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Silva v. Autos of Amboy Inc.

Decided: October 25, 1993.

NYDIA SILVA, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
AUTOS OF AMBOY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, INDIVIDUALLY AND T/A CENTURY CHEVROLET, CENTURY CHEVROLET, CARL OLIVEIRA AND AL BEYROUTY, INDIVIDUALLY AND AS OFFICERS AND EMPLOYEES OF CENTURY CHEVROLET, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND MIDLANTIC NATIONAL BANK, A BANKING ORGANIZATION DOING BUSINESS IN NEW JERSEY, DEFENDANT



On appeal from the Superior Court, Law Division, Middlesex County.

King, Havey and Rodriguez. The opinion of the court was delivered by Havey, J.A.D.

Havey

In this action instituted under the New Jersey Consumer Fraud Act (Act), N.J.S.A. 56:8-1 to -60, the trial Judge divided plaintiff's adjusted counsel fee demand by the number of counts in plaintiff's complaint and awarded a fee in the amount of $1,232.50. We reverse. Such a mechanical approach is contrary to the spirit and underlying remedial purpose of the Act. When separate claims in a complaint share a common core of facts with the consumer fraud claim, or are based on related legal theories, the trial Judge, when awarding fees, must focus on the significance of the overall relief obtained by plaintiff in relation to the hours reasonably expended. We exercise our original jurisdiction, Rule 2:10-5, and enter an award of $4,500, plus costs of suit.

Plaintiff filed a seven-count complaint against defendants Autos of Amboy, Inc., Century Chevrolet (Century), Carl Oliveira, Al Beyrouty and the Midlantic National Bank (Midlantic). Her claims arose as a result of her purchase of a 1989 Chevrolet Blazer from Century's showroom in South Amboy. In count one, plaintiff

alleges that defendants committed consumer fraud by: concealing the terms of a rebate and a federal price label; selling the Blazer for more than the labeled price; engaging in "bait and switch"; and concealing facts relating to and overcharging for life and disability insurance. In the remaining counts she asserts common-law fraud, technical violations of the Act and its attendant regulations, and violations of federal labeling statutes. In counts six and seven, plaintiff advances her claims against Midlantic, the assignee of her Retail Installment Sales Contract. The allegations in all seven counts relate to the sale of the Blazer to plaintiff. Plaintiff sought compensatory, punitive and treble damages, as well as costs, counsel fees and interest.

Prior to trial all of plaintiff's claims against all defendants were dismissed except for those based on fraud in the execution and alteration of the sales documents. Midlantic successfully moved for summary judgment dismissing the complaint against it, except for its potential vicarious liability based on Century's purported fraudulent conduct. Plaintiff voluntarily dismissed her punitive damage claim against all defendants.

At trial, plaintiff testified that a Century salesperson agreed to sell the Blazer to her for $17,000. When Beyrouty, a salesman, wrote $17,000 on the written agreement, she signed it. However, she admitted that no one from the dealership signed the agreement with the $17,000 purchase price. When plaintiff later returned to the showroom after visiting her bank, she met with a Century salesman who advised her that the price of the Blazer was $19,000. Plaintiff signed the agreement with the $19,000 purchase price. She explained she did so when Oliveira, Century's sales manager, told her to "sign a whole bunch of papers . . . all folded down." Plaintiff also testified that no one from the dealership explained to her that there was an additional $350 charge for undercoating, rust-proofing, paint sealant and fabric guard.

The jury found that Century violated the Act by overcharging plaintiff $350 for "equipment and services plus sales tax." However, it rejected her claim of a $2,000 overpayment on the contract

price. Pursuant to N.J.S.A. 56:8-19, the trial Judge trebled the damage award and entered judgment in plaintiff's favor in the amount of $1,113.

After entry of judgment, plaintiff moved for counsel fees and costs, submitting her counsel's certification of services requesting $16,968 in fees (70.7 hours multiplied by a rate of $240 per hour), and $729.23 in costs. The trial Judge first reduced the total hours expended, 70.7, by subtracting 21.4 hours which plaintiff's counsel had spent awaiting trial calls. He did so because plaintiff did not appear at the first trial call. The Judge then reduced counsel's hourly rate from $240 to $175, noting that the issues "were not complicated." Finally, he determined that counsel was entitled to compensation only for one-seventh of the remaining 49.3 hours. Relying on 49 Prospect Street v. Sheva Gardens, 227 N.J. Super. 449, 547 A.2d 1134 (App.Div.1988), he concluded:

[T]he only equitable way to determine a pro rata proportion of attorney fees spent on that issue is by dividing it among the counts of the complaint. This was a seven-count complaint. One count was justified by a verdict of the jury. And therefore what I'm doing is taking one-seventh of the requested legal fee as adjusted, being mindful of the fact that I have adjusted it ...


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