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Ozsen v. New Jersey Transit

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 15, 2009

MUTLU OZSEN, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-6296-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges C.L. Miniman and King.

Plaintiff appeals pro se from an order of February 1, 2008 entering judgment in the amount of $99,000 and directing deposit of the funds into court. The underlying claim here was for damages as a result of alleged employment discrimination against plaintiff. Plaintiff makes a number of complaints about the proceedings in the Law Division and about his attorney. These complaints are not justiciable on this appeal as they are not supported by the record before us, not raised properly in the Law Division, or not relevant to the issues in this case. Thus, we decline to address them.

The single issue which does raise our concern is the allocation of the amount of counsel fees and costs out of the $99,000 settlement recovery. This case was settled on July 5, 2007, just before the scheduled trial before Judge Curran. The settlement was placed on the record. We find no grounds in the record before us to question the integrity of the settlement of $99,000, only the amount and allocation of the attorney fees and costs.

After the case was settled the plaintiff refused to cooperate and sign an appropriate and customary release of all claims against defendant relating to his employment with New Jersey Transit. In addition to his challenge to the allocation of counsel fees, plaintiff also raised several collateral claims about his additional entitlement to workers' compensation benefits from defendant New Jersey Transit, guaranteed future employment and lifetime health benefits, none of which were related to the July 5, 2007 lump-sum settlement before Judge Curran. In view of plaintiff's disenchantment with the $99,000 settlement allocation, plaintiff's counsel brought this aspect of the employment discrimination claim before another judge for resolution. The January 8, 2008 hearing and the February 1, 2008 order are now under appeal.

In support of plaintiff's contention that his fee obligation to counsel was limited to $26,000, he attaches a letter from his attorney which states "based upon your acceptance of the settlement, I have agreed to a reduction in attorney's fees from the previous one-third to $26,000. I reserve the right to review your file for any outstanding costs and deduct such from your settlement." We can only speculate that plaintiff's counsel felt entitled to additional fees above the $26,000 agreed sum because of extra work after the case was settled due to plaintiff's uncooperative conduct. Counsel's letter of March 17, 2008 alludes to "additional time spent by my office in procuring finality to this matter." Plaintiff's attorney is not participating in this appeal.

At the time of argument and decision on January 8, 2008, the judge did not have any certifications of services before him respecting the additional work required after plaintiff refused to sign the release. The fees and costs allowed to plaintiff's counsel at that time totaled $32,763.88. That amount was later increased to $33,472.33 by order of March 4, 2008.

We find no fault with the initially claimed contingent fee of $26,000 on a $99,000 recovery, or roughly twenty-six percent. See R. 1:21-7(c)(1). We affirm that aspect of the judgment. However, we find nothing in the record to justify the additional allowance of fees and costs in the amount of $7472.33 and the final allocation of the $99,000 between the client and the attorney. In such a situation, with seemingly conflicting versions and amounts, we conclude that a remand for a plenary hearing as to the proper allocation is required, including an explanation of the ostensible increase in the fees and costs allowance, from $32,763.88 to $33,472.33 in the March 4, 2008 order. See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24-26 (2004); Cohen v. Fair Lawn Dairies, Inc., 44 N.J. 450, 452 (1965); R. 1:21-7(d); see also Pressler, Current N.J. Court Rules, comment 5 on R. 1:21-7(d) (2009) (computation of fee); id., comment 3.1 on R. 4:42-9(b) (prejudgment interest-general principles).

Reversed and remanded for a plenary hearing on the allocation of the fee and costs aspect of the $99,000 recovery between plaintiff and his counsel.

20090115

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