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Lettenmaier v. Lube Connection

November 13, 1998

KATHLEEN L. LETTENMAIER, PLAINTIFF-APPELLANT,
v.
LUBE CONNECTION, INC., A NJ CORP., TRADING AS LUBE CONNECTION, DEFENDANT-RESPONDENT.



Before Judges Baime and Conley.

The opinion of the court was delivered by: Conley, J.A.D.

[9]    Argued October 21, 1998

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County.

In this special civil part consumer fraud action plaintiff obtained a judgment for $9,240.00, representing her actual damages plus treble damages. In addition, and as part of plaintiff's award under the Consumer Fraud Act, plaintiff sought counsel fees, which, at the time of her motion for reconsideration, totaled $35,686.00. Plaintiff's request for counsel fees over the jurisdictional limit of $10,000.00 was denied. She, thus, was awarded $760.00 for counsel fees, the difference between her $9,240.00 actual and trebled damages and the $10,000.00 jurisdictional limit of the Special Civil Part. She appeals the denial of her full recovery under the Consumer Fraud Act. We affirm.

Pursuant to N.J.S.A. 56:8-19 of the Consumer Fraud Act, a successful litigant is entitled to recover actual damages, treble damages and "reasonable attorney's fees." However, R. 6:1-2(a)(1) limits the Special Civil Part's jurisdiction to actions "seeking legal relief when the amount in controversy does not exceed $10,000.00." R. 6:1-2(c) also provides that "[w]here the amount recoverable on a claim exceeds the monetary limit of the Special Civil Part or the Small Claims Section, the party asserting the claim may waive the excess over the applicable limit and recover a sum not exceeding the limit plus costs." Pursuant to R. 6:1-1(c), the statutory fees or costs charged for Special Civil Part actions "shall be in accordance with N.J.S.A. 22A:2-37.1. . . ." N.J.S.A. 22A:2-37.1 sets forth various fees to be assessed by the clerk of the court including fees for filing a complaint and answer and servicing process and writs of execution. Counsel fees are not included in N.J.S.A. 22A:2-37.1, statutory or otherwise. *fn1

Facially, "costs" that a party is entitled to and that are excluded by R. 6:1-2(c) from the jurisdictional limitation of the Special Civil Part do not encompass counsel fees recoverable by a successful plaintiff under the Consumer Fraud Act. Cf. Helton v. Prudential Property and Cas. Ins. Co., 205 N.J. Super. 196, 203 (App. Div. 1985). To the contrary, consumer fraud counsel fees would seem to be part of "the amount recoverable on [such] a claim" and, thus, subject to the jurisdictional limitation and waiver provisions of R. 6:1-2(c). Contrast Saval v. B.L. Ltd., 710 F.2d 1027, 1033 (4th Cir. 1983) (language of federal Magnuson-Moss Warranty Act providing for recovery of "costs and expenses (including attorneys fees)" expresses clear intent that such statutory fees must be considered as "costs" for the purposes of determining jurisdictional amount in controversy and since "costs" are excluded from that calculation, prospective counsel fees must also be excluded).

We pause at this point to emphasize that the issue we resolve here is not whether N.J.S.A. 56:8-19 supersedes N.J.S.A. 22A:2-42. See Alba v. Sopher, 296 N.J. Super. 501, 504 (App. Div. 1997) (in a landlord/tenant matter, security deposit penalty provisions of N.J.S.A. 46:8-21.1 supersede N.J.S.A. 22A:2-42). Were there no jurisdictional impediment to plaintiff's full recovery in the Special Civil Part, including her consumer fraud counsel fees, we might consider Alba applicable. But there is such an impediment. Alba simply does not address the issue before us.

Plaintiff relies on Nieves v. Baran, 164 N.J. Super. 86 (App. Div. 1978), in asserting that a consumer fraud counsel fee award "[is] not part of `damages,' and thus not subject to the jurisdictional limit, and/or the award [is] made part of `costs,' and thus not subject to the jurisdictional limit." In Nieves, a buyer successfully brought a consumer fraud action against a seller in county district court. The county district court Judge found actual damages to be $1,168.36. If trebled, the award would have exceeded the then $3,000 jurisdictional limit of the county district court. And so, on his own motion, the Judge transferred the matter to the Superior Court and then entered the full judgment. On appeal, the seller claimed that the trial Judge's transfer for the purpose of avoiding the jurisdictional limit was improper. We agreed, explaining that "a statutory penalty, such as that mandated by N.J.S.A. 56:8-19, must be considered in combination with the actual damages for the purposes of computing the county district court jurisdictional limit." Id. at 91-92. We held that "total damages, not merely the actual compensatory damages, . . . must be confined to the jurisdictional limit." Id. at 92. Thus, we vacated the judgment and remanded for entry of a judgment of an amount that was within the jurisdictional limits. In passing, we also stated that over and above that amount, counsel fees of $750.00 should be awarded. But we gave no rationale for allowing such counsel fees, nor, seemingly, did we particularly analyze the issue.

We directly considered the issue in Wisser v. Kaufman Carpet Co., 188 N.J. Super. 574 (App. Div. 1983), albeit in the context of the Small Claims Section jurisdictional limits. In Wisser, plaintiff was successful on his consumer fraud claim and obtained a judgment for treble damages and reasonable counsel fees pursuant to N.J.S.A. 56:8-19. Specifically, plaintiff obtained a judgment in the amount of $3,000 "plus $500 attorney's fees, plus costs of Court ($9.00)." Id. at 576. Among other arguments on appeal, defendant asserted that this judgment exceeded the Small Claims $1,000 statutory jurisdictional limit. The issue before us was "whether the statutory jurisdictional limit in the small claims division of the county district court of $1,000 `exclusive of costs' permits recovery as `costs' of punitive damages and reasonable attorney's fees allowed under the Consumer Fraud Act." Ibid. We thought not. As for the treble damages, we applied the reasoning of Nieves v. Baran, supra, 164 N.J. Super. 86, to conclude "that the treble damages recovered under the [Consumer Fraud] act are encompassed in the phrase `the amount really due or recoverable'" under the jurisdictional limit of the court. However, we expressly disagreed with the result in Nieves regarding counsel fees, stating:

[w]e see no reason, at least in the small claims division, why attorney's fees recoverable under the act should be exempt from the limit. The only category of recovery not capped by the jurisdictional limit is "costs."

[Wisser, supra, 188 N.J. Super. at 578.] After reviewing the costs that were authorized by the then applicable statutes, N.J.S.A. 2A:18-69 and -70, we concluded that counsel fees are not included in such costs. Id. at 579. Therefore, we held "that in the small claims division the total recovery under the [Consumer Fraud] act for compensatory damages, punitive damages and reasonable attorney's fees may not exceed $1,000." Id. at 576. We cautioned that we did

not mean to inhibit the legislative policy of awarding reasonable attorney's fees under the Consumer Fraud Act. That provision has the salutary purpose of promoting representation and therefore court access for consumer claims involving a minor loss to the individual plaintiff but a major gain to the community through ridding the marketplace of fraudulent and deceitful conduct. Thus, appropriate attorney's fees under the Act may be allowed without regard to the amount involved in the underlying dispute. Where recovery of a substantial counsel fee is in prospect, it is in keeping with legislative intent to require the action to be brought in a court where ample discovery opportunities are available and all parties are on notice that more is at stake than would be expected in the small claims division.

[Id. at 579 (emphasis added).]

See also Oro v. Vaspoli Constr. Co., 172 N.J. Super. 447 (Atlantic Cty. Dist. Ct. 1980) (where the parties' settled for an amount equal to the district court's jurisdictional limit, additional claim for counsel fees ...


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