ALLIED OIL CO., LLC v. V. DiIORIO & SON, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5913-04T35913-04T3

ALLIED OIL CO., LLC,

Plaintiff-Appellant,

v.

V. DiIORIO & SON, INC.,

Defendant-Respondent.

______________________________________

 

Submitted June 7, 2006 - Decided June 30, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County,

L-1722-02.

Steven H. Fleischer, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals that portion of the entry of judgment dated April 28, 2005, denying plaintiff's application for attorney's fees. We affirm.

This matter arises out of a commercial credit application defendant executed on September 11, 1998, in which defendant sought delivery of fuel oil. Included in the terms of the agreement was a provision for the recovery of reasonable attorney fees in the event defendant failed to comply with the terms of the agreement:

Default means we can demand immediate payment of the full balance. If we refer collection of the balance to a lawyer or collection agency, you agree to pay all reasonable fees plus any court costs.

On October 9, 2002, plaintiff commenced an action in the Law Division, alleging that defendant failed to pay for a series of fuel oil deliveries. Defendant filed a two-count counterclaim alleging that the deliveries were "faulty, improper, and not in accordance with the standards in the industry," as well as a violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Following a bench trial, the trial court made findings of fact and conclusions of law that resulted in the entry of judgment in favor of plaintiff in the amount of $11,283.70. The court dismissed defendant's counterclaim and denied plaintiff's counsel fee application. Plaintiff's appeal is limited to the denial of the counsel fee application.

The court addressed the counsel fee application

twice:

The counsel fee issue is addressed by really -- knowing Mr. Fleischer, in a two sentence paragraph in his submission relying on the commercial application filled out by Mr. DiIorio. While not addressed by Mr. Sasso, the court is not inclined to grant counsel fees.

. . . .

[T]he court is not inclined to grant counsel fees, particularly in this instance where the counsel fees are far in excess of the amount claimed by the plaintiff, notwithstanding the face language on that so-called application for credit, P-1.

On appeal, plaintiff contends the trial court gave short shrift to the fee application and that an award of counsel fees is entirely appropriate where expressly provided in an agreement between contracting parties, unless otherwise prohibited by public policy. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569-70 (1999).

New Jersey follows the "American Rule," that parties to litigation are generally responsible for their own counsel fees. In re Estate of Vayda, 184 N.J. 115, 120 (2005). However, counsel fees may be allowed where the parties have agreed thereto in advance by stipulation in a promissory note, power of attorney, other agreement or contract, or where there is a statutory or contractual indemnity so providing. Satellite Gateway Comm'ns v. Musi Dining Car Co., 110 N.J. 280, 286 (1988). The award of the fee is limited to those reasonable under the circumstances and does not automatically encompass the full fee charged. See N. Bergen Rex Transp., supra, 158 N.J. at 570-74 (case remanded for a reduction where the trial court had awarded 100% of the fees sought to plaintiff, although plaintiff prevailed on only 51% of its claims).

R. 4:42-9(b) requires that:

all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought.

RPC 1.5 provides, in part:

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent.

Here, the terms of the agreement called for the recovery of reasonable counsel fees in the event of default, but the trial court declined to award fees, even though judgment was entered in plaintiff's favor. While the trial judge's reasons for denying the application were not set forth in the clearest of detail, we glean from the record that the trial court's decision was influenced by the deficiencies contained in plaintiff's counsel's certification and the fact that the fee award sought exceeded the damages awarded.

The fact that a counsel fee award may be disproportionate to the damages awarded is not a bar to recovery of reasonable counsel fees. Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 437-38 (App. Div. 2001). Rather, it is but one factor in the overall analysis of the fee application. Id. at 438. We are convinced, however, that plaintiff's counsel's certification fell well short of the requirements of R. 4:42-9(b) and RPC 1.5. Very little, other than the time and nature of the work, was provided to the court to assist in its determination of the reasonableness of the fees sought. For example, counsel's certification did not indicate whether anyone other than himself worked on the file. He stated, "The attached bills are an accurate record of the time spent by my firm on this matter." This statement certainly suggests that other persons worked on the file. In addition, the certification does not set forth the experience level of counsel or any other attorney who may have worked on the file; nor does the certification detail that the billing rate is the customary billing rate for an attorney of similar skill and experience in the community.

In light of these deficiencies, we find no error in the trial court's denial of plaintiff's counsel fee application. We are satisfied the record supports the trial judge's decision.

Affirmed.

 

(continued)

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A-5913-04T3

June 30, 2006