VIVIANA RIVERA v. DOVER VF L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3188-10T2

VIVIANA RIVERA and

EDUARDO RIVERA,

Plaintiffs-Respondents,

v.

DOVER VF L.L.C./VORNADO

REALTY TRUST, TJ MAXX/THE

TJX COMPANIES, INC.,

Defendants.

____________________________

GELMAN GELMAN WISKOW &

MC CARTHY, L.L.C.,

Intervenor-Appellant.

________________________________________________________________

November 14, 2011

Argued October 5, 2011 - Decided

Before Judges Fuentes, Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-308-10.

Phillip C. Wiskow argued the cause for pro se appellant.

Raquel Romero argued the cause for respondents (Law Offices of Raquel Romero, attorneys; Ms. Romero and Nicholas Caruso, on the brief).

PER CURIAM

Gelman Gelman Wiskow & McCarthy, L.L.C. (GGW&M) appeals from a February 8, 2011 order of the motion judge granting the law firm only $50.02 in costs and denying it a quantum meruit share of the total attorney s fees stemming from a $55,000 personal injury settlement negotiated by attorney Raquel Romero s firm. After reviewing the record in light of the contentions advanced on appeal, we reverse the order and remand for a hearing to resolve the contested factual issues.

Viviana Rivera, the plaintiff in the underlying personal injury and workers' compensation litigation, was working at a TJ Maxx retail store located in a strip mall when she fell on September 9, 2008. She injured her left shoulder and elbow after slipping on a puddle of water that accumulated due to a leak in the building's roof. On September 22, 2008, Rivera signed a claim petition to begin a workers' compensation case at the offices of GGW&M. She and her husband, Eduardo Rivera, also signed a contingency fee retainer agreement with appellant GGW&M for the provision of legal services. Personal injury attorney Phillip C. Wiskow, of GGW&M s Dover office, signed the agreement on the firm's behalf.1 He and his paralegal certify that Wiskow spoke to Rivera in detail, with his paralegal present to interpret, as Rivera is not fluent in English. Wiskow indicates that he explained to Rivera the difference between a workers' compensation claim and a third-party action. Rivera, in a certification prepared by Romero, denies speaking personally with Wiskow at any time or being told about a third-party action by anyone at his firm.

Wiskow states that he wrote many letters and received medical and other records in furtherance of the third-party personal injury litigation. A GGW&M attorney in its Elmwood Park office represented Rivera in the workers' compensation matter. On October 24, 2008, Romero sent a letter to the Elmwood Park attorney advising him that Rivera wanted her "file" forwarded and a substitution of counsel signed in the matter of "Viviana Rivera v. T.J. Maxx." The attached authorization for transfer of file, also dated October 24, 2008, and signed by Rivera, stated, "I, Viviana Rivera, do hereby request from you, [GGW&M], to transfer my worker's compensation files to [Romero]. . . ." Counsel forwarded the workers' compensation file. Wiskow indicates that he was personally unaware of this substitution and continued in his efforts on behalf of Rivera in the personal injury case. Wiskow claims that he repeatedly attempted to contact Rivera, but was unable to reach her because she went to Costa Rica for more than six months.

Rivera did not sign a retainer agreement with Romero until she returned from Costa Rica in August 2009. On January 13, 2010, Romero filed a third-party personal injury lawsuit on behalf of the Riveras against defendant property owner Dover VF, L.L.C./Vornado Realty Trust (Dover). Wiskow did not discover that Romero represented the Riveras until he was told by Dover s claims adjuster in March 2010. Wiskow and Romero subsequently agreed that Romero, rather than GGW&M, would represent Rivera.

On November 11, 2010, prior to conducting depositions, the Riveras signed a stipulation of dismissal of their personal injury suit and general release of all claims against the property owner in exchange for a $55,000 cash settlement. Deducted from the settlement were $17,610.91 in attorney fees and GGW&M s costs in the amount of $1734.46.

The motion judge noted that of the $1734.46, $50.02 was incurred between September 22, 2008 and October 24, 2008, the date on which the judge determined that GGW&M s representation of Rivera was terminated. After making this determination, the motion judge noted that it was "impossible to determine the actual number of hours that were performed in terms of the service that was provided" and that it would be "disrespectful" for him to "opine as to exactly how much time was spent in each one of the functions." Nevertheless, based on his finding that GGW&M's services were terminated on October 24, 2008, the motion judge awarded the firm only the $50.02 in costs incurred during the approximately one month of representation on Rivera's third-party claim.

La Mantia v. Durst, 234 N.J. Super. 534 (App. Div.), certif. denied, 118 N.J. 181 (1989), describes the factors to be considered when establishing the value of services provided by different law firms in the same case. When determining the proper allocation of the attorney's fees among firms, the trial court should consider: (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) the "quality" of the 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;" and (6) the "amount of the recovery realized in the underlying lawsuit. . . ." Id. at 540-41.

The motion judge concluded that any time Wiskow spent working on the personal injury claim after October 24, 2008, was not compensable. He also decided that Wiskow s work did not assist the resolution of the matter, stating, "Suffice it to say, that regardless of the amount of time that Mr. Wiskow spent, that time did not result in the recovery of any funds nor did it assist in the recovery of any funds. As a result, he engaged in a contingent fee agreement, performed services, at least as far as Ms. Rivera is concerned, for approximately a month [that] resulted in no recovery." Pursuant to this reasoning, the judge concluded that the "entirety of . . . the attorney's fee will be provided to Raquel Romero."

"Appellate review of a trial court's attorney fee determination is deferential." In re Estate of F.W., 398 N.J. Super. 344, 355 (App. Div.), certif. denied, 196 N.J. 347 (2008). 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." Ibid. (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "The scope of an appellate court's review of a trial court s fact-finding is a limited one. Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld wherever they are 'supported by adequate, substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). However, the same degree of deference is not owed if the judge has not made credibility findings after a plenary hearing.2 See P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004) ("Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because, having heard the case, and seen and observed the witnesses, the trial court has a better perspective than a reviewing court in evaluating the veracity of witnesses."). To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).

Allocation of attorney's fees among law firms that provided services to the same client based on separate contingent fee agreements is generally determined by applying the equitable principle of quantum meruit. La Mantia, supra, 234 N.J. Super. at 537 (citing In re Estate of Poli, 134 N.J. Super. 222, 227 (Cty. Ct. 1975)). Quantum meruit means "as much as he deserves." Ibid. Assessing how much of a contingency fee a law firm deserves is a fact-dependent inquiry. Ibid. Since quantum meruit is an equitable determination, "hard and fast rules are difficult to apply, let alone construct." Id. at 539-40 (citing Littlefield v. Kearns, 8 N.J. Super. 198, 203 (App. Div. 1950)).

To assist trial courts in their application of quantum meruit, the court in La Mantia identified criteria to help guide the analysis. See also Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 75 (App. Div. 2004). This list, however, is neither exclusive nor exhaustive, ibid., and does not address the situation where two firms unwittingly work simultaneously on the same matter.

If the certifications before a motion judge contain conflicting factual assertions, it may be necessary for the judge to make findings of fact "to insure a proper accommodation to fairness." Id. at 76. The trial judge's specific findings of fact and conclusions of law must be based on the evidence presented and must be fully explained on the record. R. 1:7-4. The trial court's findings must also be specific enough to allow for meaningful appellate review. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) (explaining that Rule 1:7-4 requires the trial court to "state clearly its factual findings and correlate them with the relevant legal conclusions."). We cannot determine from the record whether the motion judge accepted Rivera's certifications as more accurate than those of Wiskow and his paralegal, or whether the judge was of the opinion that Rivera's recollection was more important than what actually occurred. Notably, the judge indicated that he "could only assume that [GGW&M s] services were terminated on October 24, 2008."

It is unfortunate that counsel were not able to deal professionally with each other and come to a satisfactory resolution. Cf. Purtell v. Mason, 527 F.3d 615, 627 (7th Cir. 2008) (in a dispute between neighbors, the Seventh Circuit chided counsel by remarking that "[t]he suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it."). At oral argument, as well as in the papers submitted, counsel appeared to harbor personal animosity towards one another. The public airing of such personal hostility does not enhance the reputation of the legal profession, nor foster an environment of mutual cooperation and professional courtesy lawyers owe to each other as members of the bar and officers of the court. See RPC 3.2; N.J. Comm'n on Professionalism, Principles of Professionalism, available at http://www.njsba.com/resources/

njcop/njcop-principle-prof.html. Moreover, counsel is no doubt acutely aware of the wasteful expense in both personal and judicial resources resulting from such disputes.

Unfortunately, this litigation will continue, as the motion judge could not resolve the contested issues raised by conflicting certifications from Rivera and Wiskow through argument alone. If, after an evidentiary hearing, the motion judge finds that Wiskow met with Rivera and explained that he would provide representation on both her workers' compensation and third party claims, and that Wiskow attempted to communicate with Rivera but she was nonresponsive, then Wiskow is due more than $50 in incurred costs. A mutual misunderstanding between attorneys that results in both firms working on the same case should not disadvantage only one of the lawyers. A hearing at which the attorneys and Rivera testify should clear up the factual inconsistencies and allow the opportunity for a thorough fact-finding.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 As Wiskow correctly notes, this agreement binds him to pursue the action and meet the statute of limitations until a substitution of counsel is filed. See Diver v. Gross, Hanlon, Truss & Messer, P.C., 317 N.J. Super. 547, 550 (App. Div. 1998) (commenting on the paramount legal significance of an attorney missing a statute of limitations when pursuing a claim on a client's behalf); Hoppe v. Ranzini, 158 N.J. Super. 158, 163-64 (App. Div. 1978) ("Failure to file suit before the running of the period of the statute of limitations plainly constitutes malpractice where there is no reasonable justification shown therefor.").

2 To the extent that the motion judge relied on the parties' unsworn statements at oral argument, such reliance was misplaced. See N.J.R.E. 603, which requires that testimonial evidence be presented through witnesses who are either under oath or make an affirmation to tell the truth. See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). In addition, the motion judge should not have permitted the attorneys to make material factual representations as to the parties' incomes in lieu of sworn testimony from witnesses or other competent evidence. See id.