                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1482-16T3
                                                                      A-1579-16T3

FRANK K. COOPER REAL ESTATE
#1, INC., a Florida corporation, SILM
ENTERPRISES d/b/a CENTURY 21
PROPERTY MART, INC., a Michigan
corporation, CENTRE POINT REAL
ESTATE d/b/a CENTURY 21 CENTRE
POINT, a sole proprietorship, and DAVID
NICHOLS and KIM COMBS, INC. d/b/a
CENTURY 21 SUNLAND REALTY,
an Arizona corporation, on behalf
of themselves and all others similarly
situated, and QUALITY ASSOCIATES
II d/b/a CENTURY 21 PROFESSIONAL
CORPORATION, a New Jersey corporation,

          Plaintiffs,

v.

CENDANT CORPORATION f/k/a
HOSPITALITY FRANCHISE SYSTEMS
and CENTURY 21 REAL ESTATE
CORPORATION,

          Defendants.

IN THE MATTER OF KEEFE BARTELS,
LLC, n/k/a KEEFE LAW FIRM, and
KOPELOWITZ OSTROW PA,

     Appellants,

v.

ZWERLING, SCHACHTER &
ZWERLING, LLP,

     Respondents.

IN THE MATTER OF ZWERLING,
SCHACHTER & ZWERLING, LLP,

     Appellants,

v.

KEEFE BARTELS, LLC, n/k/a KEEFE LAW
FIRM, and KOPELOWITZ OSTROW PA,

     Respondents.

          Argued October 23, 2018 - Decided December 6, 2018

          Before Judges Yannotti, Rothstadt, and Gilson.

          On appeal from Superior Court of New Jersey, Law
          Division, Morris County, Docket No. L-0377-02.

          Joseph P. LaSala argued the cause for appellants in
          A-1482-16 and respondents in A-1579-16 (McElroy,
          Deutsch, Mulvaney & Carpenter, LLP, attorneys;
          Joseph P. LaSala, on the briefs).

          Stephen R. Knox argued the cause for respondents in
          A-1482-16 and appellants in A-1579-16 (Bressler,


                                                                A-1482-16T3
                                    2
            Amery & Ross, PC, attorneys; Stephen R. Knox and
            Gerd W. Stabbert, Jr., on the briefs).

PER CURIAM

      These two appeals involve a dispute over the apportionment of

approximately $11.3 million in attorneys' fees awarded in connection with a

class action settlement. Three law firms represented the class of plaintiffs and

claim a portion of the fees: Zwerling, Schachter & Zwerling, LLP (ZSZ); Keefe

Bartels, LLC, n/k/a Keefe Law Firm (Keefe); and Kopelowitz Ostrow, PA.

(KO). ZSZ contends that it is entitled to substantially more than one-third of

the fees based on the number of hours it worked and the responsibility it

undertook during the class action. Keefe and KO, in contrast, argue that the

firms agreed to split equally any attorneys' fees, with each firm receiving one-

third of the fee award. To try to resolve the dispute, Keefe and KO made an

offer of judgment, but ZSZ did not accept that offer.

      Eventually, the firms agreed to arbitrate the fee dispute. The arbitrator

found that the firms had agreed to split the fee award equally, with each firm

receiving one-third "despite any unequal division of work and responsibility in

the underlying class action." Thus, the arbitrator directed that each of the three

firms "share the attorneys' fee award in equal thirds[.]" The trial court affirmed

the arbitration award. The trial court also denied a motion by Keefe and KO to

                                                                          A-1482-16T3
                                        3
award them costs and fees incurred after ZSZ did not accept their offer of

judgment.

      ZSZ appeals from orders entered on June 10, 2016 confirming the

arbitration award and denying its motion to vacate the arbitration award. Keefe

and KO appeal from a November 2, 2016 order denying their motion for an

award of fees and costs incurred after their offer of judgment was rejected. In

this consolidated opinion, we affirm all three orders. The arbitrator acted within

the scope of his authority and there is no basis to overturn the arbitration award.

Moreover, the amount of the arbitration award was not sufficient to trigger the

shifting of fees and costs under Rule 4:58, the offer of judgment rule.

                                         I

      Counsel began investigating the potential class action in 2000, suit was

filed in 2002, and the class action eventually settled over ten years later in 2012.

Accordingly, some background concerning how the three firms came to

represent the class and how they dealt with each other is relevant to

understanding their fee dispute.

      In 2000, a Florida law firm, which ultimately turned over its interests to

KO, began investigating claims against Century 21 Real Estate Corporation

(Century 21) by disgruntled franchisees. The Florida law firm was originally


                                                                            A-1482-16T3
                                         4
Atlas Pearlman, PA. Thereafter, Atlas became Adorno & Yoss, PA. That firm

then dissolved and the attorneys who were working on the class action joined

KO. We refer to these firms collectively as KO.

      In 2001, KO entered into an attorney-class representative agreement with

two Century 21 franchisees. KO believed that the class action should be pursued

as a nationwide class action. At that time, however, KO had a limited number

of attorneys and limited experience with class actions.     Consequently, KO

reached out to ZSZ, which was a firm with substantial class action experience.

      KO and ZSZ decided to file the class action in New Jersey. One of the

lawyers involved explained that the decision was based on a choice-of-law

provision in the franchise agreements. ZSZ and KO then approached McElroy,

Deutsch & Mulvaney, LLP (MDM), a New Jersey law firm, to act as additional

class counsel.

      In January 2002, the three firms entered into an attorneys-class

representative agreement with a class representative plaintiff, Frank K. Cooper

Real Estate #1, Inc. Relevant to their roles and potential attorneys' fees, the

agreement provided:

            I further understand that [KO], [ZSZ] and [MDM] will
            be co-counsel to me in this matter, and that they shall
            be apportioning the fees recovered with [KO] receiving
            33 1/3 %, [ZSZ] receiving 33 1/3% and [MDM]

                                                                       A-1482-16T3
                                      5
            receiving 33 1/3% of any attorneys' fee earned in this
            case. I agree to the fee sharing set forth in this
            agreement. More specifically that each of the law firms
            named herein shall share the fee which is in accordance
            with their anticipated division of work and
            responsibility in this matter.

      On January 30, 2002, the class action lawsuit was filed in the Superior

Court of New Jersey.      Thereafter, the three firms entered into two more

attorneys-class representative agreements with additional class plaintiffs. The

second and third agreements were signed on January 30, 2004, and April 5,

2004. Both of those agreements contained the same fee-splitting language as in

the first agreement. Moreover, all three agreements provided that if any attorney

withdrew as counsel, that attorney would be entitled to compensation at his or

her standard hourly rate in effect when the agreement was signed, provided there

was a recovery against the defendants in the class action.

      In 2004, MDM withdrew as one of the class counsel, and the New Jersey

firm that ultimately became Keefe substituted in to replace MDM. Before us,

the parties agree that KO, Keefe, and ZSZ are the three firms with a right to

share in the apportionment of the class attorneys' fees under the attorneys-class

representative agreements signed in 2002 and 2004. Keefe also acknowledges

that MDM will receive its fees out of Keefe's share of the fees.



                                                                         A-1482-16T3
                                       6
      The class action was actively litigated for years. Following a series of

motions, a class was certified in August 2010. Just before that certification, in

late 2009, ZSZ sent an email to KO and Keefe seeking their lodestars. A lodestar

is a composite of "the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate." Rendine v. Pantzer, 141 N.J. 292, 334-

35 (1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Thereafter,

in January 2010, ZSZ sent an email stating that KO had not assumed an equal

amount of the work and that it was "a good time . . . to determine what a fair

allocation of fees would be." In October 2010, ZSZ sought to modify the

apportionment of attorneys' fees from the allocation set forth in the attorneys-

class representative agreements. Because ZSZ maintained it had done more

work on the class action than the other two firms, it proposed allocating the fees

based on the hours actually spent on the case. Although the firms thereafter

exchanged communications and met to discuss the fee allocation, no new

allocation agreement was reached.

      As noted earlier, the class action was settled in February 2012. The court

approved that settlement in June 2012.       In connection with approving the

settlement, the court also awarded $11,299,727 in attorneys' fees to class counsel

and $2,969,773 in costs incurred by class counsel.


                                                                          A-1482-16T3
                                        7
       The firms could not agree on how to apportion the fee award. Thus, in

2013, ZSZ filed a motion for summary judgment on the issue of apportionment ,

and Keefe and KO cross-moved for summary judgment. ZSZ argued that the

apportionment should be based on hours spent and responsibility assumed

during the class action.     KO and Keefe contended that the attorneys-class

representative agreements governed and required the firms to share the fee

equally, with each firm receiving one-third of the fee award.

       After hearing oral argument, the trial court denied both motions for

summary judgment in orders entered on March 8, 2013. In its oral decision, the

court reasoned that there was some ambiguity in the attorneys-class

representative agreements as to whether the firms were agreeing to split the fees

on an equal one-third basis, or whether the fees were to be allocated based on

the work and responsibilities undertaken in the class action. The trial court,

therefore, directed that an evidentiary hearing be held.

       Accordingly, in its order denying ZSZ's motion, the trial court directed

that

             [t]wo issues are to be resolved in an evidentiary
             hearing: 1) whether the firms each undertook their
             respective [one-third] share of "work and
             responsibility" in the class action litigation and, if not,
             2) whether any firm not having done so is entitled to a
             quantum meruit award and, if so, how much.

                                                                           A-1482-16T3
                                         8
The court also "determined that ZSZ, [Keefe, and] KO are parties to the [three]

Attorneys-Class Representative Agreements" and "[t]hat issue is resolved [and]

it is so ordered." Finally, the court directed the parties to engage in discovery

on the issues that would be addressed at the evidentiary hearing.

      On June 3, 2013, Keefe and KO served an offer of judgment on ZSZ. The

three firms had previously agreed to distribute seventy-five percent of the fee

award without prejudice to a reallocation. Thus, each firm had received twenty-

five percent of the fee award, and the remaining twenty-five percent had been

placed in escrow. The offer of judgment stated that each firm would retain the

twenty-five percent of the fee award already distributed to it, Keefe and KO

would receive $1,360,000 of the remaining monies held in escrow, and ZSZ

would receive $1,580,000 of the monies in escrow. Thus, ZSZ would receive

"$600,000 more of the total fee award than [ZSZ] otherwise would have received

had each firm received an equal one-third share of the total fee award[.]" ZSZ

did not accept that offer.

      Thereafter, the three firms engaged in discovery. In July 2014, the firms

agreed to submit the fee dispute to arbitration. The written arbitration agreement

stated that they "agreed to submit the Fee Dispute" to binding arbitration under

the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32. "Fee Dispute" was


                                                                          A-1482-16T3
                                        9
not defined, but the arbitration agreement contained no language limiting that

term.

        The three firms also agreed to "limit their right of appeal and expand the

scope of judicial review of any arbitration award[.]" In that regard, the firms

agreed that any appeal from the arbitration award would be to the Law Division

and to the Appellate Division, but that no party would appeal to the New Jersey

Supreme Court. They also agreed that the arbitrator's legal conclusions would

be reviewed "de novo," but factual findings made by the arbitrator "shall not

[be] disturb[ed]" unless they "are so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to offend the

interests of justice."

        The parties then selected an arbitrator, a former United States District

Court Judge. The parties thereafter submitted numerous briefs and substantial

volumes of documents and materials to the arbitrator. The arbitrator held a

hearing in April 2015, and the parties submitted post-hearing briefs.

        On January 12, 2016, the arbitrator issued a written award. The arbitrator

found that the three firms had entered into the attorneys-class representative

agreements in 2002 and 2004, and did not modify their fee-splitting agreement

thereafter. The arbitrator then determined that he was not bound by the trial


                                                                          A-1482-16T3
                                        10
court's legal determinations made when the court denied summary judgment in

2013. Thus, the arbitrator concluded that the attorneys-class representative

agreements "mandate an equal sharing of the attorneys' fees, despite any unequal

division of work and responsibility in the underlying class action."

      In reaching that conclusion, the arbitrator looked at the operative language

contained in two sentences. The first sentence provided that class counsel "shall

be apportioning the fees recovered with [KO] receiving 33 1/3 %, [ZSZ]

receiving 33 1/3 %, and [Keefe] receiving 33 1/3 % of any attorneys' fee earned

in this case." The arbitrator found that sentence was clear in stating that each

firm would receive an equal one-third allocation of fees. The second sentence

stated: "More specifically that each of the law firms named herein shall share

the fee which is in accordance with their anticipated division of work and

responsibility in this matter."     The arbitrator reasoned that the "[m]ore

specifically" sentence did not provide "explicit guidance as to how the fees

should be distributed." Instead, the arbitrator held that the "primary" "33 1/3%"

sentence "explains precisely how the fees are to be divided and, thus, 'controls

over the more general' clause."

      The arbitrator supported that conclusion with factual findings concerning

the probative extrinsic evidence. In that regard, the arbitrator found: (1) there


                                                                          A-1482-16T3
                                      11
was no evidence that any firm failed to contribute towards earning the fee award,

and each of the three firms contributed thousands of hours to the class action;

(2) the firms "'made no effort at the beginning of the case (or later) to e qualize

the billing rates amongst the three firms' or exchange time records"; (3) ZSZ did

not raise the issue of an allocation of fees based on time spent on the litigation

"until very late in the case, when a recovery or settlement became likely"; and

(4) "ZSZ's post-Agreement conduct supports [Keefe's and KO's] assertion that

the Agreements entitled each of the parties to a one-third share of the attorneys'

fees, even if the parties did not share the work and responsibility in the c lass

action litigation equally."

      KO and Keefe moved to confirm the arbitration award, and ZSZ cross-

moved to vacate the award.       On June 10, 2016, the trial court heard oral

argument and entered orders confirming the arbitration award and denying t he

motion to vacate the award. In its oral decision, the court acknowledged the

modified standard of review the firms had agreed to in their arbitration

agreement. Applying a de novo review, the court found that the arbitrator acted

within the scope of his authority and that his award did not contain any errors

of law. In that regard, the trial court found that the arbitrator was not bound by




                                                                           A-1482-16T3
                                       12
the court's reasoning in denying summary judgment. The trial court also found

that there was no basis to disturb the arbitrator's factual findings.

      On June 30, 2016, Keefe and KO filed a motion seeking reimbursement

of the attorneys' fees and costs they incurred after ZSZ did not accept their offer

of judgment. On November 2, 2016, the court denied that motion.

      ZSZ appeals from the June 10, 2016 orders confirming the arbitration

award and denying its motion to vacate the award. Keefe and KO appeal from

the November 2, 2016 order denying their motion for fees and costs incurred

after the offer of judgment was not accepted. We will first address ZSZ's appeal

and then analyze the appeal brought by Keefe and KO.

                                         II

      On its appeal, ZSZ makes three primary arguments. It contends that the

trial court erred in (1) finding that the arbitrator did not exceed the scope of his

authority; (2) concluding that the arbitrator correctly found that the attorneys-

class representative agreements called for an equal, one-third fee allocation; and

(3) confirming an equal one-third allocation without considering the evidence

that Keefe and KO did not actually perform one-third of the work and

responsibility. We are not persuaded by any of these arguments.




                                                                            A-1482-16T3
                                        13
      A.    The Scope of the Arbitrator's Authority

      Agreements to arbitrate are contracts and, therefore, subject to the laws

governing contract interpretation. Roach v. BM Motoring, LLC, 228 N.J. 163,

174 (2017) (quoting Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687

(1996)). In interpreting an arbitration provision, courts look to the provision's

plain language. Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171

N.J. 378, 396 (2002)); see also Garfinkel v. Morristown Obstetrics &

Gynecology Assocs., P.A., 168 N.J. 124, 135 (2001) (explaining that "the intent

expressed or apparent in the writing . . . controls" the interpretation of an

arbitration agreement) (quoting Quigley v. KPMG Peat Marwick, LLP, 330 N.J.

Super. 252, 266 (App. Div. 2000)). Thus, "[a] contracting party is bound by the

apparent intention he or she outwardly manifests to the other party.        It is

immaterial that he or she has a different, secret intention from that outwardly

manifested." Quigley, 330 N.J. Super. at 266 (quoting Tung v. Briant Park

Homes, Inc., 287 N.J. Super. 232, 239 (App. Div. 1996)).

      The parties here agreed that their arbitration was governed by the New

Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. The Act provides that

a "court shall decide whether an agreement to arbitrate exists or a controversy

is subject to an agreement to arbitrate." N.J.S.A. 2A:23B-6(b). Accordingly,


                                                                         A-1482-16T3
                                      14
determining whether an agreement calls for a particular dispute to be arbitrated

is a question for the court, unless the arbitration agreement expressly confers

that authority on the arbitrator. Morgan v. Sanford Brown Inst., 225 N.J. 289,

304 (2016). Our standard of review of the scope of the arbitrator's authority is

de novo. Id. at 302-03 (explaining that the "standard of review of the validity

of an arbitration agreement, like any contract, is de novo" (citing Atalese v. U.S.

Legal Servs. Grp., 219 N.J. 430, 446 (2014)).

      ZSZ argues that the arbitration award should be vacated because the

arbitrator exceeded his authority in two ways. First, ZSZ contends that it agreed

to arbitrate only two issues. Specifically, those issues were the questions the

trial court identified in its order denying summary judgment; that is, (1) whether

each firm performed its one-third share of work and responsibility; and, if not,

(2) whether and how the fee award should be apportioned on a quantum mer uit

basis. Second, ZSZ argues that the arbitrator exceeded his authority because in

denying summary judgment, the trial court had made certain legal decisions that

constituted law of the case and were binding on the arbitrator.

      We disagree with both of those arguments. The express terms used by the

parties here did not limit the arbitrator's authority. Instead, the parties agreed to

submit to binding arbitration the "Fee Dispute." The arbitration agreement did


                                                                             A-1482-16T3
                                        15
not define "Fee Dispute," nor did the agreement contain any language limiting

that term. The plain interpretation of "Fee Dispute" is that it is a comprehensive

term, encompassing the entire dispute over the attorneys' fees.

      Here, the parties were sophisticated law firms represented by seasoned

and experienced legal counsel. If they had intended to limit the arbitrator's scope

of authority, they could have easily done so by adding specific language to the

arbitration agreement. They did not. Instead, as written, the agreement granted

the arbitrator broad authority over the entire fee dispute.

      We reject ZSZ's second argument concerning the law of the case for two

reasons. First, as just noted, the parties granted the arbitrator broad authority to

address the fee dispute without any limitation concerning the prior decision by

the trial court.

      Second, the law of the case doctrine does not apply here. The law of the

case doctrine "is a non-binding rule intended to 'prevent relitigation of a

previously resolved issue.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011)

(quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). The doctrine

reasons that "a legal decision made in a particular matter 'should be respected

by all other lower or equal courts during the pendency of that case.'" Ibid.

(quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). The law of the case


                                                                            A-1482-16T3
                                        16
doctrine, however, is discretionary. Id. at 538-39 (quoting Hart v. City of Jersey

City, 308 N.J. Super. 487, 498 (App. Div. 1998)).

      Moreover, "an order denying summary judgment is not subject to the law

of the case doctrine because it decides nothing and merely reserves issues for

future disposition." Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349,

356 (App. Div. 2004), aff’d, 184 N.J. 415 (2005).         Because the denial of

summary       judgment   "preserves   rather   than   resolves   issues[,] . . . later

reconsideration of matters implicated in the motion, including the reasons in

support of the denial, are not precluded." Blunt v. Klapproth, 309 N.J. Super.

493, 504 (App. Div. 1998) (citing A&P Sheet Metal Co. v. Edward Hansen, Inc.,

140 N.J. Super. 566, 573-74 (Law Div. 1976)). Indeed, we have cautioned that

courts "should not" treat an earlier denial of summary judgment "as establishing

the law of the case." Schuhalter v. Salerno, 279 N.J. Super. 504, 508 n.1 (App.

Div. 1995).

      Here, we discern no reason to treat the trial court's reasoning in denying

summary judgment as law of the case. As the arbitrator pointed out, the issue

first came before the trial court on a limited record. The record presented in the

arbitration was far more expansive. Furthermore, the trial court's reasoning on

the motions for summary judgment was not a final decision. Indeed, the same


                                                                             A-1482-16T3
                                       17
judge who denied summary judgment affirmed the arbitration award and

expressly found that his prior reasoning was not law of the case.

      ZSZ contends that the court's "re-visitation" of its prior ruling was unfair

because it did not have notice of that decision. The record does not support

ZSZ's contention. Both before the arbitrator, and on the motions to confirm and

vacate the arbitration award, all parties extensively briefed and addressed

whether the language in the attorneys-class representative agreements called for

an equal one-third fee allocation and whether that issue had already been decided

when the trial court denied summary judgment.

      In summary, we hold that the arbitration agreement gave the arbitrator

authority to decide all issues related to the fee dispute.      Accordingly, the

arbitrator did not exceed the scope of his authority.

      B.    The Arbitration Award

      Next, ZSZ contends that the trial court erred in confirming the arbitrator's

award.     The arbitrator concluded that the attorneys-class representative

agreements "require[d] the parties to share the attorneys' fee award in equal

thirds, even if the parties did not share the work and responsibility in the

underlying class action equally."




                                                                          A-1482-16T3
                                       18
      The arbitrator reached that decision by looking at the two operative

sentences in the attorneys-class representative agreements. Those two sentences

provided:

            I further understand that [KO], [ZSZ] and [Keefe] will
            be co-counsel to me in this matter, and that they shall
            be apportioning the fees recovered with [KO] receiving
            33 1/3 %, [ZSZ] receiving 33 1/3 %, and [Keefe]
            receiving 33 1/3 % of any attorneys' fee earned in this
            case. . . . More specifically that each of the law firms
            named herein shall share the fee which is in accordance
            with their anticipated division of work and
            responsibility in this matter.

The arbitrator concluded that the first sentence was clear. He then determined

that the second sentence did "not render the contract susceptible to two or more

reasonable interpretations." Instead, the arbitrator found the second sentence

demonstrated "that the parties anticipated a certain division of work and

responsibility in the underlying . . . matter and agreed to split the fees based on

that anticipation, and not based on the actual work and responsibility undertaken

by each party."

      The arbitrator went on to look at the extrinsic evidence and found that that

second sentence did not support ZSZ's position. In that regard, the arbitrator

made two factual findings. First, the arbitrator determined that ZSZ did not

attempt to exchange lodestars with the other firms or equalize billing rates until


                                                                           A-1482-16T3
                                       19
seven years into the litigation. Second, the arbitrator determined that ZSZ

neither disputed the allocation of work nor sought to modify the attorneys' fee

provision of the attorneys-class representative agreements until 2010, when a

settlement was likely.

      In reviewing the arbitrator's award here, we use two standards of review.

In their arbitration agreement, the parties agreed to expand the scope of judicial

review. They agreed that both the Law Division and this court would use a de

novo standard for legal conclusions and a much more deferential standard for

factual findings. The Act provides that parties to an arbitration agreement can

expand the scope of judicial review of an arbitration award. N.J.S.A. 2A:23B-

4(c) ("[N]othing in this act shall preclude the parties from expanding the scope

of judicial review of an award by expressly providing for such expansion in a

record."); see also Curran v. Curran, 453 N.J. Super. 315, 322 (App. Div. 2018)

(quoting Van Duren v. Rzasa-Ormes, 394 N.J. Super. 254, 265 (App. Div.

2007)).

      We agree with the arbitrator that the first sentence of the attorneys-class

representative agreements is clear in providing that each of the three firms was

to receive one-third of a fee award. We also agree with the arbitrator that the

key phrase in the second sentence is "anticipated division of work and


                                                                          A-1482-16T3
                                       20
responsibility." Finally, we agree with the arbitrator's reasoning that the second

sentence did not undercut or modify the clearer first sentence.

      As to the factual findings of the arbitrator, we note that he found no

evidence demonstrating that any of the firms had "failed to contribute at all

toward earning the fee award." Instead, the arbitrator found that the evidence

showed "each party contributed thousands of hours to the class litigation."

Those factual findings are supported by the competent credible evidence

presented to the arbitrator, and we discern no basis to disagree with those factual

findings under the standard of review called for in the parties' arbitration

agreement. Accordingly, there was no evidence supporting a departure from the

plain language of the parties' agreement.

      In short, the plain language of the attorneys-class representative

agreements and the extrinsic evidence supports an equal apportionment of the

fee award. Consequently, the trial court did not err by confirming the arbitrator's

award and denying ZSZ's motion to vacate the award.

      C.     Quantum Meruit

      Finally, ZSZ argues that because Keefe and KO did not each fulfill their

share of the work and responsibility, the arbitrator and trial court erred by failing

to apportion the attorneys' fees award on a quantum meruit basis. We disagree.


                                                                             A-1482-16T3
                                        21
      Quantum meruit means, literally, "as much as is deserved[.]" Kas Oriental

Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007). Quantum

meruit applies when "one party has conferred a benefit on another and the

circumstances are such that to deny recovery would be unjust[.]" Ibid. (quoting

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992)). "[T]he basis for the

application of quantum meruit is 'wholly unlike an express or implied-in-fact

contract in that it is "imposed by the law for the purpose of bringing about justice

without reference to the intention of the parties."'" Ibid. (quoting St. Barnabas

Med. Ctr. v. Cty. of Essex, 111 N.J. 67, 79 (1988)). Consequently, "[i]t has long

been recognized that the existence of an express contract excludes the awarding

of relief regarding the same subject matter based on quantum meruit." Ibid.

      Here, as we have already determined, the attorneys-class representative

agreements contained an express provision governing apportionment of the

attorneys' fee award. Therefore, quantum meruit does not apply. Thus, the

arbitrator correctly determined that he did not need to conduct a quantum meruit

analysis, and the trial court correctly confirmed the arbitrator's award.




                                                                            A-1482-16T3
                                        22
                                        III

      On their appeal, KO and Keefe argue that the trial court erred in denying

their motion for attorneys' fees and costs incurred after ZSZ did not accept their

offer of judgment. We disagree.

      Rule 4:58 governs offers of judgment and "permits a party to offer to take

a money judgment or to allow judgment to be taken against it for a sum certain."

Best v. C&M Door Controls, Inc., 200 N.J. 348, 356 (2009) (citing R. 4:58-3).

Thus, Rule 4:58-1(a) provides that in a non-matrimonial matter, seeking

exclusively monetary relief, a party may serve an offer of judgment on an

opposing party and file it with the court so long as the offer is made more than

twenty days before trial. If the opposing party does not accept the offer within

ninety days, or ten days before trial, whichever occurs first, the o ffer is deemed

"withdrawn." R. 4:58-1(b).

      Rule 4:58-3 then provides that if a party makes an offer of judgment,

which the opposing party does not accept, and the opposing party thereafter

recovers eighty percent or less of the offered amount, the offering party is

entitled to "allowances."    R. 4:58-3(a) to (b).     The "allowances" include

reasonable litigation expenses and attorney's fees incurred after the rejection of




                                                                           A-1482-16T3
                                       23
the offer. R. 4:58-2(a); see also R. 4:58-3(a) (directing that allowances under

this rule be defined as prescribed in R. 4:58-2).

      The offer of judgment rule is "intended as a procedural mechanism to

facilitate the settlement of cases." Wiese v. Dedhia, 188 N.J. 587, 593 (2006).

It was "designed particularly as a mechanism to encourage, promote, and

stimulate early out-of-court settlement of . . . claims that in justice and reason

ought to be settled without trial." Ibid. (omission in original) (quoting Gonzalez

v. Safe & Sound Sec. Corp., 185 N.J. 100, 125 (2005)). "That goal is achieved

through the imposition of financial consequences (the award of fees and costs)

where a settlement offer turns out to be more favorable than the ultimate

judgment." Best, 200 N.J. at 356 (citing Firefreeze Worldwide Inc. v. Brennan

& Assocs., 347 N.J. Super. 435, 441 (App. Div. 2002)).

      Here, Keefe and KO made their offer of judgment in 2013. Earlier, in

April 2012, the three firms entered into a side agreement under which each firm

received twenty-five percent of the total fee award subject to repayment

depending on the outcome of their fee dispute. The remaining twenty-five

percent was placed in escrow until the matter was resolved. Each firm also

received seventy-five percent of their share of costs and expenses included in

the award, except no firm could withdraw more than $525,000 of unreimbursed


                                                                          A-1482-16T3
                                       24
costs and expenses. The remaining costs and expense funds were also placed in

escrow. Focusing just on the attorneys' fees, each firm's twenty-five percent

was approximately $2,820,000.

      Keefe and KO offered to take judgment against them

            in the amount of $1,360,000, which amount represents
            [Keefe's and KO's] two-thirds interest in the remaining
            attorneys' fees held in escrow pursuant to that certain
            Side Agreement dated April 2012 minus the sum of
            $600,000.00, without prejudice. For the sake of clarity,
            this Offer of Judgment provides that: (i) [Keefe and
            KO] and [ZSZ] retain all attorneys' fees already
            distributed pursuant to the settlement, and (ii) ZSZ will
            receive $600,000 more of the total fee award than it
            otherwise would have received had each firm received
            an equal one-third share of the total fee award[.]

In other words, the offer proposed that each firm would retain the twenty-five

percent of the fees it had already received (that is, approximately $2,820,000).

Of the remaining escrow, ZSZ would receive its one-third share plus an

additional $600,000, and KO and Keefe would split the remainder of what was

held in escrow.

      ZSZ did not accept the offer of judgment. Under the arbitration award,

each firm received approximately $3,760,000 in fees.

      Keefe and KO contend that their offer of judgment was focused only on

the twenty-five percent of the remaining undistributed fees. According to Keefe


                                                                        A-1482-16T3
                                      25
and KO, ZSZ would have received $1,580,000 from the monies remaining in

escrow if it accepted the offer of judgment. They then point out that ZSZ was

awarded $980,000, and thus, recovered only sixty-two percent of the offer. In

their calculations, Keefe and KO used the figure $2,940,000 as the amount in

escrow. Keefe and KO do not clarify the difference between that figure and

$2,820,000, which is twenty-five percent of the total fee award. In its response,

however, ZSZ points out that the $2,940,000 amount includes fees and costs.

For the sake of consistency, we use Keefe and KO's figure of $2,940,000.

      The plain language of the offer of judgment, however, does not support

Keefe and KO's interpretation. By its express terms, the offer provided that each

firm would "retain all attorneys' fees already distributed," which amounted to

$2,820,000 for each firm. The apportionment of the monies remaining in escrow

was in addition to that $2,820,000. Consequently, under the offer of judgment,

ZSZ would have received $4,400,000 ($2,820,000 plus $1,580,000). Keefe and

KO would have each recovered $3,500,000 ($2,820,000 plus $680,000). Under

the confirmed arbitration award, each firm received approximately $3,760,000.

Thus, ZSZ received more than eighty percent of the offer of judgment

($3,760,000 divided by $4,400,000 equals 85.5%). Keefe and KO, therefore,

were not entitled to costs and attorneys' fees under Rule 4:58.


                                                                         A-1482-16T3
                                      26
The orders being challenged in both appeals are affirmed.




                                                            A-1482-16T3
                               27
