ARLETTE WOLKOFF v. BUDD LARNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARLETTE WOLKOFF,

Plaintiff-Appellant,

v.

BUDD LARNER and

THOMAS BALDWIN, ESQ.,

Defendants-Respondents.

____________________________________

October 24, 2014

Submitted September 2, 2014 Decided

Before Judges Hayden and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6600-12.

Arlette Wolkoff, appellant pro se.

Respondents Budd Larner and Thomas Baldwin have not filed a brief.

PER CURIAM

Appellant Arlette Wolkoff appeals from the Law Division's order dismissing with prejudice her complaint against her former matrimonial attorney Thomas Baldwin, Esq. and his firm Budd Larner. The trial court ruled that this fee dispute had to proceed before the Fee Arbitration Committee. We affirm.

I.

We summarize the procedural history of the matrimonial matter set forth in our opinion in Wolkoff v. Wolkoff, No. A-3725-06 (App. Div. Aug. 15, 2008). Appellant, represented by Baldwin, filed a post-divorce motion against her ex-husband requesting an increase in alimony and life insurance, and an award of counsel fees. The Family Part denied her requests. She appealed, represented by new counsel. We remanded for reconsideration of her motion. We stated her request for counsel fees would also be subject to review and reconsideration at the plenary hearing, because it had to abide final disposition of her motion. Ibid.

Prior to the plenary hearing, a dispute arose between appellant and Baldwin over his fees for the motion. Allegedly, he charged $41,577.32, and she paid $19,633.00. Appellant requested fee arbitration. R. 1:20A-3(a)(1). The hearing panel of the District Fee Arbitration Committee heard the case. R. 1:20A-3(b)(1). According to the panel, the Family Part judge at the motion hearing had commented that Baldwin's certification of $17,513.50 in fees was "excessive for the work performed." Nonetheless, the panel did "not feel it is appropriate to render a decision on this matter until such plenary hearing has occurred and the trial judge has ruled on the subject of counsel fees." As a result, the panel made no findings of the total reasonable charges to which Baldwin was entitled, or whether there was a balance due to Baldwin, or an amount to be refunded by Baldwin.

Baldwin filed a notice of appeal to the Disciplinary Review Board. R. 1:20A-3(c). In response, the hearing panel added that "the trial judge in the plenary hearing to be held in this matter will be making a determination of the reasonableness of counsel fees of [Baldwin], which would be instructive to The Panel although not binding on it."

The Board affirmed the hearing panel's decision and dismissed Baldwin's appeal because "it would be premature for the Committee to consider the fee dispute before the court proceeding is final." The Board stated that "[a]fter the court determines the amount of fee in the related pending litigation, the Committee will resume jurisdiction of the case." The Board informed Baldwin, "[a]lthough, regrettably, this procedure will result in some delay in the receipt of your fee, the Board determined that awaiting the outcome of the litigation is the appropriate procedure."

According to appellant, she settled her post-divorce motion with her ex-husband without consideration of Baldwin's fees, and the Family Part held a hearing but did not make a determination on reasonableness of the fees. Baldwin argued to the Law Division that appellant's settlement with her ex-husband provided that each party would pay their own counsel fees, and that the Family Part never held a hearing. Baldwin then properly tried to reinstate the matter before the Fee Arbitration Committee.

Appellant filed a complaint in the Law Division, requesting an order to show cause. She sought to stay any proceedings before the Committee and to enforce the earlier decisions of the panel and the Board. She claimed that those decisions awarded Baldwin a sum of $0 and that there was no provision for reinstatement.

At the September 25, 2012 return of the order to show cause, the Law Division ruled that this fee dispute belonged before the Fee Arbitration Committee. The court advised that appellant could renew her argument before the Committee. Appellant appeals.

II.

Appellant must meet a "particularly heavy burden" to obtain a stay. Guaman v. Velez, 421 N.J. Super. 239, 247 (App. Div. 2011) (internal quotation marks omitted).

A successful applicant must demonstrate by clear and convincing evidence that a stay is necessary to prevent irreparable harm, that the legal right underlying the claim is settled, that the material facts are substantially undisputed, that the applicant has a reasonable probability of success on the merits, and that a balancing of the equities and the hardships weighs in favor of granting relief.

[Id. at 247-48 (citing Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982) (citation omitted)).]

"'[T]he granting of a stay is discretionary with the trial court,'" absent an "'abuse of discretion[.]'" Avila v. Retailers & Mfrs. Distrib., 355 N.J. Super. 350, 354 (App. Div. 2002). We must hew to that standard of review.

III.

Several things are clear from the record. First, the rulings by the hearing panel and the Board plainly stated that they did not issue a final decision in the fee arbitration. The panel expressly did not decide the amounts of the total reasonable charge to which Baldwin was entitled, the balance due him, or the amount he must refund. Moreover, the panel ordered "that the total amount presently due to be repaid by the attorney is the sum of $ 0 ." We read the panel's insertion of "0" on the form order to indicate the panel was not deciding that amount. Indeed, it could not decide that amount as it had declined to calculate the total reasonable change, based on which the amount to be repaid or refunded is calculated. See Office of Attorney Ethics of the Supreme Court of New Jersey, District Fee Arbitration Committee Manual for Committees Appointed by the Supreme Court of New Jersey 77 (6th ed. 1995) (hereinafter "Manual"). The Board approved the panel's choice not to decide those issues.

Appellant contends that the "$0" was the panel's determination that she did not owe Baldwin anything. However, even if the "$0" decided anything, it was that Baldwin did not have to repay appellant. In any event, we hold that the panel did not decide either issue. Accordingly, the court properly rejected appellant's attempt to enforce these orders as a determination that she owed Baldwin $0.

Second, the rulings of the panel and the Board made clear that the panel would resume jurisdiction, and make a decision in the fee arbitration after the Law Division completed its proceedings on remand from this court. The panel and Board assumed and anticipated that, pursuant to our remand order, the Law Division would determine whether any of appellant's counsel fees would be paid by her ex-husband, and, if so, whether the fees were reasonable.

This assumption by the panel and the Board was understandable. Rule 5:3-5(c) allows the award of counsel fees in alimony actions, subject to the provisions of Rule 4:42-9(b). R. 5:3-5(c); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002). Rule 4:42-9(b) requires the submission of "an affidavit of services addressing the factors enumerated by RPC 1.5(a)." "RPC 1.5(a), in turn, prescribes that '[a] lawyer's fee shall be reasonable.'" Twp. of West Orange v. 769 Assocs., L.L.C., 198 N.J. 529, 542 (2009) (quoting R.P.C. 1.5(a)).

Further, the panel and the Board had good reasons to postpone a decision in the fee arbitration to await the Law Division fee-shifting proceedings. A decision by the Law Division requiring appellant's ex-husband to pay some, or all, of her counsel fees could have mooted some or all of the fee dispute between appellant and Baldwin. See R. 1:20A-1(e) ("A fee committee shall not render advisory opinions"). If any fee dispute remained, the Law Division's determination of the reasonableness of Baldwin's fees, even if not binding, see Levine v. Levine, 381 N.J. Super. 1, 7 n.4, 7 (App. Div. 2005), could have informed the hearing panel's determination, which similarly must "be made in accordance with R.P.C. 1.5," R. 1:20A-3(b)(1).

The authority of the panel to postpone the fee arbitration can be inferred from the rules governing fee arbitration. "A Fee Committee may, in its discretion, decline to arbitrate fee disputes[] in which persons who are not parties to the arbitration have an interest that would be substantially affected by the arbitration," or "in which the primary issues in dispute raise substantial legal questions in addition to the basic fee dispute[.]" R. 1:20A-2(b)(1)-(2). Appellant's ex-husband is not a party to the arbitration, but he had an interest that could be substantially affected by an arbitration decision on the reasonableness of her counsel fees. Further, his possible liability to pay her fees raised substantial legal questions under the fee-shifting provisions cited above. See Saffer v. Willoughby, 143 N.J. 256, 266 (1996). The arbitration could not decide those issues because a fee committee lacks jurisdiction to decide "a fee which is allowed or allowable as of right by a court or agency pursuant to any applicable rule or statute." R. 1:20A-2(c)(1).

Rule 1:20A-2(b)(2)'s provision for declining to resolve substantial legal questions "gives the Fee Committee great leeway to control its caseload as well as to see that justice is done for the parties within a reasonable time." Manual, supra, at 25. The Manual also permits reasonable adjournments of the hearing for "'good cause.'" Id. at 74 (quoting R. 1:20-7(k)). We see no reason why the Committee should not be afforded similar leeway to postpone the resolution of fee disputes in anticipation of a court's decision of a substantial legal issue, namely fee-shifting, which the Committee is barred from determining itself.

Of course, a fee arbitration committee considering such a postponement must be mindful that the goal of fee arbitration is to provide "'a swift, fair and inexpensive method of resolving fee disputes.'" Saffer, supra, 143 N.J. at 263 (quoting In re LiVolsi, 85 N.J. 576, 601-02 (1981)); Kamaratos v. Palias, 360 N.J. Super. 76, 86 (App. Div. 2003); see also Manual, supra, at 34. However, appellant apparently did not object to the hearing panel's decision to postpone arbitration pending the Law Division's anticipated decision on remand, did not appeal that decision to the Board, and does not raise that concern before us.

Appellant does challenge the authority of the panel to resume jurisdiction after the court proceeding is concluded. Again, we believe such authority is implicit. The rules acknowledge that a court proceeding may be stayed pending the decision of a fee arbitration committee, which may notify the court clerk "to vacate the stay and relist the matter." R. 1:20A-3(b)(4). The converse should be equally true in the circumstances presented here. A fee arbitration committee should be permitted to stay the arbitration pending an anticipated proceeding by a court to decide fee-shifting, and to vacate the stay and relist the arbitration following the court's decision.

Appellant claims relisting the arbitration is inappropriate because the court did not hold a "plenary hearing" to rule "on the subject of counsel fees," including "the reasonableness of counsel fees," as anticipated by the panel. However, though the Board, like the panel, anticipated the court would make fee determinations, the Board made clear that the Committee would resume jurisdiction of the case and consider the fee dispute when "the court proceeding is final." Appellant concedes that the court proceeding has become final, and that the fee-shifting issue was no longer before the court. There is no reason to keep the fee dispute in limbo, indefinitely awaiting a judicial ruling that will never come. Appellant cannot demand such a result, particularly if the absence of the judicial ruling is due to appellant's choice to settle the litigation with her ex-husband, a decision in which Baldwin played no role. Accordingly, the Law Division did not err in denying a stay.

Appellant argues that the arbitration should take into account the family judge's comment at the motion hearing that Baldwin's certification of $17,513.50 in fees was "excessive for the work performed."1 Appellant faults Baldwin for failing to present a certification of services for a sum greater than the $17,513.50 in fees sought before the Family Part. We leave consideration of those issues to the hearing panel.

Affirmed.

1 Appellant notes Baldwin did not appeal to challenge the judge's comment. However, "'only a party can appeal from an order granting or denying counsel fees.'" Rosenberg v. Rosenberg, 286 N.J. Super. 58, 63 (App. Div. 1995).