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McCourt v. McCourt

October 2, 2009

LINDA S. MCCOURT, PLAINTIFF-RESPONDENT,
v.
BRIAN J. MCCOURT, DEFENDANT-RESPONDENT.
IN THE MATTER OF BUDD LARNER, P.C., APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-760-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2009

Before Judges Fisher and Espinosa.

Petitioner Budd Larner, P.C., ("Budd Larner") filed an attorney fee lien pursuant to N.J.S.A. 2A:13-5 against its former client, Linda McCourt ("McCourt") in the amount of $56,515.28. Budd Larner appeals from an order entered by the trial court that reduced its attorney fee lien by establishing the amount of counsel fees due and owing by its former client as $26,210. We affirm.

This is the second time this attorney fee lien has come before this court. The full procedural history need not be repeated in order to address the issues raised on appeal.

Budd Larner represented McCourt in her matrimonial action from September 2007 until March 2008. Budd Larner filed a motion in March 2008 "to Recognize Attorney Withdrawal and to Enforce Contended Attorney Fee Lien Pursuant to N.J.S.A. 2A:13-5" in the amount of $56,515.28. At that time, Budd Larner was holding $48,837, one-half of the proceeds from the sale of the marital home, in its trust account. In May 2008, Budd Larner sought leave to appeal on an emergent basis from two orders of the trial court that, in part, required Budd Larner to transfer $45,000 of the funds it held to defense counsel without a decision on Budd Larner's motion for an attorney lien. Citing Levine v. Levine, 381 N.J. Super. 1, 9 (App. Div. 2005), this court reversed and directed that the matter "proceed as a plenary suit to be tried . . . to a judge of the Family Part."

After conducting a plenary hearing over the course of seven days, the trial court determined that the amount due and owing to Budd Larner for fees and costs was $26,210 and entered judgment in that amount. The court denied the request for prejudgment interest but permitted post-judgment interest. As to the disposition of the escrowed funds, the court ordered that, pending further orders of the court, Budd Larner could retain $26,210 in an interest-bearing escrow account but was directed to forward the balance of the escrowed funds to counsel for Brian McCourt for retention in a separate trust account.

In an eight-page written opinion, the trial court analyzed the fees sought pursuant to the factors identified in R.P.C. 1.5(a) in accordance with Rosenberg v. Rosenberg, 286 N.J. Super. 58 (App. Div. 1985). The court found that the hourly rates charged were "consistent with those of equal experience in the profession" and that "the services were rendered as stated on the billing sheets." The court viewed "the only question" as "whether the fees were fair and reasonable." The court addressed each of the R.P.C. 1.5(a) factors and, among its conclusions, noted the following: There was nothing novel or unusual about the case. The case was in the same position at the end of Budd Larner's representation as it was when representation was commenced. No issue had been affected other than the negotiation of a release of $10,000 to McCourt. The court gave full credit to those fees that involved "contact with an adversary, contact with the Court or mediator, Court appearances and the review of the custody report and business evaluation," a total of $13,710. The court disallowed disbursements, explaining that they were billed "without any identification as to the nature of those disbursements." The court also removed charges for the preparation of documents, including a Case Information Statement and a pendente lite motion that were never filed or shared with the client and "did not advance her interests." The court also excluded charges for an associate's attendance at two settlement conferences attended by the responsible partner, noting that neither the associate's preparation nor attendance benefited McCourt and that she had not requested his attendance.

After the trial court denied Budd Larner's motion to stay the portion of the order that required it to forward the balance of the escrowed funds to counsel for Brian McCourt, Budd Larner sought leave to appeal from the order and a stay of the turnover provisions. This court granted the motion for leave to appeal and denied the motion for a stay.

Budd Larner raises the following points on appeal:

POINT I.

IN ORDER TO GIVE FULL FORCE AND EFFECT TO PETITIONER'S ATTORNEY FEE LIEN RIGHTS PROVIDED BY N.J.S.A. ...


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