USA HOME IMPROVEMENT v. ROGER PARK and JEAN PARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4406-04T34406-04T3

USA HOME IMPROVEMENT,

Plaintiff-Respondent,

v.

ROGER PARK and JEAN PARK,

Defendants-Appellants/

Third-Party Plaintiffs,

and

ERIC M. VISAGGIO, MATTHEW STOUDT,

CHRIS SERVILIO, and AVS ELECTRIC, INC.,

a New Jersey Corporation,

Third-Party Defendants.

_________________________________________________

 

Submitted November 29, 2005 - Decided February 21, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

L-1301-03.

Misha Lee, attorney for appellants (Ms.

Lee, of counsel, and Jeffrey Zajac, on the

brief).

Walsh & Walsh, attorneys for respondent

(Richard Macaluso, on the brief).

PER CURIAM

Defendants, Roger Park and Jean Park, the prevailing parties on a counterclaim instituted pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, appeal from an award by the trial court of counsel fees in the amount of $5,000 and costs of $1,000 on that claim, arguing that the award was inadequate. We affirm.

The record reflects that defendants entered into a home improvement contract to be performed by plaintiff USA Home Improvement with a contract price of $22,700. Thereafter, the contract was orally extended as the result of an agreement by plaintiff to renovate the defendants' kitchen for an additional sum of $9,500. During the course of the work, approximately $88,000 in cash was stolen from a safe in defendants' attic by Eric M. Visaggio, an employee of subcontractor AVS Electric, Inc., and his acquaintance, Mathew Stoudt. Visaggio and Stoudt were quickly apprehended, charged, and have pled guilty to their crimes.

After defendants failed to pay the balance of $3,800 owing to plaintiff on the original contract, or any part of the $9,500 owed on the oral kitchen renovation contract, plaintiff filed suit against defendants seeking the sum of $13,320. Defendants filed an answer and counterclaim alleging negligence, consumer fraud, and negligent hiring and supervision. Defendants also filed third-party complaints against AVS, an individual named Chris Servilio, Visaggio, and Stoudt seeking damages as the result of the theft.

The matter was eventually settled by the withdrawal by plaintiff of its claim for the $9,500 owed for the kitchen renovation; the payment of $4,000 by plaintiff to counsel for defendants as attorneys' fees; and payments to defendants and their counsel of $2,000 each by plaintiff's insurer on the counterclaim and by AVS. After the settlement was placed on the record, the court found the oral contract between plaintiff and defendants to have violated the Consumer Fraud Act and defendants to have been the prevailing parties on their counterclaim alleging consumer fraud. As a consequence, the court found that defendants were entitled to counsel fees in connection with that claim.

Defendants' attorney filed a counsel fee application in which she sought fees in the amount of $44,288.29 and costs of $2,638.29. Opposition to the application was filed, and the matter was heard by the trial court, which determined that $5,000 was the fair and reasonable value of services performed by counsel in connection with the consumer fraud claim. Costs of $1,000 were also awarded. The court attributed the remaining fees and costs to the pursuit by counsel of claims unrelated to the alleged consumer fraud. This appeal followed.

We will disturb a decision on a fee application such as this only upon evidence of a clear abuse of discretion. Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 443-44 (2001). We find no such abuse in this case. In reaching its determination on the award, the court gave consideration to the requirement that reasonable attorneys' fees and costs be awarded to the party prevailing on a claim of consumer fraud. N.J.S.A. 56:8-19; see also Cox v. Sears Roebuck & Co., 138 N.J. 2, 24 (1994); BJM Insulation v. Evans, 287 N.J. Super. 513, 517 (App. Div. 1996). The court also appropriately recognized the necessity, in this case in which defendants presented several distinct theories of recovery against multiple parties, premised on different factual allegations of fault, of identifying those fees attributable to pursuit of defendants' consumer fraud claim and awarding counsel fees for work based on that claim alone. Silva v. Autos of Amboy, 267 N.J. Super. 546, 556 (App. Div. 1993); 49 Prospect St. Tenants Assoc. v. Sheva Gardens, 227 N.J. Super. 449, 470 (App. Div. 1988).

We are satisfied that, within these confines, the court gave appropriate weight and consideration to the factors identified by the Court in cases such as Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 20-24 (2004) and Rendine v. Pantzer, 141 N.J. 292, 334-37 (1995) and in RPC 1.5(a) as relevant to a consideration of a fee application. Despite the deficiencies under R. 4:42-9(b) in counsel's affidavit of services, the court appropriately segregated those services applicable to the consumer fraud claim and valued them in light of the complexity of the issues presented and the experience of counsel. As the court noted, counsel's efforts were primarily directed to the recovery of the $88,000 stolen from defendants. The consumer fraud claim was a monetarily less significant aspect of the case, simple in its legal nature, particularly after an admission by plaintiff that its contract for kitchen renovations had been oral and thus violative of the Consumer Fraud Act. Although the court recognized the significant time and effort expended by counsel in prosecuting both defendants' counterclaim and the third-party complaint, the court reasonably considered, as well, counsel's level of experience in actions of this sort. In sum, we find the court's consideration of the fee application to have been appropriate, and the fee award to have been reasonable. We find no abuse of discretion to have occurred.

 
Affirmed.

(continued)

(continued)

5

A-4406-04T3

February 21, 2006