MARGARET SZWED v. DR. RACHNA BAJAJ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0354-07T1

MARGARET SZWED,

Plaintiff-Appellant,

v.

DR. RACHNA BAJAJ, in her

individual and official

capacity, SAMIR BAJAJ, in

his individual and

official capacity, and

SMILE ZONE, P.C.,

Defendants-Respondents.

____________________________________________

 

Argued September 8, 2008 - Decided -

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1408-05.

Kevin M. Kiernan argued the cause for appellant (Kiernan & Campbell, attorneys; Mr. Keirnan and Loretta A. Castrovinci, on the brief).

Anshu Pathak argued the cause for respondents (Pathak & Shah, LLP attorneys; Mr. Pathak and Oscar A. Escobar, Jr., on the brief).

PER CURIAM

Plaintiff Margaret Szwed sought damages against defendants for terminating her employment in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. A jury awarded plaintiff $5689 for lost wages, $8000 for emotional distress, and $1000 for punitive damages, for a total of $14,689.00. Plaintiff does not appeal the jury verdict. She appeals from the order of August 20, 2007 awarding attorney's fees of $30,000 and costs of $1676.49. We remand for further proceedings.

Plaintiff's counsel litigated this matter on a one-third contingent fee basis. The litigation was relatively uncomplicated and included the exchange of written discovery; four depositions; a motion to compel discovery; a motion and cross-motion for summary judgment; a motion in limine; and a four-day trial. After trial, plaintiff's counsel sought a fee of $171,408.29 consisting of: (1) a lodestar of $121,237, representing $35,385 for 101.1 hours devoted by Kevin M. Kiernan, Esq. at $350 per hour, and $85,852 for 330.2 hours devoted by Loretta A. Castrovinci, Esq. at $260 per hour; (2) a 40% contingency fee enhancement of $48,494.80; and (3) $1676.49 for disbursements.

Concluding the hourly rates were reasonable, but the aggregate hours expended were unreasonable, unnecessary, excessive and duplicative, the trial judge reduced the lodestar to $30,000. The judge also did not award a contingency fee enhancement.

"The purpose of CEPA, like that of LAD, . . . is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Tp. Bd. of Education, 138 N.J. 405, 431 (1994). CEPA cases are analyzed using the framework for retaliatory discharge under the LAD. Kolb v. Burns, 320 N.J. Super. 467, 477 (App. Div. 1999). Both CEPA and the LAD allow for fee-shifting of attorney's fees to the prevailing party. CEPA authorizes an award of reasonable attorney's fees and costs to the prevailing party "where appropriate and to the fullest extent possible[.]" N.J.S.A. 34:19-5e.

We will not disturb a trial judge's fee determination unless there is a clear abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Whether there has been an abuse of discretion requires us to review the trial judge's analysis of the fee application. When analyzing a fee application, the trial judge must first "determine the 'lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 334-35. The process requires the judge to "evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application." Id. at 335. Once the lodestar is established, the judge must then determine whether a contingency fee enhancement is appropriate. Id. at 337.

Here, the judge found that the billing for the summary judgment motion, trial preparation and attendance at trial was excessive and duplicative; the requested fee "for an uncomplicated 14 hour trial in light of a $14,676.49 recovery is unreasonable especially in light of the dollar amount billed by plaintiff's counsel"; and defendant's counsel only billed $14,798.00. The judge also referred to plaintiff's unsuccessful LAD claim. However, on the basis of the record established, we cannot reliably access whether the judge did not perform the careful and critical analysis required by Rendine. To be sure, the judge never explained how he arrived at the $30,000 figure and why he rejected plaintiff's request for a contingency fee enhancement. Without more detailed findings, we are unable to determine whether the judge improperly exercised his discretion.

Our remand should not be interpreted as a finding that we agree or disagree with the counsel fee award presented on this appeal; our focus is on the absence of the fact-finding necessary to appropriately review the merits of the exercise of discretion in fixing the fee award.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Plaintiff also claimed defendants violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. This claim was dismissed prior to trial. Plaintiff does not appeal that dismissal.

This amount was a typographical error in the judge's opinion. Defense counsel actually billed $30,422.

(continued)

(continued)

5

A-0354-07T1

October 3, 2008