JANET YIJUAN FOU VS. KEVIN KERVENG TUNG, PC (L-6259-12, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 25, 2021
• Docket: A-4690-18
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4690-18

JANET YIJUAN FOU,

Plaintiff-Respondent,

v.

KEVIN KERVENG TUNG, PC, and KEVIN TUNG, ESQ.,

Defendants-Appellants. ____________________________

Submitted February 3, 2021 – Decided August 25, 2021

Before Judges Ostrer, Accurso, and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6259-12.

Lewis Brisbois Bisgaard & Smith, LLP, attorneys for appellant Kevin Kerveng Tung, PC (James M. Strauss, on the brief).

Kevin Tung, Esq., appellant pro se.

Pashman Stein Walder Hayden, PC, attorneys for respondent (James A. Plaisted and Michael J. Zoller, on the brief). PER CURIAM

Following a jury trial and verdict in this legal malpractice case, the court

entered a January 11, 2019 final judgment against defendants Kevin Kerveng

Tung, P.C. (Tung, P.C.) and Kevin Tung, Esq. (Tung) imposing joint and several

liability for $1,547,063.31 in damages ($500,000), attorney 's fees ($702,000),

prejudgment interest on the jury's damages award ($65,250), and prejudgment

interest on the award for attorney's fees and costs ($279,813.31). Defendants

appeal from the final judgment; a June 25, 2018 order denying their motion for

judgment notwithstanding the verdict or a new trial; a May 22, 2019 order

denying their motion for reconsideration of the court's January 28, 2019 order

striking paragraph four of a December 27, 2018 order relating to purported

double recovery; and various evidentiary rulings made by the trial court. Based

on our review of the record and the arguments of counsel in light of the

applicable legal principles, we affirm in part, vacate in part, and remand for

further proceedings.

I.

The legal malpractice claim against defendants arises out of Tung, P.C.'s

and Tung's representation of plaintiff Janet Yijuan Fou in a matrimonial case

A-4690-18 2 against plaintiff's former husband, Joe Fou (Fou).1 Based on the malpractice

trial record, we first summarize the facts pertinent to the matrimonial matter and

then detail the facts concerning the malpractice case.

Tung's Representation of Plaintiff in the Matrimonial Action

Married in 1975, plaintiff and Fou discussed dissolving their marriage in

2007. On September 22, 2007, they signed an agreement written in Chinese

expressing their intention to divorce and providing that plaintiff would receive

approximately $400,000, representing one-half of the marital assets, and

$10,000 annually in support payments. 2

Shortly thereafter, plaintiff discovered what she described as a draft will

on Fou's computer showing the family had personal and business assets totaling

more than $2,200,000. Around the same time, plaintiff found encrypted

computer records that she later learned in 2013 described family business assets

valued at $2,200,000. In November 2007, plaintiff and Fou signed another

agreement written in Chinese stating plaintiff had received $400,000 and other

1 Tung was employed by Tung, P.C. during his representation of plaintiff in the matrimonial action. The record shows that subsequent to the entry of the final judgment in this matter, Tung, P.C. filed for bankruptcy and has advised it is currently a debtor in possession. 2 English translations of plaintiff's and Fou's putative agreements, which were written in Chinese, were admitted in evidence at trial. A-4690-18 3 property, and providing that the assets of the family business would be "counted

separately."

In 2009, Fou contacted Tung at Tung, P.C., and arranged a meeting to

discuss the filing of an action for an uncontested divorce. On February 15, 2009,

plaintiff and Fou met with Tung. They brought a tax return reflecting Fou's

income, and a typewritten page that included biographical information. During

the meeting, Tung did not inquire about Fou's business or Fou's and plaintiff's

assets. It was decided Tung would represent plaintiff in the divorce matter; Fou

would be the named defendant in the case; and Fou would appear as a self-

represented litigant in the matter.

Plaintiff and Fou brought two new agreements written in Chinese to the

February 15, 2009 meeting with Tung. One of the agreements, labeled "Divorce

Agreement," provided that Fou would pay plaintiff one-third of his salary as

alimony in four installments each year, and plaintiff and Fou would share the

tuition expenses of their younger son and maintain the marital home until their

older son married. The Divorce Agreement further stated plaintiff and Fou had

completed the division of family assets but agreed the "real property and

company assets [were] to be accounted for separately." According to plaintiff,

she and Fou signed three copies of the Divorce Agreement in Tung's presence,

A-4690-18 4 Tung notarized their signatures, and she, Fou, and Tung each retained a copy of

the agreement. Plaintiff testified Tung retained a copy of the agreement because

he was to translate it into English and incorporate its terms into the divorce

property settlement agreement.

During the February 15, 2009 meeting, plaintiff and Fou also signed a

second agreement, labeled "Supplemental Divorce Agreement," but they did not

show the agreement to Tung or give him a copy. The agreement, which was

written in Chinese, provided that upon the "close of business" of the family's

company, "G&E," plaintiff would receive one-half of the business's assets. The

agreement also provided that plaintiff would assist in the ongoing operation of

the business, and Fou would pay $20,000 into plaintiff's and Fou's medical

expense fund.

Less than two weeks later, on February 27, 2009, plaintiff and Fou again

met with Tung. At the meeting, Fou presented Tung with a putative retainer

agreement for Tung's representation of plaintiff in the divorce proceeding. Tung

later testified he was unaware of New Jersey Court Rule 5:3-5 that required he

have a retainer agreement with plaintiff as his client in the divorce case. The

agreement Fou presented states Tung "acts as the attorney" for plaintiff, but the

agreement did not define or limit the scope of his representation of her. Tung

A-4690-18 5 testified he was retained solely to act as a scrivener of the terms for the

uncontested divorce, preparing the documents necessary to reflect the agreement

plaintiff and Fou had reached on their own. Plaintiff testified at the malpractice

trial that Tung never advised her of any limitations on his representation of her

in the matrimonial action.

During the meeting, Tung presented plaintiff and Fou with various

documents, written in English, that he and another employee at Tung, P.C.

prepared, including a proposed summons and complaint for divorce, a case

information statement (CIS), and a property settlement agreement (PSA). Tung

reviewed the documents in plaintiff's and Fou's presence. The CIS listed gross

family assets of $234,688 and a prior year's joint income of $77,536.

Plaintiff and Fou signed the PSA, which stated they made a full disclosure

of all assets and income to each other. The PSA further stated that, beginning

in January 2009, Fou would pay one-third of his annual salary as alimony to

plaintiff; each party was responsible for his or her own debts; plaintiff and Fou

would maintain the marital home until their older son married; and plaintiff and

Fou would retain all other assets in their possession with "no further equitable

distribution." The PSA was consistent with the Divorce Agreement plaintiff and

Fou signed on February 15, 2009, and gave to Tung, except the PSA did not

A-4690-18 6 make a provision separately addressing plaintiff's and Fou's real property and

company assets, and the PSA precluded further equitable distribution of their

assets.

Although Tung and Tung, P.C. represented plaintiff in the divorce, during

the two meetings at Tung's office, the conversations were primarily between

Tung and Fou. Tung testified that during the meetings, plaintiff "didn't talk;

she'd just sit there," and he "always" spoke with Fou. Following the first

meeting, Tung and his office communicated with Fou when additional

information was needed or Fou had questions. During his deposition testimony,

which was read into the record at the trial in the malpractice case, Tung

explained: "Pretty much we dealt with . . . Fou for th[e] divorce case. All the

information we receive is from . . . Fou. Not from [plaintiff]. We didn't talk to

her."

Following the February 27, 2009 meeting, Tung spoke with plaintiff only

during two brief phone calls—one of which was for the purpose of confirming

she was "still alive," and the other to inform her of the court hearing date. At

the subsequent court proceeding, Tung first met briefly with plaintiff and

informed her to answer affirmatively the questions he and the court posed. Fou

did not appear at the court proceeding on the divorce.

A-4690-18 7 During the proceeding, plaintiff testified through an interpreter and Tung

presented plaintiff with the PSA he drafted in English. As noted, the PSA did

not make a provision for the separate allocation of plaintiff's and Fou's real

property and company assets as set forth in the February 15, 2009 Divorce

Agreement, and the PSA barred plaintiff from seeking any further equitable

distribution of property. The court incorporated the PSA into the final judgment

of divorce, which was entered on May 4, 2009.

In 2009, while living in New Jersey, plaintiff applied for Medicaid

benefits using a New York address and stating she was a New York resident.

Plaintiff did not move to New York until July 2010. Her Medicaid application

stated she received only $600 per month in alimony, and that she had only

$3,000 in assets.3 Her annual Medicaid reapplication forms listed comparable

amounts. The amounts were inconsistent with those set forth in the PSA.

Plaintiff's Medicaid benefits terminated in late 2011, when she turned

sixty-five and qualified for Medicare. The following year, plaintiff received a

letter from the New York City Human Resources Administration demanding

3 Plaintiff testified during the malpractice trial that her net alimony income, after paying her son's tuition, was $600 per month, and the value of the total assets in her name was $3,000, at the time she completed the Medicaid application. A-4690-18 8 repayment of her Medicaid benefits because she had applied for Medicaid in

New York before moving there. Plaintiff settled the claim in May 2015; she

agreed to repay $10,500, and she acknowledged the Medicaid benefits were

"incorrectly received." Plaintiff's settlement agreement states plaintiff's

payment "is not to be construed as an admission of wrongdoing." Following the

filing of plaintiff's malpractice case against him, Tung alerted authorities of

potential fraud in plaintiff's application for Medicaid benefits.

Plaintiff Retains New Counsel

In April 2011, plaintiff sought a division of the business assets from Fou

pursuant to the Divorce Agreement. Fou refused. Plaintiff first contacted Tung,

but later retained her current counsel to reopen the matrimonial action and set

aside the PSA. At the same time, plaintiff retained her current counsel on a

contingent fee basis to pursue a malpractice action against Tung and Tung, P.C.

The contingent fee agreement initially provided counsel would receive thirty-

three-and-a-third percent of any recovery, and later was amended to provide

counsel would receive fifty percent of the first $500,000 recovered and thirty-

three-and-a-third percent of anything over $500,000, with counsel paying all

disbursements.

A-4690-18 9 Plaintiff's Motion to Vacate the Judgment of Divorce and PSA

In September 2011, plaintiff's counsel filed a motion to set aside the

judgment of divorce and the PSA, and to obtain discovery of Fou's income and

assets. Fou opposed the motion.

In support of the motion, plaintiff submitted a certification describing the

contents of the four agreements between her and Fou that had been written in

Chinese (the Chinese agreements) and Tung's reliance on Fou for the

information used to draft the PSA and documents for the matrimonial matter.

Plaintiff certified that because of her limited ability to understand English, she

did not realize the PSA omitted the terms of the agreements written in Chinese

between her and Fou regarding the business assets. She asserted Tung did not

ask her about other agreements during his representation or "mention the

'Chinese [a]greements' previously executed" to the court at the divorce hearing

on May 4, 2009. She further certified Fou concealed assets in China.

On December 2, 2011, the Family Part ordered a plenary hearing on the

enforceability of the PSA. In 2012, the court conducted a four-day hearing

during which Tung testified as a witness for Fou, advocating in favor of the

validity of the PSA, and acknowledging he prepared the PSA in accordance with

Fou's instructions. Fou acknowledged making wire transfers to China in

A-4690-18 10 connection with his business in an amount of close to $1,000,000. He disputed

the $2,200,000 figure in his draft will but acknowledged sending the encrypted

financial information to his son, which included figures supporting an asset

valuation of $2,200,000.

In September 2012, the court rendered an oral opinion and entered an

order finding the PSA to be null and void. The court found invalid the retainer

agreement between plaintiff and Tung, and determined Tung did not provide

independent counsel to plaintiff. The court also found plaintiff was

"manipulated through th[e] divorce process" because Fou was the "conduit of

all information" with Tung. The court further held the PSA was inconsistent

with the Chinese agreements between plaintiff and Fou, and that all the

agreements were invalid. The court's order barred plaintiff and Fou from

transferring, selling, or encumbering any marital assets, and directed that a

plenary hearing be held to address equitable distribution and alimony.

Fou did not cooperate or provide discovery in the reopened matrimonial

litigation. The court suppressed his pleadings with prejudice and entered a

default against him. The court later ordered Fou to pay $7,929 in counsel fees

in connection with his failure to provide discovery. The court directed that

A-4690-18 11 plaintiff submit a notice of equitable distribution under Rule 5:5-10. Plaintiff

complied with the court's order.

In February 2014, a different judge held a plenary hearing to determine

equitable distribution and alimony. The court found the evidence, including

plaintiff's testimony as to the couple's assets and Fou's draft will, and "many

thousands of other pages," demonstrated assets totaling $2,200,000. Fou did not

appear for the hearing and therefore did not dispute the value of the marital

The court entered an Amended Final Judgment of Divorce (AFJD)

awarding plaintiff: permanent annual alimony in the amount of the greater of

$18,000 or one-third of Fou's income; $1,100,000, representing one half of the

total value of the family business as of November 2007; and a share of any

subsequent increase in the business's value. The court further permitted

plaintiff's filing of a lis pendens on property Fou purchased in North Carolina.

The court also awarded plaintiff $229,389.69 in counsel fees.

Fou appealed from the AFJD. We affirmed the order and the court's

counsel fee award. See Fou v. Fou, No. A-1569-14 (App. Div. July 21, 2016)

A-4690-18 12 (slip op. at 24-25). The Supreme Court denied Fou's petition for certification.

See Fou v. Fou, 238 N.J. 370 (2019). 4

Following entry of the AFJD, plaintiff was unable to collect on the

judgment, aside from her attachment of Fou's social security benefits. In

November 2017, the court issued an arrest warrant for Fou for unpaid alimony

and equitable distribution, but it appears Fou resides in China. The court's order

states Fou had "not complied with any of the [AFJD's] equitable distribution"

requirements.

The Malpractice Action Against Tung and Tung, P.C.

In her malpractice action, plaintiff alleged defendants were negligent in

their representation of her in the initial uncontested divorce case. Plaintiff

alleged defendants were negligent by failing to: conduct discovery of her and

Fou's assets; include key terms from the Chinese agreements in the PSA; and

address in the PSA "issues that necessarily arise in a [d]ivorce proceeding,"

including the division of the family's business assets. Plaintiff alleged

defendants' negligence deprived her of her share of the marital business assets,

4 In the fall of 2018, Tung filed a motion to intervene in the underlying matrimonial action, and the Family Part denied the motion. On June 12, 2020, we issued an opinion affirming the denial of the motion to intervene in Fou v. Fou, No. A-2145-18 (App. Div. June 12, 2020) (slip op. at 9). We also denied plaintiff's motion for fees and costs incurred in responding to Tung's motion . A-4690-18 13 real property, and other assets, and caused her to incur expenses and legal fees

to vacate the PSA and obtain the AFJD. Defendants filed an answer denying the

allegations. The court stayed the malpractice action pending the disposition of

Fou's appeal from the AFJD in the matrimonial case.

On May 13, 2014, plaintiff made a $400,000 offer of judgment in the

malpractice action. Tung denied his malpractice carrier authorization to accept

entry of judgment in response to plaintiff's offer.

The Malpractice Trial

During the 2018 malpractice trial, plaintiff called Tung as a witness. He

testified he did not provide plaintiff with a statement of client rights and

responsibilities or a retainer agreement. He acknowledged Fou drafted his

putative agreement with plaintiff. Further, he testified he was retained only to

"prepare the paperwork to obtain a divorce judgment."

Tung explained he corresponded with Fou rather than plaintiff because

Fou spoke better English. According to Tung, it was decided he would represent

plaintiff because Fou "was in a rush to go to China for business." Tung testified

plaintiff did not tell him about any of the Chinese agreements, including the

agreements from September 2007 and November 2007, or the February 15, 2009

Supplemental Divorce Agreement.

A-4690-18 14 Tung testified plaintiff and Fou gave him the February 15, 2009 Divorce

Agreement that he notarized at the end of their meeting that day. He explained

that he did not read it, review it, or offer any opinion on its contents and instead

"was asked to do a notary" and merely served as a "witness for the signature[s]."

Tung acknowledged he nonetheless told plaintiff and Fou the agreement would

not be binding, and that only the PSA would be binding. He testified he did not

give plaintiff any advice concerning the agreement or determine if signing the

agreement was in her best interests. He stated he did not keep a copy of the

agreement because he did not have a copier in his New Jersey office. His records

from the meeting, however, include copies of plaintiff's and Fou's driver's

licenses.

An attorney who represented plaintiff in the Family Part in connection

with the motion to vacate the PSA testified concerning plaintiff's certification in

support of the motion. He explained the certification did not assert that the four

Chinese agreements were given to Tung and that, instead, plaintiff certified

Tung never asked plaintiff about the existence of any agreements between Fou

and her. The attorney further testified that encrypted financial records were

admitted into evidence at the plenary hearing in the Family Part, and the records,

including Fou's draft will, reflected plaintiff and Fou had $2,200,000 in assets.

A-4690-18 15 Plaintiff testified on her own behalf. She explained Fou handled the

finances during the marriage, and most of the family's bank accounts were in

Fou's name. Plaintiff testified that prior to the meeting with Tung, she

understood the family's business assets were worth $2,200,000.

Plaintiff also testified that, at their first meeting with Tung, Fou brought

three copies of the Divorce Agreement, but he did not bring the two 2007

agreements. She did not ask Tung for his opinion about the Divorce Agreement

or for legal advice before signing it. Plaintiff explained she and Fou each kept

a copy of the signed agreement, and Tung kept one for himself so he could

translate it to English. According to plaintiff, Tung said he needed a week to

translate the document and prepare the divorce papers, and he told her she would

be the plaintiff in the divorce action because she was unhappy in the marriage.

Plaintiff testified Tung did not ask her about equitable distribution, child

support, or insurance.

Plaintiff also described the February 27, 2009 meeting, explaining Tung

and Fou spoke with each other and she did not participate in the discussion. The

meeting lasted approximately thirty minutes, and she signed many documents

which were to be sent to the court. On the day of the divorce proceeding,

A-4690-18 16 plaintiff met with Tung briefly at the courthouse, but he did not go over the

documents with her.

In 2011 or 2012, Fou stopped making support payments to plaintiff. Fou

also refused to share the family business assets with her. In March 2011,

plaintiff met with Tung to discuss obtaining her share of the business assets from

Fou. She showed Tung the February 15, 2009 Divorce Agreement, and he told

her it was poorly written and that it would cost her a lot of money to recover

anything from Fou. Plaintiff then realized the PSA did not address the division

of the business assets, and she obtained new counsel. Plaintiff testified she

incurred legal fees totaling $449,798.59 to vacate the PSA and judgment of

divorce and obtain the AFJD against Fou.

Plaintiff also testified she never received the promised $400,000 payment

from Fou, but instead received access to a mutual fund account with

approximately that amount, titled in Fou's name. The account was later

supplemented by an additional $62,276.50 plaintiff netted from a $100,400

payment from Fou. Plaintiff purchased an apartment in New York with the

funds from the account. Plaintiff explained the marital residence was sold but

she did not receive the proceeds from the sale because she gave them to her older

son.

A-4690-18 17 Plaintiff called Edward J. O'Donnell, Esq., as an expert witness in

matrimonial law. O'Donnell reviewed the fee agreement Fou prepared, the PSA,

the divorce complaint, transcripts of the matrimonial proceedings, the AFJD, the

malpractice complaint, and Tung's deposition transcript, as well as "some

miscellaneous correspondence."

O'Donnell opined that Tung deviated from the standard of care for a

matrimonial attorney, as established by both acceptable practice and the Rules

of Professional Conduct, during Tung's representation of plaintiff. O'Donnell

testified Tung deviated from the standard of care by: meeting with plaintiff in

Fou's presence because privacy is required for candid communications between

an attorney and client; failing to inquire of plaintiff, his client, about marital

assets and income, and whether either plaintiff or Fou had a will; and failing to

take any steps to verify the parties' assets and instead accepting the information

provided by Fou, who was the adverse party. O'Donnell opined that the PSA's

declaration there was full disclosure between the parties concerning marital

assets and income was incorrect. He testified standard practice required that

plaintiff execute a formal waiver if she intended to disclaim her rights to Fou's

business interests.

A-4690-18 18 O'Donnell also testified the record showed no "real communications as

between . . . Tung and [plaintiff]," and extensive communications between Tung

and Fou, the "adverse party." O'Donnell testified that Tung did not advise

plaintiff of her options, inform her of her right to obtain discovery of Fou's

financial information, or make plaintiff "aware of what [her] rights are."

O'Donnell also opined the Chinese agreements should have been incorporated

into, or at least referenced in, the PSA, but that Tung could not have done so for

the agreements that neither plaintiff nor Fou disclosed to him.

Further, O'Donnell testified Tung deviated from the standard of care

barring an attorney from representing both sides in a matrimonial case.

O'Donnell found it was clear Tung represented plaintiff, but O'Donnell

explained it was unclear whether Tung also represented Fou because Tung may

have formed an attorney-client relationship with plaintiff and Fou, and Tung

conducted himself as though he represented Fou. O'Donnell also opined Tung

deviated from the standard of care requiring candor with the tribunal because,

during the uncontested divorce proceeding, he failed to ask plaintiff whether she

read and understood the PSA.

Finally, O'Donnell testified Tung deviated from the standard of care

requiring written retainer agreements because the document Fou provided to

A-4690-18 19 Tung did not comport with Rule 5:3-5. O'Donnell also noted the agreement did

not include any limitation on the scope of Tung's representation of plaintiff in

the uncontested divorce proceeding as required if his representation was subject

to the limitation that he serve only as scrivener as he contended.

O'Donnell explained plaintiff experienced adverse consequences as a

result of Tung's deviations from the standards of care. O'Donnell opined

plaintiff "lost time and she lost opportunity" in her negotiations with Fou,

waived her equitable interest in marital assets, including the couple's business

assets, and lost leverage in resolving financial issues with Fou during the divorce

proceeding. According to O'Donnell, plaintiff's loss is equal to "whatever she

would have gotten ultimately by way of the divorce." O'Donnell also explained

that as a result of defendants' deviations from the standards of care, plaintiff

incurred counsel fees and costs to set aside the first judgment of divorce and

obtain the AFJD. O'Donnell was not sure if Fou transferred or dissipated any

assets between February 2009 and September 2012, when the AFJD was entered.

Chunsheng Lu, an expert in the field of "Chinese law as it relates to

American law," testified for plaintiff by video. Lu testified a New Jersey

Superior Court matrimonial judgment would not be recognized or enforced in

A-4690-18 20 China because there is no treaty between China and the United States providing

for enforcement of judgments.

Following presentation of plaintiff's evidence, defendants moved for an

involuntary dismissal, arguing plaintiff failed to present evidence establishing

they deviated from the standard of care. Defendants further argued plaintiff

failed to present evidence establishing causation because plaintiff did not

demonstrate Fou depleted or transferred any assets following entry of the

original judgment of divorce and prior to entry of the AFJD. Defendants also

argued plaintiff would obtain a "double recovery" if the jury awarded damages

because she also could recover for the same alleged losses from Fou under the

AFJD.

The court denied the motion, finding O'Donnell's testimony established

defendants' alleged deviations from the applicable standards of care, and that

evidence showing Fou purchased a home in North Carolina demonstrated he had

the opportunity to move assets following the initial judgment of divorce. The

court declined to address defendants' double-recovery contention, explaining it

would consider the claim if the jury awarded compensatory damages.

A-4690-18 21 Tung testified that Chinese was his native language, and that he earned

his undergraduate and graduate degrees in the United States. He explained he

practiced law for twenty years and had handled "at least 500" matrimonial cases.

Tung acknowledged Fou asked him for assistance in an uncontested

divorce case, and he then met with plaintiff and Fou on February 15, 2009.

During the meeting, they spoke in Chinese.

Fou told Tung he and plaintiff received insurance through a govern ment

program, and they had no children under the age of twenty-one. According to

Tung, he asked them about alimony, pensions, retirement benefits, and the

division of property, but plaintiff and Fou told him that they had resolved those

issues themselves. Tung claimed he told Fou and plaintiff that his representation

was limited to serving as a scrivener in an uncontested divorce, and that he

would not render any legal advice as to the fairness of the division of property.

He also told them the parties waive their right to discovery in an uncontested

divorce. Fou further explained that one of them would have to be designated as

the plaintiff and that he would represent that person only. He explained that

plaintiff appeared to understand. Tung testified plaintiff told him and his staff

to communicate with Fou for any additional information.

A-4690-18 22 He also explained that at the end of the meeting, plaintiff and Fou asked

him to notarize a document and he did so, but he did not read it and was not

given a copy of that document or any other agreements between plaintiff and

Fou. He testified that had he been given a copy of plaintiff's and Fou's

agreements, he would have included their terms in the PSA.

Tung also described the February 27, 2009 meeting with plaintiff and Fou

during which they reviewed the matrimonial pleadings and the PSA. He testified

he reviewed the PSA with plaintiff line by line, in her native language , and told

her she was waiving her right to discovery of Fou's assets. He also testified

plaintiff did not identify any assets missing from the CIS.

Robert Zaleski, Esq., testified as an expert for the defense in the field of

matrimonial law and the standard of care applicable to Tung's representation of

plaintiff. He identified the pleadings, documents, and transcripts he reviewed

in preparing his report, and he testified Tung did not breach any duty to plaintiff

and did not deviate from the standard of care required. Zaleski opined Tung did

not represent Fou at any time, and that plaintiff and Fou merely wanted Tung to

memorialize the terms of their own agreements and "didn't want any help

negotiating those terms." According to Zaleski, Tung did not have a duty to

provide an opinion as to the fairness of the PSA.

A-4690-18 23 Zaleski also testified Tung's actions were not the proximate cause of any

damages. He explained the AFJD granted plaintiff the exact relief she sought

in the matrimonial action, including a $1,100,000 judgment against Fou, and

that, as a result, Tung's representation of plaintiff did not result in any losses for

her. Zaleski testified plaintiff could pursue collection of the judgment against

Fou, and Zaleski did not find Tung caused plaintiff to incur counsel fees to

vacate the PSA and initial judgment of divorce. Zaleski acknowledged,

however, plaintiff had unsuccessfully tried to collect on the AFJD, Fou was in

arrears on his alimony obligations, and the court ordered Fou's arrest in

November 2017 because he failed honor his financial obligations under the

At the close the evidence, defendants moved for judgment again, and the

court summarily denied the motion. The jury returned a $500,000 damages

verdict in plaintiff's favor.

Defendants moved for judgment notwithstanding the verdict or,

alternatively, for a new trial, arguing plaintiff failed to prove causation, and that

"the verdict violated basic fairness and judicial estoppel." They alleged plaintiff

did not prove Tung caused her harm, and did not prove the quantum of the

marital estate as of the time of the divorce, or at the time of the Family Part's

A-4690-18 24 September 12, 2012 order freezing the marital assets. They alleged

misrepresentations in plaintiff's trial testimony concerning the agreements

shown to Tung at the February 15, 2009 meeting, and they again argued plaintiff

might obtain a double recovery because the jury verdict awarded damages for

amounts plaintiff might collect from Fou under the AFJD. Defendants further

argued the court erred by admitting evidence concerning Fou's 2007 draft will,

claiming it constituted inadmissible hearsay as against defendants.

The trial judge issued a written decision on defendants' motion, finding

the trial evidence supported the jury's verdict, and noting plaintiff's damages

included "those legal fees required to invalidate the" PSA and pursue the

malpractice claim.

The court rejected defendants' claim plaintiff provided false testimony at

trial about showing Tung the agreements. The court also found that, contrary to

defendants' claim, plaintiff's certification supporting the motion to vacate the

PSA did not state she showed Tung all of her agreements with Fou. The court

also rejected the claim the 2007 draft will was inadmissible, explaining it was

"probative of the approximate quantum of the marital estate, just as the

Appellate Division concluded [in the matrimonial action]." The court further

found the $500,000 jury award was not inconsistent with the proofs because

A-4690-18 25 there was evidence permitting the jury's estimation of damages with a reasonable

degree of certainty, which is sufficient to support a damages award.

Plaintiff's counsel moved for an attorney's fee award for the services

provided in prosecuting the malpractice action, together with an "enhancement"

of the fees based on the nature of the case and the offer of judgment rule. See

R. 4:58-1 to -6. The claimed fees totaled $1,105,624.58, for which plaintiff

sought a fifty-percent enhancement, for a total of $1,626,162,58. Defendants

opposed the motion. The court issued a letter opinion granting plaintiff's motion

in part, entering an order awarding $702,000 in fees based on a lodestar

calculation.

The court also issued a July 27, 2018 order barring Tung from transferring

assets pending the outcome of an appeal from the judgment, and permitting the

ongoing operation of Tung, P.C. The order further required that defendants file

a bond and defendants' malpractice carrier pay the policy balance into court.

Defendants sought an amendment of the court's July 27, 2018 order

without filing a formal motion. Defendants' proposed amended order included

a provision addressing plaintiff's potential double recovery. The provision

required that plaintiff provide defendants with semi-annual accountings, through

December 31, 2025, of any monies or assets received from Fou. The provision

A-4690-18 26 further required an equal split between plaintiff and defendants of the monies

and assets plaintiff received from Fou, with defendants' share of the split

credited against any sums due to plaintiff from defendants under the final

judgment in the malpractice action.

Plaintiff's counsel opposed the requested amendment to the July 27, 2018

order, but on December 27, 2018, the court entered the proposed amended order

including the double-recovery provision defendants had included. Plaintiff

moved for reconsideration of the amended order, noting the court erroneously

deemed defendants' request for entry of the order unopposed. On January 28,

2019, the court granted the reconsideration motion and entered an order striking

the double-recovery provision defendants had proposed. On May 22, 2019, the

court denied a motion filed by defendants for reconsideration of the January 28,

2019 order. This appeal followed.

II.

A.

Defendants first contend the court erred by denying their motions to

dismiss, for judgment notwithstanding the verdict, and for a new trial, and that

the jury's verdict should otherwise be reversed, because plaintiff failed to prove

they proximately caused her alleged damages. More particularly, they assert the

A-4690-18 27 motions should have been granted for the following reasons: plaintiff failed to

prove she suffered damages resulting from the relief in obtaining the alimony

and equitable distribution of marital assets provided for in the AFJD because

plaintiff failed to present any evidence Fou dissipated any marital assets prior

to entry of the AFJD; O'Donnell's testimony did not establish plaintiff suffered

any financial damages as a result of defendants' negligence; plaintiff is equitably

estopped from claiming damages as a result of any negligence concerning the

preparation of the PSA because she testified in the divorce proceeding that the

PSA was "fair and equitable" and was entered into following a "full disclosure

of all assets"; plaintiff failed to prove she cannot collect the attorney's fees

awarded in the matrimonial action and the marital assets and payments due under

the AFJD directly from Fou, and, as a result, the verdict in the malpractice case

constitutes an impermissible double recovery; and the jury's $500,000 damages

award is not supported by the evidence or applicable law.5

Our review of defendants' arguments is guided by the following

principles. A jury verdict "is cloaked with a 'presumption of correctness,'"

Cuevas v. Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Baxter v.

5 Tung, P.C. and Tung filed separate briefs on appeal. To the extent their respective arguments are duplicative or complimentary, we discuss them collectively for convenience and to avoid repetition. A-4690-18 28 Fairmont Food Co., 74 N.J. 588, 598 (1977)), and "is entitled to considerable

deference," Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521

(2011). We will overturn a jury verdict only if it "is so far contrary to the weight

of the evidence as to give rise to the inescapable conclusion of mistake, passion,

prejudice, or partiality." Maison v. N.J. Transit Corp., 460 N.J. Super. 222, 234

(App. Div. 2019) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466

(1957)).

Where a party claims a trial court erred by denying a motion for

involuntary dismissal, we decide whether the evidence, together with the

legitimate inferences that can be drawn from it, sustains a judgment in favor of

the party opposing the motion. R. 4:37-2(b). We must accept as true all

evidence supporting the position of the party opposing the motion and we accord

that party the benefit of all favorable inferences. Dolson v. Anastasia, 55 N.J.

2, 5 (1969).

Similarly, our review of motions for judgment under Rule 4:40-1 and for

judgment notwithstanding a verdict under Rule 4:40-2(b) requires that "we apply

the same standard that governs the trial courts," Smith v. Millville Rescue

Squad, 225 N.J. 373, 397 (2016); that is, "if, accepting as true all the evidence

which supports the position of the party defending against the motion[s] and

A-4690-18 29 according [that party] the benefit of all inferences which can reasonably and

legitimately be deduced therefrom, reasonable minds could differ, the motion[s]

must be denied," ibid. (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).

Under Rule 4:49-1(a), a trial court shall grant a motion for a new trial "if,

having given due regard to the opportunity of the jury to pass upon the

credibility of the witnesses, it clearly and convincingly appears that there was a

miscarriage of justice under the law." "An appellate court will not reverse a trial

court's determination of a motion for a new trial 'unless it clearly appears that

there was a miscarriage of justice under the law.'" Delvecchio v. Twp. of

Bridgewater, 224 N.J. 559, 572 (2016) (quoting R. 2:10-1). We give

"considerable deference to a trial court's decision" on a motion for a new trial

because "the trial court has gained a 'feel of the case' through the long days of

the trial." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991).

To prove a claim for legal malpractice, a plaintiff must demonstrate "(1)

the existence of an attorney-client relationship . . . , (2) the breach of that duty

by the defendant, and (3) proximate causation of the damages claimed by the

plaintiff." Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan

v. Till, 167 N.J. 414, 425 (2001)). "The burden is on the client to show what

injuries were suffered as a proximate consequence of the attorney's breach of

A-4690-18 30 duty." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487-88

(App. Div. 1994).

To establish proximate causation of damages in a legal malpractice action,

the plaintiff "must demonstrate that he or she would have prevailed, or would

have won materially more . . . but for the alleged substandard performance."

Lerner v. Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003). "The test of

proximate cause is satisfied where the negligent conduct is a substantial

contributing factor in causing the loss." 2175 Lemoine Ave. Corp., 272 N.J.

Super. at 487; see also Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div.

2005) ("To establish the requisite causal connection between a defendant's

negligence and plaintiff's harm, plaintiff must present evidence to support a

finding that defendant's negligent conduct was a 'substantial factor' in bringing

about plaintiff's injury . . . ." (citation omitted)).

"[T]he measure of damages is ordinarily the amount that the client would

have received [or would not have had to pay] but for his [or her] attorney 's

negligence." Gautam v. De Luca, 215 N.J. Super. 388, 397 (App. Div. 1987);

see also Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). "[D]amages

should be generally limited to recompensing the injured party for his [or her]

economic loss." Gautam, 215 N.J. Super. at 399.

A-4690-18 31 "[M]ere uncertainty as to the amount of damages will not preclude a

recovery even though proof of the amount of damages is inexact. Evidence

which affords a basis for estimating damages with some reasonable degree of

certainty is sufficient to support an award." Viviano v. CBS, Inc., 251 N.J.

Super. 113, 129 (App. Div. 1991) (citation omitted). However, "the 'law abhors

damages based on mere speculation,'" Mosley v. Femina Fashions, Inc., 356 N.J.

Super. 118, 128 (App. Div. 2002) (quoting Caldwell v. Haynes, 136 N.J. 422,

442 (1994)), and a plaintiff must lay a foundation allowing the factfinder to

reach a fair and reasonable estimate of damages with sufficient certainty , id. at

128-29. A legal malpractice plaintiff does not satisfy this burden "by mere

'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp., 272 N.J. Super.

at 488 (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). Damages must be proven

through "competent credible evidence which proves material facts." Lamb v.

Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982).

Defendants' contention plaintiff failed to prove she suffered damages

proximately caused by their negligence is founded on the premise that plaintiff

did not present evidence she suffered a loss of any marital assets or from a failure

to collect payments she would have otherwise received if the terms of the AFJD

had been first included in the original judgment of divorce. Defendants claim

A-4690-18 32 plaintiff failed to prove Fou took any action prior to entry of the AFJD that

resulted in plaintiff receiving less from him than she would have had the original

judgment of divorce included the provisions concerning the division of the

business assets and payment of alimony later included in the AFJD.

Defendants' argument ignores the evidence presented at trial, as well as

plaintiff's entitlement to recover $449,798.59 for fees and costs she incurred in

vacating the PSA and original judgment of divorce and obtaining the AFJD.

Accepting the evidence favorable to plaintiff, as well as the reasonable

inferences from that evidence, plaintiff's and O'Donnell's testimony established

defendants deviated from the standard of care for matrimonial attorneys by:

failing to adequately confer with plaintiff about, and verify, the marital and

family business assets prior to preparing the PSA and proceeding to judgment

in the matrimonial action; failing to properly advise plaintiff concerning her

right to an equitable division of the assets; and failing to incorporate the

provisions of the February 15, 2009 Divorce Agreement, which allowed for a

later division of the marital and family business assets, into the PSA.

O'Donnell and plaintiff further testified that, as a result of defendants'

deviations from the applicable standards of care, plaintiff was required to move

to vacate the PSA and original judgment of divorce and obtain the AFJD. The

A-4690-18 33 evidence showed plaintiff incurred $449,798.59 in attorney's fees and costs to

remedy the errors in the PSA and original judgment of divorce resulting from

defendants' negligence. Thus, the evidence established plaintiff suffered

$449,798.59 in damages as a direct and proximate result of defendants'

negligence. See In re Estate of Lash, 169 N.J. 20, 26 (2001) (explaining a

plaintiff "forced because of the wrongful conduct of a tortfeasor to institute

litigation against a third party . . . can recover the fees incurred in that litigation

from the tortfeasor" and finding "[t]hose fees are merely a portion of the

damages the plaintiff suffered at the hands of the tortfeasor"); see also Lovett v.

Estate of Lovett, 250 N.J. Super. 79, 94 (Ch. Div. 1991) (noting attorney's fees

incurred in litigation that are the "'natural and necessary' consequence" of an

attorney's negligence are recoverable as damages in a malpractice case against

the attorney).

We are therefore convinced plaintiff presented sufficient evidence that the

fees and costs she incurred were the direct and proximate result of defendants'

negligence, and we affirm the jury's damages award in that amount. For the

same reason, we reject defendants' contention the court erred by denying their

motions for judgment, a new trial, and judgment notwithstanding the verdict as

A-4690-18 34 to plaintiff's claim she suffered damages in the amount of $449,798.59 as a direct

and proximate result of defendants' negligence.

The same cannot be said of the $50,201.41 balance of the jury's $500,000

damages award. The trial record is bereft of any competent evidence plaintiff

suffered any actual damages—beyond the fees incurred to vacate the PSA and

original judgment of divorce and obtain the AFJD—as a direct and proximate

result of defendants' negligence. And, in her brief on appeal, plaintiff points to

none. Plaintiff did not present evidence Fou dissipated the marital or business

assets following entry of the original judgment of divorce and prior to entry of

the AFJD, or that she was damaged or suffered any financial losses as a result

of the delay, occasioned by defendants' negligence, in obtaining the relief in the

matrimonial matter with the entry of the AFJD.

Relying on O'Donnell's testimony, plaintiff claims she lost "leverage" in

the initial matrimonial proceeding as a result of defendants' negligence, and she

also contends in a conclusory fashion she was unable to actually collect

payments and her share of the marital assets from Fou that she would have

otherwise collected had defendants' negligence not delayed her from obtaining

the terms later incorporated in the AFJD. Plaintiff's contentions are unsupported

by evidence establishing any actual monetary loss, or monetary loss that can be

A-4690-18 35 reasonably approximated, that was directly and proximately caused by

defendants' negligence. For example, plaintiff did not present any evidence that

had the original judgment of divorce included the same terms as the AFJD, she

would have collected more money or recouped more assets from Fou than she

otherwise did. As a result, the jury's award of damages in excess of the

$449,798.59 in costs and fees she incurred in vacating the PSA and original

judgment of divorce and obtaining the AFJD was based on mere speculation and

is not supported by evidence.

A jury award that is unsupported by the evidence, see Caldwell, 136 N.J.

at 438-40, or is founded on a vague, theoretical damages claim, see McConkey

v. Aon Corp., 354 N.J. Super. 25, 63-64 (App. Div. 2002), cannot be sustained.

Having carefully reviewed the record, we find no competent evidence

supporting the jury's damages award beyond the $449,798.59 in fees incurred

by plaintiff in vacating the PSA and original judgment of divorce and obtaining

the AFJD, and we vacate the $50,201.41 balance of the $500,000 awarded by

the jury. We affirm the jury's damages award in the amount of $449,798.59.

B.

We also reject defendants' claim that plaintiff was equitably or judicially

estopped from asserting a malpractice claim. Defendants assert plaintiff should

A-4690-18 36 have been estopped from asserting in the malpractice case that the PSA was

unfair and did not properly reflect her and Fou's agreement to divide the marital

and business assets because she testified during the divorce proceeding that the

PSA was "fair and equitable" and was made following a "full disclosure of the

assets." Defendants also contend plaintiff made a material omission of fact

during the plenary hearing in the Family Part on her motion to vacate the PSA

and original judgment of divorce by failing to inform the court she did not show

Tung three of the four Chinese agreements when she and Fou met Tung on

February 15, 2009. 6

We find defendants' estoppel arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

The doctrine of equitable estoppel prevents a party from repudiating prior

"conduct if such repudiation 'would not be responsive to the demands of justice

and good conscience.'" Carlsen v. Masters, Mates & Pilots Pension Plan Tr., 80

N.J. 334, 339 (1979) (quoting W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27

N.J. 144, 153 (1958)). "To establish a claim of equitable estoppel, the claiming

party must show that the alleged conduct was done, or representation was made,

6 The three agreements include the two 2007 agreements and the February 15, 2009 Supplemental Divorce Agreement, all of which were written in Chinese and none of which were provided to defendants by plaintiff or Fou. A-4690-18 37 intentionally or under such circumstances that it was both natural and probable

that it would induce action." Miller v. Miller, 97 N.J. 154, 163 (1984). "Further,

the conduct must be relied on, and the relying party must act so as to change his

or her position to his or her detriment." Ibid.

The purpose of the judicial estoppel doctrine is to protect the integrity of

the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div.

1996). A threat to such integrity arises when a party advocates a position

contrary to a position it successfully asserted in the same or a prior proceeding.

Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 620 (App. Div. 1990).

Such equitable principles, including the doctrine of "unclean hands," are

"applicable whenever it appears that the litigant seeks to be relieved of the

consequences of a fraud in which he has been an active participant." Prindiville

v. Johnson & Higgins, 93 N.J. Eq. 425, 428 (E & A 1922).

Application of these equitable doctrines is not supported by the evidence

here. Plaintiff's testimony at the divorce proceeding, that the PSA was fair and

the PSA was made following a full disclosure of the marital assets, is not

inconsistent with her subsequent claim defendants failed to include the terms of

the Divorce Agreement in the PSA. To the contrary, plaintiff testified she did

not read the PSA prior to the divorce proceeding, and, during that proceeding,

A-4690-18 38 Tung never asked plaintiff if she reviewed or understood the PSA. Moreover,

plaintiff's testimony during the divorce proceeding was premised on her

understanding that defendants had done what they were retained to do—

incorporate the terms of the Divorce Agreement into the PSA.

There is also no evidence supporting defendants' claim plaintiff misled the

Family Part in her application to vacate the PSA by failing to inform the court

of the existence of the two 2007 Chinese agreements and the February 15, 2009

Supplemental Divorce Agreement, which was also written in Chinese.

Plaintiff's malpractice claim is simply not dependent on those agreements or

whether they were ever shown to Tung. Plaintiff acknowledged during her

testimony in the malpractice case that those agreements were never shown to

Tung. It was defendants' failure to incorporate the February 15, 2009 Divorce

Agreement into the PSA and initial judgment of divorce upon which plaintiff's

malpractice claim is based. There is no dispute that agreement was disclosed by

plaintiff to the Family Part during the proceedings supporting her application to

vacate the PSA and the original judgment of divorce.

In sum, defendants' equitable defenses to plaintiff's malpractice claim find

no support in the evidence. We reject any claim plaintiff is equitably or

judicially estopped from prosecuting her malpractice claim.

A-4690-18 39 C.

Defendants also contend the final judgment should be reversed because it

could result in a double recovery to plaintiff. Defendants contend there is no

evidence establishing that plaintiff cannot collect from Fou the sums for

attorney's fees awarded to plaintiff by the Family Part for her prosecution of her

motion to vacate the PSA and original judgment of divorce, and to obtain the

AFJD, and therefore she could not be properly awarded damages for those fees

by the jury in the malpractice case. 7 We are not persuaded.

In the first instance, the record shows Fou stopped making alimony

payments to plaintiff in 2011 or 2012; Fou relocated to China; the marital

business assets, and Fou's assets, are in China; China will not honor a New

Jersey judgment or order; and the Family Part issued a warrant for Fou's arrest

based on his failure to honor his obligations under AFJD. In addition, the AFJD

requires that Fou pay plaintiff $1,100,000, plus a minimum of $18,000 per

7 We observe that the amount of the fees awarded by the Family Part in the various proceedings resulting from plaintiff's efforts to vacate the PSA and original judgment of divorce and obtain the AFJD, including appeals, are not exactly the same as the evidence in the malpractice showed plaintiff incurred during the Family Part proceedings. It is unnecessary that we address the discrepancy because defendants do not challenge plaintiff's testimony during the malpractice trial that she incurred $449,798.59 in fees and costs prosecuting the proceedings in the Family Part and on the appeal from the Family Part's orders. A-4690-18 40 annum in alimony, and $229,389.69 in attorney's fees, but the record shows

plaintiff has been able to attach only Fou's social security benefits as a source

of collecting the enormous sums due. Thus, defendants' claim the evidence does

not demonstrate plaintiff's inability to collect the sums due under the AFJD,

including the attorney's fee award, is undermined by the record.

We recognize "[i]t is fundamental that no matter under what theories

liability may be established, there cannot be any duplication of damages,"

Ptaszynski v. Atl. Health Sys., Inc., 440 N.J. Super. 24, 39-40 (App. Div. 2015)

(quoting P. v. Portadin, 179 N.J. Super. 465, 472 (App. Div. 1981)), but the mere

possibility of a double recovery does not require the reversal of the damages

award on plaintiff's malpractice claim, see, e.g., Distefano v. Greenstone, 357

N.J. Super. 352, 357 (App. Div. 2003) (explaining the plaintiff could properly

receive a $90,000 settlement in an underlying personal injury action without a

deduction for the $30,000 fee otherwise due to her former attorney who

committed malpractice because "the duplicate recovery, even though a windfall

to the plaintiff, is considered the lesser evil to crediting the attorney with an

undeserved fee where he has botched the job").

Moreover, the mere fact that plaintiff might recover monies from Fou

under the AFJD does not equate to a double recovery by plaintiff of the sums

A-4690-18 41 she will collect from defendants based on the jury's verdict. That is because the

damages awarded by the jury in the malpractice case are limited to the attorney's

fees and costs incurred by plaintiff in the proceedings to vacate the PSA and

original judgment of divorce and obtain the AFJD, and the sums due plaintiff

under the AFJD are attributable to equitable distribution ($1,100,000), alimony

(minimum $18,000 annually since around 2012), and other sums wholly separate

from the AFJD's award of damages based solely on attorney's fees and costs. It

is only plaintiff's recovery of attorney's fees from Fou under the AFJD that

provides a potential double recovery for the damages—attorney's fees and costs

in the proceedings to vacate the PSA and original judgment of divorce and obtain

the AFJD—awarded by the jury in the malpractice case. Also, and as noted,

plaintiff presented evidence establishing the collection of anything from Fou is

unlikely.

Under these circumstances, we discern no basis to reverse the jury's

damages award on what appears to be nothing more than an improbable and

theoretical possibility plaintiff might recover some of what is owed to her from

Fou under the AFJD, including a double recovery of the attorney's fees and costs

for which the jury awarded her damages in the malpractice case. As a result, we

A-4690-18 42 affirm the jury's damages award against defendants, as modified by our decision,

in the amount of $449,798.59.

The record shows that in December 2018, defendants submitted a

proposed order to the court purportedly amending a July 27, 2018 order that, in

part, limited defendants from transferring assets and required them to file a

bond. Defendants' submission of the amended order was untethered to any

motion filings, and the order appears to have been submitted as the result of

discussions between the parties concerning issues related to the judgment and

defendants' disposition of their assets. According to plaintiff's counsel,

defendants submitted the order to the court with a representation there was no

objection to its entry.

The order included a provision, proposed by defendants, putatively

addressing the double recovery issue.8 In pertinent part, the provision required

that plaintiff supply defendants with semi-annual accountings of monies

received from Fou through December 31, 2025, and directed that any monies

plaintiff collected from Fou be evenly split between plaintiff and defendants

8 The December 27, 2018 order also addressed other issues not pertinent to this appeal. A-4690-18 43 "[t]o ensure there is no double recovery." The court entered the amended order

on December 27, 2018.

Plaintiff moved for reconsideration of the order. As the court explained

in detail in its subsequent written decision, it entered the December 27, 2018

order solely based on an erroneous assumption plaintiff consented to the double-

recovery provision when, in fact, plaintiff had not consented and her counsel

had properly filed an objection to the provision's inclusion in the order. The

court granted plaintiff's motion for reconsideration based solely on its error, and

entered a January 28, 2019 order amending the December 27, 2018 order by

deleting the putative double-recovery provision.

In its written decision on the motion for reconsideration of the December

27, 2018 order, the court noted defendants had not made a formal motion seeking

the relief afforded by the putative double-recovery provision—an accounting of

plaintiff's receipt of funds from Fou as a vehicle to ensure there is no double

recovery. The court further stated counsel for defendants could apply for the

relief "by filing a motion in the ordinary course."

Defendants declined the court's invitation. Defendants never filed a

motion seeking an order providing for periodic accountings of monies received

A-4690-18 44 by plaintiff from Fou to permit an assessment of whether plaintiff obtained a

double recovery and to provide an appropriate remedy for any double recovery.9

Defendants' failure to file a motion seeking the relief set forth in the

proposed double-recovery provision deprived plaintiff the opportunity to

respond, and the motion court of an opportunity to address the merits of the

proposed double-recovery provision in the first instance. "An application to the

court for an order shall be made by motion," R. 1:6-2(a), not a letter.

Defendants' contention the court erred by failing to include the relief in the

proposed provision is tantamount to making its motion for an order including a

double-recovery provision for the first time on appeal. We reject defendant's

belated effort. Defendants' newfound arguments on their claimed entitlement to

an order addressing plaintiff's purported potential double recovery do not go to

the court's jurisdiction or involve a matter of public interest , and, therefore, we

will not consider the arguments for the first time on appeal. Nieder v. Royal

Indem. Ins., 62 N.J. 229, 234 (1973).

9 The certification of counsel supporting defendants' motion for reconsideration generally requested that the court reconsider its decision to eliminate the double- recovery provision that defendants included in the December 27, 2018 order, but the certification offered no facts supporting the request. A-4690-18 45 We do, however, affirm the court's January 28, 2019 order amending the

December 27, 2018 order because, as the court detailed in its written decision,

it entered the December 27, 2018 order based solely on the mistaken

understanding the order was not opposed by plaintiff. We find no error in that

determination, and defendants do not claim the court erred by reconsidering the

December 27, 2018 order for that reason. We affirm the court's May 22, 2019

order denying defendants' motion for reconsideration of the January 28, 2019

order on the same basis.

D.

Defendants next claim the court erred in its award of counsel fees to

plaintiff. Defendants do not dispute plaintiff is entitled to a counsel fee award

based on her successful prosecution of her malpractice claim against them. As

the Court explained in Saffer v. Willoughby, "a negligent attorney is responsible

for the reasonable legal expenses and attorney fees incurred by a former client

in prosecuting the legal malpractice action." 143 N.J. 256, 272 (1996); see also

Bailey v. Pocaro & Pocaro, 305 N.J. Super. 1, 6 (App. Div. 1997).

Defendants argue only that the court erred by calculating the amount of

fees and costs because plaintiff's retainer agreement with her counsel provided

for a contingent fee, and the court awarded fees exceeding those that would have

A-4690-18 46 been due under the contingency fee arrangement by basing its award on a

lodestar calculation.10 Attorney "fee determinations by trial courts will be

disturbed only on the rarest of occasions, and then only because of a clear abuse

of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)

(citation omitted). An abuse of discretion occurs "when a decision is 'made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209

N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123

(2007)). We find no abuse of discretion here.

Defendants' argument the court erred by awarding attorney's fees and

costs in excess of the amount to which plaintiff's counsel was entitled under its

contingent fee arrangement with plaintiff ignores that "[t]here is a significant,

material difference between an award of counsel fees under a fee-shifting

statute, court rule, or contractual provision, and a fee dispute between a client

and [his or] her own attorney." Lucas v. 1 on 1 Title Agency, Inc., 460 N.J.

Super. 532, 539 (App. Div. 2019). Thus, "a 'client who has retained an attorney

and promised to pay him [or her] stands on a completely different footing from

10 Plaintiff argues the court erred in its calculation of the attorney fee award and, as a result, the award was too low. We do not address the argument because plaintiff did not cross-appeal from the fee award. A-4690-18 47 the recipient of a fee-shifting allowance,'" ibid. (quoting Gruhin & Gruhin, P.A.

v. Brown, 338 N.J. Super. 276, 281 (App. Div. 2001)), "and the amount a

plaintiff seeks to recover under fee shifting is separate and distinct from the

amount the plaintiff owes [his or] her attorney," id. at 539-40.

In Rendine v. Pantzer, the Court did not limit the plaintiffs' entitlement to

attorney's fees under the fee-shifting provision of the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-1 to -50, to the agreed-upon contingency fee in

the plaintiffs' retainer agreement with their counsel. 141 N.J. 292, 317, 344-46

(1995). To the contrary, the Court allowed for the enhancement of attorney's

fees otherwise due under a contingency fee agreement between a plaintiff and

his or her counsel based on a lodestar calculation and a consideration of various

other factors including, for example, the risk of nonpayment for services

provided under a contingency fee arrangement. Id. at 337-41. The Court further

explained that under a fee-shifting paradigm, the first step in determining the

appropriate fee award is the calculation of the lodestar, which consists of the

hours reasonably expended by counsel multiplied by a reasonable hourly rate.

Id. at 316; see also Packard-Bamberger, 167 N.J. at 445. A court must then

"consider whether to increase that fee to reflect the risk of nonpayment in all

A-4690-18 48 cases in which the attorney's compensation entirely or substantially is contingent

on a successful outcome." Rendine, 141 N.J. at 337.

Defendants rely on our decision in Distefano, where we affirmed the trial

court's rejection of the successful plaintiff's claim in a malpractice case for a

$48,250 fee based on a lodestar calculation in favor of a $30,000 fee under the

contingent fee agreement with the plaintiff's counsel. 357 N.J. Super. at 360-

61. In Distefano, however, we cited Rendine and explained that "[c]ourts

usually use [the lodestar calculation] method in setting fee awards in . . . fee[-

]shifting contexts." Id. at 361. We also noted the plaintiff's attorneys did not

apply "for an enhanced contingent fee." Ibid. Without any further analysis, we

found "no need to resort to a lodestar methodology" because the plaint iff's

attorneys in the underlying matter and malpractice case each "agreed to a one-

third contingent fee," and those agreements "insured appropriate compensation."

Ibid.

We find Distefano inapposite. Here, plaintiff applied for an enhanced

contingent fee, and Rendine requires calculation of the lodestar in a fee-shifting

case where such an application is made. See Rendine, 141 N.J. at 334-45

(explaining standards for a fee application in a fee-shifting case).

A-4690-18 49 Defendants do not otherwise challenge the court's thoughtful and detailed

analysis and determination of the lodestar, or its calculation of the attorney's fee

award based on the pertinent factors required by Rendine and R.P.C. 1.5. We

affirm the attorney's fee award substantially for the reasons set forth in the

court's written opinion.

We note the court awarded attorney's fees to plaintiff as a successful

litigant in the legal malpractice action under the principles established in Saffer

and also based on the offer of judgment rule, R. 4:58-1 to -6. The court also

awarded interest on the attorneys' fees awarded in accordance with Rule 4:58-

2(a). Our determination the damages award must be reduced to $449,798.59

renders the relief available under the offer of judgment rule inapplicable because

plaintiff offered to accept judgment in the amount of $400,000, and the reduced

damages award of $449,798.59 is less than 120 percent of the offer of judgment.

See R. 4:58-2(a) (providing for recovery of reasonable litigation expenses and

reasonable attorney's fees where the money judgment obtained is 120 percent or

more of the amount of the offer of judgment). Thus, on the remand for entry of

a new judgment, the court shall vacate the award of interest per Rule 4:58-2(a)

and determine such interest as is otherwise appropriate under the Rules of Court.

A-4690-18 50 E.

Tung separately makes a series of arguments directed to what he contends

are insufficiencies of plaintiff's evidence and the court's erroneous admission of

evidence. We briefly address the arguments in turn.

Tung contends his failure to incorporate provisions from the agreements

written in Chinese into the PSA did not proximately cause any damages to

plaintiff because the agreements were invalid, the Family Part found the

agreements were unenforceable, and plaintiff therefore could not have recovered

anything under them. We reject the argument because plaintiff's negligence

claim is not based on the validity of the Chinese agreements or on an alleged

inability to enforce them following entry into the PSA. O'Donnell testified that,

independent of the agreements, defendants negligently failed to inquire about

plaintiff's and Fou's marital and business assets in their representation of

plaintiff and preparation of the PSA. Moreover, as noted, plaintiff testified Tung

was given the Divorce Agreement for the purpose of incorporating its terms into

the PSA, and those terms included plaintiff and Fou's agreement to later divide

property and business assets. Tung cites to no legal authority establishing those

terms would have been unenforceable if incorporated into the PSA, and, as

plaintiff demonstrated in the Family Part proceeding, but for Tung's fai lure to

A-4690-18 51 include those terms in the PSA, plaintiff would not have suffered damages by

incurring the expenses to vacate the PSA and original judgment of divorce and

obtain the AFJD. See Conklin, 145 N.J. at 417 (explaining proximate cause is

established by showing a plaintiff's damages would not have occurred "but for"

the defendant's negligence (citation omitted)). Tung's failure to incorporate

those terms and inquire about the status of the marital and business assets

referenced in the Divorce Agreement support a finding his negligence caused

plaintiff's damages.

Tung also argues the court erred by denying his motion in limine to bar

evidence concerning Fou's will that plaintiff found on a computer in 2007. Tung

contends plaintiff would not have been able to prove her alleged damages

without the admission of the will, which revealed $2,200,000 in marital assets.

We review a court's decision to admit evidence for an abuse of discretion, Estate

of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 383-84 (2010), but the

court's decision denying defendants' motion in limine is untethered to a citation

to any legal authority supporting the admission of the will. We need not address

the merits of the court's decision to permit testimony concerning the will,

however, because the testimony, if accepted, established only that plaintiff and

Fou had assets totaling $2,200,000 in 2007, and, prior to the malpractice case,

A-4690-18 52 the Family Part decided as a matter of fact and law that plaintiff and Fou shared

assets valued in that amount, and entered the AFJD granting plaintiff one -half

of that amount in equitable distribution. The AFJD was admitted in evidence in

the malpractice case and it showed the Family Part's division of the marital

assets. Thus, the admission of the testimony concerning Fou's will was merely

cumulative and harmless. Additionally, plaintiff's damages award, as modified

by our decision, does not include any amounts for any claimed loss of marit al

assets due to defendants' negligence. Thus, even if the will was admitted in

error, it does not require or permit a reversal of the court's final judgment. See

R. 2:10-2.

Tung also claims plaintiff's resolution of Medicaid's claim for

reimbursement of her benefits constitutes "an unimpeached guilty plea in a

criminal proceeding [that] bars recovery in a legal malpractice action." We

reject the claim in the first instance for the simple, but dispositive, reason that

plaintiff was never charged with a criminal offense related to her collection of

Medicaid benefits and there is no evidence she ever pleaded guilty to anything.

Moreover, Tung's claim, that our decision in Alampi v. Russo, 345 N.J. Super.

360 (App. Div. 2001), stands for the broad proposition that a plaintiff who pleads

guilty to a criminal offense may not assert a legal malpractice claim against his

A-4690-18 53 or her lawyer, is frivolous. We need not distinguish the facts and circumstances

in Alampi from those extant here other than to note that no reasoned reading of

the case permits a supportable argument that it stands for the proposition

asserted by Tung. His claims to the contrary do not merit any further discussion.

R. 2:11-3(e)(1)(E).

Tung further argues the court erred by admitting the Family Part's decision

on plaintiff's motion to vacate the PSA and the original judgment of divorce,

and our decision affirming the Family Part's order. Tung generally argues he

was not a party to those proceedings and the admission of those documents

resulted in a denial of due process as to him and a "fraud upon the court." We

find no merit to Tung's arguments. The court did not abuse its discretion by

admitting the opinions as evidence of the proceedings in the Family Part that

were required to obtain relief from the PSA and original judgment of divorce

that were entered as a result of Tung's negligence. Pursuant to defendants'

request, the trial court redacted the opinions to eliminate any findings

concerning, or references to, defendants' negligence. Tung makes no showing

the court abused its discretion in admitting the redacted opinions, and he also

fails to demonstrate that, even if they were entered in error, their admission was

clearly capable of producing an unjust result. R. 2:10-2. Nor could he

A-4690-18 54 demonstrate prejudice because the testimonial evidence otherwise established

plaintiff successfully moved to vacate the PSA and original judgment of divorce

and obtained the AFJD in the Family Part, and that those proceedings were

required because Tung negligently failed to obtain for plaintiff that to which she

was entitled when he represented her in the divorce proceeding.

Tung also argues for a reversal of the jury's verdict and the court's orders

denying the motions for judgment, for judgment notwithstanding the verdict,

and for a new trial, because the court erred by sustaining plaintiff's objections

to the admission of attorney-client communications and work product

documents that were inadvertently turned over during discovery; providing

purported erroneous mid-trial instructions to the jury concerning "negligence"

and "discovery"; and permitting the reading of portions of his deposition

testimony to the jury. We find each of the arguments lack sufficient merit to

warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except we note the

arguments are not supported by the facts or applicable law, and Tung fails to

demonstrate that any of the purported errors were clearly capable of producing

an unjust result, R. 2:10-2.

In sum, we affirm the court's orders denying defendants' motions for

judgment, for judgment notwithstanding the verdict, and for a new trial. We

A-4690-18 55 also affirm the court's January 28, 2019 order granting plaintiff's motion for

reconsideration of the December 27, 2018 order, and we affirm the court's May

22, 2019 order denying defendants' motion for reconsideration of the January

28, 2019 order. We vacate that portion of the final judgment awarding plaintiff

$500,000 in damages, and awarding plaintiff interest pursuant to Rule 4:58 on

the attorney's fee award, and otherwise affirm the other provisions of the

judgment. We remand for the court to enter a revised judgment awarding

plaintiff $449,798.59 in damages and providing for interest on the attorney's fee

award in accordance with the Rules of Court.

Any arguments we have not directly addressed are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded for further proceedings.

We do not retain jurisdiction.

A-4690-18 56