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Viviana Rivera and Eduardo Rivera v. Dover Vf L.L.C./Vornado Realty Trust

November 14, 2011

VIVIANA RIVERA AND EDUARDO RIVERA, PLAINTIFFS-RESPONDENTS,
v.
DOVER VF L.L.C./VORNADO REALTY TRUST, TJ MAXX/THE TJX COMPANIES, INC., DEFENDANTS. GELMAN GELMAN WISKOW & MC CARTHY, L.L.C., INTERVENOR-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-308-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2011

Before Judges Fuentes, Graves and Koblitz.

Gelman Gelman Wiskow & McCarthy, L.L.C. (GGW&M) appeals from a February 8, 2011 order of the motion judge granting the law firm only $50.02 in costs and denying it a quantum meruit share of the total attorney's fees stemming from a $55,000 personal injury settlement negotiated by attorney Raquel Romero's firm. After reviewing the record in light of the contentions advanced on appeal, we reverse the order and remand for a hearing to resolve the contested factual issues.

Viviana Rivera, the plaintiff in the underlying personal injury and workers' compensation litigation, was working at a TJ Maxx retail store located in a strip mall when she fell on September 9, 2008. She injured her left shoulder and elbow after slipping on a puddle of water that accumulated due to a leak in the building's roof. On September 22, 2008, Rivera signed a claim petition to begin a workers' compensation case at the offices of GGW&M. She and her husband, Eduardo Rivera, also signed a contingency fee retainer agreement with appellant GGW&M for the provision of legal services. Personal injury attorney Phillip C. Wiskow, of GGW&M's Dover office, signed the agreement on the firm's behalf.*fn1 He and his paralegal certify that Wiskow spoke to Rivera in detail, with his paralegal present to interpret, as Rivera is not fluent in English. Wiskow indicates that he explained to Rivera the difference between a workers' compensation claim and a third-party action. Rivera, in a certification prepared by Romero, denies speaking personally with Wiskow at any time or being told about a third-party action by anyone at his firm.

Wiskow states that he wrote many letters and received medical and other records in furtherance of the third-party personal injury litigation. A GGW&M attorney in its Elmwood Park office represented Rivera in the workers' compensation matter. On October 24, 2008, Romero sent a letter to the Elmwood Park attorney advising him that Rivera wanted her "file" forwarded and a substitution of counsel signed in the matter of "Viviana Rivera v. T.J. Maxx." The attached authorization for transfer of file, also dated October 24, 2008, and signed by Rivera, stated, "I, Viviana Rivera, do hereby request from you, [GGW&M], to transfer my worker's compensation files to [Romero].

. . ." Counsel forwarded the workers' compensation file. Wiskow indicates that he was personally unaware of this substitution and continued in his efforts on behalf of Rivera in the personal injury case. Wiskow claims that he repeatedly attempted to contact Rivera, but was unable to reach her because she went to Costa Rica for more than six months.

Rivera did not sign a retainer agreement with Romero until she returned from Costa Rica in August 2009. On January 13, 2010, Romero filed a third-party personal injury lawsuit on behalf of the Riveras against defendant property owner Dover VF, L.L.C./Vornado Realty Trust (Dover). Wiskow did not discover that Romero represented the Riveras until he was told by Dover's claims adjuster in March 2010. Wiskow and Romero subsequently agreed that Romero, rather than GGW&M, would represent Rivera.

On November 11, 2010, prior to conducting depositions, the Riveras signed a stipulation of dismissal of their personal injury suit and general release of all claims against the property owner in exchange for a $55,000 cash settlement. Deducted from the settlement were $17,610.91 in attorney fees and GGW&M's costs in the amount of $1734.46.

The motion judge noted that of the $1734.46, $50.02 was incurred between September 22, 2008 and October 24, 2008, the date on which the judge determined that GGW&M's representation of Rivera was terminated. After making this determination, the motion judge noted that it was "impossible to determine the actual number of hours that were performed in terms of the service that was provided" and that it would be "disrespectful" for him to "opine as to exactly how much time was spent in each one of the functions." Nevertheless, based on his finding that GGW&M's services were terminated on October 24, 2008, the motion judge awarded the firm only the $50.02 in costs incurred during the approximately one month of representation on Rivera's third-party claim.

La Mantia v. Durst, 234 N.J. Super. 534 (App. Div.), certif. denied, 118 N.J. 181 (1989), describes the factors to be considered when establishing the value of services provided by different law firms in the same case. When determining the proper allocation of the attorney's fees among firms, the trial court should consider: (1) "the length of time each of the firms spent on the case relative to the total amount of time expended to conclude the client's case;" (2) the "quality" of the representation; (3) the "result of each firm's efforts;" (4) "the reason the client changed attorneys;" (5) the "[v]iability of the claim at transfer;" and (6) the "amount of the recovery realized in the underlying lawsuit. . . ." Id. at 540-41.

The motion judge concluded that any time Wiskow spent working on the personal injury claim after October 24, 2008, was not compensable. He also decided that Wiskow's work did not assist the resolution of the matter, stating, "Suffice it to say, that regardless of the amount of time that Mr. Wiskow spent, that time did not result in the recovery of any funds nor did it assist in the recovery of any funds. As a result, he engaged in a contingent fee agreement, performed services, at least as far as Ms. Rivera is concerned, for approximately a month [that] resulted in no recovery." Pursuant to this reasoning, the judge concluded that the "entirety of . . . the attorney's fee will be provided to Raquel Romero."

"Appellate review of a trial court's attorney fee determination is deferential." In re Estate of F.W., 398 N.J. Super. 344, 355 (App. Div.), certif. denied, 196 N.J. 347 (2008). We "will only disturb the trial court's determination on a showing of 'clear abuse of discretion' based on the record presented on the fee application." Ibid. (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "The scope of an appellate court's review of a trial court's fact-finding is a limited one. Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld wherever they are 'supported by adequate, substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). However, the same degree of deference is not owed if the judge has not made credibility findings after a plenary hearing.*fn2 See P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004) ("Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because, having heard the case, and seen and observed the witnesses, the trial court has a better perspective than a reviewing court in evaluating the veracity of ...


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