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Michael S. Kimm v. Shin Auk Kang

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 20, 2010

MICHAEL S. KIMM, PLAINTIFF-APPELLANT,
v.
SHIN AUK KANG, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-30870-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010 - Decided Before Judges Carchman and Graves.

Plaintiff Michael S. Kimm appeals from an order of the Law Division dismissing his complaint and awarding defendant Shin Auk Kang counsel fees for plaintiff's frivolous action, N.J.S.A. 2A:15-59.1b(1) and (2); R. 1:4-8; R. 4:6-4(b). We affirm.

The facts are simply stated. Defendant sought representation from plaintiff, an attorney, and ultimately, plaintiff undertook such representation. No retainer or other written agreement was executed setting forth the terms of the representation. Plaintiff alleged that he expended over 16.50 hours in his representation of defendant, and defendant incurred a fee of $6,600. On April 30, 2008, plaintiff forwarded a statement for legal services together with pre-action fee arbitration notice. That notice provided:

Under Rule 1:20A-6 of the New Jersey Rules of Court, a client has a right to seek an arbitration regarding any portion of the client's fee obligation by making this request in writing within 30 days of receiving this letter. If you seek arbitration, you must contact the Secretary of the Fee Arbitration Committee of your County, request a copy of the forms, and file the forms with the Fee Arbitration Committee of your County, with a copy to my office. If you do not communicate with the Fee Committee within 30 days of this letter, you shall waive your right to seek fee arbitration. The Fee Committee's address is: Terrence J. Corriston, Esq., District II-B (North Bergen County), Breslin & Breslin, 41 Main Street, Hackensack, NJ 07601 (201) 342-4015.

The statement and notice were apparently received at defendant's place of business on May 8, 2008. By a petition dated June 9, 2008, defendant filed for fee arbitration. The Fee Arbitration Committee (the Committee) accepted the petition and notified plaintiff who, in turn, objected to the petition as being outof-time. That response prompted a letter from the Committee secretary stating:

I am in receipt of your objection to accepting the referenced matter for Fee Arbitration based upon the failure to file within 30 days of receipt of the Pre-Action Notice. I note that the Pre-Action Notice failed to provide "that if the client does not promptly communicate with the Fee Committee secretary and file the approved form of request for fee arbitration within 30 days after receiving Pre-Action notice by the lawyer, the client shall lose the right to initiate fee arbitration" in accordance with R. 1:20A-6. As such, the Pre-Action Notice was technically deficient.

Accordingly, the matter is being accepted for Fee Arbitration. [Emphasis added.]

Plaintiff failed to respond to the Committee, and on September 15, 2008, plaintiff was advised:

On July 7, 2008, I notified you that the Fee Arbitration Request Form filed by Mr. Kang was accepted due to a deficient Pre-Action Notice and we would proceed with the fee arbitration and to please forward your response within 30 days. A copy of my letter is enclosed. As of this date, you have not remedied this deficiency as required. I must advise you that, pursuant to R. 1:20A-3(a)(2)(i), your failure is no longer remediable and you are hereby barred from further participation in this matter, which shall proceed uncontested. By copy of this letter, I am so notifying all parties and request that a hearing be scheduled as soon as possible.

Plaintiff was also advised of an October 22, 2008 hearing date but failed to appear. He, instead, advised the Committee that he would be seeking a declaratory judgment challenging the arbitration and further advised that if he was unsuccessful, "then it is my intention to default in the fee arbitration."

Plaintiff did not file a declaratory judgment action but filed a complaint seeking fees based on breach of contract and quantum meruit. In addition, he filed an order to show cause against defendant, without notice to the Committee, seeking to stay the arbitration.*fn1 The application was denied by the Law Division.

The arbitration hearing took place in plaintiff's absence and the Committee determined that the appropriate fee was $1,200. The Committee awarded that amount to plaintiff, and defendant, thereafter, paid the fee.

While the arbitration was pending, plaintiff filed a motion in the Law Division seeking to enter a default judgment against defendant. Defendant responded and filed a cross-motion for dismissal of the complaint as well as for counsel fees and costs. The judge denied the motion for the default judgment, dismissed the complaint and awarded counsel fees to defendant in the amount of $2,500. Plaintiff appealed, and one month later, plaintiff filed a motion for reconsideration, which was denied.

On appeal, plaintiff asserts that the Committee did not have jurisdiction because of defendant's late filing; the Law Division judge erred by failing to assume jurisdiction of the matter; the Law Division judge erred by awarding counsel fees and the judge erred by not addressing alleged "uncivil actions" by defendant's attorney.

We have carefully considered plaintiff's arguments and conclude that they are devoid of merit. R. 2:11-3(e)(1)(E).

We add the following comments. We agree with the Committee that it properly exercised jurisdiction in this matter. Plaintiff's argument that the alleged late filing of the petition for fee arbitration precludes any consideration by the Committee is an issue that need not be adjudicated on this appeal. The critical and correct determination made by the Committee that plaintiff's notice of fee arbitration to defendant was defective on its face moots out any claim as to timeliness of the petition. Rule 1:20A-6 requires that notice to the client shall state that: "if the client does not promptly communicate with the Fee Committee secretary and file the approved form of request within 30 days after receiving pre- action notice by the lawyer, the client shall lose the right to initiate fee arbitration." The notice sent by plaintiff failed to include the reference to filing the approved form of request within the 30 day period.

Plaintiff's reliance on Kimm v. Cha, 335 N.J. Super. 262 (App. Div. 2000), certif. denied, 167 N.J. 632 (2001), is misplaced. Kimm dealt with a petition filed four months after the service of the notice. We commented on this extraordinary delay and noted that "if the misinformation in the pre-action notice could in any way have caused a significant delay in the client['s] request, we would have a very different situation." Id. at 266. (Emphasis added). Our dicta in Kimm recognized that factual situations would be addressed as required. We need not fashion a rule regarding jurisdiction under the facts presented here except to note that the initial determination as to jurisdiction rests with the Committee secretary or panel chair. R. 1:20A-2(d).

We consider it appropriate to comment on plaintiff's actions following the filing of the petition. Rule 1:20A-3(a)(1) provides that "The filing of a Fee Arbitration Request Form with the secretary shall constitute a stay of all pending court actions for the collection of the fee." Notwithstanding this provision, plaintiff not only filed his Law Division action to collect the fee (as opposed to his purported declaratory judgment challenging the jurisdiction of the Committee) but moved forward in an attempt to enter a default judgment against defendant. That violated the stay provision and was unwarranted. In this regard, the judge properly awarded counsel fees against him.

Affirmed.


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