STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION, Plaintiff v. WALTER MAMCHUR, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1220-05T21220-05T2

STATE OF NEW JERSEY, by the

COMMISSIONER OF TRANSPORTATION,

Plaintiff,

v.

WALTER MAMCHUR, JR.,

Defendant-Appellant,

v.

SEAN CREAN; SHERYL CREAN;

PETER FENTON; PATRICIA

FENTON; DIANE SALOMONE;

VINCENT MARESCA; TOWNSHIP

OF PISCATAWAY, in the County of

Middlesex, a Municipal

Corporation of New Jersey,

Defendants.

_________________________________

 

Argued: October 11, 2006 - Decided October 27, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8305-00.

David B. Rubin argued the cause for appellant.

Arthur G. Warden, III, argued the cause for respondent Carlin & Ward, P.C. (Carlin & Ward, attorneys; Mr. Warden and Scott A. Heiart, on the brief).

PER CURIAM

Defendant Walter Mamchur, Jr. appeals from an order awarding a $30,185 counsel fee to his former attorneys, Carlin & Ward, P.C., for services rendered in the underlying condemnation action, based on a theory of quantum meruit. On appeal, Mamchur contends the trial court applied the incorrect legal standard when reviewing the request for counsel fees because it analyzed the statement of services in terms of the reasonableness of the hourly rate and services performed and did not consider the value, if any, that the services contributed to the end result. Appellant contends he received little or no benefit from Carlin & Ward's services. Appellant further contends the trial court erred in not considering his potential legal malpractice claim, at least as an offset. We are not persuaded by either of these arguments and affirm substantially for the reasons articulated by Judge Hurley in his oral opinion of September 6, 2005.

On October 10, 2000, the New Jersey Department of Transportation (DOT) instituted condemnation proceedings to acquire property belonging to appellant. Appellant retained William J. Ward of Carlin & Ward on January 9, 2003 to represent him in the valuation stage of the proceeding. The retainer agreement entered into between the parties provided for a one-third contingency on any amount recovered in excess of the DOT's initial offer of $358,000.

Mamchur was dissatisfied with the initial appraisal of $500,000 received by Ward and terminated the appraiser's services prior to the Commissioner's hearing. In order to preserve an appeal, Mamchur and Ward appeared at the hearing without a witness and the Commissioner awarded the State's number. Ward then devised a theory that the property could be subdivided. Ward retained Eric Keller, P.E. to provide an expert report to support that theory and Richard M. Chaiken, MAI, who incorporated the engineering analysis and appraised the property at $733,000. The State obtained a revised appraisal, increasing the amount of its offer to $435,000.

Mamchur, however, was dissatisfied with Chaiken's appraisal. By letter of October 31, 2003, he discharged Carlin & Ward as counsel because Ward had released the report to the State as required by the case management order. Not being released from the case, Ward appeared at the mandatory settlement conference. The State increased its offer to $600,000, and Ward recommended that Mamchur accept the settlement. Mamchur declined and a week after the conference, Ward was relieved as Mamchur's counsel by the court.

Mamchur obtained an adjournment, and on August 4, 2004 he retained Louis Cohen as substituted counsel pursuant to an agreement of one-third of the amount in excess of the State's updated $435,000 appraisal. Cohen used the engineer's report, but modified it slightly to increase the value of the lots, and Mamchur located a new appraiser, who valued the property at $805,000. Following a bench trial, Mamcher obtained a $740,000 judgment.

When Mamchur refused to pay Carlin & Ward's counsel fee, the firm filed a petition to establish an attorneys' lien on the recovery pursuant to N.J.S.A. 2A:13-5, seeking to recover counsel fees and costs in the amount of $33,285.13, based on a quantum meruit basis. Mamchur obtained numerous adjournments and hired and fired counsel, then proceeded pro se. On September 6, 2005, Mamchur was denied a further adjournment to obtain counsel to pursue a legal malpractice claim. However, as an accommodation, even though Mamchur had not filed a counterclaim, Judge Hurley obtained the consent of Ward to waive the entire controversy doctrine so that the petition could proceed and Mamchur, if he desired, could pursue a legal malpractice claim at a later date.

Testifying at trial were Ward, Mamchur and Cohen. Judge Hurley analyzed the law firm's request against R.P.C. 1.5 and awarded counsel fees and costs in the amount of $30,185 after deducting for services that were rendered prior to the signing of the retainer agreement and for computerized legal research costs. The court correctly concluded that Carlin & Ward was entitled to a fee under a quantum meruit theory. See Glick v. Barclays De Zoete Wedd, Inc., 300 N.J. Super. 299, 310-11 (App. Div. 1997) (holding that the crucial factor in determining the amount of recovery on a quantum meruit basis for an attorney hired on a contingency fee and later discharged before completion of the services is the contribution which the lawyer made to advancing the client's cause).

We are satisfied the record supports the finding that Ward's work contributed to the final result. For instance, Mamchur benefited from the residential subdivision theory that Carlin & Ward devised and Cohen used the engineering report commissioned by Carlin & Ward to obtain a favorable result, close to the value of Chaiken's appraisal. Thus, applying the standard in Glick that "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," id. at 311, Judge Hurley properly determined the compensation due Carlin & Ward for services rendered to Mamchur in the condemnation action.

We question the viability of any potential malpractice claim against Carlin & Ward in view of Mamchur's failure to assert such claim, though represented by various counsel during the varying stages of this litigation. Regardless, there is no merit to appellant's claim that the trial judge did not consider his legal malpractice allegations. To the contrary, the judge expressly allowed Mamchur the option of pursuing a legal malpractice claim at a later date.

Affirmed.

 

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A-1220-05T2

October 27, 2006