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Scott and Sandra Streeter v. Fratesi Masonry & General Contractor

August 10, 2011

SCOTT AND SANDRA STREETER, PLAINTIFFS-APPELLANTS,
v.
FRATESI MASONRY & GENERAL CONTRACTOR, L.L.C. AND MICHAEL FRATESI, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-0948-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 21, 2011

Before Judges Grall and LeWinn.

Plaintiffs Scott and Sandra Streeter filed a complaint to recover their $8433 deposit on a home improvement contract from defendants Fratesi Masonry & General Contractor, L.L.C. and its principal Michael Fratesi. The Streeters cancelled the contract before the work commenced and demanded return of their deposit. When defendants did not comply, the Streeters filed a complaint in the Special Civil Part that included an allegation that the defendants did not comply with the Division of Consumer Affairs' home improvement practices regulations, N.J.A.C. 13:45A-16.1 to -16.2, and thereby violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.

On September 18, 2008, the judge entered partial summary judgment on liability in favor of the Streeters and against Fratesi Masonry but not Fratesi individually. Final judgment was entered on November 6, 2008. The Streeters appeal from post-judgment orders awarding counsel fees for services rendered by their attorney to enforce the judgment.*fn1 They contend the judge did not provide an adequate statement of reasons justifying the amount of fees awarded. We agree and remand.

The judgment entered on November 6, 2008 awards the Streeters $7923.18 in damages, $13,000 in counsel fees and costs. Pursuant to N.J.S.A. 22A:2-42, costs include a statutory fee. It is now undisputed that the statutory fee should have been $173.46 and the costs $66. A notice of docketing issued on November 18, 2008, overstates the statutory fee as $433. Consequently, the total judgment, which should have been $21,162.46, was misstated in the November 18 notice as $21,422.46. Collection efforts were complicated, among other things, by the Streeters' attorney repeatedly overstating the judgment amount.

On June 24, 2009, the judge granted the Streeters' motion to enforce litigant's rights. The motion was not opposed. The order states that Fratesi Masonry is in violation of litigant's rights and directs it to furnish answers required by an information subpoena. The order provides that counsel fees are awarded on the motion but does not state the amount; the Streeters' attorney requested $843.30.

Prior to the issuance of the June 24 order, specifically on June 18, 2009, the Streeters' attorney received four checks from Fratesi Masonry, each in the amount of $5000, toward payment of the judgment. The four checks bore four separate dates between June 12 and September 11, 2009.

The Streeters' attorney continued efforts to collect the balance of the judgment, which, by September 2009, was $1,422.46 plus interest. A warrant for Fratesi's arrest was issued on September 8, 2009, because he failed to respond to the information subpoena.

On November 15, 2009, the Streeters' attorney filed a motion seeking "enhanced attorneys' fees pursuant to the consumer fraud act" and Tanksley v. Cook, 360 N.J. Super. 63, 66 (App. Div. 2003). The attorney asserted that his firm had charged the Streeters $9,300.25 in fees and costs since the judgment was entered on November 6, 2008.

Although the November 15, 2009 notice of motion did not include a request for a calculation of interest that had accrued to date, there was a request for that relief in the attorney's certification. The supporting certification includes an interest calculation purportedly done pursuant to Rule 4:42-11(a)(iii); that Rule calls for "simple interest." Nevertheless, the attorney's detailed and obviously time-consuming calculation of interest was based on the erroneous assumption that interest was to be compounded, resulting in an increase in the amount of the judgment each month. The interest calculation was also based on an overstatement of the judgment amount.

On December 14, 2009, the judge entered an order denying the November 15 motion. That order directs the Streeters to re-file the motion, calculating interest on the amount of the damage award only, excluding the $13,000 counsel-fee award. Cf. R. 4:42-11(a) (providing for simple interest that includes interest on costs and counsel fees).

The Streeters moved for an order "reaffirming judgment award" on December 22, 2009. The certification submitted in support of that motion calculates interest on the amount of the damage award as directed by the judge, but the calculation again compounds the interest. In addition, in calculating the total amount due and owing ...


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