COURTNEY AMBROSIO ZACCARO v. DONALD S. PAVLICK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1247-09T2
COURTNEY AMBROSIO ZACCARO,
Plaintiff-Appellant,
v.
DONALD S. PAVLICK, ADMINISTRATOR
OF THE ESTATE OF DONALD PAVLICK,
JR., DECEASED,
Defendant-Respondent.
________________________________________________________
Argued June 8, 2010 - Decided July 27, 2010
Before Judges Grall, Messano and LeWinn.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-3928-03.
Herbert J. Kessler argued the cause for
appellant (Kessler, DiGiovanni & Jesuele,
LLP, attorneys; Mr. Kessler, on the brief).
E. Drew Britcher argued the cause for
respondent (Britcher, Leone & Roth, LLC,
attorneys; Mr. Britcher, of counsel; Mindy
Michaels Roth, on the brief).
PER CURIAM
This appeal involves a fee dispute between attorneys. On
March 17, 2003, appellant Herbert J. Kessler, of Kessler,
DiGiovanni & Jesuele, LLP, was retained by plaintiff Courtney
Ambrosio Zaccaro to prosecute a dental malpractice suit against
Dr. Donald Pavlick, Jr., D.M.D. (Pavlick, Jr.). Kessler and
plaintiff entered into a written contingency fee agreement.1
On June 2, 2003, Kessler filed suit but soon learned that
Pavlick Jr. had died; on June 12, Kessler filed an amended
complaint against Dr. Donald Pavlick, Sr. (Pavlick, Sr.),
administrator of Pavlick, Jr.'s estate. During the next three
years, Kessler engaged in discovery, retained experts, and
otherwise prosecuted the malpractice action. However, disputes
arose between him, plaintiff, and plaintiff's family members.
The nature of the disputes was set forth in Kessler's
certification that accompanied his August 1, 2006 motion to be
relieved as counsel. He explained that Pavlick, Jr. had treated
plaintiff from April 24, 2001 through July 13, 2001. Kessler
had retained Dr. Howard Pomeranz as plaintiff's dental expert,
and Pomeranz opined in a series of reports that Pavlick, Jr. had
deviated from accepted standards of care. Kessler detailed in
his certification the remaining limited discovery that needed to
be completed in the case.
1
The appellate record does not include a copy of the retainer
agreement; Kessler advises the he "cannot locate a copy . . . ."
The absence of the agreement is unimportant to resolution of the
issues presented, since both parties agree that pursuant to the
agreement, Kessler was not entitled to a fee unless he obtained
a recovery for plaintiff.
A-1247-09T2
2
During discovery, plaintiff learned that Pavlick, Jr. had
entered into a June 6, 2001 consent order with the New Jersey
Board of Dentistry (the Board) because of his cocaine addiction.
Among other things, that consent order provided that Pavlick,
Sr. would supervise his son's practice, and that Pavlick, Jr.
would provide urine samples twice weekly for drug screening. It
was also learned that Pavlick, Jr.'s death, on May 31, 2003, was
caused by "acute cocaine intoxication."
Kessler had earlier furnished copies of the drug screenings
conducted pursuant to the consent order to the motion judge who
reviewed them in camera. In a letter dated February 8, the
judge wrote to Kessler, his opponent in the malpractice action,
and the Deputy Attorney General representing the Board, that
"[a]ll of the test results during the period of the alleged
2
malpractice were negative."
Kessler further certified that "[o]n at least three
occasions during the . . . lawsuit," plaintiff demanded that he
"attempt to introduce evidence at trial of . . . Pavlick, Jr.'s
use of cocaine"; that he amend the complaint to add Pavlick, Sr.
2
Kessler's brief states that after the judge's in camera review,
defense counsel moved to bar any reference to Pavlick, Jr.'s
cocaine addiction. However, at oral argument before us, Kessler
could not recall if a motion had been brought, and further
advised that the judge never entered an order barring
introduction of evidence of Pavlick, Jr.'s drug use.
A-1247-09T2
3
as an individual defendant; that he use a "'Timeline' created by
. . . [plaintiff]" at trial; and that he "attempt to introduce
at trial all acts of negligence committed by . . . Pavlick, Jr.,
whether or not th[e] acts were a proximate cause of
[plaintiff's] injuries . . . ." Kessler's certification also
claimed that plaintiff's uncle, a retired FBI agent, had written
to him and threatened to discharge him if "[he] did not follow
the directions contained in his correspondence."
Citing the judge's review of Pavlick, Jr.'s drug screens,
Kessler claimed he "w[ould] not be able to satisfy [plaintiff's]
continuing demand that [he] introduce such evidence at trial."
Kessler certified that Pomeranz opined there was no theory of
liability that could be asserted against Pavlick, Sr., and that
Pavlick, Jr.'s negligence was limited to a two-day period, thus,
making plaintiff's "Timeline" irrelevant.
Kessler referenced a letter sent to him by plaintiff in
July in which she accused him of "not working in her best
interests," and "turning a deaf ear to her requests." Kessler
concluded that he could not "[e]thically . . . undertake the
course of action that plaintiff . . . demanded," and sought to
be relieved. He further explained that his firm had spent "in
excess of $45,000[] to date" in "advanced costs." Kessler noted
A-1247-09T2
4
that he would "make application for reimbursement of costs and a
legal fee, based on quantum meruit, at the appropriate time."
At the October 20, 2006 oral argument on the motion,
Kessler, plaintiff and her mother appeared. Plaintiff opposed
the motion to be relieved and presented written opposition and
an affidavit in which she explained her frustration with
Kessler's alleged failure to "bring into evidence . . . Pavlick,
Jr.'s many significant acts of negligence that [we]re closely
connected with [her] injuries . . . ." Plaintiff further
claimed that she wanted Kessler to "respond[] to suggestions
that he use another definition of [p]roximate [c]ause[,]" but
that Kessler "left [her] in the dark . . . ." She attached
copies of her correspondence to Kessler. Plaintiff's mother
also addressed the judge and essentially contended that Kessler
had never provided a reasonable explanation regarding their
requests.
After reserving decision, the judge placed an oral opinion
1.16(b)(4),3 he
on the record that same day. Citing RPC
3 RPC 1.16(b)(4) provides:
[A] lawyer may withdraw from representing a
client if:
....
....
(continued)
A-1247-09T2
5
concluded that Kessler's "application of the rules of evidence
to the facts of th[e] case" was correct. "Despite [Kessler]
telling [this to] plaintiff, both plaintiff and her uncle still
insist[ed] that [Kessler] follow a course of action inconsistent
with ethical behavior and in contravention of the rules of
evidence."4 Noting a "fundamental disagreement" between Kessler
and plaintiff, the judge entered an order (the October 2006
order) permitting Kessler and his firm to withdraw from the
litigation and "preserve their attorneys' lien . . . and their
right to petition the costs [sic] for reimbursement of costs
advanced and legal fees, based on the principle of quantum
meruit . . . ."
Several months later, plaintiff retained the firm of
Britcher, Leone & Roth, L.L.C., to represent her in the
malpractice suit. Kessler forwarded his file to E. Drew
Britcher on January 26, 2007. In his cover letter, Kessler
(continued)
the client insists upon taking action that
the lawyer considers repugnant or with which
the lawyer has a fundamental disagreement
....
4
This is an apparent reference to a different subsection of RPC
1.16, subsection (a), that provides: "[A] lawyer shall not
represent a client or, where representation has commenced, shall
withdraw from the representation of a client if: (1) the
representation will result in violation of the Rules of
Professional Conduct or other law[.]"
A-1247-09T2
6
advised that his "firm [wa]s asserting a claim for reasonable
legal fees and costs," and enclosed a copy of the judge's
October 2006 order.5 Britcher tried the case before a jury, and
on November 7, 2007, judgment was entered in favor of plaintiff
in the amount of $807,694.01. An appeal ensued, and the matter
was ultimately settled for $700,000.
In June 2009, Britcher sent Kessler a check for the
reimbursement of his costs but refused to honor his claim for
legal fees. Kessler, relying upon the October 2006 order, filed
a motion seeking apportionment of the legal fee based upon
quantum meruit. Britcher opposed the motion and cross-moved for
reconsideration of the October 2006 order.
At oral argument, Kessler contended that he was entitled to
a portion of the fee because of the judge's prior ruling that
resulted in the October 2006 order. Britcher contended that
pursuant to our holding in Dinter v. Sears, Roebuck & Co.,
278 N.J. Super. 521, 531-32 (App. Div.), certif. denied,
140 N.J.
329 (1995), Kessler was not entitled to any portion of the fee
because plaintiff had not demanded that Kessler engage in
5
There is an apparent factual dispute as to whether the order
was enclosed. Britcher has asserted that he was unaware of
Kessler's claim for legal fees and would not have accepted
plaintiff as a client, given the advanced stage of the
litigation and the complexity of the case, had he known about
the order. The dispute was not resolved by the judge below.
A-1247-09T2
7
unethical conduct, and because Kessler withdrew before she
prevailed in the litigation and was not entitled to a fee under
the contingency retainer. Britcher further contended that the
judge should reconsider and vacate the October 2006 order
4:49-2, or alternatively, Rule 4:50-1(f),
pursuant to Rule
noting that plaintiff was not represented when she appeared and
opposed Kessler's motion.
In an oral opinion entered on the record that same day, the
judge reviewed our holding in Dinter. He found that "upon
careful and closer scrutiny and inspection of the reasons why
. . . Kessler sought to be relieved as counsel, it is evident
that the real issue was [his] discord with plaintiff's mother
and uncle." The judge noted that his "review of plaintiff's
written requests . . . do not in any way suggest that plaintiff
was seeking that Mr. Kessler commit unethical acts . . . .
Plaintiff was merely seeking answers as to why information . . .
was not being used in her case." He concluded that "Kessler's
abandonment of his client constitute[d] a breach of the
contingency fee agreement, thus forfeiting any right to recovery
of any attorney's fee . . . ." He denied Kessler's motion.
The judge then concluded that he "must and w[ould]
reconsider" entry of the October 2006 order. He noted that at
the time, he was unaware of "the financial arrangement between
A-1247-09T2
8
plaintiff and . . . Kessler." Based on the contingency fee
agreement, Kessler was not entitled to any fee, and the judge
granted Britcher's motion for reconsideration. He entered an
order reflecting his rulings, and this appeal followed.
Kessler contends that the judge erred in denying his
application for a portion of the legal fees and erred in
reconsidering his prior order permitting such an application.
He further argues that the judge failed to explain his reasons
for determining that "discord" was the reason he sought to be
relieved, particularly since the judge heard no testimony
regarding the issue. Kessler made it clear at oral argument
before us that he seeks a remand so that a plenary hearing may
occur.
Britcher argues that the judge had additional information
in 2009 -- specifically the letters that plaintiff and her uncle
sent to Kessler -- that permitted him to conclude that plaintiff
had never requested that Kessler engage in unethical behavior.
As a result, the judge properly reconsidered his original
decision and determined, pursuant to Dinter, that Kessler was
not entitled to a fee. Britcher further argues that Kessler
never sought a plenary hearing below, though he candidly
admitted at oral argument before us that such a hearing may have
been appropriate.
A-1247-09T2
9
We have considered these arguments in light of the record
and applicable legal standards. We conclude that factual
disputes exist that can not be resolved without a plenary
hearing. We therefore reverse and remand the matter for further
proceedings consistent with this opinion.
The parties agree as to the applicable law. In Dinter,
supra, we said,
Where an attorney is discharged by the
client without good cause there may be an
entitlement to a portion of an ultimate
recovery based on quantum meruit . . . .
Any quantum meruit fee in such circumstances
would emanate from services actually
rendered at the request of and for the
benefit of the client to date of discharge
.... In contrast, a discharge for good
cause might not carry such entitlement.
[278 N.J. Super. at 531 (citations and
footnote omitted).]
However, "an attorney who, acting pursuant to a contingent fee
agreement, voluntarily withdraws from representation before or
without achieving any recovery for his client is not entitled to
be compensated for services rendered absent a breach by the
client or some ethical reason which might have required the
withdrawal." Id. at 532 (emphasis added). In reaching this
conclusion, we relied primarily upon Int'l Materials Corp. v.
Sun Corp.,
824 S.W.2d 890 (Mo. 1992), which we characterized as
"ha[ving] synthesized the usual rule: The general rule is that
A-1247-09T2
10
a lawyer who abandons or withdraws from a case, without
justifiable cause, before termination of a case and before the
lawyer has fully performed the services required, loses all
right to compensation for services rendered." Dinter, supra,
278 N.J. Super. at 532 (quoting Int'l Materials, supra,
824 S.W 2d at 895) (emphasis added).
The October 2006 order was clearly premised on the judge's
conclusion that Kessler could apply for a fee in quantum meruit
if the litigation was ultimately successful because he had
demonstrated "a breach by [plaintiff] or some ethical reason
Dinter, 278
which . . . required . . . [Kessler's] withdrawal."
N.J. Super. at 532. Yet in 2009, without the benefit of any
testimony, and without enunciating any detailed findings, R.
1:7-4(a), the judge determined that Kessler had "abandon[ed]"
plaintiff because of a disagreement in which "she was merely
seeking answers" to her questions. In other words, he reached
the opposite legal conclusion, i.e., that Kessler had
"abandon[ed] or withdraw[n] from [the] case, without justifiable
cause . . . ." Dinter, supra,
278 N.J. Super. at 532 (quoting
Int'l Material, supra,
824 S.W. 2d at 895).
A trial judge is under an obligation to state his findings
and conclusions so as to create a record capable of meaningful
Ronan v. Adely,
182 N.J. 103, 110-11 (2004).
review. See
A-1247-09T2
11
Failure in this regard "'constitutes a disservice to the
litigants, the attorneys and the appellate court.'" Curtis v.
Finneran,
83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v.
Bd. of Adjustment of Englewood,
141 N.J. Super. 1, 4 (App. Div.
1976)).
We reject Britcher's explanation for the judge's turnaround
-- that in 2009, the judge was furnished with copies of
plaintiff's and her uncle's correspondence demonstrating that
the true reason for Kessler's withdrawal was a disagreement and
Kessler's failure to communicate with plaintiff. In 2006, when
plaintiff filed her pro se opposition to Kessler's motion, she
included an affidavit and attached some of those same letters.6
There is also a document in the appellate record that indicates
plaintiff advised the judge in 2006 that there was a contingency
fee agreement in place. Thus, we are unsure what new
information may have prompted the judge's 2009 "careful and
closer scrutiny and inspection of the reasons" for Kessler's
withdrawal.
6
The transcript from the 2009 oral argument reflects some
understandable confusion on the judge's part regarding the
events that had transpired in 2006. For example, the judge
initially thought Kessler's motion to be relieved had been
"unopposed," but later indicated during his oral opinion that
there had been opposition filed by plaintiff.
A-1247-09T2
12
More importantly, we think that there are obvious factual
disputes regarding the communication that occurred between
plaintiff and Kessler leading up to his motion to be relieved.
Plaintiff, her mother, and her uncle all complained in their
correspondence that Kessler simply was unresponsive to their
legitimate requests to be kept informed. Kessler, it suffices
to say, claims otherwise. That dispute was never resolved, and
its resolution may impact the determination of the legal issues
involved. For these reasons, we reverse the order under review,
and remand the matter to the motion judge to conduct a plenary
hearing.
For the sake of completeness, we address two other
ancillary issues. Although Kessler never sought a plenary
hearing before the motion judge, we reject Britcher's argument
that he waived such relief. Kessler's 2009 motion was based
upon the strength of the October 2006 order. In our view, it
was understandable for him to assume that any issue as to
whether his withdrawal from the litigation was justified had
already been resolved. For the reasons already expressed, a
plenary hearing is required.
Conversely, to the extent Kessler has argued that
reconsideration of the October 2006 order was improper, we
reject that contention. Motions for reconsideration are
A-1247-09T2
13
addressed to "'the sound discretion of the Court, to be
exercised in the interest of justice.'" Cummings v. Bahr, 295
374, 384 (App. Div. 1996) (quoting D'Atria v.
N.J. Super.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Reconsideration is to be utilized narrowly, and reserved for
situations where the court relied "'on plainly incorrect
reasoning[,]'" where the court failed to consider probative,
competent evidence, or where "'there is good reason for [the
court] to reconsider new'" evidence. Town of Phillipsburg v.
Block 1508, Lot 12,
380 N.J. Super. 159, 175 (App. Div. 2005).
(emphasis omitted) (quoting Pressler, Current N.J. Court Rules,
Comment 2 on R. 4:49-2 (2005)). Reconsideration should be
exercised "'in the service of the ultimate goal of substantial
justice.'" Casino Reinvestment Dev. Auth. v. Teller,
384 N.J.
Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop
Strapping Corp.,
220 N.J. Super. 250, 264 (App. Div. 1987),
certif. denied,
110 N.J. 196 (1988)).
Under the particular facts presented, the judge did not
mistakenly exercise his discretion by reconsidering the October
2006 order to the extent that it reflected a finding that
Kessler was necessarily entitled to share in the fee. As to the
delay in bringing the motion, there is a dispute as to whether
Britcher actually knew about the order; potentially, that
A-1247-09T2
14
explains the delay. Moreover, the October 2006 order lacked any
significance unless and until Kessler actually sought to share
in the fee.
Additionally, in 2006, plaintiff, although she appeared and
provided a thorough explanation of her position supported by
documentary evidence, was unrepresented. She responded to the
limited inquiries made by the judge, but fairness dictates that
she should be entitled to present her side of the story under
questioning by her counsel, and that she should be permitted to
subject Kessler's version of events to the crucible of cross-
examination.
Reversed and remanded. We do not retain jurisdiction.
A-1247-09T2
15
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