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Vinick v. Lipka

November 1, 2010

PHILIP B. VINICK, ESQ., PLAINTIFF-RESPONDENT,
v.
KEVIN LIPKA; KEVSHE REALTY ASSOCIATES; AND SHE-KEV, INC., DEFENDANTS-APPELLANTS, AND SHELLY LIPKA, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4879-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010

Before Judges Wefing and Payne.

Defendants appeal from a trial court order directing them to pay $49,205.24 to plaintiff's attorney, representing plaintiff's counsel fees and expenses for the period October 20, 2008 through August 17, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Philip B. Vinick, Esq. is an attorney admitted to the practice of law in New Jersey who provided a variety of legal services to defendants. Defendants, however, did not pay his statement for those services. Plaintiff afforded them the option of arbitrating the dispute over his fees, R. 1:20A-6, but they declined. He then began suit to collect the balance he alleged was due and owing, $76,224.17.

The matter was arbitrated pursuant to Rule 4:21A, and plaintiff was awarded the full amount he claimed was owed. Defendants rejected the arbitration award and sought a trial de novo. R. 4:21A-6.

In October 2008, plaintiff filed and served an offer of judgment, offering to take judgment in his favor for $63,500. Defendants responded with an offer to have judgment entered against them for $5,000, including counsel fees and costs.

The matter proceeded to trial before a jury in July 2009. After five days of trial, the jury found that all of the defendants other than Shelly Lipka were liable to plaintiff for the full amount of counsel fees he claimed he was owed. As to Shelly Lipka, the jury found no cause for action. Following this verdict, plaintiff filed a motion for fees under Rule 4:58-5. The trial court granted this motion, and awarded plaintiff the fees and costs noted at the outset of this opinion. This appeal followed.

Defendants raise no question on appeal with respect to the trial that took place. Their only contention is that the trial court erred when it granted plaintiff his post-trial motion for fees. They argue that the trial court should have denied plaintiff's motion for fees because the position they took at trial was legitimate and reasonable. They also contend that plaintiff is not entitled to an award of fees because, other than during the time of his own testimony, when he was represented by counsel, he represented himself. Defendants, pointing to our recent decision in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010), assert that plaintiff did not incur counsel fees and thus is not entitled to recover fees under Rule 4:58.

Rule 4:58-1 permits a party, in anything other than a matrimonial action, and at any time prior to twenty days in advance of the trial date, to offer to take judgment for a sum stated. Rule 4:58-2(a) sets forth the consequences of rejecting such an offer:

(a) If the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed, in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later, but only to the extent that such prejudgment interest exceeds the interest prescribed by R. 4:42-11(b), which also shall be allowable; and (3) a reasonable attorney's fee for such subsequent services as are compelled by the non-acceptance.

The only exception is under subsection (b) of Rule 4:58-2, which provides that an allowance of fees shall not be made if to do so would impose an undue hardship. It further provides that if the hardship can be eliminated by reducing the amount of the fee award, the court shall do so. To obtain a fee award, a timely motion must be ...


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