KUBRA QURESHI v. CINTAS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2703-10T2

KUBRA QURESHI,

Petitioner-Appellant,

vs.

CINTAS CORPORATION,

Respondent-Respondent.

__________________________________

February 15, 2012

Submitted: November 30, 2011 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Department of Labor, Division of Workers' Compensation, C.P. No. 2002-27659.

David Tykulsker & Associates, attorneys for appellant (David Tykulsker, of counsel and on the brief).

Margolis Edelstein, attorneys for respondent (Michael S. Affanato, on the brief).

PER CURIAM

This appeal marks the third time this matter has been before this court. At issue is the amount of attorneys' fees payable by respondent employer when it fails to timely pay the benefits awarded by a judge of compensation. By order dated December 20, 2010, a judge of compensation awarded petitioner $217.05 in fees, plus an additional $247.05 awarded following our first remand. We reverse and in the exercise of our original jurisdiction, we award attorneys' fees in the amount of $3792.50.

Initially, the issues before this court were whether a judge of compensation must award counsel fees in addition to a penalty when an employer failed to make timely payment of temporary disability benefits and the appropriate standard to fashion the award. We held that an award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi1v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010).

By order dated August 4, 2010, the judge of compensation awarded petitioner's attorney "the ordinary 20 percent fee on this which is $247.05." Petitioner filed a notice of appeal and a motion for summary disposition. We granted the motion for summary disposition and remanded for reconsideration of petitioner's fee request. In our November 5, 2010 order (Quereshi II), we noted that the judge of compensation misinterpreted the opinion and failed to follow directions. We stated:

Petitioner Kubra Quereshi and respondent Cintas Corporation move for summary disposition. Petitioner seeks reversal of an attorneys' fee award entered in her favor by a judge of compensation. She claims that the judge of compensation failed to follow this court's directions on remand and applied the wrong standard in determining the quantum of the award. Respondent seeks affirmance of the fee award. It argues the judge of compensation applied the correct legal standard and petitioner failed to properly document her attorneys' fee application. We grant petitioner's motion for summary disposition and deny respondent's cross-motion. The judge failed to follow this court's directions. We, therefore, reverse and remand for consideration of petitioner's fee request consistent with our earlier opinion.

Following issuance of our opinion, petitioner's fee application was heard on August 4, 2010, before the judge of compensation. The judge announced:

The Appellate Division has basically said that the law that allows the penalty requires me to pay an attorney fee starting at the normal ordinary 20 percent and possibly more if that is deemed to be appropriate and they remanded the case to me.

Today, we are resolving the issue since the last line in the Appellate decision says petitioner does not seek any enhancement of the fee as allowed by the methodology. They don't address that. I do not believe that an enhanced fee is appropriate since the petitioner is not seeking it.

I am going to award the petitioner's attorney the ordinary 20 percent fee on this which is $247.05.

When petitioner's counsel commented that he believed the proper methodology was to use a loadstar calculation, the judge of compensation responded: "All right. I recognize that the decision doesn't require it, but it allows it and as a result, that is my decision." The judge entered the order reflecting this decision on August 11, 2010.

Rule 2:8-3(b) allows the summary disposition of appeals where "the issues on appeal do not require further briefs or full record." "The procedure is intended to provide a pre-transcript, pre-argument opportunity for the screening out of appeals whose ultimate outcome is so clear as not to require full perfection and hearing for decision." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:8-3(b) (2011).

The sole issue raised in this appeal is whether the judge of compensation correctly followed the appellate court's instructions on remand. Resolution of that issue requires the court to apply the law as stated in Quereshi v. Cintas Corp., 413 N.J. Super. 492 (App. Div. 2010). This can be accomplished without further briefing or document submissions.

The judge of compensation misinterpreted the court's remarks concerning the applicability of a lodestar enhancement as meaning that petitioner was not entitled to any fees above the 20 percent of judgment afforded by N.J.S.A. 34:15-64. This interpretation is contrary to our holding that the attorneys' fee was not subject to the 20 percent limitation of section 64.

We directed the judge of compensation to calculate a reasonable attorneys' fee in accordance with the standard factors for constructing a fee award. Quereshi, supra, 413 N.J. Super. at 503. Those factors, which are set forth in Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995), and Szczepanski v. Newcomb Medical Center, 141 N.J. 346, 359 (1995), include the hours expended, the attorney's customary hourly rate, the success achieved, and the risk of nonpayment. The judge of compensation considered none of these factors in setting the amount of the attorneys' fee award.

We, therefore, remand for reconsideration of petitioner's fee request. The judge of compensation must consider the Rendine and Szczepanski factors in setting the fee. As noted in our initial opinion, petitioner did not argue in her original appeal for a fee enhancement; we discern no basis to allow a fee enhancement now. We also note that petitioner's fee application is confined to the proceedings in the Division of Workers' Compensation to enforce the award. Fees for services rendered on appeal are governed by Rule 2:11-4.

Reversed and remanded.

Following issuance of this order, the judge of compensation awarded petitioner attorneys' fees in the amount of $217.05 for the work performed in the Division of Workers' Compensation following entry of this court's November 5, 2010 order, plus the $247.05 awarded on August 4, 2010, following issuance of our first opinion on May 28, 2010. The judge of compensation provided the following explanation of his award:

The remand instructs me to confine my consideration of the award to efforts made in this Division by which is meant the Division of Workers' Compensation. Restricting my consideration to those proceedings, I arrived at total attorney time spent of events which took place after 11-5-10, the date of the remand. So I conclude 11-1-10, half an hour[;] 11-9-10, .17 of an hour[;] 11-10-10, 2.17 hours[;] and 11-15-10, .33 of an hour or a total of 3.17 hours. An additional 1.84 hours was spent on 11-12-10 on a certification of John Gelman. First the Gelman certification was signed by Mr. Gelman, so I believe it to be his work and not Mr. Tykulsker. Second, Mr. Tykulsker provided a good deal of other information in his Exhibit C and D to substantia[te] his hourly rate.

It was his choice to ask Mr. Gelman for a certification. He could have substantiated his hourly fee based on the other material he submitted. Accordingly, I am not using the time spent on the Gelman certification in my calculation.

In addition to the above relative to the time spent, I disagree with the petitioner's calculation of hourly rate. While I have no dispute with the petitioner's hourly rate of $450 when applied to workers suits and labor law, it is not applicable to Workers' Compensation practice which as we all know is a unique area of practice with its own customs and usage.

As is known, Workers' Compensation attorneys representing petitioners work on a contingency basis. They customarily receive 20 percent of the money awarded by the Court. While this may be increased under specific circumstances, that is a rare event. I note that the petitioner was awarded a counsel fee for the appeal of $12,500 by the Appellate Division. Based on his calculation at the time spent on the appeal as contained in his application, this works out to $68.47 an hour.

I see no reason to dispute the Appellate Division on its hourly fee decision, and I find the appropriate hourly fee for this work is $68.47. Applying the lodestar for calculating the appropriate fee I take the 3.17 hours, multipl[y] it by $68.47, and find the appropriate fee for this work as directed by the Appellate Division to be $217.05.

The latest order entered by the judge of compensation ignores the clear mandate of our initial published opinion and our November 5, 2010 summary disposition order. In the latter order, we observed that the judge of compensation misinterpreted our original opinion. We will assume the judge of compensation also misinterpreted our November 5, 2010 summary disposition order because the alternative interpretation of the judge's actions -- willful defiance of our mandate -- is completely unacceptable behavior. As state by the Supreme Court in Flanagan v. McFeely, 20 N.J. 414, 420 (1956), "[t]he principle, of course, is settled that the trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written." The result of both orders, however, leaves petitioner without an award of a reasonable attorney's fee for the 2004 penalty application, the August 2010 remand or the December 2010 remand. Under the circumstances presented in this appeal, we invoke our original jurisdiction. See R. 2:10-5; Vas v. Roberts, 418 N.J. Super. 509, 523-24 (App. Div. 2011).

In order to establish a reasonable attorney's fee, we must ascertain the hours expended, the attorney's customary hourly rate, the result achieved for the client, and the risk of nonpayment. Quereshi I, supra, 413 N.J. Super. at 503; see Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 438 (App. Div. 2001). This determination is a quantitative and qualitative review of the work performed by the attorney. This review includes a determination whether the tasks undertaken and hours expended are reasonable. Szczepanski, supra, 141 N.J. at 366; Scullion, supra, 345 N.J. Super. at 437-38.

In his certification in support of his application for a reasonable attorney fee, petitioner's attorney certifies that he expended 5.5 hours to obtain the penalty order. This time included one court appearance. Counsel expended 2.84 hours of attorney time, including one court appearance for the remand required by Quereshi I. He expended another 7 hours of attorney time and 3.25 hours of paralegal time for the remand required by Quereshi II, including two court appearances. In short, counsel for petitioner seeks a reasonable fee for the 15.33 hours he expended in four appearances before the Division of Workers' Compensation and 4.5 hours expended by a paralegal to support the penalty and fee award applications.

We are satisfied that the hours expended are largely reasonable to obtain the penalty award and to seek a reasonable attorney fee award. We disallow the 1.33 hours talking with petitioner, drafting the penalty motion and drafting the January 21, 2004 email to respondent's counsel because petitioner's attorney omitted these items in the 2010 application to the Division. Thus, we find that petitioner's counsel is entitled to an award for 4.5 hours for work related to the 2004 penalty proceeding. We also find that the 2.67 hours expended in association with the August 2010 remand proceeding are reasonable. The seven hours expended by petitioner's attorney on the second remand is also reasonable. Counsel was required to attend two court proceedings. Counsel is also entitled to be reimbursed for time expended by a paralegal to prepare the fee application. We consider 2.5 hours a reasonable amount of time to complete that task. Therefore, we find that counsel for petitioner reasonably expended 14.17 attorney hours and 2.5 paralegal hours in the penalty and remand proceedings.

Finally, petitioner seeks an attorney fee for the motion filed in this court to compel payment of the attorney's fees ordered by this court following issuance of our opinion in Quereshi I. We decline to do so. Our September 8, 2010 order previously addressed this request.

Next, we must determine the appropriate hourly rate. Counsel for petitioner argues that his usual hourly rate is $450 for non-workers' compensation matters, and his paralegal rate is $100. We find that the $100 paralegal rate is reasonable. We have no reason to doubt that counsel's ordinary rate for matters not involving workers' compensation is reasonable. We must, however, examine the nature of the tasks undertaken on behalf of petitioner. None of the tasks were complex; none involved any professional sophistication or expertise other than a realization that petitioner could obtain a penalty for an untimely payment of benefits and her counsel could obtain an award of reasonable attorney's fees. Given the task, we consider $250 an hour a reasonable rate. We, therefore, award $3542.50 for work performed by counsel, and $250 for work performed by his paralegal for a total award of $3,792.50.

1 We note the discrepancy in the spelling of appellant's name in the prior opinion and order and the present case.