On appeal from the Superior Court of New Jersey, Law Division, Morris County.
King, Long and Stern. The opinion of the court was delivered by King, P.J.A.D.
This issue here is whether a successful tort claimant, entitled to recover attorneys' fees under the federal "fee-shifting" statute, 42 U.S.C.A. § 1988, may recover prejudgment interest on the attorney fee award. See R. 4:42-11(b). We conclude that the plaintiff may not recover an award of prejudgment interest on attorneys' fees. We reverse.
On January 28, 1986 plaintiff sued the Township of Mine Hill and several police officers for injuries received during the course of an arrest on January 9, 1984. At trial on April 15, 1988 plaintiff recovered a damage award of $7,500 against two officers, Canfield and Oster, for use of "excessive force" during the arrest.
Plaintiff's claim for attorneys' fees at first was dismissed at the trial level. The trial judge concluded that plaintiff recovered on a state tort claim only and was not entitled to benefit of the federal fee-shifting statute. On appeal to this court, we disagreed and concluded in an unpublished opinion (A-4664-87T5) that plaintiff was entitled to attorneys' fees under federal law since his state law claim mirrored a 42 U.S.C.A. § 1988 claim. R. 4:42-9(a)(8). We reversed and remanded to the Law Division judge "to hear and determine plaintiff's application for an attorneys' fee pursuant to 42 U.S.C.A. § 1988 solely against defendants Canfield and Oster."
On remand the judge awarded $32,500 in attorneys' fees. Plaintiff then moved to compel payment of prejudgment interest both on the $7,500 tort recovery and on the $32,500 counsel fee award. He also asked for $650 additional legal fees on the
motion for prejudgment interest. The judge granted plaintiff's applications. Appellants, the police officers, paid prejudgment interest on the verdict of $7,500 without protest and appeal only the award of prejudgment interest on attorneys' fees, by our calculation a sum of about $8,000. Appellants also challenge the award of the $650 fee on the motion for prejudgment interest on the fee aspect.*fn1
As noted, the officers only challenged the award of prejudgment interest on attorneys' fees. They did not challenge the amount of the fee, $32,500, or post-judgment interest thereon. Nor does the plaintiff cross-appeal and claim that the fee award was inadequate in any sense.
We conclude that an award of prejudgment interest on attorneys' fees was inappropriate and without legal or logical foundation under either the federal or state authorities. Our State rules do provide for prejudgment interest on tort damage awards. R. 4:42-11(b).*fn2 However, there is no provision in our State law for an award of attorneys' fees in State-grounded tort actions. See R. 4:42-9.
We find no federal authority to support plaintiff's contention that he is entitled to prejudgment interest on counsel fees.
Several cases hold that a prevailing civil rights plaintiff may recover postjudgment interest on attorneys' fees. See e.g., Gates v. Collier, 616 F.2d 1268, 1278-1279 (5th Cir.1980); Wells v. Hutchinson, 499 F. Supp. 174, 212 n. 54 (E.D.Texas 1980); Johnson v. Summer, 488 F. Supp. 83, 87 (N.D.Miss.1980); Gaulin v. Commissioner of Public Welfare, 401 Mass. 1001, 1001, 515 N.E. 2d 583, 584 (Mass.1987); see also Institutionalized Juveniles v. Sec. of Pub. Welfare, 758 F.2d 897, 927 (3rd Cir.1985); R.W.T. v. Dalton, 712 F.2d 1225, 1234-1235 (8th Cir.1983), cert. den. 464 U.S. 1009, 104 S. Ct. 527, 78 L. Ed. 2d 710 (1983); Vaughns v. Bd. of Ed. of Prince George's Cty., 627 F. Supp. 837, 838-839 (D.Md.1985), aff'd 770 F.2d 1244 (4th Cir.1985). Delay in receipt of payment for services certainly may be considered in computing the basic award of attorneys' fees, Missouri v. Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 2469, 105 L. Ed. 2d 229, 240 (1989), and may warrant an "upward adjustment of the fee" when set by the court after verdict. Brule v. Southworth, 552 F. Supp. 1157, 1168-1169 ...