GREGORY SACCO et al. v. JOHN E. MAZIARZ, ESQ., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1847-03T11847-03T1

GREGORY SACCO and

RICHARD W. SACCO,

Plaintiffs-Respondents/

Cross-Appellants,

v.

JOHN E. MAZIARZ, ESQ.,

STUART RODNEY WOLK, ESQ.,

WOLK & MAZIARZ,

Defendants-Respondents,

and

RICHARD HUYKMAN,

Defendant-Appellant/

Cross-Respondent.

 

Argued September 20, 2005 - Decided February 21, 2006

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-564-01.

Richard B. Huykman, appellant, argued the cause pro se.

Thomas L. Ferro argued the cause for respondents/cross-appellants Gregory Sacco and Richard W. Sacco.

Timothy P. O'Brien argued the cause for respondents John E. Maziarz, Stuart Rodney Wolk, and Wolk & Maziarz (Parker, McCay & Criscuolo, attorneys; Mr. O'Brien and Stacy L. Moore, Jr., of counsel; Elena B. Zuares, on the brief).

PER CURIAM

Defendant Richard Huykman appeals from the verdict adverse to him following a jury trial in this legal malpractice and negligence dispute and from the trial judge's denial of his new trial motion. Plaintiffs Gregory Sacco and Richard W. Sacco cross-appeal from the trial judge's denial of their post-trial motion for additur, from the denial of their directed verdict motion, from the grant of directed verdict in favor of one of the defendants, and from the rulings on attorneys' fees, taxed costs and interest. We affirm in part and reverse in part.

The following facts are relevant to the issues advanced by the parties on appeal. In 1992, Huykman instituted litigation in state court against the Saccos in which he charged them with breach of contract, fraud and civil racketeering in connection with a transaction involving a race horse. In 1993, Arthur Marotta, who is not a party to this litigation, instituted a separate state court action raising breach of contract allegations against the Saccos arising out of similar transactions involving race horses.

In June 1995, each of the Saccos filed for personal bankruptcy protection, thereby staying the state court proceedings which were then still pending. Huykman and Marotta commenced an adversary proceeding in the bankruptcy litigation seeking to prevent the discharge of the debts that had been the subject of the state court actions. On May 6, 1996, and again on September 30, 1996, judgments were entered by the Bankruptcy Court against the Saccos and in favor of Huykman and Marotta based on the failure of the Saccos or their attorney to comply with discovery requirements. Each of those judgments was vacated and the adversary proceeding was reinstated.

Trial in the adversary proceeding was scheduled to commence in June 1999. Shortly prior to that date, the Saccos retained defendant John Maziarz and his law firm, Wolk & Maziarz, to represent their interests in the matter. Trial in the Bankruptcy Court began in July 1999. On August 4, 1999, the parties agreed to settle the issues raised in the adversary proceeding. In relevant part, the settlement agreement included the following terms:

2) Defendants, jointly and severally, admit to a judgment in favor of Richard D. Huykman in the sum of $320,000.00 and in favor of Arthur Marotta in the sum of $150,000.00.

3) The judgments shall be deemed paid in full if the following payments and terms are met.

a) Payment of $25,000.00 by October 1, 1999.

b) Payment of $2,000.00 per month starting October 15, 1999 and for (6) years thereafter. All payments will be made to Richard Huykman, who will be responsible for distribution to Arthur Marotta. All payments shall carry a (10) day grace period at which time if payment is not received, the judgments shall go into effect.

c) Debtors/defendants shall provide to plaintiffs the signed releases between themselves and Rogers and Rossi their prior attorneys in this matter.

d) Defendants shall appear free of charge to testify at future litigation of the plaintiffs should same be required.

e) Debtors/defendants shall provide plaintiffs with their current addresses (not mailing) and business and residence telephone numbers. Contact between the parties shall be limited to what is necessary for legal proceedings.

On August 10, 1999, the Saccos, in accordance with paragraphs 3(c) and 3(e) of the settlement agreement, forwarded the releases and their personal contact information to Maziarz, their attorney. However, because the releases that were being forwarded contained confidentiality provisions as between the Saccos and their former attorneys, they asked Maziarz to advise them about whether their obligations to that previous attorney precluded providing the releases to Huykman and Marotta. Maziarz did not thereafter provide either the releases or the personal contact information to Huykman as required by the settlement agreement. Instead, Maziarz sought permission from the Bankruptcy Court judge to file the releases with him and asked him to decide whether providing the releases to Huykman would violate the confidentiality provision.

Late in September, the Bankruptcy Court judge approved the settlement agreement. On October 20, 1999, the judge denied Maziarz's motion concerning the confidentiality clause, and directed the Saccos to provide the releases that day. In addition, he ordered them to provide "a written statement containing their current home addresses, both physical and mailing, and their current telephone numbers for home and work" no later than October 25, 1999. Within hours of the hearing during which these directives were issued, Maziarz sent Huykman five pages of materials by fax transmission. According to Maziarz's testimony at trial, the first four pages were the release and the final page set forth the contact information. According to Huykman, the page giving the contact information was not provided to him as directed. Instead, he received a copy of a letter he had previously sent to Alan Gorski, an attorney who had earlier represented the Saccos.

On October 31, 1999, Huykman wrote to Maziarz, advising him that he had received the releases as directed but had never been provided with the personal contact information. He enclosed a subpoena pursuant to which he expected to receive documents relating to the personal contact information and relating to the efforts by the Saccos to comply with the Bankruptcy Court's order. According to Maziarz, he did not learn that the contact information had not been received by Huykman until November 1999, at which time he was served with Huykman's motion in the Bankruptcy Court seeking to establish that the Saccos had breached the settlement agreement and requesting entry of the full amount of the judgment. On December 10, 1999, Maziarz provided Huykman with the personal contact information about the Saccos. It is undisputed that by that time, the Saccos had paid Huykman a total of $59,000 toward the agreed upon settlement.

By order dated February 4, 2000, the Bankruptcy Court judge granted Huykman's motion, finding that the Saccos had failed to provide their personal contact information to Huykman as they had agreed. The judge therefore ordered that "[the] confessed judgments are due and payable in full and that judgment be entered against [plaintiffs] Gregory D. Sacco and Richard W. Sacco in the amount of $320,000 to Richard B. Huykman and $170,000 to Arthur Marotta as of Jan. 5, 2000." The judge imposed a sanction on Maziarz in the amount of $275.60 as well.

On January 19, 2001, the Saccos filed their complaint against Maziarz, his partner Wolk, and his law firm Wolk & Maziarz, asserting claims of legal malpractice and breach of contract. In or about February 2001, Huykman approached the Saccos about the outstanding judgment. He proposed an agreement with the Saccos pursuant to which he would assist them in their malpractice claim against Maziarz in exchange for which the Saccos would agree that any sums that they recovered from that litigation would be paid to Huykman to satisfy his judgment against them. The Saccos and Huykman eventually agreed to this plan. Huykman undertook to fund the litigation against Maziarz by selecting and paying for the Saccos' lawyer in the malpractice suit. At the same time, Huykman and the Saccos agreed that the Saccos would make no further payments to Huykman on the judgment beyond the $59,000 that they had paid by then.

On August 27, 2002, Maziarz, who was apparently not aware of the agreement between the Saccos and Huykman, filed a third-party complaint against Huykman. Maziarz asserted that it was Huykman's negligence in failing to alert him in a timely fashion that the personal contact information had not been transmitted that led to the failure of the settlement agreement and the entry of the judgment. Based on those assertions, Maziarz sought contribution or indemnification from Huykman.

Trial commenced in July 2003. In the middle of the trial, the Saccos moved, successfully, to make Huykman a direct defendant. At the close of the Saccos' evidence, they moved for a directed verdict on liability as against the lawyers and the law firm, which was denied. The defendants moved for dismissal of all claims against any of them. All of defendants' motions were denied, with the exception of the motion by Wolk, individually, for a directed verdict in his favor.

After the presentation of all of the evidence, the jury was asked to evaluate the claims as between Maziarz and Huykman by using a comparative negligence analysis. The trial judge directed that if the jury found for the Saccos, it could award no less than $321,000 and no more than $490,000 in damages, together with $7,732 in specific consequential damages. The trial judge denied a motion by the Saccos to the effect that the jury was required to select one of the two potential damage amounts. The judge also ruled that interest attributable to the $490,000 federal judgment after its entry in the Bankruptcy Court would be calculated by the court following the jury's verdict.

On July 30, 2003, the jury returned its verdict, awarding the Saccos damages in the amount of $431,000 and $7,732, and finding Huykman liable for 97% of the damages, with Maziarz responsible for 3% of the award. Following the verdict, the Saccos filed a motion seeking a variety of relief, including an award of attorneys' fees and costs, interest on the bankruptcy award at federal interest rates, pre-judgment interest on the verdict at state court interest rates and an additur of $59,000 representing the amount that they had paid to Huykman toward the settlement prior to the litigation. Maziarz moved for remittitur. Huykman moved for a new trial and other relief.

The trial judge denied the applications for additur and remittur, for pre-judgment interest, for taxed costs and for a new trial. The judge granted the application for an award of attorneys' fees and litigation costs along with the request for an award of federal interest on the bankruptcy judgment. In a subsequent order dated October 2, 2003, the judge apportioned the attorneys' fees award between Maziarz and Huykman by using the same percentages that the jury had found respecting liability for damages. Huykman's reconsideration motion was denied.

The appeal and the cross-appeal raise a variety of issues, which may be summarized as follows. Huykman asserts that the jury instructions relating to the quantum of damages, to the apportionment of damages, to comparative negligence and to the appropriate time period to be utilized in the jury's evaluation of damages were both confusing and erroneous. He asserts that the verdict of the jury was against the weight of the evidence. He argues that the judge erred in permitting the jury to find him liable for the consequential costs of $7,732 and in awarding attorneys' fees incurred by the Saccos as part of the damages assessed against him. He contends that the court failed to include the dismissal of the fraud count in the judgment, erred in permitting certain testimony offered by Maziarz and exhibited bias against him that inflamed the jury and caused the jury to return an adverse judgment against him, which was unwarranted.

In their cross-appeal, the Saccos assert that the judge erred in denying their motion for a directed verdict against Maziarz and in granting Wolk's motion for a directed verdict in his favor. They argue that the judge erred in denying their post-verdict motion for additur. They challenge the judge's decision relating to both the amount and allocation of their requested attorneys' fees. They dispute the judge's calculations relating to federal interest, the court's denial of their request for an award of pre-judgment interest and the judge's rejection of their request for taxed costs.

I.

We turn first to the arguments raised by Huykman in the appeal respecting the adequacy of the instructions to the jury. Where, as here, a party fails to object to a jury charge at the time it is given and therefore fails to raise the alleged error to the trial court, any challenge to that jury charge is reviewed under the plain error standard. R. 2:10-2; State v. Josephs, 174 N.J. 44, 98 (2002); see State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). In determining whether a jury charge includes plain error, the appellate court must consider whether there exists "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the [moving party] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Afanador, 151 N.J. 41, 54 (1997)(quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Moreover, failure to object to the jury charge at trial raises the presumption that the instructions were adequate, see State v. Macon, 57 N.J. 325, 333 (1971), and that trial counsel perceived no prejudice affecting the plaintiff's substantial rights. See State v. Wilbely, 63 N.J. 420, 422 (1973). In the absence of an unjust result, a party is not entitled to a new trial in these circumstances. See Gaido v. Weiser, 227 N.J. Super. 175, 198 (App. Div. 1988), aff'd, 115 N.J. 310 (1989). In considering allegations of error in the jury charge, as the Supreme Court has held, the "ultimate question is whether, taking the charge as a whole and reading it in context, the jury was misled or inadequately informed." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 194 (1998); see State v. Gartland, 149 N.J. 456, 473 (1997); Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 570-71 (App. Div.), certif. denied, 107 N.J. 48 (1986). With this standard in mind, we have reviewed the charge in its entirety, including those portions of the charge that Huykman contends were in error.

Huykman first argues that the court's analysis of the parameters of the possible damage awards was in error. In addressing this question, the judge reasoned that the jury could award no more in damages than the $490,000 judgment that was entered by the Bankruptcy Court and no less than $321,000 which represented that award less the originally bargained for settlement amount of $169,000. She rejected the Saccos' argument that she should fix damages, concluding that it was for the jury to decide whether or not to believe the Saccos' argument that but for the settlement agreement they would not have been liable to Huykman at all.

On appeal, Huykman argues that the judge should have charged the jury that their award of damages could not exceed $321,000, which was the difference between the judgment and the settlement amount. He contends that it was error for the judge to permit the jury to consider any higher award. We disagree. The judge's analysis as to the possible parameters of the damage award, which was carefully explained to the jury, reflected the theories of all of the parties. The jury was entitled to consider the claim made by the Saccos that, in the absence of the settlement agreement that permitted them to cap their exposure, they would not have paid Huykman anything at all but instead would have prevailed in the adversary proceeding in the Bankruptcy Court. Under these circumstances, the judge correctly permitted the jury to decide as a matter of fact the amount of damages that flowed from the conduct of both Maziarz and Huykman.

Huykman's second assertion concerning the adequacy of the jury charge relates to the judge's comments about the theories of the parties. In short, he contends that the judge erred in failing to marshal the evidence in a fashion most favorable to his position. We reject this argument as lacking sufficient merit to warrant discussion. See R. 2:11-3(e)(1)(E).

Huykman's final assertion concerning the jury charge is that the judge should have instructed the jury that the Saccos themselves were negligent. Huykman contends that the Bankruptcy Court judge so concluded, thus entitling him to such an instruction. We disagree with this assertion. Prior to the close of the evidence, Maziarz moved to have Huykman included as a direct defendant. Huykman did not object and the issues among the parties were realigned accordingly. In that context, the Saccos were required to prove their legal malpractice claims against Maziarz and their negligence claims against Huykman. The comparative negligence charge directed the jury to evaluate the relative responsibility of each of these defendants, that is Maziarz and Huykman, for the loss sustained by the Saccos.

Notwithstanding Huykman's argument on appeal, however, there was no evidence presented at trial to the effect that the Saccos were in any way negligent. The undisputed evidence presented by the parties demonstrated that the Saccos agreed to the terms of the settlement, began to make the payments and forwarded the requested releases to Maziarz promptly with the request to him about the meaning of the confidentiality clause. The undisputed evidence at trial also demonstrated that Richard Sacco had sent the personal contact information to Maziarz in August and that he only learned that it had not been sent to Huykman during the argument on the motion to compel or enforce in the Bankruptcy Court on October 20, 1999. The only evidence presented at trial demonstrated further that Richard Sacco sent the personal contact information to Maziarz again on October 21, 1999, well in advance of the deadline imposed by the Bankruptcy Court judge. On this record, there was no basis on which to conclude that the Saccos were negligent or that their actions in any way bore upon the analysis of comparative liability for the entry of the bankruptcy judgment against them. We reject, therefore, Huykman's assertion that the judge erred in failing to charge the jury on the theory now advanced as to comparative fault on the part of the Saccos.

II.

Huykman's next argument on appeal is that the judge erred in denying his motion for a new trial based on his assertion that the verdict was against the weight of the evidence. In evaluating this argument, we will not reverse the trial court's decision on the motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Moreover, our evaluation

is not limited to a determination of whether the trial court committed an abuse of discretion but, rather, [this court] must make [its] own determination as to whether or not there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record-such as witness credibility, demeanor and the feel of the case.

[Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377-78 (App. Div. 2001).]

In general, we defer to the trial court's determination of the "intangibles" not evident from the trial record, including the court's assessment of the credibility of the witnesses and the so-called "feel of the case," but we undertake to make our own independent evaluation of the ultimate issue of whether a miscarriage of justice has occurred. See Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

Applying this standard, we find no ground on which to afford Huykman relief. The record demonstrates that the trial judge carefully considered the arguments Huykman advanced in his motion for a new trial. The judge explained her reasons for rejecting these arguments and our independent evaluation of the record compels us to do likewise.

Huykman's argument in this regard rests on the assumption that there was insufficient evidence to support the jury's determination that the entry of the judgment against the Saccos was largely his own fault and not the result of Maziarz's malpractice. Although we note that this result may appear at first blush to be remarkable, our review of the entire record compels us to conclude that the apportionment of liability by this jury as between Maziarz and Huykman is well supported by the evidence.

We note, in particular, that there was abundant evidence before the jury that Huykman knew that Maziarz had received the contact information from the Saccos before October 20, 1999, and that Maziarz had sent the Gorski letter as a part of the fax that night in error. There was ample evidence on which the jury could have found as well that Huykman believed that the Saccos would not be able to pay the $169,000 settlement amount. The evidence demonstrates that Huykman intended to take advantage of the lawyer's oversight in an effort to create a cause of action against Maziarz, which Huykman believed would secure payment of damages in the full amount of the original judgment. Huykman himself testified that he approached the Saccos, advised them to cease making voluntary payments on the settlement, told them that he intended to look to Maziarz for damages, hired an attorney to represent them in their suit against Maziarz and continued to pay their attorney to represent them throughout the trial.

Moreover, there was evidence that Huykman's trial testimony to the effect that he was unaware of the oversight by Maziarz until the October 25, 1999 deadline had passed or, in the alternative, that he had called Maziarz to alert him to the oversight on the evening of October 20, 1999 was untrue. While we do not suggest that Maziarz was without fault in failing to adhere to the deadline imposed by the Bankruptcy Court, we find no basis, under the circumstances, on which to overturn the decision of the trial judge rejecting Huykman's motion for a new trial. Rather, we agree with the judge's assessment of the evidence and with the conclusion that the verdict does not represent a miscarriage of justice.

III.

Huykman next raises two assertions concerning the award of damages. First, he contends that it was error to permit the jury to assess the agreed upon sum of $7,732 in consequential damages against him. More specifically, he argues that this sum is contrary to the paragraph in the settlement agreement which obligated the Saccos to assist him in his future litigation without charge. He argued at trial that this sum represents litigation expenses that could not be recovered from him consistent with the terms of the settlement agreement. The judge, construing that agreement, rejected that argument and submitted the issue to the jury.

We discern no error in this ruling. "[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern." Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). Moreover, it is well-settled that the courts may not make "a better contract for the parties than they themselves have seen fit to enter into, or to alter it for the benefit of one party and to the detriment of the other." Schor v. FMS Financial Corp., 357 N.J. Super. 185, 192 (App. Div. 2002)(citing James v. Federal Ins. Co., 5 N.J. 21, 24 (1950)).

The litigation provision in the settlement agreement allowed Huykman to have the Saccos "appear free of charge to testify" in his litigation. The $7,732 legal expense amount in dispute, however, was not a fee for plaintiffs' testimony. Rather, we agree with the trial judge that it represented other expenses the Saccos incurred in connection with the litigation, which fell outside the provision in the settlement agreement.

IV.

Huykman also asserts that it was error for the court to enter an award of attorneys' fees in favor of the Saccos and against him. The relevant facts are as follows. Following the verdict, the trial judge permitted the Saccos to submit their attorneys' fee request by way of certification. Huykman objected, arguing that he could not be responsible for any award of attorneys' fees because the verdict against him was based on negligence rather than on legal malpractice. Maziarz agreed, apparently assuming that any attorneys' fee award would be molded in accordance with the jury's allocation of fault. The Saccos, however, argued that the fees should be assessed against both defendants and that their responsibility should be joint and several. After analyzing the application, the trial judge reduced the requested fees but concluded that the fees should be assessed against defendants in accordance with their respective percentages of liability. She determined that an award of $40,000 in fees and $1,162 in litigation expenses was appropriate, to be borne 97% by Huykman and 3% by Maziarz.

Our review of the record compels us to agree with Huykman that it was error for the court to award attorneys' fees as a part of the judgment against him. We need not discuss in detail the general rule that each party ordinarily bears his or her own attorneys' fees, see, e.g., Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc, 181 N.J. 245, 281 (2004); In re Lash, 169 N.J. 20, 30-31 (2001); or the equally well-settled rule that a judgment based on simple negligence ordinarily will not support an award of counsel fees. Rather, we note that in this matter, only the legal malpractice claim could support an award of attorneys' fees. See Saffer v. Willoughby, 143 N.J. 256, 269-72 (1996). We therefore agree with Huykman that because the verdict against him was not and could not be based on legal malpractice, the award may not stand as to him.

Notwithstanding the foregoing, we discern from the judge's analysis that she had concluded that an award of attorneys' fees was only permissible in accordance with the jury's apportionment of damages. We also conclude that it would be manifestly unjust to require Maziarz, as against whom the jury found only 3% liability, to bear the entirety of the attorneys' fees. See Grubbs v. Knoll, 376 N.J. Super. 420, 431-33 (App. Div. 2005); cf. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 116 (2004). Rather, we conclude that the award of attorneys' fees must be limited to reflect the percentage of fault attributable to Maziarz. We reject as meritless the Saccos' contrary argument in their cross-appeal. We remand this aspect of this matter for correction of the judgment to reflect this reduced attorneys' fee.

V.

Huykman asserts three other arguments on appeal which we conclude are without sufficient merit to require that we address them in detail. See R. 2:11-3(e)(1)(E). His assertion that the judge erred in failing to dismiss the fraud count overlooks the fact that this count was dismissed on the record during the trial at his request and played no part in the jury's deliberations or its verdict.

His assertion that the judge was biased against him and that the jury's analysis of the evidence was tainted by that bias is not supported in the record. Our review of the record demonstrates that the judge exhibited great patience in the face of Huykman's repeated refusals to abide by the court's reasonable directives and that her admonitions to him were made outside of the presence of the jury.

Finally, Huykman's assertion that the judge erred in permitting Maziarz to testify to facts that Huykman believes were untrue is without merit. Huykman's failure to raise an objection to this testimony at trial precludes him from raising this argument on appeal. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).

VI.

We turn to the arguments advanced on behalf of the Saccos on appeal. In summary, the Saccos contend that the trial judge erred in denying their motion for additur, in inappropriately calculating interest due on the Bankruptcy Court judgment, in rejecting their application for pre-judgment interest, in denying their motion for a directed verdict as to Maziarz, in granting a directed verdict in favor of Wolk, in calculating the amount of their application for attorneys' fees, and in rejecting their request for an award of taxed costs. Based on our review of the record, the contentions concerning the motions for directed verdicts as to Maziarz and Wolk are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). We therefore address only the remaining arguments.

The Saccos first argue that the trial court erred in denying their motion for an additur of $59,000 to the jury's verdict. We disagree. Additur permits the court to address "inadequate damages" in the context of a new trial motion. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 n.2 (2001); Woodger v. Christ Hosp., 364 N.J. Super. 144, 149 (App. Div. 2003). It requires a demonstration that the damage award is manifestly unjust. See Baxter, supra, 74 N.J. at 597-98. The record is devoid of any support for this argument in light of the jury's carefully considered award. Rather, the record reflects that the Saccos presented their evidence and testimony in support of their theory that their damage award should include the sum they paid Huykman prior to the entry of the judgment. The jury was free to reach a contrary conclusion.

VII.

The Saccos next argue that the trial court erred in making a post-judgment award of interest. More specifically, they argue that the judge erred in calculating federal interest due them on the underlying judgment entered in the Bankruptcy Court, failed to account for continuing per diem interest on that amount to survive the jury's verdict and erred in denying their application for an award of pre-judgment interest pursuant to our Court Rules. See R. 4:42-11(b). Huykman asserts that the Saccos were not entitled to interest under any circumstances. Maziarz urges us to defer to the trial judge's discretion both as to the federal post-judgment interest and the denial of the award of pre-judgment interest.

In general, we review both awards of interest and calculations of those awards pursuant to an abuse of discretion standard. See Baker v. National State Bank, 353 N.J. Super. 145, 177 (App. Div. 2002). Utilizing this standard, we decline to interfere with the decisions of the trial judge respecting interest. First, the judge correctly permitted the Saccos to recover interest accrued on the Bankruptcy Court judgment. See 28 U.S.C.A. 1961(a); In re Pester Refining Co., 964 F.2d 842 (8th Cir. 1992); Ocasek v. Manville Corp., 956 F.2d 152 (7th Cir. 1992).

Second, she correctly concluded that once the jury reached its verdict and the damages suffered by the Saccos had been fixed through the state court judgment, no further post-judgment interest on that federal judgment would be appropriate. Rather, she correctly concluded that the award would thereafter be entitled to post-judgment interest under our Court Rules. See R. 4:42-11(a).

Third, we agree with the trial judge's decision to refuse the Saccos' demand for an award of pre-judgment interest, see R. 4:42-11(b), since, under the circumstances, an award of both post-judgment federal interest and pre-judgment state-court interest would have been duplicative. See Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 644 (App. Div.), certif. denied, 107 N.J. 148 (1987). Finally, although the judge did not recite the precise method by which she calculated the federal interest award, we find in this record no ground on which to interfere with it.

VIII.

The Saccos further argue that the quantum of the award of attorneys' fees was inadequate. More particularly, they argue that the judge's decision concerning the hourly rate that was appropriate for use in the fee award was "arbitrary, capricious and unreasonable." They contend that the judge should have been guided by unpublished decisions in other matters and by surveys of rates reported in legal periodicals. We, however, find no ground on which to alter her award. In reviewing a trial court's counsel fee determination, we apply a deferential standard; those awards "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 444 (2001)(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

An attorney's application to the court for fees based on hourly rates should sufficiently detail "the nature of the work performed and by whom, as well as the reasonableness of the hourly rate and the hours expended." See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25 (2004). Here, the Saccos object to the court's determination that a reduced hourly rate should be utilized. They argue that the regular rate charged by their attorney was, in essence, the only appropriate one available. We disagree. The judge was entitled to consider the level of experience of the attorney in fixing the rate as a part of the lodestar analysis, see id. at 21-23, but was also permitted to conclude that the matter in dispute did not require representation by an attorney of such extensive experience.

Finally, we reject the Saccos' argument that the judge erred in rejecting their application for taxed costs. The applicable statute invests the trial judge with discretion to make this award, see N.J.S.A. 2A:15-59, and we find no abuse of her discretion on this record. See A.J. Tenwood Assocs. v. Orange Senior Citizens Housing Co., 200 N.J. Super. 515, 530 (App. Div.), certif. denied, 101 N.J. 325 (1985); Greenfield v. Caesar's Atlantic City Hotel, 334 N.J. Super. 149, 153 (Law Div. 2000).

IX.

In summary, we reverse only that aspect of the order and judgment that allocated the award of attorneys' fees in part to defendant Huykman, and we remand for entry of a corrected judgment which shall reflect damages against Huykman exclusive of attorneys' fees and litigation costs. In all other respects, the judgment is affirmed.

 

To the extent that the Saccos also argue on appeal that the trial judge erred in allocating the award of fees as between the defendants based on the percentages as to which the jury found them to be at fault, we need not reiterate the discussion of this issue beyond that which we made in connection with our disposition of the argument respecting attorneys' fees made by Huykman.

(continued)

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A-1847-03T1

February 21, 2006