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Bishop v. Panas Auto

July 8, 2009

JAMES B. BISHOP, PLAINTIFF-APPELLANT,
v.
PANAS AUTO, INC., D/B/A PANAS AUTO BODY AND ED PANAS, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1177-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2009

Before Judges Fuentes, Gilroy and Chambers.

Plaintiff James Bishop was a successful litigant in an civil action suit against defendants Panas Auto, Inc., d/b/a Panas Auto Body and Ed Panas individually, brought in part under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.

Plaintiff appeals from a part of the order entered by the Law Division limiting the award of attorney fees and costs to $13,370, and $492 respectively.

Plaintiff argues that the trial court erred in the exercise of its discretion by demonstrating bias in defendants' favor, and utilizing a mechanical approach to determine the award of counsel fees, in derogation of the principles established by our Supreme Court in Furst v. Einstein Moomjy, Inc., 182 N.J. 1 (2004) and Rendine v. Pantzer, 141 N.J. 292 (1995). We agree with plaintiff's position and reverse.

These are the salient facts. Plaintiff is the owner of a classic 1936 Chevrolet automobile. In August 1997, plaintiff entered into an oral agreement with defendant Ed Panas, as the owner of Panas Auto, Inc, to restore and repair the car. Plaintiff paid defendant $500 as an initial payment.

According to Panas's deposition testimony, he agreed to perform the work for a total cost of $7,000. Plaintiff contends that Panas never mentioned $7,000 as the cost for the entire job. Instead, plaintiff claims that Panas told him that he could not estimate the cost until after he sandblasted the vehicle. It is undisputed, however, that defendant never provided plaintiff with a written estimate or agreement. Defendant testified that he never gave plaintiff an estimate because he never asked for one.

On November 3, 1997, plaintiff paid defendant an additional $3,000 after he completed the sandblasting. Plaintiff believed this payment represented a 50% deposit of the total $6,000 required to finish the work. The car remained in defendant's possession for the next several years. During this time, Panas performed some work on the car, but had little contact with plaintiff. In March 2000, approximately three years after plaintiff had paid defendant the $3,000, plaintiff's wife informed defendant that the vehicle had been sold and a truck would be sent to pick it up. This never occurred.

Two years later, on October 16, 2002, plaintiff's wife returned to defendant's shop to pick up the car. Panas refused to permit Mrs. Bishop to take the car unless she or plaintiff signed the following release:

The above referenced vehicle was stored at Panas Auto, Inc. from March 17, 2000 to October 15, 2002 (a total retail storage cost of $23,575.00) [$25 per day]. The owner, JAMES BISHOP, has elected to remove said vehicle from Panas Auto facility on 10-15-2002 in "AS IN" [sic] condition.

By signing this document, the owner, JAMES BISHOP, hereby agrees to hold harmless and indemnify Panas Auto, Inc., its officers, employees, agents, independent contractors and representatives from any and all liability for any property damage, loss or expenses related to the above referenced vehicle.

Panas admitted at trial that he decided to imposed the $25 daily storage charge only when Mrs. Bishop refused to sign the release. He further admitted that he never advised plaintiff that he was imposing a storage of $25 per day after Mrs. Bishop left his shop. After several attempts at settling the dispute through the intervention of counsel from both sides proved fruitless, plaintiff filed a civil action against defendants on March 6, 2006, seeking replevin, common law compensatory and punitive damages, and relief under the CFA.

Defendants filed a responsive pleading and a counterclaim for storage charges in the amount of $56,250. The court dismissed defendants' counterclaim on plaintiff's motion for summary judgment. Thereafter, the parties entered into a consent agreement turning possession of the car over to plaintiff. The matter then proceeded to trial where plaintiff proceeded with his replevin action, common law wrongful detention of the car, and two claims under the CFA based on defendant's unconscionable commercial practices and a violation of the Auto Body Repair Regulations.

At trial, plaintiff sought $17,250 in damages under his claim for replevin for loss of the use of the car at a rate of $10 per day. The jury found for plaintiff on all three counts awarding him $3,500 for the fraud charges and $500 for the replevin claim. The court trebled the damages pursuant to the CFA, N.J.S.A. 56:8-19, for a total damage award of $11,000.

Plaintiff's counsel made a formal request for attorney's fees and court costs, pursuant to N.J.S.A. 56:8-19. In his certification in support of the motion, counsel sought fees for 101.8 hours expended, billed at an hourly rate of ...


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