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Rivera v. Salerno Duane

June 22, 2007

EVELYN RIVERA F/K/A EVELYN BENJAMIN, PLAINTIFF-APPELLANT,
v.
SALERNO DUANE, INC., AND DAIMLERCHRYSLER SERVICES NORTH AMERICA, LLC F/N/A CHRYSLER FINANCIAL CORP., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-1017-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2007

Before Judges Lefelt and Parrillo.

Plaintiff Evelyn Rivera appeals from the final judgment of the Law Division granting defendant Salerno Duane, Inc.'s motion for reconsideration and vacating its previous award of attorney's fees in her favor. For reasons that follow, we reverse and remand.

The underlying lawsuit arises from plaintiff's purchase in April 1998 of a used Toyota Corolla from Dependable Motors, a small used car dealership in Somerset. The car was sold "as is" with no warranties and plaintiff paid $9,000, financed through defendant, Dependable's finance agent. Soon thereafter, plaintiff experienced some difficulties with the car and sometime after 2001 discovered from a CARFAX(r) report that the car supposedly had been involved in an accident in February 1998, a fact not disclosed to her at time of purchase.

On April 7, 2004, plaintiff sued defendant and Chrysler Financial Corporation (Chrysler),*fn1 as well as unknown persons and corporations, in a nine-count complaint alleging: violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (Count One); violations of the Truth-in-Consumer Contract, Warranty and Notice Act (NJTCCA), N.J.S.A. 56:12-1 to -18 (Count Two); misrepresentation or common law fraud (Count Three); equitable fraud (Count Four); breach of contract under the Uniform Commercial Code, N.J.S.A. 12A:2-101 to -725 (Count Five); failure to deal in good faith (Count Six); DaimlerChrysler's liability under theories of agency or respondeat superior (Count Seven); unjust enrichment (Count Eight); and finally, DaimlerChrysler's liability under the Federal Trade Commission (FTC) Holder Rule (Count Nine). The statutory consumer fraud count (Count One) was based in part on allegations that defendant overcharged plaintiff for registration and title fees. The NJTCCA count (Count Two) alleged statutory violations by defendant by not properly itemizing the actual registration and title fees in the initial sales document or Retail Buyer's Order; failing to provide plaintiff with a used car buyer's guide; failing to provide plaintiff with a copy of a written warranty; and by failing to provide her with a copy of the used car lemon law notice.

Following discovery, the parties filed a series of summary judgment motions. On April 29, 2005, the trial court granted plaintiff partial summary judgment on part of Counts One and Two. On August 5, 2005, DaimlerChrysler was effectively dismissed from the case when the trial court granted its motion for partial summary judgment and ordered defendant to indemnify DaimlerChrysler for any adverse judgment. On August 30, 2005, the trial court granted summary judgment to defendant on part of Count One and Counts Three through Nine, and also granted summary judgment to plaintiff on part of Count Two. In its final order of November 23, 2005, clarifying all previous orders, the trial court granted judgment to plaintiff on Count One in the amount of $17.90, which was then trebled under the CFA to $53.70, and also granted judgment to plaintiff on Count Two in the amount of $400.00, $100.00 each for four violations of the NJTCCA, for a total judgment against defendant of $453.70, in addition to reasonable attorney's fees and costs upon proper application.

Consequently, plaintiff moved for attorney's fees and costs. Having received no timely opposition from defendant, the trial court granted the motion and awarded the requested fees in the amount of $20,240.00 and costs in the amount of $719.69. The counsel fee represented an hourly rate of $275 multiplied by 64 hours with a fee enhancement of 15%.

Defendant then moved for reconsideration and plaintiff cross-moved for additional fees and costs. Stating that she originally "awarded fees requested because there was no opposition and the Court concluded that there was thus no objection to the fees requested[,]" the trial judge granted defendant's motion and vacated the earlier order awarding attorney's fees and costs, further reasoning:

After reviewing the entire file upon submission of this motion, the Court has concluded that an award of $100, even though trebled to $453.70, warrants no counsel fee award, much less an award of $20,000. The fact that the initial (untrebled) award was $100 is strong support for the proposition that this case should not have been filed and is not consonant with the salutary pursuits of the Consumer Fraud Act. The fact that the untrebled award is less than the filing fee is further support for that proposition. Moreover, plaintiff's application for fees does not fulfill the requirements of RPC 1.5.

We disagree.

Rule 4:42-9(a) permits attorney's fees when authorized by statute. R. 4:42-9(a)(8). The statutes which defendant was found to have violated, the CFA and the NJTCCA, are each fee-shifting statutes that award attorney's fees to "injured" parties. N.J.S.A. 56:8-19; N.J.S.A. 56:12-17. Specifically, the CFA states in pertinent part:

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' ...


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