R.C. SEARCH CO., INC. VS. HOWARD SILVER(L-3453-09, L-0496-12, L-6942-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4512-14T1
R.C. SEARCH CO., INC. and
RICHARD CECERE,
Plaintiffs-Appellants,
v.
HOWARD SILVER, 34 LABEL
STREET ASSOCIATES, and
EMER FEATHERSTONE,
Defendants-Respondents.
____________________________
Argued October 17, 2017 – Decided December 4, 2017
Before Judges Reisner, Hoffman, and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket Nos.
L-3453-09, L-0496-12, and L-6942-14.
Marlo J. Hittman argued the cause for
appellants (Cozzarelli & Hittman, LLC,
attorneys; Ms. Hittman, of counsel and on the
brief).
Richard D. Trenk argued the cause for
respondents (Trenk, DiPasquale, Della Fera &
Sodono, PC, attorneys; Mr. Trenk, of counsel
and on the brief; Jessica A. Buffman, on the
brief).
PER CURIAM
Plaintiff Richard Cecere appeals from a February 13, 2015
order awarding defendant 34 Label Street Associates (34 Label)
attorney's fees, and a May 8, 2015 order denying his motion for
reconsideration. Cecere argues that the trial court abused its
discretion in determining the amount and allocation of attorney's
fees, and erred in its application of res judicata. We affirm
because the trial court acted within its discretion and based its
decision on substantial credible evidence in the record.
I.
The attorney's fees at issue were incurred during a series
of commercial landlord-tenant cases that the parties litigated
extensively.
In 1993, 34 Label leased office space to R.C. Search Co.,
Inc. (R.C. Search), a corporation owned by Cecere (the Office
Property). In 1996, Cecere entered into a separate lease with 34
Label for a garage annexed to the Office Property (the Garage
Property). Finally, in 2002, Cecere entered into a ninety-nine-
year Ground Lease with 34 Label for another portion of the
property, on which he operated a restaurant (the Restaurant
Property). Under the Ground Lease, Cecere was required to pay his
proportional share of property taxes and other expenses on the
Restaurant Property. Notably, the leases for the Office and Garage
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Properties contained attorney's fees provisions. The lease for
the Restaurant Property did not.
In September 2007, R.C. Search claimed that 34 Label
overcharged for rents on the Office Property. As a result, R.C.
Search stopped paying rent for the Office Property and Cecere
stopped paying rent for the Garage Property. Cecere also stopped
paying property taxes and expenses for the Restaurant Property.
In response, 34 Label brought a summary dispossession action
against Cecere and R.C. Search for possession of the Office and
Garage Properties. The trial court granted 34 Label possession,
and we affirmed that order on appeal. 34 Label St. Assocs. v.
R.C. Search Co., Inc., No. A-4556-08 (App. Div. Apr. 8, 2010).
In 2009, while the appeal of the dispossession action was
pending, Cecere and R.C. Search sued 34 Label, its principal,
Howard Silver, and its accountant, Emer Featherstone, claiming
that they had overcharged for rent on the Office Property. 34
Label filed a counterclaim to recover past due rents for the Office
and Garage Properties and past due taxes and expenses for the
Restaurant Property.
All of the claims by Cecere and R.C. Search were dismissed,
and in March 2011, the trial court entered a judgment in favor of
34 Label (the March 2011 Judgment). Under the March 2011 Judgment,
R.C. Search was ordered to pay $190,501.32 for unpaid rents on the
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Office Property, and Cecere was ordered to pay $22,126.51 for
unpaid rents on the Garage Property and $149,468.96 for unpaid
taxes and expenses on the Restaurant Property. The trial court
denied 34 Label's application for attorney's fees.
Cecere and R.C. Search appealed from the March 2011 Judgment,
and 34 Label cross-appealed from the denial of its application for
attorney's fees. We affirmed the March 2011 Judgment entered
against Cecere and R.C. Search. As to the attorney's fees, we
found that "the leases for the Office and Garage [Properties]
specifically provide[d] for the award of attorney's fees to 34
Label . . . ." R.C. Search Co., Inc. v. Silver, No. A-4332-10
(App. Div. July 19, 2012) (slip op. at 17). Accordingly, we
reversed the portion of the March 2011 Judgment denying 34 Label's
application for attorney's fees, and remanded with the direction
that "defendants are entitled to an award of attorney's fees they
incurred in pursuing their claims for back rent and defending
against the claims plaintiffs asserted as a basis for withholding
payments of the rent." Ibid.
On remand, the trial court conducted a thorough review of 34
Label's affidavit of services. The court found that the rates
charged by counsel were reasonable, given the "fee normally charged
for similar work, the experience of the attorneys involved, and
the skill required for litigating [the] complex dispute." The
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court, however, deducted fees for billable hours that it deemed
unreasonable. In addition, based upon our direction, the court
awarded 34 Label fees it incurred while defending against Cecere's
claim of overcharged rent on the Office Property. Ultimately, the
court ordered Cecere to pay $86,276.72 in attorney's fees incurred
in connection with the Garage Property. The court also ordered
R.C. Search to pay $100,373.82 in fees incurred in connection with
the Office Property.1 The court's decision was memorialized in a
February 13, 2015 order and opinion. Cecere filed a motion for
reconsideration, which the court denied on May 8, 2015. This
appeal followed.
II.
On appeal, Cecere argues that the trial court's award of
attorney's fees was not based on adequate, credible, and admissible
evidence. Specifically, Cecere contends that (1) the court failed
to explain its reasons for deducting certain fees; (2) the court
erred in its allocation of fees and its application of res
judicata; (3) the court erred in denying his request for a plenary
hearing; and (4) the attorney's fees award was disproportionate
to the damages recovered on the Garage Property.
1
This appeal is limited to the attorney's fees entered against
Cecere and does not involve R.C. Search, which did not appeal and
which is no longer a functioning company.
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At the outset, we note that Cecere's brief violated Rule 2:6-
2(a)(4) and (5), as it is replete with statements of fact and
legal arguments that fail to reference the appendix or transcripts.
Nonetheless, we have reviewed Cecere's arguments in light of the
record, and we affirm the February 13, 2015, and May 8, 2015 orders
substantially for the reasons explained in the detailed written
and oral opinions of Judge Stephanie A. Mitterhoff.
We review a trial court's award of attorney's fees for abuse
of discretion. McGowan v. O'Rourke, 391 N.J. Super. 502, 508
(App. Div. 2007). Determinations regarding attorney's fees "will
be disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion." Ibid. (quoting Packard-Bamberger
& Co. v. Collier, 167 N.J. 427, 444 (2001)).
Here, we find no abuse of discretion in the court's award of
attorney's fees. Judge Mitterhoff thoroughly reviewed 34 Label's
affidavit of services and made detailed factual findings. She
found the rates charged to be reasonable, but found some of the
hours billed to be unreasonable. Accordingly, she reduced the
number of hours sought. In addition, Judge Mitterhoff excluded
the fees relating to the Office and Restaurant Properties, and the
fees incurred in defending Silver and Featherstone. Contrary to
Cecere's contention, Judge Mitterhoff explained that those fees
were excluded based upon her review of 34 Label's affidavit.
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We also find no abuse of discretion in the court's allocation
of attorney's fees. Cecere argues that the majority of attorney's
fees should have been allocated to his now defunct corporation,
R.C. Search, or excluded as time spent on issues related to the
Restaurant Property. 34 Label was entitled to recover fees for
the Office Property from R.C. Search, but not Cecere. Moreover,
34 Label had no right to recover attorney's fees under the Ground
Lease for the Restaurant Property. The time spent enforcing those
leases, however, was directly related to collecting the rent Cecere
withheld for the Garage Property. Indeed, the trial court based
the allocation of attorney's fees, in part, on Cecere's use of
claims related to the Office Property as a basis for withholding
rent on the Garage Property. Those fees were properly included
in the award pursuant to our direction on remand that "[34 Label]
[was] entitled to . . . attorney's fees [] incurred in . . .
defending against the claims [Cecere] asserted as a basis for
withholding payments of the rent." R.C. Search Co., supra, slip
op. at 17. Judge Mitterhoff followed our direction on remand,
therefore, we reject Cecere's argument that she misapplied the
doctrine of res judicata.
Cecere's argument that he was entitled to a plenary hearing
lacks merit. Attorney's fees may be established by detailed
certification or affidavit, unless the trial court determines that
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a plenary hearing is necessary to resolve the issues equitably.
Westfield Centre Serv., Inc. v. Cities Serv. Oil Co., 172 N.J.
Super. 196, 205 (App. Div.), certif. denied, 85 N.J. 92 (1980),
aff'd, 86 N.J. 453 (1981). Here, Judge Mitterhoff found that
Cecere's submissions "did not provide a basis for a plenary
hearing[,]" and that he failed to provide "any evidentiary support
for his contention that the fees are excessive." Accordingly, the
denial of Cecere's request for a plenary hearing was a sound
exercise of discretion.
Finally, Cecere's contention that the attorney's fees award
was disproportionate to the damages recovered on the Garage
Property also lacks merit. The ultimate goal in awarding
attorney's fees is to allow reasonable fees that are not excessive.
Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 388 (2009).
Given the nature and length of the litigation between Cecere and
34 Label, the attorney's fees award approved by Judge Mitterhoff
was reasonable.
Affirmed.
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