                        NOT FOR PUBLICATION WITHOUT THE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


                               2                                  A-2965-15T2
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
