In this civil action plaintiff Meyner and Landis, a law firm, sought to recover counsel fees and costs incurred by its client National Westminster Bank NJ in enforcing a $2,000,000 loan agreement against WTW Realty, Inc. Defendants Alan Turtletaub and the Money Store, Inc., were sued in their capacity as absolute and unconditional guarantors of the loan. The claim was based on provisions of the loan and guarantee documents which clearly supported the cause of action.
I previously granted plaintiff's summary judgment request against these defendants in the amount of $5,860.58, which sum reflected the balance due on work performed before the complaint was filed. Defendants paid the judgment. Plaintiff filed and served a notice of motion for the "allowance" of counsel fees and then issued a warrant of satisfaction on the judgment.
Defendants object to the relief requested by plaintiff on the theory that the judgment, its payment, and the issuance of the warrant, concluded the action. This opinion resolves the motion for counsel fees in plaintiff's favor.
The questions presented by the plaintiff's motion, entitled as one for the allowance of counsel fees, are: (1) may it be treated as a motion to vacate the satisfaction of judgment and grant relief from the judgment (R. 4:50)? (2) should such relief be granted in the peculiar circumstances of this case?
Plaintiff's initial motion for summary judgment, granted by this court on March 8, 1991, provided factual support only for legal fees and costs incurred by its client prior to institution of this action in the amount of $5,860.58. However, the complaint clearly sought legal fees and costs for this action. The form of order, submitted in open court by plaintiff, in pertinent part read as follows: "ORDERED that summary judgment be and the same is hereby granted in favor of plaintiff Meyers and Landis and against defendants Turtletaub and the Money Store, jointly and severally on plaintiff's complaint in the amount of $___ and attorneys fees in the amount of $___ and post-judgment interest thereon pursuant to R. 4:42-11(a)." Since there was no affidavit or other proof in support of the counsel fees request, I struck that provision and entered the judgment for the aforesaid $5,860.58. This, too, was done in open court in the attorneys' presence on March 8, 1991. Later the same day plaintiff began preparing a notice of motion for counsel fees, while at the same time advising defendants' attorney during a telephone conversation that upon receipt of a check in the amount of $5,875.76 (apparently representing the judgment plus post-judgment interest) a warrant for satisfaction of the judgment would be provided.
On March 18, 1991, plaintiff received and deposited defendants' check and filed the notice of motion for counsel fees which is now before me. Defendants' attorney received the notice of motion on March 20, 1991, and again discussed the
matter by telephone with an attorney in plaintiff's office who reiterated that he would provide a satisfaction of the judgment, while continuing to assert his firm's right to the additional fees and costs sought in the subject notice of motion.
On March 21, 1991, plaintiff forwarded to defendants' attorney a warrant to satisfy judgment which read as follows:
TO THE CLERK OF THE ABOVE NAMED COURT:
WHEREAS, Judgment was entered in the above entitled action in favor of plaintiff Meyner and Landis against Alan Turtletaub and The Money Store, Inc., jointly and severally, by the record thereof as Docket No. ESX-L-12949-90. NOW THEREFORE this is your warrant and authority to enter on the ...