On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Petrella, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.
[230 NJSuper Page 556] This case concerns the standards to be applied in setting counsel fees in a Magnuson-Moss consumer action.*fn1 In January
1983, General Motors Acceptance Corporation (GMAC) sued Stanley Jankowitz for alleged breach of a retail installment contract respecting his purchase of a 1982 Cadillac Coupe De Ville from respondent Potamkin Cadillac Corporation (Potamkin).
Jankowitz answered, counterclaimed, and filed third-party complaints against General Motors Corporation and Potamkin. He asserted claims by reason of substantial defects in the Cadillac which remained unremedied despite extensive unsuccessful attempts at correction. There was a reasonable amount of pretrial motion and discovery activity. Two years after suit began, Jankowitz's present attorneys were substituted into the case.
The unhappy tale of this ill-starred Cadillac is set forth at length in G.M.A.C. v. Jankowitz, 216 N.J. Super. 313 (App.Div.1987), and need not be repeated. We there reversed and remanded judgments of involuntary dismissal against Jankowitz on his counterclaim and third-party complaint. GMAC's money judgment for deficiencies, interest and counsel fees was also reversed.
On remand, Jankowitz prevailed in a trial limited to the issue of liability. Thereafter, based upon briefs, affidavits of legal services and oral argument, the trial judge entered judgment in favor of Jankowitz and against GMAC in the amount of $1,502.20 for damages and prejudgment interest, and against Potamkin in an aggregate amount of $4,405.73. Jankowitz was also awarded counsel fees against Potamkin in the amount of $3,500, inclusive of services rendered by his present attorneys before and during both trials, as well as on the successful appeal. An application to permit Jankowitz to present additional affidavits covering the legal services rendered prior to the substitution of his present attorneys was denied.
On appeal Jankowitz says that the trial judge erred in limiting the award of counsel fees to $3,500.
The affidavit of services provided by Smith and Fenmore, Esquires, reliably detailed 85 hours of services rendered in connection with the first trial, 28 1/2 hours of time for preparation of Notice of Appeal and appellate brief in the first appeal, and 52 1/2 hours of time in connection with the second trial.
According to the supporting affidavit, the billings did not include travel, correspondence or telephone conference time. Hours were billed at the rate of $100 for 113 1/2 hours, and at $110 for the 52 1/2 hours engendered by the second trial. The affidavit requested an order for counsel fees and documented costs in the total sum of $18,868.92.
Jankowitz's authority for requesting attorneys' fees was set forth in our prior opinion:
Since an action for breach of an implied or expressed warranty under the UCC is a cause of action under the Magnuson-Moss Warranty Act, 15 U.S.C.A. 2304(e), attorneys fees may be collected for UCC warranty actions in a state court. 15 U.S.C.A. § 2310(d)(1), (2). [ G.M.A.C. v. ...