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Viktor Ostretsov v. R. Faley & R. Mortensen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2011

VIKTOR OSTRETSOV, PLAINTIFF-RESPONDENT,
v.
R. FALEY & R. MORTENSEN, INC., T/A PARWOOD SUNOCO, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
CORPORATE BUILDING EXTERIORS, INC. AND SUNOCO, INC., THIRD-PARTY DEFENDANTS.
IN THE MATTER OF ALEXANDER FISHBEYN, ESQ., APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1102-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2010

Before Judges Fuentes and Gilroy.

Alexander Fishbeyn is an attorney who represented plaintiff, Viktor Ostretsov, in this personal injury action until plaintiff discharged him and retained attorney Rosemarie Arnold. The case settled for the gross amount of $217,500.

This appeal concerns the amount of fees Fishbeyn is entitled to receive from the settlement.

This is the second time we have had this issue before us.

In the previous appeal, we reviewed the procedural history of the case, including the records kept by Fishbeyn in support of his claim based on the equitable doctrine of quantum meruit, and determined the trial court's findings in support of awarding Fishbeyn $13,000 in counsel fees "lacked the specificity required by R. 1:7-4 and are therefore not amenable to appellate review." In re Alexander Fishbeyn, No. A-3021-08 (App. Div. December 28, 2009) (slip op. at 10) (citing Curtis v. Finneran, 83 N.J. 563, 570 (1980)).

We were also critical of the evidence presented by Fishbeyn in support of his claim.

This 'bullet point' recitation of the services Fishbeyn allegedly performed for plaintiff does not indicate the monetary value of the lawyer's time, does not identify the approximate time spent on each task, and does not set forth the overall hours devoted to plaintiff's case. Although plaintiff agreed to compensate Fishbeyn based on a percentage of the monetary recovery obtained, a lawyer seeking a judicial award of counsel fees under these circumstances must provide the court with the documentation necessary to ascertain the value of the services performed by the lawyer. This approach requires the lawyer to identify each professional task with particularity and requires the lawyer to quantify the professional time spent performing each task. Once this is done, the lawyer must provide a means by which the court can assess the reasonableness of the hourly rate requested based on the criteria outlined in RPC 1.5.

[In re Alexander Fishbeyn, supra, No. A-3021-08, slip op. at 9 - 10].

We thus vacated the award and remanded the matter for the court to conduct the analysis required under principles governing the doctrine of quantum meruit, as explained in La Mantia v. Durst, 234 N.J. Super. 534, 537 (App. Div. 1989), certif. denied, 118 N.J. 181 (1989) and Bruno v. Gale, Wentworth & Dillon Reality, 371 N.J. Super. 69, 75 (App. Div. 2004). In re Alexander Fishbeyn, supra, No. A-3021-08, slip op. at 6 - 11.

By memorandum of opinion dated March 4, 2010, the trial court reexamined the evidence initially presented by Fishbeyn, and reaffirmed the award of $13,000 in counsel fees and $1,060 in costs, for a total of $14,060. Fishbeyn now appeals from this decision arguing the court misapplied the legal principles governing the equitable doctrine of quantum meruit.

We affirm substantially for the reasons expressed by the trial court in its memorandum of opinion. As emphasized by the trial court, despite the inadequacy of the previous records, on remand, Fishbeyn did not provide additional records or information specifically addressing the concerns we noted in our prior opinion. Without more, we discern no legal basis to disturb the trial court's ultimate determination.

Affirmed.

20110915

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