Andre De Garmeaux v. Dnv Concepts, Inc. T/a
151 A.3d 992
| N.J. Super. Ct. App. Div. | 2016Background
- Plaintiffs Andre de Garmeaux and Paula Kugler purchased a replacement gas fireplace from Bright Acre; installation was performed by James Risa, proprietor of Professional Fireplace Services, and plaintiffs alleged poor workmanship and misrepresentation about Risa’s employment relationship.
- Plaintiffs sued Bright Acre (and others) alleging consumer fraud (CFA), negligence, and Home Improvement Act violations; Bright Acre counterclaimed for fraudulent alteration/concealment of evidence, defamation, and a frivolous suit based on conflicting invoices (one with a Professional Fireplace Services masthead, one without).
- At a five-day jury trial, the jury found for plaintiffs on negligence, the CFA, and the Home Improvement Act, awarding modest damages; the jury rejected Bright Acre’s counterclaim.
- Plaintiffs sought counsel fees under the CFA; they requested $70,911.12 in fees. The trial court awarded $20,000, excluding many billed entries and citing proportionality to the damages.
- Plaintiffs appealed the fee reduction; Bright Acre cross-appealed the denial of judgment notwithstanding the verdict (JNOV) on its counterclaim and other trial errors.
- The Appellate Division held that fees spent defending the counterclaim were compensable because the counterclaim and CFA claim were inextricably intertwined, reversed the fee-quantum ruling, and affirmed denial of Bright Acre’s JNOV.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CFA fee-shifting may include attorney fees spent defending a counterclaim | Fees defending the counterclaim are recoverable because the counterclaim arises from the same transaction and is intertwined with the CFA defense | Fees for distinct, separate claims or defenses should not be shifted | Court: Fees defending the counterclaim are compensable where claims are "inextricably caught up" and share a common core of facts (award should include such work) |
| Whether trial court properly reduced fees by applying proportionality to damages | DiGarmeaux/Kugler: No strict proportionality is required between damages and fees under CFA | Bright Acre: trial court's proportionality reduction appropriate given low damages | Court: Proportionality as strict rule is rejected; trial court erred in relying on proportionality without fully addressing CFA policy and plaintiffs’ overall success—remand for recalculation |
| Whether trial court adequately considered CFA statutory policy and degree/measure of success when setting fees | Plaintiffs: trial court must account for CFA deterrence/access-to-courts policy and full measure of plaintiffs’ success (including defense of counterclaim) | Bright Acre: not decisive; amount should be limited by results and reasonableness | Court: Trial court failed to expressly consider CFA public policy and plaintiffs’ full measure of success; must factor those in lodestar analysis on remand |
| Whether JNOV on Bright Acre counterclaim should have been granted (perjury/insufficient evidence) | N/A to fee issue; plaintiffs maintain testimony credible | Bright Acre: Jury relied on perjured testimony and evidence was insufficient; JNOV should have been granted | Court: Affirmed denial of JNOV—jury could reasonably credit plaintiffs’ testimony and reject Bright Acre’s credibility arguments |
Key Cases Cited
- Rendine v. Pantzer, 141 N.J. 292 (discusses standard for reviewing fee awards and lodestar factors)
- Furst v. Einstein Moomjy, Inc., 182 N.J. 1 (explains lodestar and reasonableness review for fee-shifting awards)
- Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372 (describes lodestar methodology and comparison standard for hourly rates)
- Coleman v. Fiore Bros., Inc., 113 N.J. 594 (CFA fee-shifting purpose: encourage private enforcement)
- Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546 (fees allowed for common core CFA-related work; distinct claims excluded)
- Szczepanski v. Newcomb Med. Ctr. Inc., 141 N.J. 346 (rejects strict proportionality between damages and fee award; stresses degree of success and statutory policies)
- Benkoski v. Flood, 626 N.W.2d 851 (Wis. Ct. App.) (permitting fee recovery for defense of counterclaims where claims are inextricably linked under a remedial fee-shifting statute)