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Goldberger, Seligsohn & Shinrod, P.A. v. Baumgarten

June 14, 2005

GOLDBERGER, SELIGSOHN & SHINROD, P.A., PLAINTIFF-APPELLANT,
v.
MARK BAUMGARTEN, DEFENDANT-RESPONDENT, AND MANDLEBAUM, SALSBURG, GOLD, LAZRIS, DISCENZA & STEINBERG, P.C., DAVID A. MAZIE AND NAGEL RICE DREIFUSS & MAZIE, L.L.P., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No.ESX-L-2892-03.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 23, 2005

Before Judges Petrella, Yannotti and Bilder.

Plaintiff Goldberger, Seligsohn & Shinrod, P.A. appeals from a final judgment entered May 28, 2004 dismissing its complaint against defendant Mark Baumgarten. We affirm in part, reverse in part and remand for further proceedings.

I.

This action was commenced on April 3, 2003, when plaintiff filed a complaint in the Law Division, Essex County, against defendants Mark Baumgarten; Mandelbaum, Salsburg, Gold, Lazris, Discenza & Steinberg, P.C.; David A. Mazie; and Nagel Rice Dreifuss & Mazie, L.L.P. In its complaint, plaintiff asserted claims for breach of contract and recovery under a quantum meruit theory. Plaintiff alleged that it is entitled to legal fees arising from litigation instituted following the death of Earl Faison. Plaintiff claimed that Baumgarten had agreed to work together with plaintiff and share fees resulting from separate actions instituted by plaintiff and Baumgarten on behalf of the Faison family members. The claims against Mazie and the Nagle Rice firm were dismissed by order filed July 29, 2003, and plaintiff consented to the entry of an order on April 2, 2004 dismissing the claims asserted against the Mandelbaum firm. Baumgarten consequently is the sole remaining defendant in the case and therefore we will refer to him in this opinion as defendant.

On April 15, 2004, defendant filed a motion for summary judgment. He argued, among other contentions, that the alleged agreement was for a referral fee that is not permitted by R. 1:39-6(d) because defendant is not a certified civil trial attorney. Defendant also argued that the alleged agreement to divide fees contravened R.P.C. 1.5(e) because it was not in writing, did not divide fees in proportion to the work of the lawyers and the clients never consented to joint representation. In addition, defendant maintained that plaintiff had done nothing that would warrant compensation under a quantum meruit theory.

In support of his motion, defendant submitted a certification in which he asserted that, in April 1999, the Faison family retained him to pursue an action against certain police officers for the wrongful death of Earl Faison. Mikki Juane Wilkins is the mother of two of Faison's four children, and she is also the guardian of another of Faison's children. Wilkins was appointed by the Essex County Surrogate as administratrix ad prosequendum for the Estate. Defendant filed a lawsuit on behalf of the Estate on February 23, 2000.

Defendant stated that shortly after the filing of the complaint, he received a call from Irwin Seligsohn, who advised that he represented Hakisah Bell and her son, Muttalib Faison, who is Earl Faison's fourth child. Seligsohn objected to defendant's assertion of a claim on behalf of Muttalib. Seligsohn contacted defendant again in July 2000. By this time, the action commenced by defendant on behalf of the Estate had been removed to federal court.

Defendant and a partner at the Mandelbaum firm met with Seligsohn on July 31, 2000. Defendant advised Seligsohn about the case and offered to provide him with copies of pleadings and correspondence; however, Seligsohn told defendant that he preferred to file a separate lawsuit on behalf of Muttalib in the Superior Court. Defendant asserted that, contrary to plaintiff's allegations, he did not discuss fee sharing at the July 31, 2000 meeting. He said, "The only financial matter discussed was Mr. Seligsohn's offer to reimburse the Mandelbaum Firm for any costs it incurred for expert reports requested by and sent to Mr. Seligsohn." In August 2000, Seligsohn filed an action on behalf of Muttalib in the Superior Court, and that action also was removed to federal court.

The federal judge dismissed the action brought by Seligsohn by order filed August 13, 2001. Defendant stated in his certification that, after the lawsuit was dismissed, plaintiff was not involved in prosecuting the Estate's case.

Mazie and his firm became co-counsel with defendant for the Estate's lawsuit. Following a lengthy period of mediation, the Estate's action was settled. The federal court approved the settlement, which included an allocation of attorneys' fees. Plaintiff did not ...


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