NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2965-15T2
JOSEPH CIAGLIA,
Plaintiff-Respondent,
v.
WEST LONG BRANCH ZONING BOARD
OF ADJUSTMENT,
Defendant,
and
BOROUGH OF WEST LONG BRANCH,
A CORPORATE BODY POLITIC,
Defendant-Appellant.
______________________________
Argued April 4, 2017 — Decided June 20, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4484-06.
Gregory S. Baxter argued for appellants
(Caruso & Baxter, P.A., attorneys; Mr. Baxter,
on the brief).
Peter H. Wegener argued for respondent
(Bathgate, Wegener & Wolf, attorneys; Mr.
Wegener, on the brief).
PER CURIAM
Defendant Borough of West Long Branch (Borough), appeals from
a February 11, 2016 order granting $187,354.55 in counsel fees and
disbursements to plaintiff and an additional $4,546.75 in counsel
fees to plaintiff's prior attorney. We affirm the award of fees.
In 2011, after plaintiff appealed, we reversed the grant of
summary judgment to the Borough that had dismissed plaintiff's
complaint "seeking remedies for a regulatory taking" by refusal
to grant variances to build on an isolated undersized lot created
in 1957. Ciaglia v. West Long Branch Zoning Bd. of Adjustment,
No. A-0787-10 (App. Div. October 25, 2011), (slip op. at 2),
certif. denied, 209 N.J. 429 (2012).
Following our decision, plaintiff filed two motions for
counsel fees, one with the Supreme Court and one later with us.
The Supreme Court sent plaintiff a deficiency notice stating, "The
motion for counsel fees was due 10 days from the final order.
Please submit an as within time motion." That motion was not
submitted. We denied the motion for fees, noting: "This appeal
was decided on October 25, 2011, and a petition for certification
was denied on February 27, 2012. [Ciaglia, supra,] 209 N.J. 429.
Rule 2:11-4 requires a motion for [appellate] attorneys' fees to
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be 'served and filed within 10 days after the determination of the
appeal.'"
According to plaintiff, after our 2011 decision, "[t]he
parties then continued with the eminent domain process including
a commissioners' hearing, the exchange of expert appraisal reports
and, finally, the trial on just compensation." A November 30,
2012 report of the commissioners determined that plaintiff should
be compensated $205,000. Plaintiff appealed the commissioner's
award.
Shortly before trial commenced, plaintiff obtained a new
appraisal of the property valuing it at $390,000. At this point,
the Borough proposed a settlement offer of $220,000. The parties
were unable to settle.
In December 2013, a jury awarded plaintiff just compensation
of $225,000. On May 6, 2014, the trial court issued its order
titled "ORDER FOR FINAL JUDGMENT" that included the amount of the
judgment, costs of $1330 and agreed-upon interest of $66,011.75
for a total of $292,350.75. The order included the following
paragraph:
4. This Order constitutes a Final Judgment as
to all issues, except that the plaintiff may
timely file a motion for the portion of taxes
paid allocable to the period of time
subsequent to the taking and fees and expenses
not otherwise included, pursuant to N.J.S.A.
20:3-26. This Order shall not, however, be
interpreted as a determination that such a
3 A-2965-15T2
motion should or should not be granted, as the
parties are in dispute as to that issue.
Plaintiff submitted his initial motion for counsel fees and
expenses on July 15, 2014, sixty-nine days after the order for
judgment. At the court's suggestion, plaintiff withdrew this
motion. On December 1, 2014,1 plaintiff's new motion in support
of counsel fees was filed requesting $418,089.50 in legal fees and
disbursements, including approximately $158,000 for the services
rendered on appeal that had been previously denied.
The Borough argued that the court lost jurisdiction to hear
the fee request because plaintiff's attorney filed his motion over
twenty days after the final judgment. It also argued that the
award of counsel fees was not mandatory, but discretionary under
N.J.S.A. 20:3-26(c),2 and should be denied here.
1
Defendant's certification was signed November 26, 2014, but was
not filed until December 1 due to the Thanksgiving holiday.
2
N.J.S.A. 20:3-26(c) reads:
When a plaintiff shall have brought an action
to compel condemnation against a defendant
having the power to condemn, the court or
representative of the defendant in case of
settlement shall, in its discretion, award
such plaintiff his reasonable costs,
disbursements, and expenses, including
reasonable appraisal, attorney and
engineering fees actually incurred regardless
of whether the action is terminated by
judgment or amicable agreement of the parties.
4 A-2965-15T2
Plaintiff argued the twenty-day timeframe in Rule 4:49-2 was
not applicable because the order anticipated that the court would
retain jurisdiction to hear the motion. Plaintiff's counsel stated
that defense counsel requested the word "timely" during their
negotiation on the wording of the order, but without mention of
Rule 4:49-2.
At argument on the return date on the second motion for
counsel fees, the court granted plaintiff permission, over the
Borough's objection, to file supplemental submissions regarding
plaintiff's attorney's hourly rates, plaintiff's prior attorney's
rates, and information regarding the reasonableness of the fees.
The court also allowed the Borough to respond.
Plaintiff supplied certifications from his current attorney,
plaintiff's prior attorney, and John H. Buonocore, Jr., a
practicing condemnation attorney. Buonocore, who was unconnected
with the present litigation, discussed his experience in inverse
condemnation claims and gave his opinion that an hourly rate of
$500 to $600 per hour for an attorney of plaintiff's attorney's
experience was "well within reason."
In its decision, the court highlighted three primary issues:
"First, whether N.J.S.A. 20:3-26(c) mandates the award of counsel
fees. Second, whether plaintiff's fee application was timely.
And third, whether the fees sought by plaintiff[] are reasonable."
5 A-2965-15T2
With regard to the timeliness issue, the court looked at
"language of the form of the order that was executed by the [c]ourt
as submitted jointly by the parties on May 7, 2014." According
to the court, both parties "intended that plaintiff would file a
separate application for fees and expenses." The court determined
that timeliness in this case should be determined by the clear
intention of the parties, citing Rusak v. Ryan Auto., L.L.C., 418
N.J. Super. 107, 117 n.5 (App. Div. 2011).
The court further determined a plenary hearing was
unwarranted. The court noted that our Supreme Court has
discouraged the use of an application for counsel fees "as an
invitation to become mired in a second round of litigation." Furst
v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). The court added
that "[a] plenary hearing should be conducted only when the
certification of the counsel raises material factual disputes that
can be resolved solely by the taking of testimony." Ibid. The
court stated: "Defendants also [had] an opportunity to submit
information challenging any assertion of the reasonableness of the
range of that rate. . . . [b]ut [the court] did not receive that."
The court denied appellate fees because the court lacked
jurisdiction. The court found plaintiff's hourly rate reasonable,
but denied fees for the paralegal work, noting the lack of
specificity in the entries, and for the work associated with
6 A-2965-15T2
changing attorneys and traveling. It found unreasonable doubling
the cost of research where both the principal attorney and his
associates conducted similar research. The court went through the
fee request line by line indicating which costs should be reduced
in conformity with the decision. The court also awarded
plaintiff's counsel a five percent lodestar enhancement.
I
"[A] reviewing court will disturb a trial court's award of
counsel fees 'only on the rarest occasions, and then only because
of a clear abuse of discretion.'" Litton Indus., Inc. v. IMO
Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger
& Co. v. Collier, 167 N.J. 427, 444 (2001)).
New Jersey subscribes to the "American Rule" that, except for
enumerated exceptions under Rule 4:42-9(a), requires parties to
bear their own counsel fees. Innes v. Marzano-Lesnevich, 224 N.J.
584, 592 (2016). One such exception is Rule 4:42-9(a)(8) which
allows recovery in cases "permitted by statute." See Warrington
v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 417 (App. Div.
2000). According to Rule 4:42-9(d), a grant of counsel fees should
be "made on the determination of a matter [and] shall be included
in the judgment or order stating the determination."
The Borough argues that the title of the May 2014 order
demonstrates it was "final." It argues the fee application should
7 A-2965-15T2
have been treated as a motion to "alter or amend the judgment,"
subject to Rule 4:49-2, which must be served no later than twenty
days after the day the service of the final judgment is filed.
Both parties cite to Warrington, supra, 328 N.J. Super. at
423-24, and Ricci v. Corp. Exp. of the E., Inc., 344 N.J. Super.
39, 47 (App. Div. 2001), certif. denied, 171 N.J. 42 (2002), to
support their position on whether the judge's order was final. In
Warrington, a discrimination case, the plaintiff was allowed to
seek counsel fees six months after judgment because the claim
involved a federal statute. We stated that an award derived solely
from a state rule or statute "would bar the application" after the
time allotted under Rule 4:49 had expired. Id. at 423-24.
Similarly, in Ricci, supra, 344 N.J. Super. at 46-48, we found
defendant's application for counsel fees was timely as the
defendant made its application within twenty-days of the signed
judgment. We stated, "[a]lthough the judgment ought not to have
been submitted by [the defendant] until it had applied for fees,
that technical deviation from Rule 4:42-9(d) does not provide a
just basis for denying such fees when the application is made
within the time constraints established by Rule 4:49-2." Id. at
48.
"The time prescription of [Rule 4:49-2] applies only to final
judgments and orders." Pressler & Verniero, Current N.J. Court
8 A-2965-15T2
Rules, cmt. 1 on R. 4:49-2 (2017). Significantly, the judgment
in Warrington "was silent on the issue of fees." Warrington,
supra, 328 N.J. Super. at 416. In Ricci, there is no indication
the fees were discussed in the final judgment. See Ricci, 344
N.J. Super. at 46-47.
Here, the court's order stated that it was "a Final Judgment
as to all issues, except that the plaintiff may file a timely
motion for . . . fees and expenses." (Emphasis added). The order
also recognized a decision had not been made on whether "such a
motion should or should not be granted." Thus, all issues had not
been decided.
In Rusak, supra, 418 N.J. Super. at 117 n.5, we found the
trial judge's determination that the plaintiff's motion for
reconsideration was untimely was mistaken because "from the
colloquy that took place on the day the verdict was received, it
was clearly understood that [the] plaintiff would seek relief from
the judge's ruling on her punitive damages claim and would also
submit a request for counsel fees." Because "the 'Order of
Disposition' entered on the day of the verdict was not a final
judgment [it] did not trigger the time constraints of Rule 4:49-
2."
Here, the same judge who issued the "ORDER FOR FINAL JUDGMENT"
also presided over the application for counsel fees. The judge
9 A-2965-15T2
was, therefore, in a position to understand the intention between
the parties at the time of the order. The inclusion of the word
"timely" in the order does not in itself create the requirement
of a twenty-day time limitation. See Ricci, supra, 344 N.J. Super.
at 47 (stating "R. 4:49-2 does not directly govern the issue of
an attorney's fee application"). The court did not abuse its
discretion in finding that the application was not time-barred.
Nor did the court abuse its discretion in considering the
certifications submitted by plaintiff. The court elected to
"allow[] some post-argument submissions" and reserved the right
"to decide later whether or not . . . to consider them." The
court also reasonably determined that a hearing on the motion was
unnecessary because the certifications of the attorneys did not
raise material factual disputes that required testimony.
II
The Borough also seeks a determination that an award of
counsel fees under N.J.S.A. 20:3-26(c) is discretionary. The
Borough argues the language of the statute and the ruling in
Griffith v. State, Dept. of Envtl. Prot., 340 N.J. Super. 596, 613
(App. Div.), certif. denied, 170 N.J. 85 (2001), cert. denied, 534
U.S. 1161, 122 S. Ct. 1171, 152 L. Ed. 2d 115 (2002), clearly
indicates that such a grant is discretionary. The court
acknowledged a "split" in the interpretation of the statute,
10 A-2965-15T2
between Griffith, supra, 340 N.J. Super. at 613 and Smith v. Jersey
Cent. Power & Light Co., 421 N.J. Super. 374, 384 n.2 (App. Div.),
certif. denied, 209 N.J. 96 (2011), and stated "[i]n this
particular case, whether – under whatever interpretation of the
statute, the [c]ourt, in its discretion, believes that it is
appropriate to award fees." Thus, we need not clarify this area
of law to decide this case.
III
The Borough argues that the court erred by not using "special
scrutiny" because the fee request was disproportionate to the
damages recovered. The Borough also argues the court failed to
considered plaintiff's "limited success," noting that the jury
verdict was only $5000 more than its settlement offer before trial,
and under RPC 1.5(a)(4) limited success is a relevant factor in
assessing the quantum of fees.
RPC 1.5(a) requires that "[a] lawyer's fee shall be
reasonable." A determination of reasonableness under RPC
1.5(a)(1)–(8), lists eight factors to be considered in determining
the reasonableness of the fee. However, "[t]he list is not
exhaustive and all factors will not be relevant in every case."
Twp. of W. Orange v. 769 Assocs., LLC, 198 N.J. 529, 542 (2009).
RPC 1.5(a)(4) requires the court to consider "the amount involved
and the results obtained." This is "a consideration of the
11 A-2965-15T2
ultimate substantive outcome in a case relative to the claims that
were originally advanced" and not "an assessment of the success
or failure of each of the moving parts." Twp. of W. Orange, supra,
198 N.J. at 544. Here, counsel fees were not disproportional to
the size of the dispute.
Because the trial court has discretion to determine what
reasonable counsel fees are, and because the record reflects that
the trial court engaged in an exhaustive, well-reasoned, detailed
analysis of the fees, we affirm the amount of the counsel fee
award, substantially for the reasons stated by the trial judge.
Affirmed.
12 A-2965-15T2
JOSEPH CIAGLIA VS. WEST LONG BRANCH ZONING BOARD OF ADJUSTMENT(L-4484-06, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion