Fou v. Tung
| Decision Date | 25 August 2021 |
| Docket Number | A-4690-18 |
| Parties | JANET YIJUAN FOU, Plaintiff-Respondent, v. KEVIN KERVENG TUNG, PC, and KEVIN TUNG, ESQ., Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2021
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).
Before Judges Ostrer, Accurso, and Vernoia.
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.
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 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.
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 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 selfrepresented 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, 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 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 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:
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.
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 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...
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