EDWARD HAREMZA v. STUART BALL LLC (2011)

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.¹  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 statements supported only by two letters sent after trial.

In one of these letters, Ball explained that:

[d]iscovery ․ has developed facts that make it necessary to pursue a claim for uninsured motorists' benefits as well.   Accordingly, this [letter] is to request that the appropriate claims files be established and that the adjuster ․ assigned to that file contact me directly as soon as possible ․ to discuss how to proceed․

Despite the reference to a UM claim, this letter alone did not show that Ball did any actual work besides writing the letter.

Ball appeals this decision, arguing that “a plenary hearing was required to determine the appropriate quantum meruit recovery.”   He argues that where the parties submit conflicting certifications a plenary hearing is required to resolve factual discrepancies pursuant to Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J.Super. 69, 76–77 (App.Div.2004).

Where a client terminates an attorney's representation prior to the resolution of the underlying matter, that attorney may seek the equitable remedy of quantum meruit for work performed prior to termination.  La Mantia v. Durst, 234 N.J.Super. 534, 539–40 (App.Div.), certif. denied, 118 N.J. 181 (1989).   This doctrine also permits the recovery of a share of a subsequently realized contingent fee.  Ibid. There are several relevant factors to such a claim:

[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] [t]he 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[;]

[6] [t]he amount of the recovery realized in the underlying lawsuit ․ [;  and]

[7] any pre-existing partnership agreements between the members of the firms who now compete for percentages of the contingency fee.

[Id. at 540–41 (citations omitted).]

Because this is a fact-sensitive inquiry, summary disposition is inappropriate where the parties submit “conflicting certifications.”  Johnson v. Johnson, 390 N.J.Super. 269, 275 (App.Div.2007);  see also Lederman v. Prudential Life Ins. Co. of Am., 385 N.J.Super. 324, 346 (App.Div.), certif. denied, 188 N.J. 353 (2006) (“[A] factual dispute ․ requires resolution by trial or plenary hearing․”);  Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:6–2(b) (2011).

These cases are distinguishable.   Here, Ball broadly asserts that he performed a number of services on Haremza's behalf after the trial.   As Ball concedes, however, he did not try “to extract in detail the number of hours,” he spent pursuing the UM claim.   Moreover, he did not provide any timesheets or the dates and description of the exact services performed.

Indeed, his certification conflicts with Rogoff's only in the sense that Rogoff details, with supporting documentation, the exact steps he took to rescue the “floundering” UM claim and pursue it to a successful resolution.   Perhaps most importantly, Ball waived oral argument and the opportunity to demonstrate to the judge the reasons for the inadequacy of his proofs.   Consequently, Ball failed to meet the threshold burden of justifying his right to any portion of the fees, and a plenary hearing was unnecessary.

Accordingly, we affirm substantially for the reasons expressed by Judge LeBlon in his May 3, 2010 oral opinion.

Affirmed.

FOOTNOTES

FN1. Haremza v. Gerlach, No. MID–L–1674–05 (Law Div. Jan. 28, 2008)..  FN1. Haremza v. Gerlach, No. MID–L–1674–05 (Law Div. Jan. 28, 2008).

PER CURIAM