SCOTT STREETER v. FRATESI MASONRY & GENERAL CONTRACTOR, L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3406-09T3

SCOTT and SANDRA STREETER,

Plaintiffs-Appellants,

v.

FRATESI MASONRY & GENERAL

CONTRACTOR, L.L.C. and MICHAEL

FRATESI,

Defendants-Respondents.

_____________________________

August 10, 2011

Argued March 21, 2011 - Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of

New Jersey, Law Division, Special

Civil Part, Somerset County, Docket

No. DC-0948-08.

Kevin C. Grubb argued the cause for

appellants.

Richard J. Guss argued the cause for

respondents (DiFrancesco, Bateman, Coley,

Yospin, Kunzman, Davis & Lehrer, P.C.,

attorneys; Mr. Guss, on the brief).

PER CURIAM

Plaintiffs Scott and Sandra Streeter filed a complaint to recover their $8433 deposit on a home improvement contract from defendants Fratesi Masonry & General Contractor, L.L.C. and its principal Michael Fratesi. The Streeters cancelled the contract before the work commenced and demanded return of their deposit. When defendants did not comply, the Streeters filed a complaint in the Special Civil Part that included an allegation that the defendants did not comply with the Division of Consumer Affairs' home improvement practices regulations, N.J.A.C. 13:45A-16.1 to -16.2, and thereby violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.

On September 18, 2008, the judge entered partial summary judgment on liability in favor of the Streeters and against Fratesi Masonry but not Fratesi individually. Final judgment was entered on November 6, 2008. The Streeters appeal from post-judgment orders awarding counsel fees for services rendered by their attorney to enforce the judgment.1 They contend the judge did not provide an adequate statement of reasons justifying the amount of fees awarded. We agree and remand.

The judgment entered on November 6, 2008 awards the Streeters $7923.18 in damages, $13,000 in counsel fees and costs. Pursuant to N.J.S.A. 22A:2-42, costs include a statutory fee. It is now undisputed that the statutory fee should have been $173.46 and the costs $66. A notice of docketing issued on November 18, 2008, overstates the statutory fee as $433. Consequently, the total judgment, which should have been $21,162.46, was misstated in the November 18 notice as $21,422.46. Collection efforts were complicated, among other things, by the Streeters' attorney repeatedly overstating the judgment amount.

On June 24, 2009, the judge granted the Streeters' motion to enforce litigant's rights. The motion was not opposed. The order states that Fratesi Masonry is in violation of litigant's rights and directs it to furnish answers required by an information subpoena. The order provides that counsel fees are awarded on the motion but does not state the amount; the Streeters' attorney requested $843.30.

Prior to the issuance of the June 24 order, specifically on June 18, 2009, the Streeters' attorney received four checks from Fratesi Masonry, each in the amount of $5000, toward payment of the judgment. The four checks bore four separate dates between June 12 and September 11, 2009.

The Streeters' attorney continued efforts to collect the balance of the judgment, which, by September 2009, was $1,422.46 plus interest. A warrant for Fratesi's arrest was issued on September 8, 2009, because he failed to respond to the information subpoena.

On November 15, 2009, the Streeters' attorney filed a motion seeking "enhanced attorneys' fees pursuant to the consumer fraud act" and Tanksley v. Cook, 360 N.J. Super. 63, 66 (App. Div. 2003). The attorney asserted that his firm had charged the Streeters $9,300.25 in fees and costs since the judgment was entered on November 6, 2008.

Although the November 15, 2009 notice of motion did not include a request for a calculation of interest that had accrued to date, there was a request for that relief in the attorney's certification. The supporting certification includes an interest calculation purportedly done pursuant to Rule 4:42-11(a)(iii); that Rule calls for "simple interest." Nevertheless, the attorney's detailed and obviously time-consuming calculation of interest was based on the erroneous assumption that interest was to be compounded, resulting in an increase in the amount of the judgment each month. The interest calculation was also based on an overstatement of the judgment amount.

On December 14, 2009, the judge entered an order denying the November 15 motion. That order directs the Streeters to re-file the motion, calculating interest on the amount of the damage award only, excluding the $13,000 counsel-fee award. Cf. R. 4:42-11(a) (providing for simple interest that includes interest on costs and counsel fees).

The Streeters moved for an order "reaffirming judgment award" on December 22, 2009. The certification submitted in support of that motion calculates interest on the amount of the damage award as directed by the judge, but the calculation again compounds the interest. In addition, in calculating the total amount due and owing to his clients, the Streeters' attorney again overstated the total judgment amount.

On the December 22 motion, the Streeters' attorney sought additional relief an order indicating the judge had awarded a $8,594.24 fee in the order entered on December 14, and a supplemental award of fees and costs for work done since entry of the December 14 order.

By order dated February 8, 2010, the judge denied all relief requested in the December 22 motion. Reasoning that post-judgment interest is not calculated by the court and that the Streeters had overstated the judgment amount, the judge denied the request to calculate the interest as of the date of the motion. The judge clarified that the total judgment awarded, including statutory fees and costs, was $21,162.46, not $23,096.90 as erroneously stated by the Streeters' attorney. In addition, the judge denied the Streeters' counsel-fee request "without prejudice," explaining that he did so because the attorney had not re-filed the request in accordance with his prior order.

On March 23, 2010, the Streeters filed a notice of appeal from the February 8, 2010 order. On April, 26, 2010, the judge wrote to the clerk of this court to advise that the February 8 post-judgment order was not final because he had denied counsel fees without prejudice. Our clerk's office permitted the appeal to be held in abeyance pending a final order rather than dismiss it as interlocutory.

On August 19, 2010, the Streeters' attorney again moved in the trial court for an enhanced fee; this time the attorney requested $27,832.37 for post-judgment legal services and costs. The judge awarded $2,726.25. The judge explained:

I have reviewed all of plaintiff's submissions in attempting to determine which of plaintiff's post-judgment activities were "reasonably related to the goals of gaining or ensuring the defendant's compliance with the judgment." Tanksley, supra, 350 N.J. Super. [at 67]. Plaintiff here could have ensured defendant's compliance with the judgment simply by properly refil[]ing the original motion for post-judgment attorney fees as directed by this court in the December 14, 2009 order. Therefore, after closely reviewing plaintiff's itemized bills, I have excluded unnecessary and excessive hours, including those incurred in the aftermath of the December 14, 2009 order, in determining plaintiff's proper award for post-judgment attorney fees. After calculating the fees in such a manner the [c]ourt has found that plaintiff is entitled to $2,726.25 in post-judgment attorney fees and costs under N.J.S.A. 56:8-19 for a total attorney fee of $15,726.25. Plaintiff is entitled to post-judgment interest calculated with the [two] percent enhancement as required by R. 4:42-11(a)(iii) which equals $5,299.96. Therefore, plaintiff's motion for post- judgment attorney fees under N.J.S.A. 56:8-19 is hereby GRANTED in the amount of $2,726.25. The application for interest is hereby GRANTED in the amount of $5,299.96.

Thereafter, the Streeters' attorney filed an amended notice of appeal, which references the September 24, 2010 order.

The tortured procedural history and the concomitant expense of this post-judgment litigation was largely, albeit not wholly, attributable to the Streeters' attorney's wasted efforts. Specifically, the Streeters' attorney pursued interim requests for calculations of post-judgment interest on a judgment amount that the attorney should have recognized was incorrect; mistakenly believed that post-judgment interest is compounded; and filed a notice of appeal before the trial judge had adjudicated the question of fees. In this circumstance, the disparity between the fee sought and the fee awarded is not shocking to this court and should not be to the attorney.

That said, we turn to consider the only claim raised on this appeal. The Streeters argue that the judge's findings of fact and legal conclusions are inadequate.

There is no question that the Streeters are entitled to some counsel-fee award for the efforts required to collect the judgment. The CFA provides for an award of fees to successful plaintiffs, N.J.S.A. 56:8-19, and, as the trial judge noted, the consumer is also entitled to an award that includes the reasonable "fees and costs incurred in satisfying the judgment." Tanksley, supra, 360 N.J. Super. at 66.

Determinations relevant to the award of counsel fees are reviewable for abuse of discretion. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009). Our review of this record does not lead us to suspect any abuse of discretion here. Nevertheless, in the absence of a statement from the judge explaining the amount of the total award, a decision affirming the order would rest on nothing other than speculation in light of this court's own weighing of the relevant factors. See generally Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (discussing the importance of findings of fact and legal conclusions relevant to discretionary determinations); Italiano v. Rudkin, 294 N.J. Super. 502, 505-07 (App. Div. 1996) (remanding a counsel-fee determination because the court did not consider pertinent factors). This is not a case in which this court is in a good position to conclude the matter through an exercise of original jurisdiction. R. 2:10-5. This fee determination requires identification of the services and costs reasonably rendered and incurred to collect the judgment and exclusion of fees and costs for efforts directed at collecting more than was due. The judge who ruled on the several post-judgment motions at issue should make those determinations.

The matter is remanded for reconsideration informed by this opinion. We do not retain jurisdiction.

1 They also seek reversal of a partial grant of summary judgment in favor of Fratesi on liability. Regardless of the merits of that claim, see Allen v. V and A Bros., Inc., ___ N.J. ___ (2011), the time to appeal from the November 6, 2008 judgment had long expired when, on October 5, 2010, the Streeters first filed a notice of appeal referencing the September 18, 2008 order on partial summary judgment. R. 2:4-1(a), -4(a). Accordingly, we do not address that claim.