January 23, 2008
RICHARD SUMTER, DELTHEA SUMTER, AND ATIF SUMTER, PLAINTIFFS-APPELLANTS,
MICHAEL FANELLE AND CINDY FANELLE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1527-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges S. L. Reisner and Gilroy.
Plaintiffs appeal from the March 15, 2007, order of the Law Division that directed their counsel to pay attorney fees and costs. We affirm.
This is the second appeal in this matter. The facts and procedural history leading to the first appeal are set forth in our prior decision, Sumter v. Fanelle, No. A-0249-04 (App. Div. August 24, 2005) (slip op. at 2-3). In that appeal, we reversed an order, which had dismissed plaintiffs' complaint for failing to appear at a non-binding arbitration proceeding, and remanded the matter to the trial court for further proceedings consistent with our opinion. Id. at 6. We also addressed defendants' right to indemnification for any additional litigation expenses resulting from plaintiffs' counsel failing to appear at the initial arbitration proceeding, and in defense of the appeal:
To the extent that plaintiffs' counsel displayed any lack of diligence in failing to diary the initial arbitration, the defendants can be made whole for the litigation expenses "directly related to the non-appearance," pursuant to Rule 4:21-4(f), a remedy plaintiffs' counsel offered in making his reconsideration motion. See Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 233 (App. Div. 2002). Further, to the extent this appeal was necessitated by counsel's failure to attend the motion argument, defendants' costs in defending the appeal may be assessed against plaintiffs' counsel. While we do not fault the trial judge for denying the motion for reconsideration, we conclude that, under all the circumstances, the just result is reinstatement of the complaint and rescheduling of the arbitration on properly-addressed notice to all parties. If counsel cannot settle the issue of the amount of counsel fees and other litigation costs to be paid by plaintiffs' counsel (not by his clients), that issue shall also be decided by the trial judge. We therefore reverse and remand for further proceedings.
On October 6, 2005, defendants' counsel sent a letter to plaintiffs' counsel, requesting that plaintiffs' counsel remit a check in the amount of $6,932.30 in compliance with our opinion. Attached to the letter was a four-page itemized statement of legal services rendered, which included the time expended on each item of service, and the amount charged. Although plaintiffs' counsel did not agree to pay the amount requested, the parties reached a settlement on all other issues in dispute.
On April 6, 2006, plaintiffs' counsel forwarded a consent order to the trial court settling the matter, except for the attorney fee issue. As to that issue, plaintiffs' counsel requested that the trial court schedule a hearing to resolve it. For reasons unknown, a hearing was not scheduled.
On September 5, 2006, defendants filed a motion to enforce this court's award of attorney fees, attaching their October 6, 2005, itemized schedule of attorney fees and costs, and requested oral argument if opposition was filed. Although plaintiffs' counsel opposed the motion, he failed to appear at oral argument on October 6, 2006. The court granted defendants' motion and directed that plaintiffs' counsel pay defendants the requested amount of $6,932.30. The court also granted defendants' request for additional attorney fees and costs on the motion, and directed defendants' counsel to file an affidavit in support of that request. A confirming order was entered on October 10, 2006.
Plaintiffs moved for reconsideration, and defendants opposed. On November 17, 2006, the trial court denied the motion for reconsideration and directed defendants' counsel to submit an updated certification, setting forth any additional legal fees associated with the motion. However, plaintiffs appealed before the trial court resolved the additional attorney fee issue. By order of January 31, 2007, we dismissed the appeal as interlocutory. On March 15, 2007, the trial court entered an order enforcing the October 10, 2006, order, and awarded defendants additional attorney fees and costs in the amount of $2,139.70 for services rendered in prosecuting the October 6, 2006, motion and $1,443.78 for services rendered in defending the November 17, 2006, motion for reconsideration.
On appeal, plaintiffs argue:
THE TRIAL COURT ERRED IN NOT DISMISSING THE DEFENDANTS' MOTION FOR ATTORNEY'S FEES AS UNTIMELY.
A. DEFENDANT[S'] MOTION WAS A MOTION FOR ATTORNEY'S FEES.
B. PURSUANT TO THE NEW JERSEY RULES AND THE COURT'S INTERPRETATION AND APPLICATION OF THOSE RULES, THE DEFENDANTS['] MOTION FOR ATTORNEY'S FEES WAS UNTIMELY AND SHOULD HAVE BEEN DISMISSED.
DEFENDANTS WAIVED THEIR RIGHT TO ATTORNEY'S FEES.
THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY'S FEES FOR THE APPEAL AND THE SUBSEQUENT MOTION FOR FEES AND RELATED HEARINGS.
We have considered plaintiffs' arguments in light of the record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).
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