Opinion
DOCKET NO. A-4279-10T3
06-25-2012
RALPH ROSEN, Individually and as EXECUTOR OF THE ESTATE OF JUDITH ROSEN, deceased, Plaintiffs-Appellants, v. GILBERT SUGARMAN, M.D. and ASSOCIATES IN FEMALE HEALTH CARE, P.A., Defendants. RALPH ROSEN, Individually and as EXECUTOR OF THE ESTATE OF JUDITH ROSEN, deceased, Plaintiffs, v. QUEST DIAGNOSTICS, INC., Defendant. STRYKER, TAMS & DILL, LLP, Respondents.
Gruber, Schwartz & Posnock, attorneys for appellants (David J. Gruber, of counsel and on the brief). Scarinci & Hollenbeck, attorneys for respondents (Harold Friedman, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2880-04.
Gruber, Schwartz & Posnock, attorneys for appellants (David J. Gruber, of counsel and on the brief).
Scarinci & Hollenbeck, attorneys for respondents (Harold Friedman, of counsel and on the brief). PER CURIAM
The underlying proceedings in this case began in 2000 as a medical malpractice claim commenced by Judith Rosen during her lifetime against defendant Gilbert Sugarman, M.D., and his professional association, defendant Female Health Care, P.A. With Judith's death in 2003, a wrongful death action was commenced by her estate in 2004. These claims were amicably resolved, leaving a dispute regarding a counsel fee sought by Stryker, Tams & Dill, LLP (the Stryker firm), which represented the estate until 2005; a number of other firms represented the estate until the case settled as to all defendants for $340,000 in 2010.
After the settlement, the Stryker firm claimed its entitlement to a contingent fee from the settlement fund. Other firms that represented the estate asserted liens against the fund, but those firms have agreed that any fee to which they may be entitled would come from the fee awarded to the Stryker firm.
The factual disputes underlying the fee claim were developed at a plenary hearing on April 14, 2011. The trial judge rendered his findings of fact and conclusions of law, determining that the Stryker firm was entitled to $93,491.72.
Plaintiffs appeal, arguing:
I. SINCE THE STRYKER FIRM DID NOT HAVE AN EXECUTED CONTINGENCY FEE AGREEMENT FOR THE ESTATE MATTER IT IS NOT ENTITLED TO A CONTINGENCY FEE AND THE COURT'S ORDER GRANTING SAME MUST BE REVERSED.We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
II. THE COURT'S AWARD OF A CONTINGENCY FEE MUST BE REVERSED BECAUSE STRYKER FAILED TO PROVIDE PLAINTIFFS WITH PRE-ACTION NOTICE ADVISING THEM OF THEIR RIGHT TO ARBITRATE
THIS FEE DISPUTE PURSUANT TO R. 1:20A-6.
A. The Fee Committee Has Jurisdiction To Resolve This Fee Dispute Pursuant To R. 1:20A-2.III. ASSUMING, ARGUENDO, THAT FEE ARBITRATION NOTICE IS NOT MANDATED BY R. 1:20A-1, ET SEQ., THE ORDER MUST STILL BE VACATED BECAUSE IT IS BASED ON AN INVALID CONTINGENCY FEE AGREEMENT AND AN INCOMPLETE QUANTUM MERUIT ANALYSIS.
B. Pre-Action Notice Was Required Pursuant To R. 1:20A-6.
The premise from which most of plaintiffs' arguments flow is the assertion that the Stryker firm did not enter into a contingency fee agreement with the estate. In fact, the evidence adduced at the plenary hearing supported the judge's determination that, originally, the Stryker firm entered into a contingency fee agreement with Judith and, once Judith died, the Stryker firm entered into an agreement with the estate that incorporated the terms of the original contingency fee agreement. The judge's finding is supported by credible evidence and, thus, entitled to our deference. Rova Farms Resort v. Investor's Ins. Co., 65 N.J. 474, 483-84 (1974).
We also note that the judge alternatively examined the Stryker firm's fee claim pursuant to a quantum meruit theory, which would apply in the absence of the contingency fee agreement. The judge found that such a theory would likely result in an award in excess of the contingent fee.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION