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Bolle v. Community Memorial Hospital

Decided: December 30, 1976.

EDWARD BOLLE AND JOYCE BOLLE, PLAINTIFFS-APPELLANTS,
v.
COMMUNITY MEMORIAL HOSPITAL, ET AL., DEFENDANTS, AND KLITZMAN, KLITZMAN & GALLAGHER (TRIAL ATTORNEYS BELOW), RESPONDENTS



Bischoff, Morgan and E. Gaulkin.

Per Curiam

Plaintiffs Edward Bolle and Joyce Bolle appeal from a court order allowing their attorneys a fee in excess of that authorized by the fee schedule established in R. 1:21-7.

Plaintiff Edward Bolle (36 years of age) received a severe leg injury from a boat propeller on August 10, 1968. A gas gangrene infection developed while he was under medical treatment and amputation of the leg eventuated.

Plaintiffs engaged attorney Morton Weitzman to represent them in the prosecution of a medical malpractice action against the hospital and doctors allegedly responsible. The signed retainer agreement provided for a contingent fee arrangement of 33 1/3%.

Weitzman undertook an investigation of the case, filed a complaint and then referred the matter to Klitzman, Klitzman and Gallagher, respondents herein. They conducted the necessary pretrial proceedings and discovery, as well as a five-day trial which resulted in a verdict for plaintiffs of $150,000. Defendants appealed and the judgment was affirmed by the Appellate Division.

Respondents' fee, computed on the $150,000 verdict and post-judgment interest in accordance with the fee schedule established by R. 1:21-7(c),*fn1 was $33,629.55. Respondents applied, on due notice to plaintiffs and pursuant to R. 1:21-7(f), for a fee allowance in excess of that authorized by R. 1:21-7(c). This application was supported by an affidavit detailing the general nature of the work and effort expended in the successful representation of plaintiffs. A hearing on the application was held before a judge other than the trial judge (the trial judge having resigned), who ruled that:

I'm satisfied from a review of the file that this was an exceptionally difficult case, it was exceptionally time consuming, it required exceptional skill and the results obtained were excellent.

It was a case that I consider was in the mind of the rule-makers when this rule was adopted and I feel that the one-third -- full one-third fee is appropriate in this case and, therefore, I will award the additional $19,925.48 to counsel.

Plaintiffs appeal from the order awarding the increased counsel fee.

R. 1:21-7(f) provides:

If at the conclusion of a matter an attorney considers the fee permitted by paragraph (c) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances.

Upon the hearing of an application for an increased fee the judge is to determine what is a ...


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