Kopec v. Moers
| Citation | 470 N.J.Super. 133,269 A.3d 467 |
| Decision Date | 13 January 2022 |
| Docket Number | A-4191-18,A-2758-18,A-2554-18,A-2553-18,A-2552-18,A-4190-18,A-2731-18,DOCKET NOS. A-2551-18,A-3579-18,A-2726-18 |
| Parties | James T. KOPEC, Plaintiff-Respondent, v. Anna M. MOERS, Defendant. Joseph Lopresti, Plaintiff-Respondent, v. Jennifer Lopresti, Defendant. Rick G. Zorn, Plaintiff-Respondent, v. Christina Zorn, Defendant. Samuel McGee, Plaintiff-Respondent, v. Lillian McGee, Defendant. Sandra Weed, Plaintiff, v. Leroy Weed II, Defendant-Respondent. Mary Deter, Plaintiff, v. Roy L. Deter, Defendant-Respondent. Karen Prevete, f/k/a Mendiburu, Plaintiff-Respondent, v. Thomas Mendiburu, Defendant. Chris DeFontes, Plaintiff, v. Nicole DeFontes, Defendant-Respondent. Christine Oshidar, Plaintiff-Respondent, v. Darius Oshidar, Defendant. Suzzan M. Heisler, Plaintiff, v. Eric Heisler, Defendant-Respondent. |
| Court | New Jersey Superior Court – Appellate Division |
Weinberger Divorce & Family Law Group LLC, appellant pro se (Jessica Ragno Sprague and Bari Z. Weinberger, Parsippany, on the briefs).
Respondents have not filed briefs.
Before Judges Messano, Rose and Enright.
The opinion of the court was delivered by
ENRIGHT, J.A.D.
In these ten one-sided appeals, which we consider back-to-back and have consolidated for the purpose of writing a single opinion, appellant Weinberger Divorce & Family Law Group LLC (the firm), challenges the denial of its motions to enforce the terms of its retainer agreement (RA) to obtain a judgment against its former clients for unpaid fees, or alternatively, to compel the former clients to submit to binding arbitration to resolve the parties’ fee disputes. We affirm.
I.
We briefly summarize the facts of each appeal to provide context for our decision.
The firm entered into written RAs with each client. Seven of the agreements, those executed in Kopec, Lopresti, Zorn, McGee, Weed, Deter, and DeFontes, are titled "Matrimonial Retainer Agreement." The three remaining agreements, executed in Prevete, Oshidar, and Heisler, are titled "Post-Judgment Retainer Agreement." Although titled differently, all agreements contain nearly identical language.
Paragraph One of the RA explains the hourly fee arrangement and discloses the hourly rates for attorneys and paralegals. Paragraph Two describes the legal services that the firm will provide. Paragraph Three requires an initial retainer payment, which "is not intended as an indication of the final costs of the proceedings." Paragraphs Four and Five require the client to pay various costs and disbursements, plus a monthly fixed office charge. Paragraph Six requires that the client submit payments within seven days of receipt of the invoices emailed monthly. Paragraph Seven explains that if a trial or hearing is needed, another retainer payment of $15,000 will be due thirty days before it begins. Paragraph Eight states that "[i]f no comment is received" from the client within two weeks of an invoice's receipt, it is "deemed correct ... and accepted" by the client. Paragraph Eleven states that if the client does not pay an invoice in full within thirty days, "interest shall apply to any outstanding balance which shall be calculated at the rate of [eighteen percent] ... per annum on the declining balance, or such higher rate as allowed by law on judgments."
We highlight more fully Paragraphs Fifteen and Seventeen of the RA, considering the issues raised on appeal. Paragraph Fifteen is titled "Attorney Withdrawal," and states:
Paragraph Seventeen is titled, "Arbitration of Differences Between the Client and the Firm," and provides:
The final section of the RA states that by signing the RA, the client "acknowledge[s] the following":
Attached to each of the Matrimonial RAs (versus the Post-Judgment RAs executed in Prevete, Oshidar, and Heisler ), is a two-page document entitled, "DIVORCE – DISPUTE RESOLUTION ALTERNATIVE TO CONVENTIONAL LITIGATION [Text Promulgated 12/04/06 as Approved by the Supreme Court]." The document contains a section discussing arbitration, which states:
In an arbitration proceeding, an impartial third part[y] decides issues in a case. The parties select the arbitrator and agree on which issues the arbitrator will decide. The parties also agree in advance whether the arbitrator's decisions will be binding on them or instead treated merely as a recommendation. While an arbitrator may decide issues within a divorce case, the judge would still make the final determination as to whether to grant the divorce.
Once a fee dispute arose in each of the ten cases before us, the firm mailed the client a pre-action notice (PAN) via regular and certified mail pursuant to Rule 1:20A-6. The PAN stated that the client owed the firm legal fees and that the firm would "place [the] account into suit" unless the client complied with the RA and paid the "total outstanding balance."
The PAN explained that if any outstanding fees were disputed, the client "ha[d] the opportunity to file for an arbitration hearing" with the District Fee Arbitration Committee by contacting them at the address or phone number provided. (Emphasis added). It emphasized that if the process was not initiated within thirty days, the client would lose the right to pursue this process. Finally, it advised that if the firm did not receive notice that the client requested arbitration, it would "have no alternative but to file a Complaint for legal fees and costs outstanding in [thirty] days." (Emphasis added).
None of the ten clients requested fee arbitration with the District Fee Arbitration Committee. Consequently, in lieu of filing a complaint, the firm filed motions to enforce the RAs in the underlying matrimonial matters and sought entry of a judgment for the unpaid fees. Alternatively, the firm sought an order requiring it and the client "to attend binding arbitration governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:24-1 et. seq., with an Arbitrator to be selected by the [c]ourt from the listed options provided by [the firm] respecting the parties’ fee dispute, in accordance with paragraph 17 of the" RAs. The firm also sought an award of counsel fees.
In support of each motion, the firm submitted, among other proofs: (1) a certification from Bari Z. Weinberger, Esq.; (2) a copy of the PAN sent to the client; (3) a copy of the client's RA; and (4) copies of the client's itemized monthly billing invoices. It also submitted a memorandum of law arguing it was "entitled to summary judgment in the sum [owed by the client] together with contract interest and attorney's fees."
In December 2017, the firm mailed James T. Kopec a PAN, via regular and certified mail, stating he owed the firm $3,814.71 as of November 30, 2017. In November 2018, the firm filed a motion to enforce the RA and certified that it served Kopec with the motion as required by Rule 1:5-3.
In December 2018, the judge assigned to the matter denied the uncontested motion without prejudice. Citing Rule 5:1-2, the judge rejected the firm's reliance on Levine v. Levine, 381 N.J. Super. 1, 884 A.2d 222 (App. Div. 2005), to support its claim that the Chancery Division, Family Part should hear its motion. The judge...
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