On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-437-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
This class action under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184, returns to us after a remand to the trial court. In our prior opinion, we held that an intervenor could be eligible for an incentive award or stipend. Machulsky v. Lilliston Ford, Inc., No. A-2987-06T5 (App. Div. July 21, 2008) (slip op. at 13). We outlined the criteria to be considered and remanded to the trial court for a determination. Id. at 14. We also found deficient the trial court's award of a $7000 counsel fee to intervenor's counsel. This was because intervenor's counsel requested $32,505, and the judge failed to make findings supporting the award rendered. Id. at 13-14.
Because of the retirement of the first judge, the matter came before a different judge on remand. After considering the arguments of counsel, the judge awarded the intervenor a $1000 stipend, and awarded his counsel a fee of $25,415, plus costs of $2569.52, for services rendered in the trial court in the underlying action. Neither party appeals from those awards.
The intervenor does appeal, however, from the judge's refusal to award any fees for services rendered in the remand proceedings and for services rendered in the prior appellate proceedings. The judge considered those matters beyond the scope of the remand as set forth in our earlier opinion.
The judge erred in this regard. We rendered our prior decision on July 21, 2008. At the time we rendered our decision, intervenor's counsel had properly not yet applied for a fee for services rendered in connection with the appeal. Our rules provide that such an application shall be "made by motion . . . filed within 10 days after the determination of the appeal." R. 2:11-4 (emphasis added). Intervenor's counsel timely filed his application with this court on July 30, 2008.
The application was unopposed in this court. Rather than make the determination, we issued an order on September 2, 2008 (filed with the Clerk of the Appellate Division on September 5, 2008), directing as follows: "The application for counsel fees is referred to the trial judge for disposition. R. 2:11-4." This order was entered pursuant to the authority contained in the last sentence of Rule 2:11-4. Because we had remanded the other fee issue to the trial court, we deemed it appropriate that all fee issues could be considered at one time in one forum.
The trial judge's determination that he lacked jurisdiction to consider appellate counsel fees was erroneous in light of our order, entered pursuant to the authority conferred to this court by Rule 2:11-4 to refer the issue to a trial judge in appropriate circumstances. The trial judge's determination that consideration of appellate fees was outside the scope of a remand because it was not mentioned in our opinion was also erroneous because, as we stated, an appellate fee application cannot even be submitted until after the appeal is decided, which is then done by motion.
With respect to services rendered by intervenor's counsel in the remand proceedings, such services are encompassed within the fee-shifting provisions of the CFA. Courier News v. Hunterdon County Prosecutor's Office, 378 N.J. Super. 539, 547 (App. Div. 2005); Tanksley v. Cook, 360 N.J. Super. 63, 66-67 (App. Div. 2003). And, of course, the trial court was the proper forum for consideration of that fee application because the services were rendered in the remanded trial court proceedings.
In the present appeal, intervenor asks us to reverse the trial judge's refusal to entertain those fee applications. However, in lieu of a further remand, intervenor also urges that we exercise original jurisdiction with respect to the remand fees, and also exercise the jurisdiction which we inherently possess regarding the appellate fees, to bring this matter to a conclusion as expeditiously as possible. We agree in both respects.
As we noted, Lilliston Ford did not oppose the appellate counsel fee request intervenor filed in the immediate aftermath of our prior opinion. Intervenor's petition sought $12,599 in fees for services rendered in the Appellate Division and $1231.13 as reimbursement for costs. The petition sets forth the expenditure of 63.4 hours at an hourly rate of $325 for partners and $135 for an associate. In light of the hours expended by each participant, the total fee request was $12,599. Costs were itemized in the total amount of $1231.13. Thus, the total request was for $13,830.13. No fee enhancement above the lodestar amount was requested.
Our review of the itemized statement of services totaling 63.4 hours leads us to the inescapable conclusion that it is fraught with inaccuracies. The notice of appeal was filed on February 7, 2007. The itemized statement contains entries on four dates from January 31, 2007 through March 9, 2007, totaling 4.5 hours. These entries were for drafting the notice of appeal and case information ...