                                NOT FOR PUBLICATION WITHOUT THE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-3138-17T4

HEON KIM,

         Plaintiff-Respondent,

v.

ANDREW PARK, LAW OFFICES
OF ANDREW PARK, PC, and
ANDREW PARK, PC,

         Defendants-Appellants,

and

SIM & PARK, LLP,

     Defendant.
_______________________________

                   Argued June 18, 2019 – Decided August 2, 2019

                   Before Judges Koblitz and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-020039-14.

                   David M. Wasserman argued the cause for pro se
                   appellants.
                Roy H. Mossi argued the cause for respondent (Song
                Law Firm, LLC, attorneys; Roy H. Mossi, on the brief).

PER CURIAM

         This matter arises from a July 28, 2017 judgment for $23,000 in damages

and approximately $36,000 in counsel fees and expenses entered against

defendant Andrew Park after a two-day legal malpractice bench trial.             He

appeals from a January 24, 2018 order denying reconsideration. We affirm.

         Defendant's amended notice of appeal states that he appeals only from the

denial     of   his   motion   for   reconsideration.    See   R.   2:5-1(e)(3)(i).

"Reconsideration should be utilized only for those cases which fall into that

narrow corridor in which either 1) the [c]ourt has expressed its decisi on based

upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt

either did not consider, or failed to appreciate the significance of probative,

competent evidence. . . ." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.

Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.

1990)); see also R. 4:49-2. We review denials of reconsideration under the abuse

of discretion standard. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462

(App. Div. 2002).

         Plaintiff Heon Kim hired defendant, an attorney, to represent him in a

personal injury action arising from a motor vehicle accident in April 2006.

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During the course of litigation, defendant did not respond to plaintiff's several

inquiries about whether his personal injury protection (PIP) would cover

accident-related back surgery he was considering. On June 16, 2009, after three

postponements of the surgery and no word from defendant concerning coverage,

plaintiff underwent surgery on his lumbar spine, assuming it would be covered

by insurance. A week after the surgery, on June 23, the lawsuit was resolved

through mediation for $500,000. Plaintiff realized approximately $331,000.

      After the settlement, plaintiff, having indeed exhausted his PIP benefits,

received a demand from the hospital for approximately $105,000 for his recent

surgery. The hospital thereafter sought collection of the unpaid bill. Defendant

initially represented plaintiff with respect to the hospital's collection suit, but

after defendant, through inaction, allowed a mandatory arbitration award for the

full amount of the bill to be entered, plaintiff retained his current counsel, who

filed for a trial de novo. Plaintiff ultimately paid his current counsel $5000 to

settle the hospital collection action for $18,000.

      Plaintiff thereafter sued defendant for malpractice on the theory that

defendant should have investigated whether plaintiff had exhausted his PIP

coverage and informed plaintiff of his responsibility for the hospital bill before

plaintiff's surgery and before the settlement of the accident claim. Plaintiff


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                                        3
testified he could not afford surgery unless he had PIP coverage, and postponed

surgery until he believed defendant was able to "contact the insurance company"

and "take care of the whole thing."

      After a bench trial, the judge issued a written opinion in which he

concluded that defendant failed to act in accordance with the professional

standard of care he owed plaintiff by failing to ascertain PIP coverage and failing

to communicate with plaintiff about the coverage. The judge based his decision

on defendant's failure to advise plaintiff of the consequences of accepting the

settlement without addressing the outstanding medical bill. The court concluded

that plaintiff was damaged in the amount of $18,000, which is what he ultimately

paid to the hospital to resolve his medical bill, and $5000 in legal fees charged

by the firm that resolved the collection action. The court also awarded $27,604

in legal fees, and $8350 in costs on the successful malpractice claim. See In re

Estate of Vayda, 184 N.J. 115, 121-22 (2005) (stating a claimant is entitled to

recover attorney's fees for negligently performed services and reasonable legal

expenses incurred in bringing a malpractice claim).

      We defer to the factual and credibility findings of the trial court sitting as

a factfinder. State ex. rel. D.M., 451 N.J. Super. 415, 424 (App. Div. 2017).

"Legal malpractice is a variation on the tort of negligence." Garcia v. Kozlov,


                                                                           A-3138-17T4
                                         4
Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004). Thus, to prevail

on a legal malpractice claim, "a plaintiff must prove a deviation from the

standard, proximate causation, and damages." Ibid.

      Plaintiff's expert opined that defendant's conduct fell below the standard

of care for lawyers by "executing the settlement without first resolving the

insurance coverage issue or at least informing [plaintiff] of his exposure to a

lawsuit by the hospital."       Plaintiff's expert opined that this lapse in

communication and failure to fully explain the settlement constituted

malpractice. Defendant presented no opposing expert. The trial court found

defendant did not give sufficient information to plaintiff to allow plain tiff the

informed choice as to whether or not to forgo the back surgery.

      Defendant argues lawyers are not held to "informed consent" standards,

citing to Conklin v. Hannoch Weisman, 145 N.J. 395, 414-16 (1996). Our

Supreme Court held in Conklin that the medical concept of informed consent

should not be imported into the legal malpractice area. Id. at 415-16. But, the

Court stated, "[t]hat is not to say that a legal malpractice claimant's testimony

concerning whether he or she would have entered into a transaction, if

adequately informed of its risks, is irrelevant." Id. at 416.




                                                                         A-3138-17T4
                                         5
      Defendant challenged the adequacy of plaintiff's proofs of the third

element, damages. That challenge triggers an inquiry: what harm does plaintiff

claim defendant caused by deviating from accepted standards of legal practice

during the handling of his personal injury case? Is the harm compensable and,

if so, what is the measure of damages?

      Defendant argues that, although the law was unclear in 2009 when

plaintiff settled his personal injury case, the trial judge relied on a subsequently

decided case, Wise v. Marienski, 425 N.J. Super. 110 (Law Div. 2011), which,

similar to Haines v. Taft, 450 N.J. Super. 295 (App. Div. 2017), held that a

plaintiff could recover from a jury for medical costs that exceed his PIP

coverage. Our Supreme Court has recently determined that a jury cannot award

damages in that situation.      Haines v. Taft, 237 N.J. 271, 294-95 (2019).

Defendant argues that, looking at the situation at the time of the settlement and

today, plaintiff would be responsible for the hospital bill whether he settled or

proceeded to trial, and the trial court's reliance on case law that was subsequently

reversed should lead us to reverse the trial court.

      The trial court found that defendant did not inform plaintiff that his PIP

coverage was exhausted, although plaintiff sought this information. The court

also found that defendant's negligence in not answering plaintiff's questions led


                                                                           A-3138-17T4
                                         6
to costly surgery plaintiff might not otherwise have undergone. This finding

was based on plaintiff's testimony, which the court found credible. We do not

second-guess the credibility findings of the trial court. D.M., 451 N.J. Super. at

424. The trial judge did not abuse his discretion in denying reconsideration of

his judgment in 2018, before our Supreme Court decided Haines.

      In defendant's appellate brief, other than the reconsideration issue, he

argued only that the trial judge erred in denying defendant's pre-trial dismissal

motion, and another judge erred in denying defendant's pre-trial summary

judgment motion, filed after the completion of discovery. These pre-trial orders,

however, are not listed on his notice of appeal. R. 2:5-1(e)(3)(i). We therefore

decline to review these orders. In any event, any concerns about the soundness

of refusing to dismiss the matter pre-trial are quieted by the judge's

determination after a bench trial that plaintiff proved his legal malpractice claim.

See C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57 (App. Div. 2006)

(summary judgment is proper where the evidence "is so one-sided that one party

must prevail as a matter of law") (quoting Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 536 (1995)); see also Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989) (a claim survives a motion for dismissal where




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                                         7
"a cause of action is 'suggested' by the facts") (quoting Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189, 192 (1988)).

      Affirmed.




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