On appeal from the Superior Court, Law Division, Middlesex County.
Judges King, R.s. Cohen and Stern. The opinion of the court was delivered by Stern, J.A.D.
This is a landlord-tenant dispute arising out of a townhouse rental. Plaintiff tenants filed suit against defendant landlords seeking to recover their $1500 security deposit, a $1500 penalty pursuant to N.J.S.A. 46:8-21.1, attorney's fees, court costs, and interest. The suit was filed in the Law Division.
In their counterclaim, defendants alleged plaintiffs' waterbed was "load[ed] over and above the design criteria", so as to cause structural damage, requiring $3,500 in actual repairs, and the voiding of the townhouse's warranty under the New Home Warranty and Builder's Registration Act, thereby allegedly causing a $20,000 depreciation in the unit's value. At some point during the lease term, plaintiffs put a waterbed in the townhouse, an item not specifically proscribed by the lease. On October 25, 1986 plaintiff Evelyn Thomas signed an agreement with the defendants stating that she would "not hold [the] landlords responsible for any mishaps that occur from or with my waterbed."
At the close of the defendants' case, the trial judge dismissed the defendants' counterclaim due to the absence of proofs, and granted judgment for the plaintiffs in the amount of $3,000. The trial judge subsequently awarded counsel fees to the plaintiffs in the amount of $3,500 plus $296 in disbursements. Hence, judgment was entered for plaintiffs in the aggregate amount of $6,796.00 with "costs to be taxed."
[At the request of the Appellate Division, its opinion has been edited for publication. After reciting the facts, the Appellate Division's opinion upheld the plaintiffs' recovery of the security deposit and penalty, and the dismissal of defendants' counterclaim. The opinion thereafter considered the counsel fee issue:]
Finally, defendants contend that the trial judge erred in awarding plaintiffs' counsel $3,796 in attorney's fees. As noted, N.J.S.A. 46:8-21.1 provides that in actions for return of security deposit the court, upon finding for the tenant, "shall award . . . full costs of any action and, in the court's discretion, reasonable attorney's fees." In granting the fees, the trial judge reviewed the affidavit of plaintiffs' counsel detailing the services rendered and concluded:
The records reflect over 70 hours of time, the majority expended by Cynthia Lee Curtis, billed at $85 per hour. The application is for $4,500 plus disbursements.
I cannot award that amount, in light of the fact that the judgment is only for $3,000.
I agree with counsel that extra time must have been required because of the voluminous documentation provided by and requested by the Saijwanis, the form and style of pleadings, and correspondence were difficult to analyze.
While I appreciate their conviction that they should have prevailed, I cannot change my conclusions at the time of trial, and nor can I permit them to not compensate Deutch, Shur and Nord for counsel fees to which they are entitled.
I'm going to award them $3,500 in counsel fees, plus the $296 disbursements.
The defendants challenge the amount of the award and the statutory authority for same. Defendants argue that N.J.S.A. 2A:6-1a provides that N.J.S.A. 22A:2-42, a statute applicable to awards of attorney's fees in the former County District Courts, controls notwithstanding the merger of ...