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Tarakji v. Feldman & Fiorello


October 4, 2010


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. 1979-08.

Per curiam.


Argued September 21, 2010

Before Judges Graves and Waugh.

Plaintiff Mohamed W. Tarakji appeals a verdict of no cause of action in connection with his suit against defendant Feldman & Fiorello, LLC (F & F), his former attorneys. We affirm.

Tarakji consulted F & F in connection with litigation he wanted to bring against his former employer, which would have included claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. He met with William A. Feldman, a partner, and Frank Butterfield, an associate. He told them about documents and audiotapes that he maintained would support his claims.

Tarakji and F & F entered into a retainer agreement dated September 11, 2008. The agreement provided that the firm would assist in attempting to settle the matter or, if unsuccessful, in filing a claim. It called for a non-refundable retainer in the amount of $500, with an additional $2,000 to be paid over time once Tarakji found new employment. Of particular significance for the purposes of this case, the agreement contained the following language in Paragraph 5: "This agreement does not obligate either you or this firm to file or proceed with any litigation if same is deemed for any reason not to be legally or factually sustainable."

Tarakji met with Butterfield on several occasions. Butterfield gave the following testimony at the trial:

Predominantly what it was developed from is he had multiple voice recordings over various time frames. The first two meetings he made various representations as to what those recordings consisted of. One of the conversations in particular was the -- he claimed he had one between him and two of his superiors that sounded very -- I'm saying incriminating, but in the civil respect.

When we finally -- it took multiple times to get him to produce these recordings, when he finally did produce them, he advised that he did not have that recording of that particular conversation which sounded very incriminating.

We spent one session sitting down with his computer listening to conversations.

Several of his superiors are Korean nationality, they have very heavy accents and the tapes were not very clear. In fact, he wanted us to try to see if we could get them [enhanced].

At Tarakji's request, Butterfield also wrote a November 3, 2008, letter to the municipal prosecutor in River Vale, conveying Tarakji's request that one of two municipal complaints he had filed in connection with his dispute with his former employer be dismissed.

According to Butterfield, Tarakji also told him that he had filed a claim for unpaid wages with the Division of Wage and Hour Compliance in the New Jersey Department of Labor. In fact, Tarakji had filed a suit for unpaid wages in the Special Civil Part. According to Butterfield, Tarakji only informed him of that filing when he telephoned him and asked Butterfield to handle that case shortly before a motion or trial date.

F & F decided to terminate the relationship. In a November 14, 2008, letter to Tarakji, Feldman wrote:

It has now come to our attention that you have filed an action against your employer in the Bergen County Superior Court, Special Civil Part without our knowledge, and said action is scheduled for trial on Monday, November 17. By doing so, you may have seriously prejudiced your legal position as to what is known as the "Entire Controversy Doctrine" which requires that all claims and defenses be presented in a single action.

This will also confirm that Mr. Butterfield of this office has auditioned the audio recordings you left with us and that same are not nearly as conclusive or corroborative of your case as you indicated to us.

For these and other reasons, we have decided to end our representation of you in connection with your employment and assault allegation disputes regarding your former employer and a co-worker.

Although the time spent on our several office consultations, review of documents and audio recordings, research, and consultation among counsel together total more than the amount charged to you so far, we will waive any further fee and return our file to you without further charge or obligation on either side.

Thank you for consulting us. We regret that we cannot be of further assistance to you.


There is a one year Statute of Limitations for your "whistle blower" claim (for retaliation by your employer against you). You should seek an adjournment of your trial and ask for leave to amend your Complaint to add all your claims or they may be deemed waived by you.

When F & F refused to return the $500 paid on the signing of the retainer agreement, Tarakji filed the present action in the Special Civil Part on November 21, 2008. On December 1, 2008, Tarakji faxed subpoenas for Feldman and Butterfield to appear at trial. The matter was tried on December 19, 2008.

Butterfield appeared at the trial, but Feldman did not. Tarakji sought to compel Feldman's appearance. After asking Tarakji what questions he would ask Feldman and establishing that Butterfield was at all meetings with Tarakji, the trial judge ultimately decided that his testimony would be cumulative and declined to require Feldman to testify. Both Tarakji and Butterfield testified at the trial.

The trial judge delivered an opinion from the bench following the testimony. With respect to the issue of whether F & F was permitted to withdraw, the judge found credible Butterfield's testimony that Tarakji had represented that he would file his lost wages claim in the administrative forum and that he did not advise F & F that he actually filed it in the Superior Court until shortly before an important litigation event. The judge agreed that the Superior Court filing created a potential problem under the entire controversy doctrine*fn1 with respect to Tarakji's ability to bring the LAD and CEPA claims.

He also found credible Butterfield's assertion that the audio tapes were "not nearly as conclusive or corroborative of [Tarakji's] case as [he] indicated." He determined that F & F "clearly had the right to withdraw based on the filing of the Bergen County suit, but more importantly, they absolutely had the right to withdraw upon listening to those tapes."

The judge then determined that F & F had the right to keep the $500, which the retainer agreement had denominated as nonrefundable. He further determined that the $500 fairly compensated the firm for the time spent listening to the tapes and exploring Tarakji's claims. He entered a judgment of dismissal. This appeal followed.

In this appeal, we review a decision reached by the trial judge following a bench trial. "The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial court unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Our review of the judge's legal conclusions are plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

After reviewing the record, we conclude that the trial judge's determinations of fact are supported by sufficient credible evidence. He found credible Butterfield's testimony about the audio tapes and the representations Tarakji made about the forum in which the lost wages claim would be filed. We are bound by those findings.

We agree with the trial judge that the retainer agreement, specifically Paragraph 5, gave F & F the right to decline further representation if it concluded "for any reason" that the proposed litigation was not "legally or factually sustainable." There is support in the record for the judge's determination that Tarakji's causes of action were not as viable as he had represented in light of the actual content of the audio tapes.

In addition, Paragraph 3 provided that "cooperation is essential to the successful prosecution of this matter." The trial judge appropriately relied on that language in connection with Tarakji's lack of cooperation in filing his pro se action for lost wages in the Superior Court, rather than the administrative agency, and then giving Butterfield late notice of having done so, thereby creating a significant issue under the entire controversy doctrine.

The entire controversy doctrine requires litigants in a civil action to raise all affirmative claims arising from a single controversy that each party might have against another party, including counterclaims and cross-claims. R. 4:30A. It is a preclusionary device, intended to prevent fractionalized litigation by insisting that a party assert all claims arising from a single controversy in a single action. Prevratil v. Mohr, 145 N.J. 180, 190 (1996). See also DiTrolio v. Antiles, 142 N.J. 253, 267 (1995) (citing Cogdell v. Hosp. Ctr., 116 N.J. 7, 15 (1989)).

The doctrine applies to successive suits with interrelated claims. DiTrolio, supra, 142 N.J. at 268. "In determining whether successive claims constitute one controversy for purposes of the doctrine, the central consideration is whether the claims against the different parties arise from related facts or the same transaction or series of transactions." Id. at 267. It is the factual context "giving rise to the controversy itself, rather than a commonality of claims, issues or parties, that triggers the requirement of joinder to create a cohesive and complete litigation." Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995); see also DiTrolio, supra, 142 N.J. at 267-68 ("It is the core set of facts that provides the link between distinct claims against the same or different parties and triggers the requirement that they be determined in one proceeding.").

By filing a single-count Superior Court action against his former employer and notifying his attorneys that he had done so only at the last minute, Tarakji breached his obligation to cooperate and jeopardized their ability to bring his LAD and CEPA claims in a later action. The material breach of a contract by one party can excuse further performance by the other party. Chance v. McCann, 405 N.J. Super. 547, 565-66 (App. Div. 2009). By misleading F & F as to the venue for the lost-wage claim, Tarakji materially breached his duty of cooperation, such that further performance was excused.

We also find no error in the judge's determination that F & F was permitted to keep the $500 paid on the retainer. First, the agreement itself referred to it as nonrefundable. Although nonrefundable retainers are specifically prohibited in Family Court matters, R. 5:3-5(b), we know of no such prohibition in other case types. In addition, the judge credited Butterfield's testimony that he spent time meeting with Tarakji and listening to the audio tapes. Consequently, the $500 retainer cannot be characterized as unearned in any event.

Because we conclude that the judge's factual determinations are supported in the record and that his legal conclusions are sound, we affirm the dismissal of the complaint.


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