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Estate of Emanuel Needle v. Byram Cove

May 21, 2012

ESTATE OF EMANUEL NEEDLE, PLAINTIFF-APPELLANT,
v.
BYRAM COVE, INC., DEFENDANT-RESPONDENT, AND PAUL BURKE, AND ESTATE OF PAUL BURKE, DEFENDANTS. BYRAM COVE, INC., DEFENDANT-RESPONDENT, AND PAUL BURKE, AND ESTATE OF PAUL BURKE, DEFENDANTS,
v.
ESTATE OF EMANUEL NEEDLE, PLAINTIFF-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-7429-05, L-1125-06 and DC-31239-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2012 --

Before Judges Baxter, Nugent and Carchman.

In yet another appeal in this ongoing litigation, plaintiff the Estate of Emanuel Needle challenges an order on remand awarding defendant Byram Cove, Inc., counsel fees and costs in the amount of $156,440. As a result of plaintiff's prolongation and expansion of what should have been a relatively short-lived and easily resolved collection matter involving $13,000 at issue, the court has been confronted with a fee application that is significantly disproportionate to the amount in dispute. Again, we are constrained to reverse and remand for further consideration of the fees awarded.

We need not repeat the facts, as they are fully set forth in our earlier opinion, Needle v. Byram Cove, Inc., Docket No. A-1196-08 (App. Div. June 24, 2010), certif. denied, 204 N.J. 41 (2010).

We summarize by noting that the litigation started as a Special Civil Part action for the recovery of costs for the removal of a tree and for collection of past-due condominium assessments; it then spawned related litigation involving separate complaints in the Law Division and, ultimately, resulted in the entry of a judgment against plaintiff that included the award of counsel fees in excess of $59,000, which award was later supplemented and amended to reflect counsel fees of $72,689. This order was entered on October 28, 2008, and presumably represented the fees incurred up to that time.

In our previous opinion, we rejected plaintiff's various claims. We then said:

We now address the issue of damages, specifically counsel fees. Judgment was originally entered in the amount of $72,481.75. According to the record on appeal, this amount was derived from a June 19, 2008 certification filed by Barry M. Epstein, Esq.[,] in detailing the damages as $795.00 - Removal of the tree $6,000.00 - Annual Assessments owed for calendar years 2004- 2007 $4,787.00 - Special Assessment for improvements to common tennis court $300.00 - 5% fine on unpaid Annual Assessments (does not include the Tennis Court Assessment) $447.25 - Litigation costs Thereafter, a supplemental certification was filed, which is not included in the record, and the damages were increased to $86,158.25. We can only assume that the increased amount represented additional counsel fees. We fail to discern anything in the record that reflects an assessment of the bona fides of the original award of $59,012.50 in fees and the presumably supplemental award of an additional $13,676.50 in fees for a total fee award of $72,689.

We recognize that the awards here resulted from a default proceeding, yet we consider it incumbent on the trial judge to assess the bona fides of a fee claim even if it results in the first instance from a contract award or a default. The amount of the judgment[,] exclusive of fees[,] is $13,469.25.

We find no error in the underlying claims for $13,469.25[,] and we affirm as to that portion of the judgment. We do not take issue with defendant's position that it is entitled to a contract fee award under the bylaws for fees incurred in enforcing the bylaws nor do we determine that the full amount claimed should not be the ultimate award; however, the record is devoid of any analysis of the fees claimed, and we consider such review critical to any such award. We remand to the Law Division for further review as to the quantum of fees.

On remand, defendant moved for additional fees, including those fees that had previously been awarded, together with fees incurred since that time, so that the earlier award of fees appeared to be incorporated, and the additional fees awarded were $83,751, for a total of $156,440.

Defendant's application for fees and costs included approximately $210,000 of total fees incurred, which defendant reduced by approximately $55,000, this amount being attributable to the reinstatement of defendant's corporate charter. The actual claim for fees and costs was $156,887.25; as we have noted, the judge awarded $156,440.*fn1 The billing rates were noteworthy. The senior partner, who was defendant's president, billed at a rate of $665 per hour, while the associate who was charged with primary responsibility for the defense of the action charged at a rate of $380 per hour, her rate increasing during the course of the litigation.

While the rates and charges were appropriately set forth in the certification of services as well as the supporting billing documents, counsel acknowledged that these were not the rates charged to the client. In fact, the client was not billed for the services rendered, and whatever fees were awarded represented the total ...


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