MARCI ACHRYMIENIA v. FELMORE ASSOCIATES et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2112-04T12112-04T1

MARCI ACHRYMIENIA,

Plaintiff-Respondent/

Cross-Appellant,

v.

FELMORE ASSOCIATES and

ALEX KLINGER,

Defendants-Appellants/

Cross-Respondents.

 

Submitted December 6, 2005 - Decided February 9, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8071-01.

Rubin & Weissman, attorneys for appellants/cross respondents (Jay A. Weissman, on the brief).

Frank A. Tobias, attorney for respondents/cross appellants (Asim A. Alam, on the brief).

PER CURIAM

Defendants Alex Klinger and Felmore Associates appeal, and plaintiff Marci Achrymienia cross-appeals, from the November 19, 2004 order and judgment of the Law Division awarding counsel fees and costs in favor of plaintiff and against defendants. We affirm.

Plaintiff was a tenant in an apartment building owned by defendant Felmore. Defendant Klinger was the superintendent for the building. In July 2001, plaintiff filed her complaint alleging that her lease was terminated for reasons which, if true, would constitute a violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. Defendants vigorously contested the truth of those allegations and contended that the lease was terminated because plaintiff had violated provisions relating to maintaining an animal on the premises. When the matter was called for trial in March 2004, the parties reached a settlement pursuant to which defendants paid plaintiff $15,000 in damages. As a part of their agreement, the parties specified that the amount paid in settlement did not include attorney's fees or costs and that they would permit the court to make an appropriate award.

Counsel for plaintiff subsequently filed his motion for an award of attorney's fees and costs pursuant to the statute. See N.J.S.A. 10:5-27.1. Because the attorney had originally agreed that he would represent plaintiff on a contingent-fee basis, he had not maintained complete, contemporaneous records of the hours he worked on the matter. As a result, although some of the hours he set forth in his certification of services were based on computerized time records kept while the matter was pending, the fee application was based in part on a reconstruction of hours. Counsel for plaintiff certified that the reconstructed portions of the time records included telephone calls and meetings, not all of which were included in the analysis.

Based on his partially reconstructed records, plaintiff's counsel calculated that he had spent 134.8 hours on the matter. He stated that he is a certified civil trial attorney and that his usual and customary billing rate is $300 per hour, resulting in a requested fee of $40,440.00. In addition, he requested reimbursement for $1,177.40 in costs that he had incurred. Finally, counsel for plaintiff requested that the court grant him a 35% enhancement of the lodestar fee.

Defendants opposed the motion for an award of fees. Defendants argued that the underlying complaint was groundless and was only settled for business reasons. As a result, defendants asserted that an award of fees to plaintiff would be inappropriate because it would not further any public policy. Defendants argued in the alternative that the size of the requested fee was disproportionate to the sum paid in the settlement and that the number of hours included in the attorney's certification of services was inconsistent with the minimal work involved in preparing the case for trial.

The judge who had presided over the settlement of the matter and to whom the motion was assigned requested that defendants' counsel submit copies of the time records that he had maintained contemporaneously during the litigation, apparently for comparison with the reconstructed records submitted by plaintiff's counsel. On October 28, 2004, the judge issued his written opinion explaining the basis for his award of $39,840 in fees and $1,177.40 in costs.

The judge noted that there was no objection to the requested hourly rate, which he found was consistent with counsel's experience, and no objection to the request for costs. He recognized that the certification concerning the hours expended by plaintiff's counsel had been partially reconstructed but he explained that he had compared it to the contemporaneous records maintained by defendants' counsel, and had found that the two were almost identical. He found that the matter was not novel or difficult, did not require particular skill, did not preclude counsel from taking on other matters and was not unique. He noted that the settlement was reasonable and that it was double the amount of defendants' offer of judgment.

Based on these factors, the judge concluded that an award which used the slightly lower total number of hours contained in defendants' counsel's billing records as the lodestar would be appropriate, and he therefore awarded plaintiff $39,840.00 in fees and $1,177.40 in costs. Finally, he denied plaintiff's counsel's application for an enhanced fee and he denied his request that the award bear interest from the date of the complaint.

On appeal, defendants argue that the judge erred in failing to reduce the counsel fee award in consideration of the amount paid in settlement of the complaint. Referring to the $15,000 settlement sum as "nominal," defendants assert that the award was excessive in comparison. In her cross-appeal, plaintiff argues that the judge erred in failing to include an enhancement of the award. We have considered the arguments raised in both the appeal and the cross-appeal in light of the record and the applicable legal principles. We have concluded that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm and add only the following observations.

First, we reject defendants' argument that the fee was excessive or unreasonable in light of the result achieved. The settlement amount was not nominal. Indeed, as the judge noted, it was twice the sum included in defendants' offer of judgment. While there must be some measure of relationship between the overall success and the amount awarded, see Tarr v. Ciasulli, 181 N.J. 70, 86-87 (2004), our Supreme Court has rejected strict proportionality even in cases where no general vindication of public rights has been pursued. See Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 366 (1995). Moreover, although an award may be found to be excessive if a plaintiff achieves only limited success or prevails on only some of the issues, see Kluczyk v. Tropicana Products, 368 N.J. Super. 479, 499 (App. Div. 2004)(citing Packard-Bamberger & Co. Inc. v. Collier, 167 N.J. 427, 446 (2001)), the record here does not reflect that plaintiff's success was limited when compared to the offer of judgment. Moreover, in making his award, the judge identified each of the factors that he considered in fixing the fee as required by our Supreme Court, see Rendine v. Pantzer, 141 N.J. 292, 334-36 (1995), and explained his evaluation of each of them. His findings on these factors are entitled to our deference in light of his opportunity to hear the parties and consider the issues presented in the matter. See Packard-Bamberger, supra, 167 N.J. at 447.

Nor do we find that there is any error in the judge's decision to reject plaintiff's application for an enhanced award. He carefully examined the factors relevant to that application and concluded that they were absent. See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 23 (2004); DePalma v. Bldg. Insp. Underwriters, 350 N.J. Super. 195, 220 (App. Div. 2002). We find no error in his exercise of discretion and we see no basis on which to interfere with his analysis or his calculation of the award.

Affirmed as to both the appeal and the cross-appeal.

 

The order setting forth the award and which is the subject of this appeal was entered on November 19, 2004.

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A-2112-04T1

February 9, 2006