IN THE MATTER OF THE ESTATE OF HELEN HAUKE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4103-15T3
IN THE MATTER OF THE
ESTATE OF HELEN HAUKE.
__________________________
Submitted December 14, 2017 – Decided January 29, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Monmouth
County, Docket No. P-000125-12.
Paul R. Hauke, appellant pro se.
Anthony T. Colasanti, attorney for
respondents Thomas Hauke, Richard Hauke and
Gregory Hauke.
PER CURIAM
In this dispute over the distribution of the parties'
mother's estate, Paul Hauke, one of the late Helen Hauke's adult
children, appeals from the Chancery Division's May 20, 2016
order awarding counsel fees in the amount of $76,068.71 to
Anthony T. Colasanti, the attorney for his brothers, Gregory
Hauke, Thomas Hauke and Richard Hauke. The court entered the
order after the parties agreed that all of their counsel fees
would be paid from the estate and Paul1 challenged the accuracy
and reasonableness of Colasanti’s fees. The court awarded the
entire amount of fees and costs requested by Colasanti, without
explaining the reasons for rejecting Paul's challenge to the
amount. On appeal, Paul argues that the court failed to find
that his brothers "refused to abide by the terms of [their]
settlement," and it abused its discretion in awarding the fees
to Colasanti, who should not have been "allowed to bill for
expert witness fees as attorney['s] out of pocket expenses."
We conclude from our review that we are constrained to
vacate the award of fees and remand the matter for
reconsideration because the court did not address the challenge
raised by Paul or issue a statement of reasons as required by
Rule 1:7-4.
The facts giving rise to the estate litigation are not
pertinent to our consideration of this matter. Suffice it to
say, the brothers' disagreement with Paul began before their
mother's death in 2012 and led to their filing a complaint
against Paul on October 11, 2012, alleging undue influence,
1
We refer to Paul Hauke by his first name to avoid any
confusion caused by the parties' common last name.
2 A-4103-15T3
unjust enrichment, conversion and damages to the their mother's
residence.
In January 2016, following two days of trial, counsel for
the parties advised the court that the matter was settled.
Reading from a proposed consent judgment, counsel placed the
terms of the settlement agreement on the record, which included
a provision "that the legal fees incurred by the parties in this
litigation . . . shall be paid by the estate . . . , following
the submission of certification of services to be filed with the
[c]ourt by counsel pursuant to . . . Rule 4:42-9."
In reviewing the terms of the settlement with counsel, the
court took great efforts to make clear that it understood the
settlement was not going to give rise to a new dispute over the
amount of any party's counsel fees. For that reason, the court
wanted counsel to make sure that the parties had some
understanding about the amount of fees and expenses being sought
by each attorney so as to avoid any dispute later. Paul's
counsel responded that it was his understanding that the amount
of each attorney's fees would be fixed by the court after it
considered certifications filed by counsel, and the court
determined "whether or not the fees are appropriate and
reasonable."
3 A-4103-15T3
The court rejected that procedure, finding that it meant
the matter was not settled. It stated:
. . . [W]e're not going to have
certifications back and forth of whether
they're reasonable or not. You know, you
shouldn't have spent three hours preparing,
you should have only spent two. I mean, I'm
not going to do that.
. . . .
This is a settlement. So we're not going to
argue about counsel fees.
. . . .
. . . I think the clients should know the
ballpark figure of counsel fees so I don't
have any objections to that. Because then
the case isn’t settled.
. . . .
But again, have you spoken to your clients
so they have some idea about what these fees
will be. I don't, you know, then the case
isn't settled if we come in and start
arguing about fees. . . . I guess we are
not settled.
[Emphasis added.]
The court recessed to allow the parties to further discuss
the issue of counsel fees. When the court reconvened, Paul's
attorney advised that the parties would come to an agreement
after they reviewed the bills and certifications before
submitting them to the court. Colasanti stated the procedure
was agreeable and that his fee application would include "out of
4 A-4103-15T3
pocket expenses directly related to the litigation." The
parties testified to their agreement to all of the settlement
terms and the court entered their proposed consent judgment.
The consent judgment did not incorporate the provision that
the submissions regarding counsel fees would be made only after
the parties agreed to each attorney's request. Rather, it only
stated that the parties' legal fees would be paid by the estate
"following the submission of Certification of Services to be
filed with the Court by counsel pursuant to . . . Rule 4:42-9."
Despite the judgment's silence on the agreed upon process,
Colasanti submitted his certification of services to Paul's
attorney, who later informed Colasanti that Paul objected to the
amount. Paul's counsel filed a motion to fix the parties'
counsel fees payable from the estate, which included a challenge
to Colasanti's fee request.2 Paul's attorney explained in his
supporting certification that despite the parties' agreement to
attempt to resolve the issue of counsel fees prior to submission
to the court, Paul objected to Colasanti's fee request. Paul
believed that, based on information supplied by Colasanti in his
certification of services and in "the record in this matter,"
Colasanti already received payments towards his fee "in excess
2
Paul's attorney filed his own certification as to his fees,
which the brothers never challenged.
5 A-4103-15T3
of the $20,000" Colasanti claimed he was paid from the estate.
Also, Paul "believe[d] that the fees sought by [Colasanti were]
excessive for the work performed, the amount of the controversy,
and the results achieved." According to his attorney, Paul
requested that the court cap Colasanti's fees at $50,000, "plus
verifiable and documented costs."
Colasanti responded in a certification of services
submitted to the court and dated May 16, 2016. He certified
that his services and disbursements totaled $96,068.71, for
"legal services relating only to the [deceased’s estate]." He
provided a description of the services, the events that caused
additional fees to be incurred, and his hourly rate and expenses
that he paid, including those paid to experts.3 Colasanti also
certified that he was paid $20,000 and requested the court to
award fees for the balance owed in the amount of $76,068.71.
At oral argument on May 20, 2016, Colasanti again confirmed
he was owed $76,068.71, including $8000 for out-of-pocket
disbursements, and stated that it was unfair to ask him to
reduce his fee simply because Paul's attorney had agreed to a
fee reduction. When Colasanti attempted to explain the source
3
Colasanti had represented the brothers in earlier actions
relating to the estate of the parties' father and their mother's
competency. According to Colasanti, his fee application did
"not include legal services related to" those actions.
6 A-4103-15T3
of the $20,000 he received, the court responded it did not "have
time for this[,]" and that the court was "not supposed to be
having hearings on counsel fees." It then awarded Colasanti's
requested fee of $76,068.71, pursuant to the parties' settlement
agreement. It entered its order awarding both attorneys the
amount they requested without reduction or comment upon the
merits of Paul's challenge to Colasanti's fee request.
This appeal followed.
We afford trial courts "considerable latitude in resolving
fee applications." Grow Co. v. Chokshi,
424 N.J. Super. 357,
367 (2012). For that reason, we review a trial court's decision
to award attorney's fees for abuse of discretion. Packard-
Bamberger & Co., Inc. v. Collier,
167 N.J. 427, 443-44 (2001).
We will not disturb the trial court's award of counsel fees
"except 'on the rarest occasions, and then only because of a
clear abuse of discretion.'" Grow Co.,
424 N.J. Super. at 367
(quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)). A trial
court's decision will constitute an abuse of discretion where
"the 'decision [was] made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis.'" U.S. v. Scurry,
193 N.J. 492, 504 (2008)
(quoting Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571
(2002)).
7 A-4103-15T3
Applying these controlling principles, we conclude the
trial court's fee award was the result of an abuse of the
court's discretion as it was made without consideration of the
issues before the court or a decision explaining the court's
reasons for disregarding Paul's challenge to Colasanti's fees
and awarding the full amount requested.
It is evident from the record that the court never
expressly or even implicitly resolved the parties' dispute about
Colasanti's fee request. While we recognize that the parties
settled the case by agreeing to resolve any dispute about
counsel fees, it is equally evident and, considering the history
of the parties' disputes, not surprising that those attempts
failed. With that, the court was obligated to resolve the
dispute by considering and ruling upon the merits of the
disagreement, rather than simply awarding the fees requested,
without further explanation, see R. 1:7-4, because the court
believed it did "not have time" to do so. We discern no urgency
or emergency that prevented the court from taking the time it
needed to properly dispose of the matter the day the parties
appeared or, if necessary, on a later date.
Second, the judgment entered by the court contemplated a
consideration of the parties' counsel fee applications in
accordance with Rule 4:42-9. That process requires the court to
8 A-4103-15T3
consider, among other things, the reasonableness of the fee
sought and any payments received by counsel at the time of the
application. See R. 4:42-9(b); RPC 1.5(a); see also Litton
Indus., Inc. v. IMO Indus.,
200 N.J. 372, 386 (2009); Furst v.
Einstein Moomjy, Inc.,
182 N.J. 1, 21-22 435 (2004) (stating a
fee awarded must be "reasonable," and reasonableness is a
"calculation" to be made in "every case").
While we surmise that the court relied upon the parties'
agreement to agree on counsel fees, even though they failed to
do so, the court provided no legal authority or other reason for
ignoring the dispute despite its obligation to provide a
statement of its reason for its decision. Furst,
182 N.J. at
21-22. The court must "issue[] reasons for its decision, . . .
'stat[ing] clearly [its] factual findings and correlate[ing]
them with relevant legal conclusions, so that parties and th[is]
. . . court [are] informed of the rationale underlying [the
trial court's] conclusion[s].'" Avelino-Catabran v. Catabran,
445 N.J. Super. 574, 594 (App. Div. 2016) (second alteration in
original) (quoting Monte v. Monte,
212 N.J. Super. 557, 565
(App. Div. 1986)).
Under these circumstances, we must remand to the trial
court so that it can reconsider Colasanti's fee application and
issue a decision setting forth its reasons.
9 A-4103-15T3
The order under appeal is vacated and the matter is
remanded to the trial court for further proceedings consistent
with our opinion. We do not retain jurisdiction.
10 A-4103-15T3
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