CHESTER A. LUSZCZ, ESQUIRE VS. CRAIG A. ALTMAN, PC (DC-004627-18, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 2, 2019
• Docket: A-5960-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5960-17T2

CHESTER A. LUSZCZ, ESQUIRE,

Plaintiff-Respondent/ Cross-Appellant,

v.

CRAIG A. ALTMAN, PC,

Defendant-Appellant/ Cross-Respondent. _________________________

Submitted September 25, 2019 – Decided October 2, 2019

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-004627-18.

Law Offices of Craig A. Altman, PC, appellant/cross- respondent pro se (Allan J. Aigeldinger, III, on the briefs).

Chester A. Luszcz, respondent/cross-appellant pro se.

PER CURIAM Defendant Craig A. Altman, PC appeals from an August 22, 2018

judgment following a trial in favor of plaintiff Chester A. Luszcz, Esquire for

$4878 in this special civil matter. Plaintiff cross-appeals from the judgment.

We affirm.

We take the following facts from the record. Defendant represented

Veronica McAllister in a trip and fall case and obtained a $65,000 default

judgment against Mordechai Cohen, the owner of the structure where McAllister

had her accident. Defendant had difficulty collecting the judgment and hired

plaintiff to pursue the collection efforts. The parties signed a retainer

agreement, stipulating plaintiff would be compensated on a contingency basis

and paid twenty percent of all funds collected. McAllister signed the agreement

as well.

Plaintiff filed a substitution of attorney and began collection efforts. He

served a writ of execution on five banks, conducted a property search, issued

two information subpoenas, and finally located Cohen. As a result of plaintiff's

efforts, Cohen turned the matter over to his insurer, who provided a defense.

The insurer vacated the default judgment and defendant settled the case with the

insurer for $45,000. McAllister signed a sheet approving the $45,000

A-5960-17T2 2 settlement, less distributions of $1094.80 in costs and $14,635.07 representing

defendant's one-third contingency fee.

Following the settlement, plaintiff communicated with defendant

requesting $9000, representing his twenty percent contingency fee from the

$45,000 settlement. Defendant responded it would not pay plaintiff because he

did not collect the judgment.

Plaintiff filed a complaint for breach of contract, implied contract, and

quasi-contract. At trial, plaintiff testified, as did an attorney from defendant's

office who signed the retainer agreement with plaintiff. The trial judge rendered

oral findings. He concluded plaintiff performed the "lion's share" of the

collection work which ultimately produced the settlement. The judge cited

plaintiff's thirty-five years of experience as a collection attorney and use of

information subpoenas to track down Cohen.

However, the judge found awarding plaintiff twenty percent of the total

recovery was unreasonable. Citing the standard attorney fee rate of thirty-three

percent for contingency cases, the judge awarded plaintiff $4878, representing

thirty-three percent of defendant's counsel fee recovery.

On appeal, defendant argues the judge erred by awarding plaintiff a

portion of the recovery because plaintiff did not collect the claim, keep accurate

A-5960-17T2 3 time records, prepare McAllister's case, or file any pleadings. He repeats the

argument he made to the trial judge that plaintiff was barred from recovery by

the entire controversy doctrine, because he did not name McAllister in his suit

as an indispensable party. Plaintiff cross-appeals and argues the judgment

should have been for $8781.04, reflecting the agreed-upon twenty percent

contingency.

"The factual findings of a trial court are reviewed with substantial

deference on appeal, and are not overturned if they are supported by 'adequate,

substantial and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 115 (2014) (citations omitted). Such deference is especially due when

a trial judge's findings "are substantially influenced by [the judge's] opportunity

to hear and see the witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy." Zaman v. Felton, 219 N.J. 199, 215-16 (2014) (alteration

in original) (internal quotation and citation omitted).

We reject defendant's arguments and affirm substantially for the reasons

expressed by the trial judge. The record supports the judge's finding that

plaintiff's efforts resulted in a recovery for McAllister. Moreover, as the judge

noted, because this was a contingency matter, it was not unusual for plaintiff not

to have kept time sheets.

A-5960-17T2 4 Defendant's argument that plaintiff must name McAllister to recover his

fees lacks merit. The judge found that although plaintiff could have named

McAllister as a party, she was not a necessary party to the dispute between

plaintiff and defendant. Plaintiff testified he did not pursue a claim against

McAllister because she signed his retainer solely to confirm she was aware of

the fee sharing arrangement between plaintiff and defendant. Moreover,

plaintiff explained he did not pursue McAllister because she was only

responsible to pay her attorneys their one-third share of the $45,000 settlement

and fulfilled her obligation.

"The entire controversy doctrine is an equitable principle and its

application is left to judicial discretion." 700 Highway 33 LLC v. Pollio, 421

N.J. Super. 231, 238 (App. Div. 2011) (citation omitted). The doctrine is

designed to promote fairness to the parties, judicial efficiency, and complete and

final dispositions by avoiding piecemeal litigation. DiTrolio v. Antiles, 142 N.J.

253, 267 (1995). In applying the doctrine, the "polestar . . . is judicial 'fairness.'"

Wadeer v. New Jersey Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (quoting

DiTrolio, 142 N.J. at 272).

The trial judge did not err when he concluded McAllister was not a

necessary party to resolve this dispute. Employing the entire controver sy

A-5960-17T2 5 doctrine to bar plaintiff's ability to recover from defendant for the work he

performed would work an inequitable and unfair result.

Finally, we reject plaintiff's argument on cross-appeal that the trial judge

should have awarded him $8781.04. The testimony at trial revealed the

combined efforts of the parties yielded the settlement for McAllister. Plaintiff

pursued Cohen, which produced the insurer, who defendant then negotiated with

to secure a recoverable judgment for the client. In view of our deferential

standard of review, the judge did not abuse his discretion when he determined

plaintiff should not recover what amounted to sixty percent of the fees belonging

to defendant, who tasked him only with recovering the judgment. The judge's

findings are supported by the substantial credible evidence in the record and we

decline to disturb them.

Affirmed.

A-5960-17T2 6