Opinion
DOCKET NO. A-2601-11T4
02-28-2013
KINGSBERRY ACRES CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. EUGENE N. BROOKINS, JR., Defendant-Respondent.
Francis J. McGovern, Jr. argued the cause for appellant (McGovern Legal Services, LLC, attorneys; Jaime K. Fraser, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-004561-11.
Francis J. McGovern, Jr. argued the cause for appellant (McGovern Legal Services, LLC, attorneys; Jaime K. Fraser, on the brief).
Respondent has not filed a brief. PER CURIAM
Plaintiff Kingsberry Acres Condominium Association, Inc. (Association) appeals from two orders denying it attorneys' fees incurred in pursuing a default judgment against defendant for unpaid maintenance fees and assessments. Because some award of attorneys' fees would appear appropriate and the trial judge did not state his reasons for denying fees as required by Rule 1:7-4(a), we reverse and remand.
After default was entered on its complaint, plaintiff filed an unopposed motion for the entry of default judgment supported by a certification of its property manager setting forth proof of amount due, a certification of non-military service and a fee certification by its counsel. Plaintiff sought attorneys' fees and costs of $1,173.04. The fee certification referenced the master deed and by-laws provisions for allowance of a fee award, and set forth each attorney's experience and billable rate. Attached as exhibits were the relevant provisions of the master deed, the bills sent to the Association, and the firm's annual hourly rates and fee schedules. The court thereafter entered default judgment in the sum of $2,995, representing $2,755 in maintenance fees and $200 in late fees. No sums were awarded for attorneys' fees. A statement at the foot of the order provided:
Defendant has not raised the computation error on this appeal.
If seeking attorney fees attach instrument permitting, explain how calculated and provide an affidavit of services addressing the factors in RPC 1.5(a) according to Rule 4:42-9(b). The affidavit or certification must clearly state in one document all the charges sought and the time spent for each
charge. The affidavit must also indicate whether the fee is contingent and how much of the fee has been paid by the client. Attach to the affidavit the retainer agreement and copies of invoices provided to the client.
Plaintiff filed a timely motion for reconsideration seeking its attorneys' fees. Plaintiff resubmitted the documents previously provided and included a billing journal supporting its prior certification that the Association had paid all invoices. Counsel also submitted its fee agreement with the Association. The reconsideration motion was also unopposed. Although the court granted additional sums not at issue on this appeal, it again denied plaintiff's claim for attorneys' fees in its entirety, appending to the order a statement almost identical to the one quoted above. This appeal followed.
Plaintiff also sought additional fees requested but not awarded in the judgment. Because plaintiff has only appealed the denial of attorneys' fees, we limit our discussion to this issue.
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Fee awards, where permissible, are committed to the sound discretion of the trial court. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). Counsel fees would appear allowable here pursuant to Rule 4:42-9(a)(8) (allowing fees in all cases permitted by statute), the Condominium Act, N.J.S.A. 46:8B-21, and the Association's master deed and by-laws. See Holbert v. Great Gorge Vill. S. Condo. Council, Inc., 281 N.J. Super. 222, 229-30 (Ch. Div. 1994) (holding that a condominium association need only show that its master deed or by-laws provides for an award of counsel fees in an action to collect overdue assessments to be entitled to fees pursuant to N.J.S.A. 46:8B-21).
As noted by the trial court, the reasonableness of any application for fees is governed by Rule of Professional Conduct 1.5(a) (listing factors in determining reasonableness of counsel fees) and Rule 4:42-9(b) (requiring applications for allowance of fees to address the factors included in RPC 1.5(a)). R.M. v. Supreme Court of N.J., 190 N.J. 1, 11-12 (2007). Fees which do not directly pertain to the recovery of unpaid assessments sought in the action or which have already been included elsewhere are excluded from any award. Park Place E. Condo. Ass'n v. Hovbilt, Inc., 279 N.J. Super. 319, 326 (Ch. Div. 1994).
Unfortunately, the record is devoid of any explanation for the denial of fees and contains no analysis of the relevant factors contrary to fundamental fairness, and preventing meaningful review. City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 125 (App. Div.), certif. denied, 199 N.J. 515 (2009). Accordingly, we reverse and remand for reconsideration and a supporting statement of reasons.
Reversed and remanded for reconsideration in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION