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Oliver v. Waszkielewicz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 23, 2008

WILLIAM H. OLIVER, JR., D/B/A OLIVER & SELLITTO, A SOLE PROPRIETOR, PLAINTIFF-RESPONDENT,
v.
ROMUALD WASZKIELEWICZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3328-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2008

Before Judges Skillman and Winkelstein.

Defendant Romuald Waszkielewicz appeals from an August 21, 2006 summary judgment in favor of plaintiff William H. Oliver, Jr., in the amount of $27,776.22, and granting plaintiff a statutory lien for that amount on the proceeds of defendant's Victim's Compensation Fund award. We affirm.

Defendant was injured in the 9/11 attack on the World Trade Center. As a result of financial setbacks following his injuries, he retained plaintiff, an attorney, to represent him in a Chapter 13 bankruptcy proceeding.

On November 6, 2003, plaintiff and defendant entered into a second retainer agreement. This agreement was for plaintiff to represent defendant in his claim for compensation against the Victims Compensation Fund as a result of his injuries on September 11, 2001. On behalf of defendant, plaintiff recovered $240,000 from the Fund. According to the terms of the retainer agreement, plaintiff was entitled to ten percent of the award as a counsel fee. When plaintiff sought to collect his counsel fee, defendant declined to pay.

On May 10, 2005, plaintiff sent defendant a pre-action notice, pursuant to Rule 1:20A-6, in an effort to collect a counsel fee of $24,000, plus $3,726.22 in costs.*fn1 The pre-action notice conformed to the court rule by advising defendant of his right to request fee arbitration.

On July 23, 2005, plaintiff filed this lawsuit against defendant, seeking collection of the counsel fee, costs, and asking the court to place a lien on the sum of $27,726.22 from the recovery. Prior to instituting the lawsuit, plaintiff obtained an order from the bankruptcy court vacating the stay, and was given permission to institute the lawsuit to collect the disputed counsel fees and costs.

During the course of the litigation, plaintiff served on defendant, pursuant to Rule 4:22-1, a request for admissions, to which defendant did not reply. For purposes of plaintiff's subsequent summary judgment motion, therefore, the following facts were uncontroverted: defendant signed the November 6, 2003 retainer agreement; plaintiff performed the agreed upon services in securing the $240,000 award from the Victim's Compensation Fund; defendant received the pre-action notice pursuant to Rule 1:20A-6; defendant owed plaintiff $27,726.22 in fees and costs pursuant to the retainer agreement; and defendant had no defenses or setoffs against plaintiff's claim.

On appeal, defendant raises the following points for our consideration:

POINT I. ATTORNEY'S COMPLAINT SHOULD BE DISMISSED BECAUSE OF ATTORNEY'S FAILURE TO ABIDE BY R.1:20A-6.

POINT II. ATTORNEY HAD NO BASIS TO FILE A LAWSUIT FOR ATTORNEY FEES SINCE DEFENDANT WAS UNDER AUTOMATIC STAY.

POINT III. ATTORNEYS BREACHED THEIR DUTY OF LOYALTY THEREFORE DEFENDANT-APPELLANT SHOULD BE ENTITLED TO A REASONABLE FEE AWARD FOR ATTORNEY'S MISCONDUCT IN HANDLING THE CHAPTER 13 BANKRUPTCY CASE.

POINT IV. THERE WAS NO ATTORNEY-CLIENT RELATIONSHIP ESTABLISHED FOR ROM[UA]LD WASZKIELEWICZ'S VICTIMS COMPENSATION FUND THUS ATTORNEY SHOULD NOT BE ENTITLED TO ATTORNEY FEES AWARDED ON AUGUST 21, 2006.

POINT V. DEFENDANT-APPELLANT REQUESTS TO CORRECT AND SUPPLEMENT THE RECORD BECAUSE DEFENDANTS' RESPONSES WERE FILED TIMELY IN RESPONSE TO PLAINTIFF'S COMPLAINT AND NOTICE OF DISMISSAL.

Having given careful consideration to defendant's arguments in light of the record and the prevailing law, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Although defendant makes a number of claims as to why plaintiff should not be entitled to payment for the legal services he provided, defendant has submitted no facts to contradict plaintiff's evidence that defendant signed the November 6, 2003 retainer agreement; plaintiff received an order vacating the bankruptcy stay before instituting this lawsuit; and plaintiff complied with Rule 1:20A-6 by serving defendant with the appropriate pre-action notice before filing suit. Notably, defendant has produced no evidence that plaintiff failed to perform the appropriate legal services to secure defendant's recovery from the Fund, or that defendant otherwise has a defense or setoff to the amount claimed by plaintiff. Although defendant claims he did not know what he was signing when he executed the November 2003 retainer agreement, he has produced no medical records or other competent evidence to support that allegation.

We affirm, but remand to correct the amount of the judgment to $27,726.22.


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