                                NOT FOR PUBLICATION WITHOUT THE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-1869-17T3

MAUREEN MCGUIGAN,

          Plaintiff-Respondent,

v.

SAJUT S. BENIPAL and
WILLS TRUCKING, INC.,

     Defendants.
___________________________

CONRAD J. BENEDETTO,

     Appellant.
___________________________

                    Argued November 15, 2018 – Decided May 23, 2019

                    Before Judges Simonelli and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Docket No. L-3514-09.

                    Anthony Scordo argued the cause for appellant (Conrad
                    J. Benedetto, attorney; Conrad J. Benedetto, on the
                    brief).

                    Mark J. Molz argued the cause for respondent.
PER CURIAM

      Appellant Conrad J. Benedetto appeals from the September 18, 2017 Law

Division order requiring him to return an enhanced attorney's fee to his former

client, plaintiff Maureen McGuigan. Benedetto also appeals from the November

20, 2017 order denying his motion for reconsideration. We affirm for reasons

in addition to those expressed by the trial court. See Aquilio v. Cont'l Ins. Co.

of N.J., 310 N.J. Super. 558, 561 (App. Div. 1998).

      On November 2, 2007, McGuigan retained Benedetto to represent her in

a personal injury matter arising from a motor vehicle accident that occurred on

October 23, 2007.     McGuigan signed a contingency fee agreement, which

provided for payment of an attorney's fee of "33 1/3% of whatever may be

recovered from said claim by suit, settlement, or any other manner." McGuigan

lived and worked in New Jersey at the time of the accident, but later moved to

Kansas and then to the Kyrgyz Republic in central Asia.

      The case settled for $425,000 on July 3, 2012.         Benedetto sent the

settlement documents to McGuigan at her address in Kansas; however, the

documents were returned to Benedetto because McGuigan no longer resided

there. The outside of the envelope containing the documents was stamped:




                                                                         A-1869-17T3
                                       2
"RETURNED TO SENDER UNDELIVERABLE AS ADDRESSED UNABLE

TO FORWARD."

      As of July 9, 2012, Benedetto was aware that McGuigan no longer resided

at the Kansas address. The parties communicated thereafter via email. In an

August 14, 2012 email, Benedetto asked McGuigan to contact him, stating: "I

am still waiting to hear from you about how we are going to do distribution [of

the settlement proceeds] before you leave the states." In an August 21, 2012

email, Benedetto advised McGuigan: "As of this said date I still have not heard

from you. Upon your receipt of the same please call me as soon as possible."

In an August 21, 2012 email, McGuigan responded: "Heard from me about

what? I sent you the notarized paperwork. I no longer have an address so don't

try sending anything to [K]ansas, [N]ew [J]ersey or [P]ennsylvania[.]"

(Emphasis added). McGuigan also advised: "I also do not have a phone nor

phone number from which to call . . . at the moment (& [I']m not sure when I

will)."

      In a September 5, 2012 email, Benedetto asked McGuigan to provide an

address. In an October 4, 2012 email, Benedetto advised McGuigan he would

petition the court for direction in making a distribution of the settlement

proceeds and seek enhanced attorney's fees "for the additional work necessary


                                                                       A-1869-17T3
                                      3
in this matter." In an October 4, 2012 email, McGuigan responded: "I don't

know where to send anything. I don't have an address for you to send anything

[to]. You chose the timing for closing/settlement of the case & now you want

to charge me more because I don't have an address (as I already

communicated)?" In an October 6, 2012 email, Benedetto responded: "If you

cannot provide me with an address I will have to seek direction from the [c]ourt

on completing distribution [of the settlement proceeds]." Benedetto did not

reiterate he would seek an enhanced fee.

      On November 21, 2012, Benedetto filed a motion to authorize distribution

of the settlement proceeds. He also requested an enhanced fee pursuant to Rule

1:21-7(f) based on alleged additional work he performed due to McGuigan's

failure to cooperate and communicate with him.           Benedetto submitted an

unsigned distribution list showing the following:

            Gross Settlement                        $425,000.00
            Costs Reimbursed                        $ 15,139.46
                  Subtotal                          $409,860.54
            Attorney's Fee 33 1/3%                  $136,483.55
                  Subtotal                          $273,376.99
            New Jersey State Workman's
            Comp Lien Total of $376,064.05
            Reduced to                              $128,000.00
                  Amount of Settlement
                  To Client                         $145,376.99



                                                                        A-1869-17T3
                                       4
Benedetto also submitted an unsigned itemization of the costs, which totaled

$15,139.46, but did not submit supporting documentation.

        Despite knowing McGuigan did not live in Kansas, Benedetto served the

motion on her by regular mail at her former Kansas address. Benedetto claimed

to have also served McGuigan by email; however, there is no email confirmation

in the record.    In addition, Benedetto sent a December 6, 2012 email to

McGuigan at the wrong email address, which notified her of the motion hearing

date.

        In a December 7, 2012 order, the trial court granted Benedetto's

unopposed motion. The court concluded that Benedetto "was required to

expend[] more time than the usual time and funds to bring this matter to a close

and as such is entitled to increased legal fees pursuant to [Rule] 1:21-7(f)." The

court also concluded that "due to the excessive work that was performed that

normally would not have to be performed in the normal course of litigation, the

legal fees are hereby increased as reflected in the disbursement schedule[.]" The

court did not cite to any evidence in the record supporting these conclusions ,

and the record does not indicate why the court awarded Benedetto an enhanced

fee of $28,000.    There is no evidence that Benedetto served the order on

McGuigan.


                                                                          A-1869-17T3
                                        5
      Benedetto deposited the remaining settlement proceeds in a bank account

but did not disburse the proceeds to McGuigan. The parties thereafter discussed

distribution, but could not reach an agreement.        During these discussions,

McGuigan discovered the court had awarded Benedetto an enhanced fee of

$28,000.

      McGuigan filed a motion to vacate the December 7, 2012 order and

compel Benedetto to turn over all settlement proceeds and provide a schedule of

itemized costs together with supporting documentation. She certified that she

never received Benedetto's motion, objected to the enhanced fee and costs, and

requested immediate disbursement of the settlement proceeds to her.

      In an August 21, 2015 order, the court granted the motion in part and

denied it in part. The court compelled Benedetto to immediately turn over the

settlement proceeds to McGuigan and provide a complete itemized schedule of

costs along with supporting documentation. The court directed the parties to

contact the court if this ruling did not resolve the matter.

      The matter was not resolved. On February 29, 2016, McGuigan filed an

order to show cause to compel Benedetto to disburse the settlement proceeds

and return the enhanced fee to her. In a June 24, 2016 order, the court required




                                                                         A-1869-17T3
                                         6
Benedetto to immediately deposit $34,000 in a New Jersey IOLTA trust account

and provide all billing and proof of payment for all claimed costs.

      After unsuccessful settlement negotiations, McGuigan asked the court to

decide her application. In a September 18, 2017 order and written statement of

reasons, the court required Benedetto to pay $28,000 to McGuigan by October

18, 2017. After finding that service of Benedetto's motion for an enhanced fee

was not effectuated on McGuigan, the court reconsidered Benedetto's enhanced

fee application and reversed the award. The court then reviewed the history of

this matter and concluded that Benedetto was not entitled to an enhanced fee

because his "efforts [did] not appear to the [c]ourt to be anything extraordinary,

warranting an enhanced fee."

      Benedetto did not return the enhanced fee. Instead, he filed a motion for

reconsideration. The court entered an order on November 20, 2017 denying the

motion.

      On appeal, Benedetto argues the court erred in ordering him to pay the

enhanced fee to McGuigan and in denying his motion for reconsideration. These

arguments lack merit.




                                                                          A-1869-17T3
                                        7
        Benedetto did not properly serve McGuigan with his motion for an

enhanced fee. Thus, the court properly reversed the enhanced fee award. See

R. 1:21-7(f) (requiring written notice to client of the fee application).

        In addition, Benedetto did not meet his burden to show he was entitled to

an enhanced fee because the fee of $136,483.55 permitted by Rule 1:21-7(c) was

inadequate. See In re Estate of F.W., 398 N.J. Super. 344, 356 (App. Div. 2008).

Applications for a fee in excess of the amount permitted by Rule 1:21-7(c) "are

reserved for exceptional cases."      Ibid. "The claim of inadequacy must be

substantial and thoroughly documented and cannot rest merely on the claim of

a successful result in a generally difficult type of litigation without a showing

of the particular difficulty of the specific litigation in question." Pressler &

Verniero, Current N.J. Court Rules, cmt. 7 on R. 1:21-7(f) (2019). As we have

held:

              In order to be entitled to an increased fee over and
              above that provided by . . . [Rule 1:21-7(c)] the attorney
              must demonstrate that (1) the fee allowed under the rule
              is not reasonable compensation for the services actually
              rendered, and (2) the case presented problems which
              required exceptional skills beyond that normally
              encountered in such cases where the case was unusually
              time consuming.

              [Estate of F.W., 398 N.J. Super. at 356 (quoting
              Wurtzel v. Werres, 201 N.J. Super. 544, 549 (App. Div.
              1985)).]

                                                                            A-1869-17T3
                                          8
      This case was not an exceptional or difficult case that required an

enhanced fee. It was a simple personal injury case where liability and damages

seemed clear. The case settled without trial, and the services Benedetto rendered

to reach that result were not beyond those normally rendered in a case such as

this. There is no evidence that the $136,483.55 fee permitted under Rule 1:21-

7(c) was not reasonable compensation for the services Benedetto actually

rendered, both before and after the settlement, or that "the case presented

problems which required exceptional skills beyond that normally encountered

in such cases where the case was unusually time consuming." Id. at 356 (quoting

Wurtzel, 201 N.J. Super. at 549). There also is no support for the amount of the

enhanced fee. For these reasons, we conclude that Benedetto was not entitled

to an enhanced fee and must return the $28,000 to McGuigan.

      Affirmed.




                                                                         A-1869-17T3
                                       9
