DIEGO AJPACAJA VS. PRO-LINE BUILDERS, LLC (L-3164-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3699-18T2

DIEGO AJPACAJA,

Plaintiff-Appellant,

v.

PRO-LINE BUILDERS, LLC,
PRO-LINE BUILDERS,
VASKEN JANSEZIAN,
RB FRAMING
CONTRACTORS, LLC,
ANGEL RUANO, DE&J
MASONRY FRAMING, LLC,
HEM CONSTRUCTION,
LLC, and HALUK B. TUNALI,

Defendants,

and

COLIN STANTON,

Intervenor-Respondent.
____________________________

Submitted October 1, 2020 – Decided October 20, 2020

Before Judges Ostrer and Vernoia.
 On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3164-15.

Kelly Law, PC, attorneys for appellant (Stephanie
Tolnai and Charles P. Kelly, on the briefs).

Leary, Bride, Mergner & Bongiovanni, attorneys for
respondent (William H. Mergner, Jr., and Peter M.
Bouton, on the brief).

PER CURIAM

This appeal involves a dispute between two attorneys over a referral fee.

After putting through settlements of a personal injury action, plaintiff's attorney,

Gerald Clark, asked the court to declare void his agreement to pay a referral fee

to Colin Stanton, Ajapcaja's worker's compensation attorney. Stanton filed a

motion to intervene and asked the court to enforce the lawyers' agreement. The

court denied both lawyers' requests on procedural grounds, and recommended

Stanton amend his complaint against Clark in a pending lawsuit in the same

county over referral fees in several other cases. Clark appeals, contending the

court should have decided the issue, and done so in his favor.

We disagree. The court appropriately declined to reach the merits,

although we believe the court should have consolidated the Ajpacaja fee dispute

with the pending lawsuit, rather than simply deny the motion. However, that

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point is now moot, as Stanton did amend his complaint, bringing the Ajpacaja

fee dispute before the other judge in the broader lawsuit over the referral fees.

For several years, appellant Gerald Clark, a certified civil trial attorney,

and respondent Colin Stanton, appeared to have a mutually beneficial

relationship referring clients to each other. In this case, Stanton handled Diego

Ajpacaja's worker's compensation claim, and referred Ajpacaja to Clark to

represent him in a personal injury action against others not shielded by the

worker's compensation bar. Consistent with Rule 1:39-6(d), Clark had agreed

to pay Stanton one-third of his fee, which in turn equaled one third of Ajpacaja's

recovery, and to do so without regard to Stanton's efforts or lack thereof.

Ajpacaja retained Clark, who filed suit and litigated the matter over an extended

period. Clark ultimately secured significant settlements of Ajpacaja's claims

against two parties.

In two separate hearings, after securing Ajpacaja's consent on the record

to the settlement against the two defendants, Clark and another member of his

firm questioned Ajpacaja about Stanton's referral fee. Stanton was not present.

It turns out that neither Stanton nor Clark had obtained Ajpacaja's consent to the

lawyers' agreement before or shortly after it was entered. Clark elicited that

Ajpacaja was unaware of the lawyers' agreement until Stanton advised him

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several months before the personal injury case was resolved. Ajpacaja stated,

regarding each settlement, that he consented to Stanton receiving a fee, but he

believed that Stanton was entitled to a lesser amount than the attorneys agreed.

Clark then filed a motion asking the court to declare the referral fee

agreement void ab initio, because Stanton failed to secure Ajpacaja's advance

consent. Stanton moved to intervene and cross-moved to enforce the agreement.

Clark argued that Stanton, as the referring attorney, was obliged to secure the

client's approval of the referral, and, having failed to do so, the contract between

the attorneys was void under R.P.C. 1.5(e). That rule states that a division of

fees between lawyers of different firms may be made only if, among other

things, "the client is notified of the fee division" and "consents to the

participation of all the lawyers involved." The rule does not expressly state who

— the referring or the receiving attorney or both — must provide notice and

obtain consent.1

The trial judge denied both attorneys' motions, and later denied cross-

motions for reconsideration. The court held that the attorneys' dispute should

be considered within an already pending lawsuit in the same vicinage, Stanton

1
Notably, R.P.C. 1.5(b) separately requires that any lawyer who has "not
regularly represented" a client to communicate in writing "the basis or rate of
the fee" before or shortly after starting work for the client.
A-3699-18T2
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v. Clark, ESX-L-7877-16, involving Stanton's claim for referral fees in several

other matters. A fee-related lawsuit that Clark filed against Stanton in Ocean

County had already been consolidated with Stanton v. Clark. The judge stated

that the fee "issue should not be decided piecemeal by different [j]udges but

globally by one [j]udge." The court recommended Stanton amend his complaint

in the pending action to add his claim for fees in Ajpacaja's matter.

Stanton subsequently amended his complaint in Stanton v. Clark.

Thereafter, he secured partial summary judgment related to the Ajpacaja fee

dispute. That interlocutory order is not before us. 2 Stanton v. Clark was still

pending when briefs were filed in this appeal.

In his appeal, Clark reprises his arguments before the trial court, and

contends the court was obliged to decide the fee issue in the context of

Ajpacaja's case. He cites multiple cases in which a trial court chose to resolve

a fee dispute between attorneys in the context of the underlying action.

However, none of those cases indicate that a separate lawsuit was already

pending between the two attorneys involving multiple related referral fee claims.

The issue before us is not whether the trial court was empowered to decide

the fee issue. The issue is whether the trial court was obliged to do so, rather

2
Clark's motion for leave to appeal was denied.
A-3699-18T2
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than have the matter decided in conjunction with other related disputes. The

trial court's evident goal was to consolidate the Ajpacaja fee dispute with the

disputes already pending in Stanton v. Clark. "When actions involving a

common question of law or fact arising out of the same transaction or series of

transactions are pending in the Superior Court, the court on a party's or its own

motion may order the actions consolidated." R. 4:38-1(a). As both the Ajpacaja

case and Stanton v. Clark were pending in the same county, the trial judge did

not need the Assignment Judge's involvement. Ibid.

A decision to consolidate is a discretionary determination. Union Cnty.

Imp. Auth. v. Artaki, 392 N.J. Super. 141, 148-49 (App. Div. 2007).

Consolidation was reasonable under the circumstances. The ongoing lawsuit

between the parties already involved discovery regarding the two lawyers'

course of dealing and alleged understandings between them. Another judge in

the same vicinage was already familiar with the broader fee dispute between the

attorneys. The dispute raises significant issues of law, and consolidation would

avoid inconsistent or contradictory results.3 A principal goal of consolidation is

3
As did the trial judge whose order is before us, we decline to address the merits
of the dispute over the Ajpacaja fee, including among other issues who (Stanton,
Clark, or both) was responsible to inform Ajpacaja of the referral fee agreement
and obtain his consent, assuming for argument's sake that R.P.C. 1.5(e)'s notice

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to avoid inconsistent rulings on common questions of law or fact. See, e.g.,

Moraes v. Wesler, 439 N.J. Super. 375, 379 (App. Div. 2015).

Our court rules and case law strive to avoid piecemeal decisions.

DiTrolio v. Antiles, 142 N.J. 253, 267 (1995). For example, "the entire

controversy doctrine seeks to assure that all aspects of a legal dispute occur in a

single lawsuit." Olds v. Donnelly, 150 N.J. 424, 431 (1997). The goal is to

"promote judicial efficiency, assure fairness to all parties with a material interest

in an action, and encourage the conclusive determination of a legal controversy."

Ibid.

To assure a global resolution of the fee disputes between Clark and

Stanton, the trial judge should have ordered the Ajpacaja fee dispute

consolidated with Stanton v. Clark, rather than deny the two lawyers' motions

and place the responsibility on Stanton to join the actions by way of a motion to

amend the complaint. But, the motion to amend was filed and granted. So, the

end result is the same, and no effective relief would be granted by reversing the

denial of the motions and remanding for entry of a consolidation order. We will

not decide a case in which "a judgment cannot grant effective relief." Cinque v.

and consent requirement applies to referrals under Rule 1:39-6(d), see Michels,
New Jersey Attorney Ethics, § 36:5-2 (2020) (suggesting it does); and whether
the failure to do so rendered the agreement void ab initio.
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N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) (quoting

Anderson v. Sills, 143 N.J. Super. 432, (Ch. Div. 1976)). Therefore, the appeal

is dismissed as moot.

Dismissed.

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