HILLCREST GARDEN, INC v. VICTORIAN FLORIST, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0492-09T1

HILLCREST GARDEN, INC.,

Plaintiff-Appellant,

v.

VICTORIAN FLORIST, INC. a/k/a

WAYNE VICTORIAN FLORIST &

MARIE H. MARTIN,

Defendants-Respondents.

____________________________________

October 22, 2010

Argued October 13, 2010 - Decided

Before Judges Wefing and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Passaic

County, No. DC-8910-09.

Arthur J. Raimon argued the cause for

appellant (Morgan Melhuish Abrutyn, attorneys;

Mr. Raimon, of counsel and on the brief).

Respondents have not filed a brief.

PER CURIAM

Plaintiff Hillcrest Garden, Inc. appeals from a trial court order that entered judgment against defendants but denied its application for counsel fees.1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

In April 2007, defendants submitted an application to plaintiff for an open line of credit and plaintiff, after reviewing the financial information provided, granted the application. Defendants, however, did not remain current in their payments, and plaintiff eventually sued defendants to collect the sum of $4,375.99, the balance due for goods defendants had purchased from plaintiff. Defendants did not appear, and a default judgment for that amount, together with costs, was entered.

In connection with the entry of that judgment, plaintiff sought counsel fees in accordance with the following provision included in the credit application defendants had executed:

PERSONAL GUARANTEE: I/WE INDIVIDUALLY, JOINTLY AND SEVERALLY PERSONALLY GUARANTEE FULL AND PROMPT PAYMENT OF ALL INDEBTEDNESS INCURRED FOR MERCHANDISE FURNISHED BY HILLCREST GUARDEN [SIC] INC., INCLUDING FINANCE AND SERVICE CHARGES. IN THE EVENT IT BECOMES NECESSARY TO REFER THIS ACCOUNT TO AN ATTORNEY FOR COLLECTION, I/WE AGREE TO PAY ALL COSTS OF COLLECTION INCLUDING REASONABLE ATTORNEY'S FEES OF 25% OF THE THEN UNPAIDED [SIC] BALANCE DUE.

The trial court returned the executed judgment but did not include a 25% counsel fee. Counsel, thinking the omission had been inadvertent, contacted the court's chambers and learned the omission was deliberate. At counsel's request, the trial court entered an amended order which noted that the request for counsel fees was denied because no affidavit of services had been submitted. Rather than submit an affidavit of services, this appeal followed.

Plaintiff argues on appeal that where a request for counsel fees is made in a collection matter such as this, premised on a contractual provision calling for a flat percentage counsel fee, no affidavit of services is required. Rather, it contends, the function of the court is merely the ministerial one of entering the mathematically correct sum.

We are unable to agree. The trial court remains ultimately responsible in all situations to determine that the requested fee is reasonable under the entirety of the circumstances. A court is not relieved of that responsibility because of preprinted language contained in a business form. If counsel seeks the imprimatur of a court order directing payment of fees, counsel must establish that those fees are reasonable. Cohen v. Fair Lawn Dairies, Inc., 44 N.J. 450, 451-52 (1965); Belfer v. Merling, 322 N.J. Super. 124, 141 (App. Div. 1999) (noting that "any fee arrangement is subject to judicial review as to its reasonableness").

The order under review is affirmed.

1 The order denied plaintiff's application "without prejudice." Despite the facial interlocutory nature of the appeal, we elect to deal with its merits and thus, sua sponte, grant leave to appeal.