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Kimm v. Kim

March 2, 2009

MICHAEL S. KIMM, ESQ., PLAINTIFF-APPELLANT,
v.
SEOK JIN KIM AND HWANG SUK GO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
SE HWAN PARK AND MI OK LEE, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-16-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiff appeals from (1) a judgment entered by the Law Division on October 19, 2007, following a jury trial, which awarded defendants $24,487.33, with interest, on their counterclaim against plaintiff for legal malpractice; (2) an order entered on November 16, 2007, which denied plaintiff's motion for judgment notwithstanding the verdict; (3) an order entered on December 7, 2007, which awarded defendants attorney's fees and costs in the amount of $11,234.76; and (4) various rulings made by the trial court during this litigation. For the reasons that follow, we affirm.

I.

In May 2003, plaintiff Michael S. Kimm filed a complaint against defendants Seok Jin Kim (Kim) and his wife Hwang Suk Go (Go) in the Special Civil Part, alleging that defendants breached an agreement to pay legal expenses in the amount of $8,487.50 that were incurred by plaintiff's clients, Se Hwan Park (Park) and his wife Mi Ok Lee (Lee). Defendants filed an answer denying liability and asserted counterclaims against plaintiff for consumer fraud, fraud, and legal malpractice. Defendants also asserted a third-party claim against Park and Lee for consumer fraud and fraud.

The claims arose out of the purchase by defendants of a house, which was placed in the names of Park and Lee. Plaintiff alleged that defendants agreed to pay the cost for the legal advice rendered to Park and Lee with regard to that transaction. Defendants claimed that they placed the property in Park's and Lee's names because plaintiff erroneously advised them that, as Korean nationals, they could not purchase property in the United States. Defendants also claimed that Park and/or Lee made false representations to them with regard to the transaction, which they relied upon to their detriment.

In August 2003, the Special Civil Part dismissed plaintiff's complaint because he had not provided defendants with notice pursuant to Rule 1:20A-6 that defendants had a right to seek arbitration regarding the fees that plaintiff claimed were owed to him. At some point thereafter, the matter was transferred to the Civil Part of the Law Division. In November 2005, plaintiff provided defendants with the Rule 1:20A-6 notice, and in February 2007, plaintiff filed a motion to reinstate his claims against defendants. On February 16, 2007, the trial court entered an order granting plaintiff's motion.

In August 2007, plaintiff filed a motion for summary judgment on defendants' counterclaims, and Park and Lee filed a motion to dismiss the third-party complaint filed by defendants.

The court considered the motions on September 17 and September 18, 2007. The court dismissed defendants' consumer fraud claim against plaintiff but denied plaintiff's motion for summary judgment on defendants' fraud and legal malpractice claims. The court also denied Park's and Lee's motion to dismiss defendants' consumer fraud and fraud claims.

The remaining claims were tried before a jury. At the trial, plaintiff testified that Park and Lee were his clients from late August 2001 to early April 2003. He said that Lee first contacted him on August 22, 2001 and said that she was "doing a favor" for defendants. Plaintiff said that Lee told him that, although defendants were paying all of the costs to purchase a house in Little Ferry, Park and Lee intended to have title to the property placed in their names. Lee also said that defendants had agreed to pay his fees "after everything was done."

Plaintiff further testified that, in November or December 2001, defendants retained Sung B. Rim (Rim) to act as their attorney. According to plaintiff, Rim had demanded that Lee sign a promissory note. Plaintiff called Rim and objected to his communicating with Lee. Thereafter, defendants retained Frederic Shauger (Shauger) to act as their attorney. At some point, Park and Lee agreed to transfer title to the house to defendants.

Plaintiff said that, in July 2002, Shauger provided him with a draft agreement for the "sale" of the property by Park and Lee to defendants. Plaintiff replied to Shauger's draft in a letter dated August 20, 2002.

In his letter, plaintiff stated that the draft was generally "acceptable" but he wanted language included in the contract indicating that Park and Lee had purchased the property in defendants' names "as a personal favor" because defendants "were in the process of transitioning to the United States from the Republic of Korea[.]" Plaintiff also told Shauger that he wanted defendants to execute an addendum to the contract, which stated that defendants would indemnify and hold Park and Lee harmless from any expenses that they had incurred with regard to the house, an automobile purchased in Park's name, a cell phone purchased in Lee's name, related insurance policies, as well as related legal fees, professional fees, and out-of-pocket costs. Shauger drafted the addendum and provided it to Kimm.

Plaintiff testified that the addendum was intended to cover all expenses and claims that Park and Lee might have "for doing the house, doing the car, doing the cell phone, doing the insurance for [the] benefit of Kim and Go even after the closing had occurred[.]" Plaintiff conceded, however, that he never received a signed addendum from defendants.

Even so, the second closing was scheduled to take place on April 3, 2003. On the day before the closing, plaintiff provided Shauger with a bill in the amount of $8,487.50 for the services plaintiff had rendered to Park and Lee. Defendants refused to pay plaintiff's bill.

In a letter dated April 2, 2003 to Shauger, plaintiff said that there "appears to be some confusion about [his] fees." He wrote that defendants had advised Park and Lee "from the very outset" that they would pay plaintiff's fee. He stated that the addendum to the contract "was intended to address such issues as professional fees and other expenses that may be incurred by Park/Lee." The closing took place on April 3, 2003; plaintiff's fees were not paid.

On cross-examination, plaintiff testified that Kim called him from Korea in late August 2001. Plaintiff stated that, in the phone call, he did not advise Kim that he could not purchase property in the United States. According to plaintiff, Kim called him merely to thank him for the work that plaintiff was doing for "his wife's friends[,] who were putting their names on the hook to help [defendants] make the transition into the United States[.]" Plaintiff testified that Kim never called him again.

Plaintiff also testified on cross-examination that he never stated that Korean nationals could not purchase property in the United States. However, plaintiff conceded that, in his complaint, he had alleged that, "In August 2001, defendants, who are Korean nationals who could not purchase property in the United States, obtained the assistance of plaintiff's client, Mi Ok Lee, and her husband to purchase the house" in Little Ferry. Plaintiff testified that the statements were different. He stated that he told Lee that defendants would have a problem purchasing the house because they did not have bank accountS, social security numbers or money.

Go testified that in July 2001, she traveled with her son from Korea to the United States so that he could participate in a piano competition in Ohio. Lee provided assistance to Go and her son and went with them to Ohio for the competition. Defendants decided to allow their son to remain in the United States to study, and Go initially resided with Lee while her son attended school. Lee rented Go a room in her home.

Go testified that, at some point, she asked Lee to find her another place to rent. Lee told Go that there was no place in the area for rent and there was only one house available for purchase. Lee took Go to see the house and Go made a $1,000 deposit on the house. Go testified that Lee told her that she would not be able to purchase the house because she had a tourist visa and did not have any credit standing.

Go told Lee that she could pay for the house in cash but Lee said that the cash could be "traced" and therefore a mortgage was required. Lee said that she would take out a mortgage on the property. Lee informed Go that she would have to pay all of the costs required to purchase the house, including expenses and closing costs.

Go said that her husband was initially opposed to purchasing the house but he eventually agreed to purchase the house on the terms suggested by Lee. In addition to agreeing to buy the house, Go purchased an automobile with Park's assistance. Go paid $25,000 for the car and title to the vehicle was placed in Park's name. In addition, Go purchased a cell phone in Lee's name.

The closing on the house took place on November 2, 2001. Go was present. One day after the closing, Go learned that, contrary to what Lee had told her, a Korean citizen visiting the United States with a tourist visa could purchase property in this country. Go confronted Lee with this information. Lee said that, as far as she knew, a person with only a tourist visa could not purchase property in the United States. Lee told Go that she should discuss the matter with plaintiff. Go asked Lee to transfer title to the house to defendants.

Go retained Rim to arrange for the transfer of title. Rim failed to do so. Go then retained Shauger to act as her attorney. Although Shauger provided plaintiff with a draft of an agreement to transfer title from Park and Lee to defendants, Go and Kim never signed the agreement. Nevertheless, at a closing that took place on April 3, 2003, Park and Lee transferred title to the property to defendants. Go stated that, at the closing, she paid closing costs of $12,482 and a mortgage pre-payment penalty in the amount of $12,004.63.

Kim also testified. He said that it was his understanding that his wife had arranged with Lee to purchase the house in Little Ferry. Kim stated that he and Go agreed to pay all of the costs to acquire the house but Lee and Park would hold title to the property. Kim discussed purchasing the house with Lee. He said that, at first, he did not want to buy it. However, Kim again spoke to Lee and she ...


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