 2:8-2 based on a
procedural defect. The Park firm did not move for leave to file its appeal out of
time, Rule 2:4-4, and we are therefore constrained to dismiss the untimely appeal
because we lack jurisdiction. Ricci, 448 N.J. Super. at 565. In any event, for
the reasons that follow, we would otherwise affirm the court's order on the
merits.
III.
"Appellate review of a trial court's attorney fee determination is
deferential. We will only disturb the trial court's determination on a showing of
'clear abuse of discretion' based on the record presented on the fee application."
In re Est. of F.W., 398 N.J. Super. 344, 355 (App. Div. 2008) (quoting Rendine
v. Pantzer, 141 N.J. 292, 317 (1995)). "[F]ee determinations by trial courts will
be disturbed only on the rarest of occasions, and then only because of a clear
abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444
(2001) (quoting Rendine, 141 N.J. at 317). Similarly, we give deference to the
6
The notice of appeal indicates that the trial court's order was entered on
October 23, 2020. Our review of the record reveals this is the only place where
the October 23, 2020 date appears rather than the October 16, 2020 filing date
stamped on the order by the trial court. The Park firm did not include a copy of
the notice of appeal in its appendix in violation of Rule 2:6-1(a)(1)(F).
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factual findings of the trial court. See Rova Farms Resort, Inc. v. Invs. Ins. Co.,
65 N.J. 474, 483-84 (1974).
An attorney hired on a contingent fee basis, who is discharged or replaced
before the matter is resolved, is not entitled to recover fees based on the
contingent fee agreement. Glick v. Barclays De Zoete Wedd, Inc., 300 N.J.
Super. 299, 310 (App. Div. 1997) (citations omitted). Instead, the trial court, in
its discretion, may award the attorney a fee "on a quantum meruit basis for the
reasonable value of the services rendered." Ibid. Quantum meruit, a form of
quasi-contract, permits recovery of as much as is deserved. Kopin v. Orange
Prods., Inc., 297 N.J. Super. 353, 367 (App. Div. 1997) (citation omitted).
In La Mantia, we enunciated the principles the trial courts should apply
when determining the amount of a fee the court should award in these
circumstances: (1) "the length of time each of the firms spent on the case relative
to the total amount of time expended to conclude the client's case"; (2) "[t]he
quality of that representation"; (3) "the result of each firm's efforts"; (4) "the
reason the client changed attorneys"; (5) the "[v]iability of the claim at transfer";
(6) and "[t]he amount of the recovery realized in the underlying lawsuit." 234
N.J. Super. at 540-41. We emphasized that when a court deals with equitable
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principles "such as quantum meruit, hard and fast rules are difficult to apply, let
alone construct." Id. at 539-40.
In Glick, Justice (formerly Judge) Long provided guidance to courts for
resolving future disputes:
[T]he crucial factor in determining the amount of
recovery is the contribution which the lawyer made to
advancing the client's cause. Thus, if a retiring lawyer
cedes to his successor a substantially prepared case
which resulted from an extensive investment of time,
skill and funds, the retiring lawyer might be entitled to
compensation greater than the standard hourly rate. In
comparison, if a ceding lawyer's work contributed to a
recovery by the client, but the new attorney was crucial
in the success of the case, then the predecessor's
compensation should be based, at most, upon a standard
hourly rate. Finally, if 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, 300 N.J. Super. at 310-11(internal citations
omitted).]
In this appeal, there is no dispute that plaintiff retained both law firms on
a contingent fee basis. No retainer agreements were provided by either firm or
moved into evidence; however, based on the record presented, it is undisputed
that the contingent fee amount would equal one-third of any ultimate recovery
by plaintiff.
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Here, the trial court properly recognized that the allocation of the fee
should be based on the principles enunciated in La Mantia as we directed. As
to factor one, the trial court found the Park firm "did not submit a [c]ertification
of [s]ervices, contrary to the requirement of the Appellate Division," but "[t]he
court . . . assume[s] the Park firm did some work in this matter" and would "not
assume no hours . . . simply because there was no [c]ertification of [s]ervices
filed." We have previously held that the failure to submit time records in support
of an application for a reasonable fee "is not fatal" to the application. Estate of
F.W., 398 N.J. Super. at 356-57. However, where, as here, a firm is seeking an
allocation of fees, an affidavit or certification of services is required. See
Quereshi v. Cintas Corp., 413 N.J. Super. 492, 500 (App. Div. 2010) (citations
omitted). No less is required when a firm asks the court to apportion the fees
based on equitable principles.
Notwithstanding this deficiency, the trial court indulged the Park firm,
indicating it was clear it had at least "filed a [s]ubstitution of [a]ttorney,
appeared at the summary judgment motion" after oppos[ing] the motion in
writing, "filed an appeal," "and secured a $125,000 settlement." The record
contains sufficient credible evidence to support that finding.
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As to factor two, the trial court credited both law firms for their role in
procuring the $125,000 settlement offer. The court highlighted this
demonstrated adequate representation by each firm. Despite the Park firm's
assertion that the Lee firm's unsatisfactory discovery efforts, namely failing to
depose Wal-Mart employees or retain a liability expert, were the direct cause of
summary judgment being granted against plaintiff, Andrew Park testified to the
contrary. He opined that the evidence provided in the file by the Lee firm at the
time plaintiff's representation was transferred to the Park firm was likely
sufficient to reverse the summary judgment decision on appeal. Therefore, the
trial court was correct in concluding that the question of which firm was
responsible for the case being dismissed by way of summary judgment was
irrelevant.
As to factor three, the trial court emphasized that the Lee firm performed
a substantial amount of work leading to the initial $125,000 settlement offer ,
prepared the opposition to Wal-Mart's summary judgment motion, and had the
matter trial-ready. On the other hand, the Park firm revived the settlement offer
after filing a notice of appeal. The trial court was correct in its analysis that the
Lee firm completed more work for plaintiff than the Park firm did.
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As to factor four, the reason plaintiff changed attorneys is unknown as no
evidence was elicited on this factor, and in any event, it has no bearing on the
analysis. As to factor five, the trial court properly found plaintiff's claim was
"viable" because the Lee firm secured a $125,000 settlement offer, and the Park
firm later revived it. As to factor six, the amount recovered—$125,000—
appears to have been reasonable for a challenging case on the issue of liability.
Moreover, no documents or factual information was presented at the
plenary hearing for the trial court to evaluate whether the settlement amount
could have been higher but for the alleged inadequate representation by the Lee
firm. And, the trial court was not made aware of the severity of plaintiff's
injuries or her out-of-pocket expenses. Plaintiff did not testify at the plenary
hearing. Accordingly, we conclude that the trial court applied the principles set
forth in La Mantia, made appropriate findings of fact and conclusions of law in
accordance with Rule 1:7-4(a), and did not abuse its discretion.
IV.
Finally, the Park firm contends the Lee firm breached one or more
unspecified RPC's during the course of the underlying litigation and that the trial
court failed to explore the extent and potential impact of the alleged breaches in
determining the fee allocation. We are not persuaded.
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The Park firm's reliance on our holding in Straubinger v. Schmitt, 348 N.J.
Super. 494 (App. Div. 2002), is misplaced. There, two firms disagreed on the
apportionment of attorney's fees where representation had occurred on a
contingent basis, and one firm had potentially breached an RPC. Id. at 501.
However, in Straubinger, the attorney represented both the plaintiff driver and
plaintiff passenger in a personal injury automobile suit, raising a potential
conflict of interest in violation of RPC 1.7. Ibid. The conflict of interest could
have substantially impacted the settlement value of the case for one of the
plaintiffs, and in turn, the legal fee owed. Id. at 504. Initially, the trial judge in
Straubinger found the breach "inconsequential," but we reversed and remanded
for a proper analysis of the impact the RPC violation had on the amount
recovered and the appropriate apportionment of fees. Id. at 504-05.
We note an important passage from our opinion in Straubinger, quoted by
the Park firm, in its brief:
The Superior Court's role in these matters is not
regulatory or punitive. Its role is to resolve the counsel
fee dispute and to consider and weigh any violations of
the RPCs which may impact on the award of counsel
fees. When this analysis is complete, the judge must
then determine whether an award is warranted and, if
so, how much is reasonable under all of the
circumstances.
[Id. at 502 (emphasis added).]
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In Straubinger, we recognized the RPC violation directly impacted the
award of counsel fees because the conflict of interest could have substantially
impacted the damages ultimately recovered. However, here, the alleged RPC
violation does not have the same potential to significantly alter the value of the
case, or the resulting attorney's fees. The trial court emphasized Brian Park sent
the subject email to plaintiff on December 28, 2016, and the motion to be
relieved as counsel was granted on December 16, 2016. The court found "the
Lee [f]irm may not have understood they had been removed from the case" and
"[n]o facts to the contrary" were provided by the Park firm. Thus, we discern
no basis to disturb the trial court's decision.
To the extent we have not addressed the Park firm's other arguments, it is
because they are without merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Dismissed.
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