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Tanksley v. Cook

May 02, 2003

GEORGE A. TANKSLEY, PLAINTIFF-APPELLANT,
v.
TIMOTHY C. COOK, INDIVIDUALLY AND D/B/A COOK'S MOTORS AND JOANNE COOK, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, DC- 7165-00.

Before Judges King, Wecker and Lisa.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 9, 2003

This is an appeal from a post-judgment order in the Law Division denying plaintiff's counsel fees incurred in collection efforts after a successful verdict in a Consumer Fraud Act (CFA) matter. N.J.S.A. 56:8-1 to -20. Under the CFA's fee-shifting section, N.J.S.A. 56:8-19, a successful claimant may recover attorneys' fees and costs:

In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.

After a bench trial, plaintiff recovered treble damages from the defendant, a used car dealer, based on a claim of a defective transmission and brakes. The February 25, 2002 judgment was for $7,312.17 for triple damages plus counsel fees of $8880 and taxed costs of $61. The recovery for both treble damages and fees was $16,253.17.

Plaintiff's counsel immediately embarked upon collection of the judgment. Defendant was unresponsive to requests for voluntary payment. Plaintiff's counsel investigated defendant's assets and sought and obtained a writ of execution. Ultimately, the entire sum was paid on April 5, 2002 to the Special Civil Part Officer to avoid imminent towing of vehicles from defendant's used car lot.

Plaintiff then sought, by motion, payment of his attorneys' fees and costs for his post-judgment collection efforts. This sum was $2,527.49, including fees and title searches. We have examined this post-judgment fee claim and find it very fair under the circumstances.

The trial judge denied the application for post-judgment fees incurred for the successful efforts to collect the judgment. The judge declined the application because "there just seems to be a certain piling on aspect to it." The judge seemed to think that plaintiff needed to prove some fraudulent or deceitful post-judgment conduct designed to thwart the collection process before plaintiff could prevail on this application. We disagree and reverse.

Counsel fees may be recovered under our Rules "in all cases where counsel fees are permitted by statute." R. 4:42-9(a)(8). Counsel fee shifting under N.J.S.A. 56:8-19 is a prominent feature of the CFA. In Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999), Justice Long recently stated:

The Consumer Fraud Act has three main purposes: to compensate the victim for his or her actual loss; to punish the wrongdoer through the award of treble damages, Roberts v. Cowgill, 316 N.J. Super. 33, 45, 719 A.3d 668 (App. Div. 1998); and, by way of the counsel fee provision, to attract competent counsel to counteract the community scourge of fraud by providing an incentive for an attorney to take a case involving a minor loss to the individual. Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546, 555, 832 A.2d 291 (App. Div. 1993). Because it is a remedial statute, its provisions are construed liberally in favor of the consumer to accomplish its deterrent and protective purposes. Cox [v. Sears Roebuck & Co.], supra, 138 N.J. at 15-16, 647 A.2d 454; Roberts, supra, 316 N.J. Super. at 45, 719 A.2d 668; Gennari [v. Weichart Co. Realtors,] supra, 148 N.J. at 604, 691 A.2d 350 (stating that "[t]he history of the Consumer Fraud Act is one of constant expansion of consumer protection"). [Lettenmaier, 162 N.J. at 139.]

The liberal construction afforded remedial legislation is a constant theme for interpretation of the CFA and the counsel fee component. Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1998). The award of counsel fees under the act is "mandatory." Id. at 24; Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 490 (2000); Skeer v. EMK Motors, Inc., 187 N.J. Super. 465, 473 (App. Div. 1982).

Our courts have not yet had the occasion to rule on the issue of fee-shifting in the context of process to enforce judgments or in supplementary proceedings. R. 4:59. We conclude that the mandatory award of "reasonable attorneys' fees, filing fees and reasonable costs of suit" under N.J.S.A. 56:8-19 should include fees and costs incurred in satisfying the judgment. The federal authorities we have reviewed appear unanimous in allowing such fee awards for reasonable post- judgment enforcement activity. See Schwartz & Kirklin, 2 Section 1983 Litigation, Attorney's Fees ยง 4.8 at 200-202 (3d ed. 1997 - John Wiley & Sons), stating: "All post judgment activities that are reasonably related to the goals of gaining or ensuring the defendant's compliance with the judgment are compensable. Such efforts ...


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