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Oettinger v. J & G Pizza, LLC

Superior Court of New Jersey, Appellate Division

July 24, 2013

JOSEPH OETTINGER, JR., Plaintiff-Appellant,
J & G PIZZA, LLC, d/b/a CASA MASELLI PIZZERIA & RISTORANTE, Defendant/Third-Party Plaintiff-Respondent,


Submitted July 2, 2013

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-8170-12.

Joseph Oettinger, Jr., appellant pro se.

Law Offices of Parsekian & Solomon, attorneys for respondent (Melvin R. Solomon and Jennifer C. Rota, on the brief).

Before Judges Sapp-Peterson and Sabatino.


Plaintiff Joseph Oettinger, an attorney, filed this action in the Special Civil Part after receiving at his Westwood office two unsolicited fax advertisements from defendant J & G Pizza, LLC, doing business as Casa Maselli Pizzeria & Ristorante. His complaint alleged that the fax transmission violated both the federal Telephone Consumer Protection Act, 47 U.S.C.A. § 227, and the New Jersey Junk Fax Act, N.J.S.A. 56:8-157 to -160. Plaintiff sought $500 in statutory damages for each unauthorized fax, pursuant to 47 U.S.C.A. § 227(b)(3) and N.J.S.A. 56:8-159(b), which he requested the court to treble in its discretion. He also sought costs and counsel fees.

Defendant filed an answer denying liability. In addition, defendant filed a third-party complaint against another company, Your Local Lunch Specials, Inc. ("YLLS"), with which it had contracted to promote its lunch specials. Defendant alleged that YLLS was responsible for the unsolicited faxes, and it had relied upon YLLS's expertise in adhering to federal and state laws governing fax advertising. YLLS apparently was never served with process and has not participated in the litigation.

When the case was called for trial on June 18, 2012, defense counsel advised the Special Civil Part judge that his client had agreed to settle the case for $1000, preserving its right under Rule 4:38-2 to pursue recovery from the third-party defendant. There was no mention on the record at that time about counsel fees. The judge accordingly entered judgment in favor of plaintiff for $1000, plus $22 in costs.

Plaintiff thereafter moved to have the judgment revised to include counsel fees, an application which defendant opposed and the trial court denied. In a supplementary bench opinion dated October 4, 2012, the judge ruled that no counsel fee award was warranted, as a matter of law, because plaintiff had represented himself in this lawsuit. Plaintiff now appeals.

The sole issue before us is the trial court's denial of counsel fees to plaintiff. Defendant has not filed a cross-appeal contesting its liability for the unwanted faxes, nor has it appealed the trial court's award of damages and costs.

After considering the arguments presented to us, we conclude that the trial court's denial of counsel fees to plaintiff was appropriate. As the Supreme Court held last year in Segal v. Lynch, 211 N.J. 230 (2012), in reversing counsel fees that had been awarded to a licensed attorney who had represented herself in proceedings relating to her service as a parenting coordinator, the "better rule" is that fee awards to self-represented attorneys should be disallowed. Id . at 263.

Although the Court recognized in Segal the competing policy arguments for and against such fee-shifting, it found "the reasoning of those precedents that reject counsel fee awards to attorneys who represent themselves to be persuasive in the circumstances of [that] appeal." Id . at 264. Among other things, the Segal majority underscored the United States Supreme Court's conclusion that "allowing pro se attorney litigants to secure an award of attorney's fees would create an unwanted disincentive for attorneys to hire counsel." Ibid. (citing Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 1438, 113 L.Ed.2d 486, 493 (1991)). The Court in Segal also found it problematic to allow the self-represented lawyer "to be compensated for her time expended in securing relief when others [who are not lawyers] would be precluded from being compensated for their time." Ibid.

The same policy reasons apply here. See DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J.Super. 325, 341 (App. Div. 2013) (analogously holding that a self-represented attorney's time spent representing himself is not an eligible "ascertainable loss" under the Consumer Fraud Act).

We are unpersuaded by plaintiff's attempts to distinguish Segal or to repudiate its reasoning. Plaintiff argues that the fact that the Junk Fax Act's fee-shifting provision, N.J.S.A. 56:8-159(b), uses the term "shall" signifies that a fee award to any prevailing plaintiff under the statute is mandatory, regardless of the plaintiff's self-represented status. We do not construe the statute in that fashion. Doing so would give self-represented lawyers who receive unwanted faxes a significant monetary advantage over pro se non-attorneys, who likewise seek relief under the statute and who devote their own time and attention — uncompensated — to their lawsuits. There is no indication that the Legislature wanted such a disparity.

Our decision in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.Super. 510 (App. Div. 2009), certif. denied, 2 03 N.J. 93 (2010), which preceded the Supreme Court's guidance in Segal, likewise is not helpful to plaintiff. In Alpert, we upheld the denial of attorney's fees under the court rule relating to frivolous litigation. Rule 1:4-8, to a law firm representing itself. Id. at 547. We reject plaintiff's argument that Alpert aids his quest for fees here, insofar as our opinion distinguished counsel fees that are "actually incurred" from those that are "imputed." Ibid. The distinction does not assist plaintiff because there is nothing in the Supreme Court's opinion in Segal, nor in the particular federal or state statutes that are applicable here, that "imputes" or otherwise evinces a policy to authorize counsel fee recoveries by a plaintiff who is a self-represented attorney.


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