On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1595-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and Grall.
This appeal stems from a dispute between two attorneys who represented Edward Haremza in two different lawsuits arising from an automobile accident. Appellant, Stuart Ball, Esq., represented Edward Haremza and his wife Janina in a personal injury suit stemming from a vehicular accident in March 2003.
As John Gerlach was driving south on Springfield Avenue in Westfield on a snowy day in March 2003, the vehicle in front of him stopped suddenly. Attempting to avoid a collision, Gerlach swerved into oncoming traffic and struck Haremza's vehicle head-on. Haremza suffered serious injuries from the collision. The vehicle that stopped in front of Gerlach was referred to but not identified in the police report.
Shortly thereafter, Haremza retained Ball, who sued Gerlach and Chrysler Financial Company.*fn1 Ball did not pursue an uninsured motorist (UM) claim despite the mention of an unidentified third vehicle in the police report. Ball contends that he was unaware of the third vehicle until Gerlach mentioned it in his deposition during "the later part of 2006 or the early part of 2007."
After this deposition, Ball sent letters to the UM carriers to file a claim, but did not affirmatively pursue it. The lawsuit concluded with a verdict in favor of Gerlach. Haremza appealed the jury trial verdict pro se, while Ball "focused his primary attention on an ancillary PIP claim and the UM claim."
According to Haremza, after Ball "did nothing for an entire year," Haremza discharged Ball and retained Marc J. Rogoff, Esq., to pursue the UM claim. Rogoff immediately obtained an order to show cause to compel arbitration. Between May and June 2009, Rogoff obtained an independent medical evaluation of Haremza and deposed him in preparation for the arbitration.
Rogoff was successful in securing a $67,500 arbitration award, of which he was entitled to a contingent fee of $22,000. After learning of the award, Ball demanded a portion of the fee. Rogoff offered Ball $3500.
Unhappy with this offer, Ball moved to share in this fee. In support of the motion, Ball certified that, although he "recognize[es] and accept[s] that [he is] not entitled to fees for . . . the personal injury case," he spent "countless" hours pursuing the UM claims. He further certified that he: activate[d] both [UM] Claims; . . . exchange[d] medical information with both carriers; . . . investigate[d] the ERISA lien from General Motors and the lien from Medicare; . . . initiated and conducted PIP litigation; [and] engaged in extensive negotiations as to both the UM Claims, the PIP case and the medical liens . . . .
Except for two letters written before the 2008 trial, his motion did not include any documentary evidence to substantiate these claims.
Rogoff cross-moved for fees incurred in opposing the motion. He certified that when he received the file, there had been no discovery or exchange of interrogatories and that a date for the arbitration had not been set. Rogoff also detailed for the court the exact steps he took to secure the UM arbitration award. Haremza submitted a certification with Rogoff's motion confirming Rogoff's efforts.
Judge Vincent LeBlon denied both parties' motions. As to Ball's motion for a portion of counsel fees, the judge found that he "ha[d] not shown . . . any basis . . . for a claim." Instead, Ball made only conclusory ...