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Silvestro v. Groupe Lacasse

February 13, 2009

GEORGE SILVESTRO AND LISA SILVESTRO, PLAINTIFFS,
v.
GROUPE LACASSE, INC., INDIVIDUALLY AND AS SUBSIDIARY OF HAWORTH, INC., HAWORTH, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST AND THE AGENT FOR GROUPE LACASSE, INC., AND EAGLE OFFICE FURNISHINGS INDIVIDUALLY, AND T/A EAGLE OFFICE FURNISHINGS, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-990-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2009

Before Judges Fisher and King.

In this appeal, we review an order that divided between two law firms a contingent fee generated from a settlement of $4,150,000 received by plaintiffs in this personal injury case. Because the judge fairly divided the fee based upon his well-supported understanding of the performances of both firms and his proper application of the applicable equitable principles, we affirm.

The law firm of Levinson Axelrod, P.A. (Levinson Axelrod) commenced this suit in February 2004 on behalf of plaintiff George Silvestro and his wife, alleging that plaintiff suffered a head injury when a hutch fell on him while he sat at a desk at his place of employment on March 10, 2003. Levinson Axelrod continued to expend a considerable amount of time during its representation of plaintiffs in this case until terminated and replaced by Nagel, Rice & Mazie on June 20, 2006.*fn1 Nagel, Rice & Mazie later dissolved and was succeeded in this matter by Mazie, Slater, Katz and Freeman, L.L.C. (Mazie Slater).

The suit was settled in November 2007 with plaintiff and his wife receiving $4,000,000 from defendant Groupe Lacasse, Inc., and $150,000 from defendant Eagle Office Furnishings. By motion, the trial court entered an order on December 7, 2007, setting the legal fee due from plaintiffs at $1,127,854.64.

Levinson Axelrod and Mazie Slater agreed upon the repayment of costs incurred on plaintiffs' behalf, but could not agree upon an apportionment of the attorney fee. They did agree to have the issue resolved by the trial court in an expedited fashion, advising the court that discovery was not necessary and, as described in a letter from Mazie Slater to the court, that "the lien issue can be resolved with the relaxation of evidence rules and based on certifications and other submissions." After reviewing the parties' written submissions and hearing oral argument, Judge Phillip Lewis Paley rendered a thorough written decision on March 14, 2008 and ordered that Mazie Slater receive 60% and Levinson Axelrod receive 40% of the contingent fee.

Mazie Slater appealed and Levinson Axelrod cross-appealed. On appeal, Mazie Slater contends that Levinson Axelrod should not be entitled to more than a fee based upon the hours it reasonably expended multiplied by the firm's standard hourly rates. Levinson Axelrod, on the other hand, argues that the judge correctly chose not to limit its recovery to an hour-based fee, but asserts that its percentage of the fee should have been greater than 40%. We reject these arguments and affirm.

A claim in such circumstances rests upon the doctrine of quantum meruit; that is, the former attorney is entitled to "as much as is deserved." Glick v. Barclays De Zoete Wedd, 300 N.J. Super. 299, 310 (App. Div. 1997); LaMantia v. Durst, 234 N.J. Super. 534, 537 (App. Div.), certif. denied, 118 N.J. 181 (1989). As we said in Glick, "the crucial factor in determining the amount of recovery is the contribution which the lawyer made to advancing the client's cause." 300 N.J. Super. at 311. See also Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 74-75 (App. Div. 2004); Dinter v. Sears, Roebuck & Co., 278 N.J. Super. 521, 531-32 (App. Div.), certif. denied, 140 N.J. 329 (1995); LaMantia, supra, 234 N.J. Super. at 539-43; Anderson v. Conley, 206 N.J. Super. 132, 150-51 (Law Div. 1985); Buckelew v. Grossbard, 189 N.J. Super. 584, 587-88 (Law Div.), aff'd o.b., 192 N.J. Super. 188 (App. Div. 1983).

In Glick, as a guide to courts in future disputes, we suggested the potential outcome in three particular circumstances. We indicated that "if the predecessor's work, no matter how extensive, contributed little or nothing to the case, then the ceding lawyer should receive little or no compensation." 300 N.J. Super. at 311 (citing Dinter, supra, 278 N.J. Super. at 535). If, however, the former attorney "cedes to his successor a substantially prepared case which resulted from an extensive investment of time, skill and funds," we held that the former attorney might be entitled to a fee greater than that derived by the hours reasonably expended and the attorney's standard hourly rate. Ibid. And, finally, we observed that "if a ceding lawyer's work contributed to a recovery by the client, but the new attorney was crucial in the success of the case, then the predecessor's compensation should be based, at most, upon a standard hourly rate." Ibid. (citing Anderson, supra, 206 N.J. Super. at 150-51).

In examining the firms' representation of plaintiffs, Judge Paley acknowledged that both had provided highly significant contributions to their clients' ultimate success in this problematic case. These findings, which are entitled to our deference, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), must be understood in light of the difficulties presented by the case itself, which the judge outlined:

The case was complex. Substantially disputed were the authenticity of [plaintiff's] neurological symptoms and his credibility as to how the incident occurred. [Plaintiff] was alone in the office when the hutch fell. The hutch, or a component of it, had fallen only once [causing defendants] to argue that [plaintiff] may have fabricated the incident, at worst, and was comparatively negligent, at best.

As noted, there was a serious question as to whether [plaintiff] was a malingerer with no neurological basis for his complaints. [Plaintiff] argued that he sustained a significant brain injury which produced a partial loss of vision, stuttering, balance deficiencies, and extensive memory shortcomings. Defendants contended that this matrix of problems is supported nowhere in medical literature as attributable to a brain injury. Defendants argued, further, that [plaintiff] suffers from a psychological disorder not caused by the hutch's fall which accounts for his symptoms. While plaintiffs' experts opined that these deficits were all likely due to the accident, they conceded that these deficits are extremely unusual and do not ...


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