October 11, 2012
PATRICIA WONG, AN INCOMPETENT THROUGH GREGORY WONG, AS GUARDIAN, PLAINTIFF,
RONETCO SUPERMARKETS, INC. T/A SHOPRITE OF SUCCASUNNA, WHITESTONE ASSOC., INC., RIGS, INC, LEN RUSCIANI, FIDELITY LAND DEVELOPMENT, LLC, FIDELITY MAINTENANCE COMPANY, FIDELITY MANAGEMENT CORP., ROXVILLE ASSOCIATES, RICHARD P. WINNE, M.D., ANESTHESIA ASSOCIATES OF MORRISTOWN, NEW JERSEY PAIN CONSULTANTS, MORRISTOWN MEMORIAL HOSPITAL, THE PAIN MANAGEMENT CENTER, KAREN SHIPPE, R.N. OF THE PAIN MANAGEMENT CENTER, VICKY CHRISTOPHER, R.N., CLINICAL COORDINATOR FOR THE PAIN MANAGEMENT CENTER, DR. MARK RUBINETTE, DR. LEIGH S. ENDE, DR. DAN RICHMAN, DR. FEINBERG, DR. ROSEZENWEIG, DR. ABBOTT KREIGER, DEFENDANTS, AND RONETCO SUPERMARKETS, INC. T/A SHOPRITE OF SUCCASUNNA, DEFENDANT/THIRD-PARTY PLAINTIFF,
RICHARD P. WINNE, M.D., PAIN MANAGEMENT CENTER, RIGS, INC. AND LEN RUSCIANI, THIRD-PARTY DEFENDANTS, AND FIDELITY LAND DEVELOPMENT, LLC, FIDELITY MAINTENANCE CO., FIDELITY MANAGEMENT CORP. AND ROXVILLE ASSOCIATES, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
RIGS, INC. AND LEN RUSCIANI, THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3038-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Harris and Hoffman.
In this appeal, we review the trial court's order of October 25, 2011 dividing a contingent fee between two law firms generated from a multi-million dollar settlement received by plaintiffs in this personal injury case.*fn1 Because we conclude the judge's ruling did not constitute a mistaken exercise of discretion, we affirm.
On March 21, 2002, plaintiff Patricia Wong fell in a parking lot while pushing a shopping cart and injured her wrist. Several months later, plaintiff retained the services of Paul Selitto, Esq. (Selitto) to pursue a bodily injury claim for her. Selitto filed suit on April 22, 2003. Plaintiff was eventually diagnosed with reflex sympathetic dystrophy syndrome (RSD). On August 5, 2004, plaintiff suffered a catastrophic injury from a complication during an epidural catheter infusion in the course of treatment for her RSD. As a result, plaintiff fell into a coma and remains in a persistent vegetative state.
Plaintiff's brother, Gregory Wong (Wong), was then appointed guardian for his sister. Wong began to lose confidence in Selitto by the Fall of 2005. He was concerned that Selitto, a sole practitioner, did not have the resources to handle what had become a very complex case. In the Spring of 2006, Wong consulted Michael Noonan, Esq. of Nowell Amoroso Klein Bierman, P.A. (Nowell). Soon thereafter, he retained Nowell and the file was formally transferred on June 5, 2006.
Upon assuming responsibility for the case, Nowell devoted the time, energy and resources necessary to achieve a substantial seven figure settlement in September 2010. Forty-four percent of the settlement money came from the premises liability defendants and fifty-six percent of the settlement money came from the medical malpractice defendants. Selitto did not file any direct claims against the medical malpractice defendants before transferring the file.
When Selitto and Nowell were unable to agree upon the division of the attorneys fee, Selitto filed a petition for attorney's lien pursuant to N.J.S.A. 2A:13-5. Following a twoday plenary hearing, Judge Stephan C. Hansbury entered an order awarding Selitto a fee of $50,000. The order was accompanied by a five-page statement of reasons.
Nowell appealed and Selitto cross-appealed. On appeal, Nowell contends that Selitto should not be entitled to any fee based upon his failure to submit an itemized record of his time. Selitto, on the other hand, argues that the judge abused his discretion by arriving at a quantum meruit award without properly considering all relevant factors.
"Appellate review of a trial court's attorney fee determination is deferential. 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." In re Estate of F.W., 398 N.J. Super. 344, 355 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
An attorney hired on a contingent fee, who is discharged prior to the completion of litigation, is not entitled to an award based on the contingent fee agreement. Glick v. Barclays De Zoete Wedd, Inc., 300 N.J. Super. 299, 310 (App. Div. 1997). Instead, the trial court, in its discretion, may award the attorney a fee "on a quantum meruit basis for the reasonable value of the services rendered." Ibid. Quantum meruit, a form of quasi-contract, ...
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