15-1626-cv (L)
`Popal v. Slovis
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
`SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
`BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
`WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
`MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
`NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
`OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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`At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
`Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
`18th day of April, two thousand sixteen.
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`ROSEMARY S. POOLER,
`Present:
`DEBRA ANN LIVINGSTON,
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`RAYMOND J. LOHIER, JR.,
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`Circuit Judges.
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`_____________________________________________________
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`FARID POPAL,
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`v.
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`Plaintiff-Appellee-Cross-Appellant,
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`15-1626-cv (L);
`15-1651-cv (XAP)
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`HARVEY J. SLOVIS, ESQ.,
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`Defendant-Appellant-Cross-Appellee.
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`_____________________________________________________
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`For Plaintiff-Appellee/Cross-Appellant:
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`Jonathan I. Edelstein, Edelstein & Grossman, New
`York, NY.
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`For Defendant-Appellant/Cross-Appellee: Rachel Schulman (Francis P. Karam, New York,
`NY, on the brief), Great Neck, NY.
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`Appeal from the United States District Court for the Southern District of New York (Schofield,
`J.).
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`ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
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`AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
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`Harvey Slovis appeals from the April 28, 2015 judgment entered in the United States
`District Court for the Southern District of New York (Schofield, J.), finding, after a two-day
`bench trial, that he was entitled to retain the reasonable value of legal services provided to his
`former client, Farid Popal, in the amount of $105,000. Popal cross-appeals from the same
`judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and
`specification of issues for review.
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`Following a bench trial, we review the factual findings of the district court for clear error
`and its legal conclusions de novo. Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1176 (2d Cir.
`1995). We review a district court’s award of attorney’s fees for abuse of discretion, “which
`occurs when (1) the court’s decision rests on an error of law (such as application of the wrong
`legal principle) or clearly erroneous factual finding, or (2) its decision—though not necessarily
`the product of a legal error or a clearly erroneous factual finding—cannot be located within the
`range of permissible decisions.” McDaniel v. Cty. of Schenectady, 595 F.3d 411, 416 (2d Cir.
`2010) (alterations and internal quotation marks omitted).
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`Slovis argues that the district court abused its discretion in finding that he was entitled to
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`only $105,000 in legal fees. In the district court, Slovis claimed that he and Popal agreed on a
`flat fee of $150,000, but Slovis was unable to produce any written agreement, and the district
`court found, as a matter of fact, that no meeting of the minds occurred between Slovis and Popal
`concerning legal fees. Slovis was thus entitled to only the fair and reasonable value of his
`services rendered to Popal on the basis of quantum meruit. See Cohen v. Grainger, Tesoriero &
`Bell, 81 N.Y.2d 655, 658 (1993). Under New York law, which applies here, to determine the fair
`and reasonable value of legal services on the basis of quantum meruit, courts consider “the
`difficulty of the matter, the nature and extent of the services rendered, the time reasonably
`expended on those services, the quality of performance by counsel, the qualifications of counsel,
`the amount at issue, and the results obtained.” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148 (2d
`Cir. 1998) (citing Spano v. Scott, 561 N.Y.S.2d 678 (4th Dep’t 1990)). Courts applying New
`York law may use the “lodestar” method to reach a specific dollar figure for the value of the
`services rendered. Id.; see also Mar Oil, S.A. v. Morrissey, 982 F.2d 830, 841 (2d Cir. 1993);
`F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d Cir. 1987).
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`The district court did not abuse its discretion in concluding that $105,000 was a fair and
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`reasonable attorney’s fee. The district court conducted a two-day bench trial on this issue, and its
`thorough opinion considered, among other things, Slovis’s experience as a criminal defense
`lawyer, the length of Popal’s criminal trial, and the rate other clients were willing to pay Slovis
`for his services. The court used the lodestar method to reach a specific dollar figure, multiplying
`the approximate number of hours that Slovis worked during Popal’s trial by the rate other clients
`were willing to pay Slovis in similar cases.
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`Slovis argues that the district court erred by not considering the time Slovis worked on
`Popal’s case before trial. But Slovis failed to produce, and apparently did not maintain, any
`contemporaneous time records of the work he performed on Popal’s case either before or during
`the trial. Nor did Slovis provide to the district court any estimate for the amount of pretrial time
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`he spent on Popal’s case. Under New York law, “[t]he burden is on counsel to keep and present
`records from which the court may determine the nature of the work done, the need for it, and the
`amount of time reasonably required; where adequate contemporaneous records have not been
`kept, the court should not award the full amount requested.” F.H. Krear & Co., 810 F.2d at 1265
`(citing Jordan v. Freeman, 336 N.Y.S.2d 671, 671-72 (1st Dep’t 1972); In re Ury, 485 N.Y.S.2d
`329, 330 (2d Dep’t 1985); In re Schaich, 391 N.Y.S.2d 135, 136 (2d Dep’t 1977)). And where
`adequate contemporaneous time records have not been kept, some courts have refused to award
`any fee whatsoever. See, e.g., Potts v. Hines, 534 N.Y.S.2d 507, 508 (3d Dep’t 1988).
`Accordingly, the district court did not abuse its discretion in this regard.
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`Turning to Popal’s cross-appeal, the district court did not abuse its discretion in using the
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`hourly rate that other clients were willing to pay Slovis for his services. The district court
`reasonably concluded that this rate was appropriate based on Slovis’s experience as a criminal
`defense attorney. Indeed, the hourly rate that the district court used produced a total fee award
`that was significantly lower than the $150,000 that Slovis testified he had received in four
`comparable criminal trials. Under the circumstances, we cannot say that the district court abused
`its discretion in its selection of the hourly rate to use in its lodestar calculation.
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`Finally, we reject the argument in Popal’s pro se supplemental brief that the district court
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`erred in dismissing his breach of contract claim. The district court did not clearly err in finding,
`as a factual matter, that there was no meeting of the minds. Because there was no meeting of the
`minds, there was no contract. See Cent. Fed. Sav., F.S.B. v. Nat’l Westminster Bank, U.S.A., 574
`N.Y.S.2d 18, 19 (1st Dep’t 1991).
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`We have considered the remainder of the parties’ arguments and find them to be without
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`merit. Accordingly, the order of the district court hereby is AFFIRMED.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk
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