BJM Insulation & Const., Inc. v. Evans

• Decision Date: 27 February 1996
• Citation: 671 A.2d 603,287 N.J.Super. 513
• Parties: BJM INSULATION & CONSTRUCTION, INC., Plaintiff-Respondent, v. Constance EVANS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 513

287 N.J.Super. 513

671 A.2d 603

BJM INSULATION & CONSTRUCTION, INC., Plaintiff-Respondent, v. Constance EVANS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 6, 1996.

Decided Feb. 27, 1996.

Richard A. Dunne, argued the cause, for appellant.

Dwight D. de Stefan, argued the cause, for respondent (Kenneth W. Herbert, attorney; Mr. de Stefan, on the brief).

Before Judges A.M. STEIN, KESTIN, and CUFF.

The opinion of the court was delivered by

KESTIN, J.A.D.

Defendant appeals from an order of the trial court denying her application for an award of counsel fees and costs pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-19. We reverse.

Plaintiff sued defendant alleging that she had breached certain home repair contracts. Defendant denied the allegations of breach and asserted, in defense, that plaintiff had violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and the Door-to-Door Home Repair Sales Act, N.J.S.A. 17:16C-95 to -103. After a period for discovery, defendant moved for summary judgment. The motion was granted and the complaint was dismissed with prejudice in an order noting that plaintiff had been found to be in violation of the statutes cited by defendant. The motion for counsel fees and costs was made subsequently.

N.J.S.A. 56:8-19 provides:

Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.

Defendant argues on appeal that an award of attorneys' fees is mandated by the statute in favor of a party who has established a violation of the Consumer Fraud Act. Plaintiff argues, in response, that counsel fees are discretionary under the Act, that they should be awarded only where a party has sustained an ascertainable loss, and that, in any event, before a party may qualify for a counsel fee award under the Act, the particulars of a fee agreement between the claimant and her attorney must first be established.

Since Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994), cited by neither party, the question of whether a trial judge has the discretion to deny counsel fees to a successful claimant of Consumer Fraud Act protection is no longer an open one.

[A]n award of treble damages and attorneys' fees is mandatory under N.J.S.A. 56:8-19 if a consumer-fraud plaintiff proves both an unlawful practice under the Act and an ascertainable loss. The use of the word "shall" in the statute suggests as much. [Skeer v. EMK Motors, 187 N.J.Super. 465, 469, 455 A.2d 508 (App.Div.1982); Ramanadham v. New Jersey Mfrs. Ins. Co., 188 N.J.Super. 30, 32-33, 455 A.2d 1134 (App.Div.1982).] Moreover, the legislative history indicates that the provision for attorneys' fees was intended to impose on the defendant in a private action "a greater financial penalty [than in an action brought by the Attorney General] and * * * [to ensure] that the financial cost to the private plaintiff was minimized and compensation maximized." Skeer, supra, 187 N.J.Super. at 471, 455 A.2d 508.

[Cox v. Sears Roebuck & Co., supra, 138 N.J. at 24, 647 A.2d 454.]

For the purposes of eligibility for payment of reasonable attorneys' fees and costs, the Consumer Fraud Act makes no distinction between a person who raises the Act's provisions in an affirmative claim and one who pleads it as a defense.

Also on the authority of Cox v. Sears Roebuck & Co., supra, 138 N.J. at 24-25, 647 A.2d 454, we reject plaintiff's argument that a litigant is not entitled to counsel...