Preview
MRS L 000659-16 04/17/2018 Pg1lof14 Trans ID: LCV2018668889
FILED
LAW OFFICE OF DAVID M. HOFFMAN
David M. Hoffman, Esq. (ID#199941962) APR 17 2016
28 Countryside Drive Hon, Frank J. DeAngelis, J.S.C.
Basking Ridge, N.J, 07920 Morris County
(908) 608-0333
Attorneys for Defendant
SUPERIOR COURT OF NEW JERSEY
THOMAS LIN, LAW DIVISION — MORRIS COUNTY
Docket No. MRS-L-659-16
Plaintiff,
Vv Civil Action
AGM WINDOWS & SIDING, LLC, ORDER
Defendant.
This matter having been tried before the Court without a jury on February 6, 2018;
and the Court having considered the testimony and documentary evidence presented by
the Parties; and the Court having considered the Trial Briefs submitted by the Parties; and
the Court having considered the post-trial motions and related papers filed by the Parties;
and good cause being shown;
It is on this (
ORDERED
t day of.
fy 2018
that this Order shall supersede this
Qed
Cons Oe oa
2018; and itis
ORDERED that Plainti €maining Complaint in the withi ef be and is
svete ni
hereby dismiss ith prejudice and without costs; an: Ss further
ORDERED that a copy of this Order be sery; on all Counsel with; i Hays from
the date hereof.
auld
See Mahl) sLf voy Fes NGELIS, J.S.C.
Ceasns
MRS L 000659-16 04/17/2018 Pg2of14 Trans ID: LCV2018668889
FILED
Lin v. AGM Windows & Siding, LLC
APR 17 2010
MRS-L-659-16 Hon. Frank J, DeAngelis, J.S.c,
orris County
Statement of Reasons
L BACKGROUND AND PROCEDURAL HISTORY
The current matter comes before Court by motions for reconsideration and for attorney’s
fees and costs, The underlying action involved a violation of the Consumer Fraud Act, N.J.S.A.
56:-1, et. seq. and the Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14,
et. seq. The dispute arose out of a contract to replace windows at Thomas Lin’s (“Plaintiff”)
residence in Pine Brook, New Jersey. Mr. Lin entered into a contract for the replacement of the
windows with AGM Windows & Siding, LLC (“Defendant”). After the installation of the
windows, Mr. Lin was dissatisfied with the work, because the windows would not close properly.
Upon an adjustment by the Defendant, the windows closed more easily, but also created drafts
throughout the residence, even when the windows were locked. Plaintiff alleged that the contract
signed by Plaintiff did not contain the recession, warranty or guarantee information required by
the Consumer Fraud Act, N.J.S.A. 56:8-1, et. seq. (“CFA”), the Home Improvement Practices
Regulations, N.J.A.C. 13:45A-16.2 et. seq., the Home Improvement Contractor Registration
Rules, N.J.A.C. 13:45A-17.1, et. seq., and the Truth-in-Consumer Contract, Warranty and Notice
Act, N.LS.A, 56:12-14, et. seq. (“TCCWNA”).
A bench trial took place on February 6, 2018. On February 22, 2018, the Court issued a
decision holding that Defendant violated the CFA by failing to include the recession and guarantee
language in the contract, as required by statute and Defendant violated TCCWNA because the
contract provided by Defendant failed to contain the proper consumer disclosures. The Court,
however, found that there was no evidence of damages flowing from defendant’s failure to include
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the rescission and guaranty language. Because the CFA, however, provides that a consumer-fraud
plaintiff can recover reasonable attorney’s fees even if plaintiff did not prove an ascertainable loss,
the Court directed Plaintiff to: submit an affidavit of services to the Court in support of its
application for attorney’s fees. The Court also awarded a civil penalty of $100 and reasonable
attorney’s fees for the violation of TCCWNA.
On March 9, 2018, Plaintiff filed an application for attorney’s fees, consistent with the
Court’s Order. Plaintiff seeks $102,767.66 reflecting 263.4 hours of attorneys’ time plus costs of
$5,927.29. On March 16, 2018, Defendants filed a cross-motion for reconsideration of the Court’s
February 22, 2018 decision on the basis that the Court failed to consider the decision in Perez v.
Professionally Green, 215 N.J. 388 (2013) and that, if attorney’s fees are appropriate, the amount
should be assessed pursuant to criteria set forth in Litton v. Industries v. IMO Industries, 200 N.J.
372 (2009). As a practical matter, the Court will first address Defendant’s motion for
reconsideration.
Il. STANDARD OF REVIEW
Motions for reconsideration are governed by R. 4:49-2. R. 4:49-2 provides as follows:
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion
for rehearing or reconsideration seeking to alter or amend a
judgment or order shall be served not later than 20 days after service
of the judgment or order upon all parties by the party obtaining it.
The motion shall state with specificity the basis on which it is made,
including a statement of the matters or controlling decisions which
counsel believes the court has overlooked or as to which it has erred,
and shall have annexed thereto a copy of the judgment or order
sought to be reconsidered and a copy of the court’s corresponding
written opinion, if any.
A motion for reconsideration is addressed to the sound discretion of the motion court.
Capital Fin. Co. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521
(2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987),
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certif. denied, 110 N.J. 196 (1988)). “Reconsideration should be utilized only for those cases [that]
fall into that narrow corridor in which either 1) the [court has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence.” Cummings v. Bahr, 295
N.J. Super. 374, 384 (App.Div.1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div.1990)); see also Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002).
Trial courts should grant motions for reconsideration “only under very narrow circumstances.” Id.
Ill. ANALYSIS
Defendant seeks reconsideration of the Court’s February 22, 2018 decision on the basis
that the Court failed to consider Perez, which holds that a judicial finding of lack of ascertainable
damages in a private cause of action to recover statutory damages precludes an award of attorney’s
fees.! Perez, 215 N.J, at 388. Defendant argues that in Perez, the Supreme Court clarified Weinberg
v. Sprint Corp., 173 N.J. 233 (2002) and reversed its previous decision in Cox v. Sears Roebuck,
138 N.J. 2 (1994) with respect to its allowance of attorney’s fees in the absence of ascertainable
damages.
Contrary to Defendant’s assertions, the Court in Perez affirmed Cox, but decided that the
particular facts of the case in Perez were analogous to Weinberg, because both in Perez and
Weinberg, no bona fide ascertainable loss that could survive a motion for summary judgment
existed. Summary judgment for a defendant "is appropriate when no rational jury could conclude
from the evidence that an essential element of the plaintiff's case is present." Perez, 215 N.J. at
! Defendant also seeks reconsideration of the Court’s decision to vacate the September I, 2017 Order transferring the
matter to Special Civil Part, Small Claims. Defendant provides no grounds for reconsideration of the Court’s decision
on this issue. The Court determined that because this action commenced in the Law Division, there is no basis for
remand of the matter to Special Civil Part, because there is no support in the court rules or case law permitting the
remand ofa Law Division matter to the Special Civil Part. There is no basis to disturb the Court’s decision.
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407. Perez explained that the Court clarified its holding of Cox in Weinberg, holding that “a private
party must plead a claim of ascertainable loss that is capable of surviving a motion for summary
judgment.” Perez, 215 N.J. at 403 (citation omitted). Therefore, while it is necessary to establish a
prima facie showing of ascertainable loss, plaintiff may still recover attorney’s fees if he cannot
ultimately prove his damages at trial. See id, at 402-03; Cox, 138 N.J. at 25. In Perez, the Court
granted summary judgment in favor of plaintiff on the issue of the CFA violation but plaintiff did
not file a motion for summary judgment on the ascertainable loss issue, therefore the trial court
did not decide that issue at a pretrial motion stage. Perez, 215 N.J. at 295. At trial, however, the
Court entered an order for involuntary dismissal under Rule 4:37-2(b) holding that no bona fide
ascertainable loss claim existed. Id. at 397. After explaining the difference between Cox and
Weinberg, the Court went on to apply Weinberg to the facts in Perez, because Rule 4:37-2 standard
on a motion for summary judgment is similar to Rule 4:46-2 standard on a motion to dismiss. Id.
at 405.
In this case, the Court held a bench trial. The parties presented their evidence to the Court
at trial. Plaintiff maintained that he suffered one of four ascertainable losses: (1) the entire amount
of the contract ($12,450); (2) the amount plaintiff paid under the contract ($8,700); (3) the amount
remaining under the contract ($3,750); and (4) the cost of replacing the defective windows. At
trial, however, Plaintiff did not present testimony as to the value of windows and the labor to install
the windows pursuant to the contract between the Plaintiff and Defendant; there was no expert
testimony that could quantify any defects to the windows or the diminution in the value of the
windows. Therefore, the Court found that Plaintiffs lay testimony was not sufficient to make a
finding with respect to the damage suffered by any defects that could be attributed to the windows
installed by Defendant. Unlike the Perez Court, however, that held that there was no prima facie
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showing on the issue of ascertainable loss at the close of plaintiffs’ proofs, here the Court
concluded that Plaintiff did not demonstrate by a preponderance of evidence that he suffered an
ascertainable loss. Perez, 215 N.J. at 392. Therefore, this case is more analogous to Cox where,
after the jury returned a verdict in favor of the plaintiff on his CFA claim, the court granted a
motion for judgment notwithstanding the verdict and found that the plaintiff had failed to prove an
ascertainable loss but was nonetheless entitled to attorney’s fees on the basis of a violation of the
CFA. Thus, the Court properly applied Cox to the present case. Moreover, the Court also found a
violation of TCCWNA and awarded Plaintiff a civil penalty of $100 and reasonable attorney’s
fees pursuant to N.J.S.A. 56:12-17, not challenged by Defendant on the motion for reconsideration.
The Court notes that it is aware of the recent New Jersey Supreme Court decision in Spade
vy. Select Comfort Crop., A-57-16, 4-5 (N.J. Apr. 16, 2018). The Supreme Court’s decision in
Spade, however, does not influence the outcome of the present matter. In Spade, the Court
determined that (1) seller’s inclusion, in a consumer agreement, of language prohibited by N.J.A.C.
13:45A-5.3(c) may be a per se violation of TCCWNA but (2) even if a technical violation of
TCCWNA was found, but since the consumer suffered no “monetary or other harm,” the consumer
is not “aggrieved” and is not entitled to a remedy under the TCCWNA. Spade, A-57-16 at 4-5
(emphasis added). In Spade, the Court expressly pointed out that the harm suffered is not limited
to monetary damages. Id. at 25. Here, the language of the contract violated the requirements of
N.LS.A. 56:12-15. Additionally, although Plaintiff could not quantify his damages, Plaintiff
demonstrated that there was a problem with the windows and he therefore suffered some harm as
a consequence of the contract’s noncompliance with the regulations. Unlike the plaintiffs in Spade,
who purchased furniture subject to a noncompliant contract, that was delivered conforming and on
schedule, Plaintiff in this case, was not satisfied with the installation of his windows and had no
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recourse in resolving the issues with the work he received due to lack of the rescission, warranty
or guarantee information required by the statute. Id. at 26.
The next issue brought by Defendant on its motion is the proper standard for the
determination of reasonable attorney’s fees. Defendant submits that the Court should determine
the award of attorney’s fees in accordance with the standard in Litton Industries v. IMO Industries,
200 N.J. 372 (2009). New Jersey generally follows the "American Rule," which requires that each
party pay its own legal costs. Rendine v. Pantzer, 141 N.J. 292, 322 (1995). Fees, however, may
be shifted when permitted by statute, court rule, or contract. Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 440 (2001).
When fee shifting is permissible, a court must ascertain the "lodestar"; that is, the "number
of hours reasonably expended by the successful party's counsel in the litigation, multiplied by a
reasonable hourly rate." Litton Indus., Inc., 200 N.J. at 386 (citing Furst v. Einstein Moomijy, Inc.,
182 N.J. 1, 21 (2004)). To compute the lodestar, courts must first determine the reasonableness of
the hourly rates charged by the successful party's attorney in comparison to rates "for similar
services by lawyers of reasonably comparable skill, experience, and reputation" in the community.
Rendine, 141 N.J. at 337 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
After evaluating the hourly rate, the court must then determine the reasonableness of the hours
expended on the case. Furst, 182 N.J. at 22.
Defendant submits that the Court should employ the detailed inquiry into the
reasonableness of the fees undertaken by the Litton court. Litton required the participation of a
Special Master to determine what was being charged and an inquiry into the proportionality of
counsel fees to the award recovered by plaintiff. Litton Indus. Inc., 200 N.J. at 388. Litton,
however, did not involve a CFA claim, it was a breach of contract case where a specific amount
MRS L 000659-16 04/17/2018 Pg 8of14 Trans ID: LCV2018668889
of attorney’s fees was already awarded and the court was tasked with determining the
reasonableness of an award of additional attorney fees. Id. at 390. Defendant does not elaborate on
why Litton should govern here or how it is factually similar to the present case. Defendant,
however, concedes that the appointment of a Special Master is not necessary in the present case.
The Court’s analysis, however, does not change with the application of Litton. As the court in
Litton pointed out, regardless of the source authorizing fee shifting, the same reasonableness test
governs. Litton Indus., Inc., 200 N.J. at 386. Furthermore, Plaintiff is correct in that the award of
attorney’s fees need not be proportionate to the damages recovered. Furst, 182 N.J. at 22.
Nonetheless, "[w]hether the hours the prevailing attorney devoted to any part of a case are
excessive ultimately requires a consideration of what is reasonable under the circumstances" and
should be informed by the degree of success achieved by the prevailing party. Furst, 182 N.J. at
22-23; Grubbs v. Knoll, 376 N.J. Super. 420 (App. Div. 2005); Acherman v. The Money Store,
330 N.J. Super. 366 (Law Div. 1999).
Examining the issue of proportionality between the damages recovered by plaintiff and the
fees awarded in New Jersey’s various fee-shifting statutes, the court in Grubbs v. Knoll noted:
In such cases, the trial court's responsibility to carefully review the
lodestar fee request is heightened. The court must evaluate not only
the damages prospectively recoverable and actually recovered, but
also the interest to be vindicated . . . as well as any circumstances
incidental to the litigation that directly or indirectly affected the
extent of counsel's efforts. The lodestar should be decreased if the
prevailing party achieved limited success in relation to the relief he
had sought.
Grubbs, 376 N.J. Super. at 432 (internal citations and quotations omitted).
Rules of Professional Conduct (RPC) 1.5(a), requires that "[a] lawyer's fee shall be
reasonable in all cases[.]" Furst, 182 N.J. at 21-22. In determining reasonableness, RPC 1.5(a)
requires the court to consider:
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(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent.
Plaintiff’s counsel Joseph K. Jones, Esq., submitted a certification requesting an award of
$108,694.95 for a total of 263.40 hours for the period of March 11, 2016 through March 9, 2018
and costs. Jones Cert., Ex. A. The hourly rate for Mr. Jones is $525.00, the hourly rate for
Benjamin J. Wolf, Esq., who also worked on Plaintiff's case, is $425.00. Jones Cert. {ff 7-8. Mr.
Jones certifies that he is experienced in handling complex litigation and has been involved in
numerous Consumer Protection cases. Id. at §§ 4,9. Mr. Jones, however, has not submitted resumes
of each attorney who worked on the case and did not detail Mr. Wolf's qualifications and
experience. Moreover, Mr. Jones submits that his hourly rate was approved by the court in several
class actions where he was appointed class counsel, but the present matter is not a class action but
rather a consumer protection case that rests predominantly on the language of the contract signed
between the adverse parties. As such, the Court finds that fees charged by Mr. Jones and Mr. Wolf
in this case are excessive and an hourly rate of $350.00 is more appropriate.
Further, Plaintiff's counsel submitted an itemized ledger of total hours billed by counsel,
however, the Court was not provided with a descriptive synopsis of the work performed and the
reasonableness of such work. Many of the entries required an explanation not provided by counsel.
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Therefore, the Court looks to the complexity of the case and the evidence presented at trial in
determining the reasonableness and necessity of the work performed. Upon a careful review and
consideration of each service provided, the Court finds several unnecessary and duplicative
charges.
Both Mr. Jones and Mr. Wolf are partners at Jones, Wolf & Kapasi, LLC. Mr. Jones
submits that a significant portion of Jones, Wolf & Kapasi’s practice is concentrated in the area of
Consumer Protection Law involving issues such as CFA and TCCWNA. Both Mr. Jones and Mr.
Wolf are experienced attorneys that, according to Mr. Jones, charge competitive hourly rates.
Therefore, the Court finds that it is unnecessary for one of the attorneys to bill for the review and
redlining of the work of another. The Court deducts these charges. In addition, the Court deducts
charges for general research into the CFA and TCCWNA. The Court also finds that several hours
expended on file review were unnecessary in light of the unsophisticated factual and procedural
posture of the case. The Court similarly finds that in light of the extensive experience of the
attorneys handling the matter and the relatively straightforward contractual provisions involved,
several hours expended on drafting and researching various motions, letters and court documents
are disproportional to the complexity of the issues involved in the matter and shall be reduced.
The Court accords great weight to the non-complexity of this matter, as well as the overall lack of
success by counsel in this matter.
The Court also finds that the time expended by counsel on court-mandated arbitration was
excessive in light of the amount in dispute, extensive experience of counsel with consumer
protection claims and relatively unsophisticated nature of the case. Moreover, there was no need
for two attorneys to be present at trial and the time expended in preparing for a one-day trial was
also excessive, especially in light of the fact that Plaintiff did not present any expert testimony or
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reports on the issue of damages. Counsel’s appearance in Court on February 22, 2018 was
voluntary and the charge for such appearance is unreasonable, because counsel were advised that
there would be no oral argument and that the Court was placing its decision on the record, allowing
the parties to appear by phone. The Court also finds that costs for UPS delivery, videography,
automobile rental and parking for client are unnecessary and unreasonable. The computation of
Plaintiffs lodestar, therefore, runs as follows:
Total Legal Fees Billed 263.4 hrs $102.767.66
Costs $5,927.29
Total Amount Billed $108,694.95
Reductions
Rate Hours Total
Rate Adjustment 350.00/hr 263.4 hrs $92,190.00
Deductions for file review, time spent on ~ 48.55
drafts of legal documents and review of the
same documents by two attorneys
Deductions for the time spent on arbitration -19,02
proceedings
Deductions for time spent on assembling, 71
scanning and mailing motion documents
Deductions for court appearances -11.0
Deductions for time spend on legal research -2.51
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Deductions for time spent on -4.06
correspondence, scheduling and telephone
calls
Deductions for time spent preparing for trial -17.89
Total Deductions 103.74 $36,309.00
Total Legal Fees $55,881.00
Costs $5,927.29
Deductions for UPS postage, videography, -902.82
auto rental, and client parking
Total Costs Adjusted $5,024.47
ae Total $60,905.47
The Court further concludes that the total lodestar amount must be decreased in light of the
relatively unfavorable judgment in favor of Plaintiff. Although Plaintiff ultimately prevailed in
demonstrating CFA and TCCWNA violations, Plaintiff did not present any evidence that would
enable the Court to calculate the actual amount of ascertainable loss. Plaintiff did not dispute that
he received the windows required by the contract and that Defendant performed the work required
under the contract — the installation of the windows. Plaintiff also testified that he had at least one
warranty visit by thewindow manufacturer. Although, Plaintiff testified that there were issues with
the windows such as difficulty in closing and drafts throughout the residence and the Court found
Plaintiff's testimony credible, Plaintiff did not provide any evidence that could quantify the
damages suffered by Plaintiff as a result of the alleged defects. The lack of proofs presented by
Plaintiff must be taken into consideration in determining the reasonableness of the award. Grubbs,
i
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376 N.J. Super. at 420. Plaintiff did not recover any damages under CFA and only recovered $100
civil penalty under TCCWNA.
Furthermore, although Plaintiffs counsel took the case on a contingent fee basis involving
risk on the part of the attorney, Plaintiff's counsel managed the risk by maintaining an active trial
practice during the pendency of this suit. Moreover, although consumer protection cases at large
serve broad public policy objectives, in circumstances such as here, where Plaintiff was seeking
to recover for the home improvement work he was not satisfied with, it is unlikely that Plaintiff's
interests were vindicated. Therefore, pursuant to Grubbs v. Knoll, 376 N.J. Super. 420 (App. Div.
2005) and RPC 1.5(a), Plaintiff's lodestar shall be decreased. See also Hensley v. Eckerhart, 461
U.S. 424, 436-37 (1983) (noting that important factor in determining reasonableness of the lodestar
is "degree of success obtained"). The Court determines that a reasonable reduction of the lodestar
in light of the circumstances of this case is 70% of the net amount. See In re Estate of Vayda, 2006
N.J. Super. Unpub. LEXIS 268 *18 (App. Div. 2006) (finding a reduction of lodestar by 50%
reasonable where the attorney for plaintiff succeeded on a number of issues, but her success was
partial and limited)’. Thus, the Court awards a lodestar amount of $16,764.30 and costs in the
amount of $5,024.47.
IV. CONCLUSION
Defendant has not demonstrated that the Court’s decision was palpably incorrect or
irrational. The Court did not misapply the law and Defendant did not demonstrate any newly
discovered evidence. Therefore, Defendant’s motion for reconsideration is DENIED. Plaintiff is
entitled to reasonable attorney’s fees. Plaintiff's motion for counsel fees is, therefore, GRANTED.
Upon a careful examination of the factors set out in RPC 1.5(a), the Court concludes that in light
2 The Court notes that this is an unpublished opinion and does not rely on its holding in reaching the present decision,
it is, however, illustrative to the matter at bar.
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of the proofs presented by attorneys at trial, the relative unsophisticated nature of the case, and the
limited success achieved, the reasonable lodestar amount is $16,764.30 with costs in the amount
of $5,024.47 for a total of $21,788.77.
13