JAMES T. KOPEC v. ANNA M. MOERS JOSEPH LOPRESTI v. JENNIFER LOPRESTI RICK G. ZORN v. CHRISTINA ZORN SAMUEL MCGEE v. LILLIAN MCGEE SANDRA WEED v. LEROY WEED II MARY DETER v. ROY L. DETER KAREN PREVETE v. THOMAS MENDIBURU CHRIS DEFONTES v. NICOLE DEFONTES CHRISTINE OSHIDAR v. DARIUS OSHIDAR SUZZAN M. HEISLER v. ERIC HEISLER (FM-19-0423-15, FM-19-0177-16, FM-19-0063-14, FM-20-0815-15, FM-14-0311-16, FM-14-0691-16, FM-14-1312-04, FM-14-0753-13, FM-03-1029-12, and FM-03-1221-13, SUSSEX, UNION, MORRIS, AND BURLINGTON COUNTIES AND STATEWIDE) (CONSOLIDATED)
A-2551-18/A-2552-18/A-2553-18/A-2554-18/A-2726-18/A-2731-18/A-2758-18/A-3579-18/A-4190-18/A-4191-18
| N.J. Super. Ct. App. Div. | Jan 13, 2022Background
- Weinberger Divorce & Family Law Group LLC entered written retainer agreements (RAs) with ten former matrimonial/post‑judgment clients that set hourly rates, billing procedures, an attorney‑withdrawal/collection clause (¶15), and a multi‑part arbitration clause (¶17).
- The firm sent Pre‑Action Notices (PANs) under R. 1:20A‑6 advising clients they could request fee arbitration and warning that a failure to do so within 30 days would lead to suit; none of the ten clients invoked fee arbitration.
- The firm moved in the Family Part in each underlying matrimonial docket to (a) enforce the RAs and obtain judgments for unpaid fees (with interest and counsel fees) or (b) compel binding arbitration under ¶17 of the RAs; motions were uncontested but denied by trial judges.
- Trial courts denied relief for overlapping reasons: the Family Part was not the proper forum post‑2018 Rule amendments; the firm’s summary‑judgment submissions failed Rule 4:46‑2(a) (no statement of material facts); the firm did not adequately prove fee reasonableness under RPC 1.5(a); and ¶17’s arbitration language was vague, conflicting, and inconsistent with Rule 1:20A‑6 and Atalese/Kernahan principles.
- The firm appealed; the Appellate Division consolidated the ten appeals, rejected the firm’s arguments (including that Delaney v. Dickey should apply), and affirmed the denials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper forum for fee enforcement | Family Part can adjudicate fee claims tied to matrimonial matters (attorney may obtain judgment in matrimonial docket). | Law Division is proper forum for contractual fee‑collection actions after the 2018 amendment to R. 4:3‑1(a). | Law Division is the proper forum for these enforcement actions; Family Part denials affirmed. |
| Entitlement to summary judgment / judgment for unpaid fees | Invoices and RA demonstrate undisputed amount owed; summary judgment should be entered. | Genuine disputes (e.g., validity/interpretation of RA); firm failed procedural requirements and to prove fee reasonableness under RPC 1.5. | Denied: firm failed to file the required Rule 4:46‑2(a) statement and did not meet its burden to establish reasonableness (lodestar/RPC 1.5). |
| Enforcement / compulsion of binding arbitration (¶17) | ¶17 unambiguously mandates binding arbitration and waives court forum; trial court should compel arbitration if it declines judgment. | ¶17 is vague/misleading, conflicts with Rule 1:20A‑6 (which vests initiation right in client), contradicts ¶15, and fails Atalese/Kernahan clarity requirements. | Denied: arbitration clause unenforceable as ambiguous, contradictory, and inconsistent with Rule 1:20A‑6 and Atalese/Kernahan standards. |
| Applicability of Delaney v. Dickey (attorney duty to discuss arbitration) | Delaney does not apply retroactively; firm’s RAs predate or differ factually. | Clients contend Delaney protections not available retroactively. | Court: Delaney is prospective; its heightened disclosure rule does not apply to these preexisting agreements. |
Key Cases Cited
- Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (N.J. 2014) (arbitration clauses must clearly and unambiguously notify consumer that judicial rights are waived)
- Kernahan v. Home Warranty Admin. of Fla., Inc., 236 N.J. 301 (N.J. 2019) (contract language that is debatable, confusing, or contradictory defeats mutual assent to arbitrate)
- Delaney v. Dickey, 244 N.J. 466 (N.J. 2020) (announces prospective duty for attorneys to discuss pros/cons of advance arbitration provisions)
- Giarusso v. Giarusso, 455 N.J. Super. 42 (App. Div. 2018) (prior App. Div. decision allowing fee judgment in matrimonial docket, decided before Rule amendments)
- Levine v. Levine, 381 N.J. Super. 1 (App. Div. 2005) (discusses attorney lien and fee remedies in matrimonial context)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (N.J. 1995) (summary judgment standard and requirements)
- Rendine v. Pantzer, 141 N.J. 292 (N.J. 1995) (lodestar principle; courts may exclude excessive or unnecessary hours)
- Saffer v. Willoughby, 143 N.J. 256 (N.J. 1996) (fee arbitration rules and attorney obligations under R. 1:20A)