February 24, 2011
MARK RAVAIOLI, PLAINTIFF-APPELLANT,
LOMAN KIA, LOMAN FORD, INC., LOMAN AUTO GROUP SOUTH, KIA MOTORS,*FN1 DEFENDANTS-RESPONDENTS, AND JIM TEMPIO, PAT SWEENEY, GIOVATTO ADVERTISING AND PREMIUM PRODUCTIONS, INC., DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10478-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 9, 2011 - Decided:
Before Judges Axelrad and Lihotz.
Plaintiff Mark Ravaioli appeals from an order of the Law Division denying his motion to either enforce or vacate the settlement entered into with defendant, Loman Ford, Inc. (Loman), and to award him attorney's fees. We affirm.
We recite only those facts relevant to this appeal. The case arises out an eleven count complaint filed by plaintiff based on the alleged failure of Loman, a car dealership, and its advertiser, defendant Giovatto Advertising, to award him a prize when he received a winning ticket for a free car giveaway program in connection with a promotional scratch-off mailer.
The complaint alleged violations of the Consumer Fraud Act (CFA), common law fraud, breach of contract, and also sought injunctive relief. The settlement, which occurred on the December 2, 2009 trial date, was spread upon the record. No party acknowledged fault and no statement was made as to the legal basis upon which the settlement was predicated. The settlement merely required defendants to pay plaintiff a specified figure in installments, with the dealership's share constituting less than twenty percent of the total. Loman's largest installment was due by the end of the year and smaller payments were due beginning a month later. A release was executed on December l5, 2009, setting forth these terms.
When plaintiff's attorney did not receive a timely payment, he sent the subject motion to the court on January 8, 2010. Upon receipt of the motion, Loman's attorney responded that the client had sent plaintiff's attorney the initial payment on January 7 by certified mail, enclosed a copy of the check, and requested withdrawal of the motion. Plaintiff refused.
Judge Pincus denied the motion by order of February 5, 2010, amplified on the record on April 6, 2010 pursuant to Rule 2:5-1(b). The judge found the motion to be "not only unnecessary but unreasonable," expressly denying plaintiff attorney's fees with the comment that "a mere phone call would have sufficed." She reasoned that even if the timing of the payment were a material term of the settlement and plaintiff was not required to advise Loman that payment was late, the ultimate goal of the settlement was achieved by the payment being made within a week after the due date. The judge also noted the holiday season, the absence of evidence of bad faith on Loman's part, the payment "within a reasonable time after defaulting," and the receipt of the installment by plaintiff's counsel before the return date of the motion. This appeal ensued.
On appeal, plaintiff asserts error by the court in: (1) modifying a CFA settlement agreement to create a grace period despite the absence of one; (2) creating a pre-action notice requirement prior to the filing of an action to enforce a CFA settlement agreement; (3) refusing to grant attorney's fees and costs pursuant to Tanksley v. Cook, 360 N.J. Super. 63 (App. Div. 2003), when the settling CFA defendant failed to honor the terms of the settlement; and (4) requiring, without notice or a hearing, the non-defaulting CFA party to demonstrate harm when enforcing a written CFA settlement agreement to obtain the benefit of the agreement and to collect attorney's fees.
Based on our review of the record and applicable law, we are not persuaded by any of plaintiff's arguments. We affirm substantially for the reasons cogently articulated by Judge Pincus, save for the following brief comments. R. 2:11-3(e)(l)(A) and (E).
Attorney "'fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (200l) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We discern no clear abuse of discretion in the present case.
The settlement agreement and release did not contain a time-of-the-essence clause or a sanction for late payment, thus undermining plaintiff's assertion that prompt payment by Loman was a material term of the settlement. Even if it were, Loman's untimely payment was a de minimis infraction.
Moreover, Tanksley is inapposite. There, the plaintiff obtained a successful verdict under the CFA, which contains a mandatory fee-shifting provision, N.J.S.A. 56:8-19. 360 N.J. Super. at 65. The defendant was unresponsive to requests for voluntary satisfaction of the judgment and did so only in the face of imminent towing of vehicles from its used car lot pursuant to a writ of execution. Ibid. We thus held the mandatory award of reasonable attorney's fees and costs under N.J.S.A. 56:8-19 should include those incurred in satisfying the judgment. Id. at 66. Here, there was no finding or acknowledgement of a violation of the CFA by defendants, so plaintiff had no statutory entitlement to attorney's fees. Moreover, no protracted efforts were necessary to obtain payment upon settlement, as there was no history of missed or late payments by Loman or evidence that it did not intend to honor the agreement. Even in the absence of a pre-action notice requirement in the settlement, professionalism and common courtesy dictate that, under the circumstances of this case, plaintiff's counsel should have initially telephoned Loman's attorney to ascertain the status of the first payment before incurring the unnecessary expense of the motion.