MALDEN REAL ESTATE v. CYCLE CRAFT, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5022-11T4

MALDEN REAL ESTATE,

Plaintiff-Appellant,

v.

CYCLE CRAFT, INC.,

Defendant-Respondent.

___________________________

February 8, 2013

 

Argued January 30, 2013 - Decided

 

Before Judges Grall and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2052-08.

 

Mark A. Rothberg argued the cause for appellant (Wilf Law Firm, LLP, attorneys; Mr. Rothberg, on the brief).

 

Robert W. Mauriello, Jr., argued the cause forrespondent (GrahamCurtin, P.A., attorneys; Mr. Mauriello, on the brief).

 

PER CURIAM

Plaintiff Malden Real Estate appeals from that part of the May 10, 2012 amended order and final judgment, which awarded counsel fees to defendant Cycle Craft, Inc. We reverse and remand for further proceedings.

The underlying facts relating to this appeal are set forth in Malden Real Estate v. Cycle Craft, Inc., No. A-0798-10 (App. Div. Jan. 6, 2012) (slip op. at 1-4). There, this court affirmed the trial judge's dismissal of defendant's counterclaim for damages under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Id. at 9. This court reversed the denial of defendant's request for counsel fees, and remanded for a determination of the reasonable fees defendant incurred "solely in the effort to enforce its rights pursuant to the settlement order." Ibid.

On remand, defendant filed a motion for counsel fees. In support thereof, defendant's counsel submitted an affidavit of services, seeking a fee award in the amount of $125,972.36. Plaintiff opposed the motion, arguing that defendant's counsel provided no detail or breakdown of fees attributable solely to defendant's effort to enforce its rights under the settlement order, and attached no billing invoices. Defendant's counsel subsequently submitted the billing invoices to the judge for an in camera review but withheld them from plaintiff. Based on the affidavit of services and invoices, the judge awarded defendant $65,000 in counsel fees. This appeal followed.

On appeal, plaintiff contends the judge erred in (1) denying it an opportunity to review the billing invoices; (2) failing to compel defendant's counsel to properly isolate fees attributable solely to defendant's effort to enforce its rights under the settlement order; and (3) exceeding the scope of the remand and awarding an unreasonable fee. We agree with these contentions.

It is error for the court to award counsel fees based solely on an affidavit of services and in camera review of counsel's files without affording the adverse party an opportunity to review those files and examine counsel with respect to the necessity of the services and the reasonableness of the fees requested. Sears Roebuck & Co. v. Nat'l Union Fire Ins. Co. of Pittsburg, PA, 340 N.J. Super. 223, 243 (App. Div.), certif. denied, 169 N.J. 608 (2001); Scott v. Salerno, 297 N.J. Super. 437, 452 (App. Div.), certif. denied, 149 N.J. 409 (1997). Accordingly, we reverse the award of counsel fees and remand for reconsideration after affording plaintiff an opportunity to review defense counsel's files and invoices and, if necessary, examine defense counsel with respect to the necessity of the services rendered "solely in the effort to enforce [defendant's] rights pursuant to the settlement order" and the reasonableness of the fees requested. In determining the amount of the award, the judge shall analyze the factors enumerated in Rule 4:42-9(b) and RPC 1.5, and make factual findings and legal conclusions, as required by Rule 1:7-4.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.