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Barry Associates, LLC v. 300 Allenhurst

November 23, 2011

BARRY ASSOCIATES, LLC, PLAINTIFF-APPELLANT,
v.
300 ALLENHURST, LLC, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-2676-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 28, 2011

Before Judges Waugh and St. John.

Plaintiff Barry Associates, LLC (Barry), appeals from the September 4, 2010 order of the Special Civil Part awarding it $1057.25 in counsel fees, arguing that it was entitled to $20,164.50 in fees. We reverse and remand for further proceedings consistent with this decision.

I.

We discern the following facts and procedural history from the record on appeal.

Barry is a real estate agency that earns commissions by finding commercial tenants for property owners. Defendant 300 Allenhurst, LLC (Allenhurst), owns commercial properties for lease.*fn1 Allenhurst hired Barry to secure a qualified tenant for one of its buildings. The parties executed a contract that provided for Barry to earn a five percent commission on the rent payable by the new tenant. The contract also provided that Allenhurst would be liable for any "reasonable attorney fees" incurred by Barry in the event Allenhurst breached the contract.

After Barry found a tenant for Allenhurst, it made several commission payments to Barry. However, two of its checks were returned for insufficient funds. In September 2009, Barry brought an action in the Small Claims Section of the Special Civil Part, seeking the remaining commission. It subsequently received leave to file an amended complaint and the matter was transferred to the regular Special Civil Part. Allenhurst filed an answer, in which it contested the amount owed to Barry.

After a four-day bench trial, spanning a period of approximately two months, the trial judge found in favor of Barry on most of its claims and awarded $4229 in damages. Barry's attorney filed an application for counsel fees in the amount of $20,164.50, but the trial judge awarded only $1057.25 in fees. This appeal followed.

II.

On appeal, Barry argues that the judge should have awarded the full amount of counsel fees requested and that he erred in capping fees at twenty-five percent of the damages awarded. Barry also challenges some of the factual findings contained in the judge's oral decision on counsel fees. Allenhurst argues that the fees requested were excessive considering the nature of the case, and that the judge's award of fees was reasonable.

An award of counsel fees is a decision that rests within the discretion of the trial judge and is thus reviewed for an abuse of that discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). "'[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Long adhering to the so-called American Rule, that a prevailing party is not entitled to recovery of attorneys' fees, New Jersey generally disfavors the shifting of fees. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569 (1999) (citations omitted). Nonetheless, a prevailing party can recover attorneys' fees if expressly provided for by contract. Packard-Bamberger, supra, 167 N.J. at 440 (citing Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 504 (1983)). Although Rule 4:42-9(a) does not include contracts within its eight exceptions under which attorneys' fees may be awarded, the rule does not preclude parties from agreeing to fee-shifting provisions, ...


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