               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3854-16T1

JEFFREY S. JACOBS,

     Plaintiff-Appellant/               APPROVED FOR PUBLICATION
     Cross-Respondent,
                                              February 20, 2019
v.                                         APPELLATE DIVISION

MARK LINDSAY AND SON
PLUMBING & HEATING, INC.,
JOHN STRETAVSKI, individually,
and MARK D. LINDSAY,
individually,

     Defendants-Respondents/
     Cross-Appellants.
______________________________

           Argued September 13, 2018 – Decided February 20, 2019

           Before Judges Fuentes, Accurso and Moynihan.

           On appeal from Superior Court of New Jersey, Law
           Division, Essex County, Docket No. L-3120-14.

           Anthony M. Rainone argued the cause for
           appellant/cross-respondent (Brach Eichler, LLC,
           attorneys; Anthony M. Rainone, of counsel and on the
           briefs; David J. Klein and Kent D. Anderson, on the
           briefs).

           Steven K. Parness argued the cause for
           respondents/cross-appellants (Methfessel & Werbel,
             attorneys; Steven K. Parness, of counsel and on the
             briefs; Boris Shapiro, on the brief).

       The opinion of the court was delivered by

FUENTES, P.J.A.D.

       Plaintiff Jeffrey S. Jacobs hired defendant Mark Lindsay and Son

Plumbing & Heating, Inc. (MLSP) to repair his home air conditioning unit.

Defendant made three service calls to repair the unit but was unable to correct

the problem. After each service call, defendant provided plaintiff with an

invoice that described the services performed and the parts installed. Plaintiff

issued checks for the first two service calls.            After defendant's third

unsuccessful attempt to repair the unit, plaintiff refused to pay for this service

call and placed a stop-payment order 1 on the two previously issued checks.

       Instead of filing a civil action against plaintiff to recover the value of the

services rendered, John Stretavski, an employee of MLSP, and defendant Mark

Lindsay, owner of MLSP, filed an incident report with the Borough of

Caldwell Police Department and accused plaintiff of theft of services. 2 After

investigating defendant's allegation, the Caldwell Police Department formally

charged plaintiff with the criminal offense of theft of services.           Plaintiff


1
    See N.J.S.A. 12A:4-403(a).
2
    See N.J.S.A. 2C:20-8(a).


                                                                            A-3854-16T1
                                          2
retained an attorney to represent him in this criminal matter. The Caldwell

Municipal Court dismissed the complaint against plaintiff for lack of probable

cause.

      Plaintiff thereafter filed a civil action against defendants alleging

violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -210 (CFA),

malicious prosecution, defamation, and tortious interference with economic

relationship.3 After joinder of issue and exchange of discovery, the parties

filed cross-motions for summary judgment. The Law Division Judge assigned

to the case at the time granted plaintiff's motion for summary judgment on the

CFA claims and denied defendants' cross-motion seeking the dismissal of

plaintiff's complaint in its entirety. The judge found defendants violated the

consumer protection provisions in N.J.S.A. 56:8-151 and N.J.A.C. 13:45A-

10.2 when they failed to provide plaintiff with a written contract describing the

services they agreed to provide and the methods used to determine the total

charges for labor and parts.         She found defendants engaged in an

unconscionable commercial practice under N.J.S.A. 56:8-2, when they filed a

criminal complaint against plaintiff as means of collecting a consumer debt.

Finally, the judge found the attorneys' fees and related costs plaintiff incurred

3
     Plaintiff's complaint originally included a count alleging intentional
infliction of emotional distress. He withdrew this count before the court
decided his motion for summary judgment.


                                                                         A-3854-16T1
                                       3
in the defense of the criminal charges constituted an "ascertainable loss" under

N.J.S.A. 56:8-19 as an "out-of-pocket loss." See Thiedemann v. Mercedes-

Benz USA, LLC, 183 N.J. 234, 248 (2005).

      The judge held that the quantum of damages plaintiff was entitled to

receive on the CFA claim and the viability of his common law claim of

malicious prosecution were matters to be decided by a jury. The case was

thereafter assigned to a different judge.     On April 28, 2016, the parties

appeared before this new judge and announced that they had reached a

settlement agreement. As described by the judge, defendants agreed to pay

plaintiff $45,000 "for any violation of the Consumer Fraud Act, except

attorneys' fees . . . incurred by the plaintiff in prosecuting the consumer fraud

action." In exchange, plaintiff agreed to dismiss the remaining common law

claims of malicious prosecution, tortious interference, and defamation. On

April 13, 2017, the judge awarded plaintiff $19,800 in attorneys' fees. On June

15, 2016, the parties executed an eighteen-page Settlement Agreement and

General Release that comprehensively describes the terms of the settlement.

      Against this procedural backdrop, plaintiff appeals the April 18, 2017

order awarding only $19,800 in counsel fees and costs. Defendants cross-

appeal the December 18, 2015 order granting plaintiff's motion for summary

judgment on his CFA claim. After reviewing de novo the record developed



                                                                        A-3854-16T1
                                       4
before the Law Division, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405 (2014), and applying the standards codified in Rule 4:46-2(c), we

conclude defendants knowingly and voluntarily bargained away their right to

challenge the Law Division's December 18, 2015 order and dismiss their cross-

appeal accordingly. With respect to plaintiff's direct appeal, we reverse the

April 18, 2017 order and remand for the court to apply the standards

established by our Supreme Court to determine anew the amount of counsel

fees plaintiff is entitled to receive as a prevailing party under N.J.S.A. 56:8-19.

Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995).

                                          I

        At all times relevant to this case, plaintiff worked as a financial advisor.

On July 15, 2013, plaintiff went to the home of his client Ed Kohler. During

this encounter, plaintiff told Kohler that his air conditioning unit had

malfunctioned and he could not get anyone to come fix it. Kohler contacted

his friend, defendant John Stretavski, general manager of defendant MLSP, a

home improvement contractor that services residential air conditioning units.

Stretavski agreed to go to plaintiff's home that night to attempt to repair the

unit.    Stretavski also contacted his boss, defendant Mark Lindsay, for

permission to go on this service call. According to Stretavski, he told plaintiff

that he would have to charge him for the service call. Thereafter, Stretavski



                                                                           A-3854-16T1
                                          5
met plaintiff at Kohler's home and the three drove to plaintiff's home in

separate vehicles.

      Stretavski replaced the air conditioner unit's capacitor with a new one he

had in his truck. Although he told plaintiff the unit most likely needed a new

motor, he believed he may be able to get the old motor working with a new

capacitor. According to Stretavski's deposition testimony, plaintiff approved

this attempted repair.   The "blower motor" started running after Stretavski

replaced the capacitor. Stretavski testified that he explained to plaintiff that

"based upon the noise [he] heard [he] was not sure if the blower motor would

last five minutes or five months."

      At this point, the three men (plaintiff, Stretavski, and Kohler) went

outside to check "the charge of the unit." Stretavski also checked the amount

of refrigerant available and found the pressure was low. Stretavski testified he

told plaintiff the unit needed more refrigerant. Once again, Stretavski testified

plaintiff approved adding more refrigerant after Stretavski told him the price.

As soon as Stretavski added the refrigerant, he heard a loud noise from the

basement. In Stretavski's words: "[s]o that was indicative that I lost air flow

and the motor went."

      Stretavski told plaintiff that the unit required a new motor. Because he

did not have a replacement motor in his truck, he would have to return the next



                                                                         A-3854-16T1
                                       6
day to install it. According to Stretavski, he told plaintiff the price of a motor

was between $500 and $800. He also provided him with a handwritten invoice

for the work he had done that night, which amounted to $596.06. Plaintiff

wrote a check for this amount but did not sign the invoice. When asked about

plaintiff's failure to sign the invoice, Stretavski explained: "I felt comfortable

with him as far as being an acquaintance of Ed Kohler."

      Stretavski returned to plaintiff's home the next day and installed the new

blower motor. However, when Stretavski started the system, he noticed "once

again that large line that we typically see condensation forming after a little bit

of time was not present yet again." Stretavski went outside and determined

"that the system had absolutely no Freon.         There was zero.     No Freon."

Stretavski acknowledged: (1) he had added Freon the previous day; (2) there

was a leak; and (3) he did not check if there was a leak before installing a new

blower motor because he needed air flow. Stretavski testified that plaintiff

"started to get a little bit annoyed" when he told him that he would need to

perform a nitrogen test to determine where the leak in the system was located.

Stretavski provided plaintiff with an invoice for the new motor, which pla intiff

paid with a check. On the invoice for the new motor, Stretavski also wrote the

price of the nitrogen test was an additional $289.22. Plaintiff and Stretavski




                                                                          A-3854-16T1
                                        7
then arranged to have two technicians from MLSP come to perform the

nitrogen test.

      The two technicians arrived to perform the nitrogen test later that same

day. Plaintiff authorized the technicians to perform the test. They discovered

a leak in the coil. Technician Kenneth Bryan told plaintiff the coil needed to

be replaced. He also advised plaintiff to replace the entire unit and estimated

the coil replacement alone would cost "a couple thousand."           Plaintiff told

Bryan that he did not want to replace the coil. When Bryan gave him the $289

invoice for the nitrogen test, plaintiff refused to pay it. Bryan called Stretavski

to apprise him of plaintiff's refusal to pay. Stretavski instructed Bryan to

write: "to be billed" on the invoice, and told him they would deal with it at a

later time. According to plaintiff, after this interaction, no one from MLSP

contacted him to resolve the billing dispute.      In his deposition, Stretavski

testified he called plaintiff on July 16, 2013 and left a voicemail. Stretavski

claimed plaintiff did not return his call. It is undisputed that plaintiff did not

pay for the third service call and thereafter placed a stop payment order on the

two checks he previously issued to defendants.

      On August 21, 2013, Stretavski gave a "Voluntary/Witness Statement" to

the Caldwell Police Department that described his interactions with plaintiff

concerning the three service calls that failed to repair the air conditioning unit.



                                                                          A-3854-16T1
                                        8
Stretavski also gave the police officers copies of all three invoices, and copies

of the two checks which were the subject of the stop payment orders. Caldwell

Police Detective Sergeant Brad Palatucci's investigation of this matter

consisted entirely of speaking with plaintiff, Stretavski, and Kohler. Based

exclusively on what he learned from these conversations, Palatucci issued a

Summons Complaint against plaintiff on October 15, 2013, charging him with

the criminal offense of third degree theft of services pursuant to N.J.S.A.

2C:20-8(a). Palatucci provided the following evidential basis to support this

charge:

            [Jacobs] did: within the jurisdiction of this court,
            commit the offense of theft by purposely obtaining
            services, to wit plumbing and air conditioning repair
            services (Mark Lindsay Plumbing), without payment
            or offer to pay by cancelling checks for payment
            before payment could be cleared and refusing to pay
            for services, knowing the services are only available
            for compensation, specifically by, writing check
            number 1064 in the amount of $596.06 to satisfy
            invoice 13901 and check number 1065 in the amount
            of [$]575.55 to satisfy invoice number 13903 and
            cancelling said checks before payment could be
            completed and refusing to pay invoice number 16519
            after all services had been rendered.

      At his deposition, Palatucci admitted he told plaintiff he would not file

criminal charges against him if he agreed to pay MLSP the three disputed

invoices. When plaintiff refused, Palatucci told him he had twenty-four hours

to turn himself in or a warrant would issue for his arrest. On October 17,

                                                                         A-3854-16T1
                                       9
2013, plaintiff retained counsel and surrendered himself to the Caldwell Police

Department where he was photographed, fingerprinted, and otherwise

processed as a defendant facing criminal charges. On November 18, 2013,

plaintiff appeared before the Caldwell Municipal Court for arraignment. With

the consent of the municipal prosecutor, the municipal court judge dismissed

the complaint for lack of probable cause.      It is undisputed, however, that

plaintiff's professional status as a financial professional required him to amend

his "Uniform Application for Securities Industry Registration or Transfer" to

reflect this criminal charge.

      Defendant Lindsay also admitted that MLSP has instituted criminal

actions in the past as a means of collecting unpaid invoices. The following

deposition testimony from Lindsay illustrates this point:

            Q. You mentioned before about a lawsuit that was
            filed to collect money that was due, was that brought
            by you individually or by your company?

            A. By the company.

            Q. Now, in that lawsuit was a criminal complaint filed
            on behalf of the company?

            A. No.

                   ....


            Q. Why did you decide to sue as opposed to file a
            criminal complaint?

                                                                         A-3854-16T1
                                       10
A. The amount of the money.

Q. How much was the amount of the lawsuit?

A. I don't know the exact amount, about $25,000.

Q. And you mentioned that the criminal complaint that
was - - that you filed the second time - - well, the first
complaint, the first criminal complaint approximately
14 years ago, do you recall how much that was for?

A. No, I do not.

Q. Do you recall the second one?

A. Yes.

Q. How much?

A. I said that before. I think $2,500.

Q. So did you decide to - - is it fair to say that because
more was owed in connection with the lawsuit you
decided to go the civil route as opposed to the criminal
route?

      ....

A. Yes.

Q. . . . do you know how much Mr. Jacobs owes your
company? According to defendants do you know how
much - -

A. What I [said], [$]1,400.

Q. And the fact that it's [$]1,400, would that - - is that
why a criminal complaint was filed as opposed to a
lawsuit?



                                                             A-3854-16T1
                           11
                  ....

            A. Yes.

                                        II

      We begin our analysis by addressing the arguments defendants' raised in

their cross-appeal. Defendants' counsel prepared the consent order entered by

the court on April 18, 2017. Defendants, "by and through their insurance

carrier," agreed to pay plaintiff $45,000 to dismiss counts II, III, and IV in the

complaint, "without admitting any fault or wrongdoing." With respect to the

CFA claims, the parties acknowledged that the court had "determined that

[p]laintiff proved a violation of the Consumer Fraud Act's (CFA) technical

requirements and an unconscionable commercial practice, which resulted in an

ascertainable loss pursuant to the CFA, rendering [p]laintiff a prevailing party

and that determination is not altered or amended by this Consent Order."

(Emphasis added).

      Despite these assertions, "[d]efendants reserve[d] the right to appeal the

[c]ourt's prior grant of [s]ummary [j]udgment [under] the [CFA]."             The

Consent Order also paradoxically provided that:

            should a higher court overturn the [c]ourt's ruling as to
            the Consumer Fraud Act, such a ruling will not (i)
            impact the settlement amount paid to [p]laintiff, and
            that no refund of any amount of the settlement shall be
            required by [p]laintiff; and (ii) [p]laintiff shall have
            the right to prosecute his CFA [claims] against

                                                                         A-3854-16T1
                                       12
            [d]efendants pursuant to an[d] in accordance with the
            higher court's ruling, but in the event that [p]laintiff
            does so, his remedy is limited to seeking an award of
            attorneys' fees and costs.

      It is a long-established principle of appellate jurisprudence in our State

that an order consented to by the attorneys for each party is ordinarily not

appealable. Winberry v. Salisbury, 5 N.J. 240, 255 (1950); see also N.J. Sch.

Constr. Corp. v. Lopez, 412 N.J. Super. 298, 309 (App. Div. 2010); Janicky v.

Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009). "This is

because the rule allowing an appeal as of right from a final judgment

contemplates a judgment entered involuntarily against the losing party." N.J.

Sch. Constr. Corp., 412 N.J. Super. at 309 (citing Cooper Med. Ctr. v. Boyd,

179 N.J. Super. 53, 56 (App. Div. 1981)).        Even when the consent order

includes a clause preserving an issue for appeal, "the practice is disapproved of

because it preempts the appellate court's authority to decide whether to hear an

interlocutory appeal," improperly placing jurisdiction upon the appellate court.

Ibid. (citing Caggiano v. Fontoura, 354 N.J. Super. 111, 124 (App. Div.

2002)). Succinctly stated, including a clause in a consent order that preserves

the right to appeal does not automatically make the order appealable. Ibid.

(citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)).

      Here, the language we have quoted from the Consent Order reveals that

our review of the Law Division's ruling concerning defendants' liability under

                                                                        A-3854-16T1
                                       13
the CFA would constitute nothing more than an academic exercise. Plaintiff

retains the $45,000 settlement paid by defendants' insurance carrier regardless

of how this court views the Law Division's ruling.           Stated differently,

defendants' attempt to preserve their right to appeal the Law Division's order

that found them liable under the CFA is nothing more than a transparent

subterfuge intended to obtain an advisory ruling from this court on a question

of law.    We thus dismiss defendants' cross-appeal in accordance with the

Supreme Court's holding in Winberry, 5 N.J. at 255.

                                       III

        We now address plaintiff's appeal challenging the Law Division's April

18, 2017 order awarding $19,800 in counsel fees under N.J.S.A. 56:8-19, but

failing to award any compensation for filing fees and costs of suit. We begin

our analysis by reaffirming that an appellate court will disturb a fee

determination made by the trial court "on the rarest of occasions, and then only

because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 444 (2001) (quoting Rendine, 141 N.J. at 317). Guided by this

standard and the clear language in N.J.S.A. 56:8-19, we are satisfied the

judge's determination cannot stand.

        Plaintiff submitted his revised and final fee application on January 24,

2017.     The application included an itemized summary of the $247,701 in



                                                                        A-3854-16T1
                                       14
attorneys' fees sought without enhancement. The hourly rates of compensation

for the attorneys involved in this case were based on their status within the

firm.    Partners sought an hourly rate of $490 and $385 for associates.

Paralegals were billed at $250 per hour. The application separated the billing

into eleven "litigation phases," and included charts that described how much

was billed in each phase of the litigation. Plaintiff's counsel also sought a

thirty-three percent enhancement, which amounted to $81,882.70. The total

attorneys' fee award sought was thus $327,776.70.           Plaintiff sought an

additional $24,377.39 in costs and disbursements; this included $22,690.09 set

forth in plaintiff's initial certification of professional services dated May 31,

2016, and an additional $1,687.30 expended since that date.

        The record shows that in reviewing plaintiff's counsel's fee application,

the judge did not appreciate the interrelation between facts supporting

defendants' unconscionable commercial practices claim under the CFA and the

common law torts of malicious prosecution, defamation, and tortious

interference with economic relationships.       The judge thus disallowed as

unrelated to the CFA, professional time devoted by plaintiff's counsel in

discovery that touched upon or overlapped with these common law claims.

        The judge also did not have a correct understanding or appreciation of

the underlying material facts that led the first judge assigned to this case to



                                                                         A-3854-16T1
                                        15
grant plaintiff's motion for summary judgment on the CFA claims.              We

conclude this threshold error significantly tainted the judge's perception of the

case and contributed to her misapplication of the standards for awarding

counsel fees in this case. The following prefatory comments the judge made

before delivering her oral ruling on plaintiff's fee application illustrate the

magnitude of her misconception of the material facts of this case:

            This is a case that's unusual for this Judge because this
            Judge was not the Judge that determined there had
            been a violation of the Consumer Fraud Act. This
            case has its genesis in a contractor that went to the
            plaintiff's home after requests of a mutual friend and
            business associate because it was mid-summer, it was
            very hot, [and] the plaintiff's air conditioner wasn't
            working. There was some back and forth, some
            attempts at repair. They weren't successful, a final
            attempt at repair that wasn't successful. The plaintiff
            had issued checks. Then the plaintiff stopped payment
            on the checks.

            The defendant then went to the police department to
            seek collection on the checks. A police officer filed a
            criminal complaint. It appears everybody agrees that
            no - - no defendant was notified of the proceedings in
            the court. The municipal court Judge dismissed the
            criminal complaint that had been filed against the
            plaintiff by the police officer and the plaintiff spent
            $1,750 in attorneys' fees, appearing in the municipal
            court on that day.

            There was another Judge who heard summary
            judgment motions in this case and that other Judge
            ruled that the Consumer Fraud Act had been violated
            by the repairer entity because of the nature of their
            invoices and paperwork.       Something had been

                                                                        A-3854-16T1
                                       16
            missing. I forget exactly what is was[.] . . .
            [W]hatever information is required to be there,
            whatever disclosures are required to be made was not
            contained in the paperwork.

            And so the Judge reasoned, since that paperwork was
            the foundation for going to the police, therefore, going
            to the police was an unconscionable commercial
            practice and the amount of attorneys' fees incurred in
            defending one's self in the municipal court represented
            the loss associated with that.

      These "facts" bear no relation to the salient facts we have described at

length here and expressly relied on by the first judge to support her decision to

grant plaintiff's motion for summary judgment on his CFA claims.

Specifically, nowhere in the judge's rendition is a reference to Lindsay's

deposition testimony in which he admits to engaging in the unconscionable

commercial practice of using the local police department as his company's debt

collection agency.   Based on her misconception of the basis for the prior

summary judgment, the judge made the following findings in support of her

decision to award plaintiff a total of $19,800 in counsel fees (which amounts

to six percent of the $327,776.70 requested by plaintiff's counsel), and zero

compensation for costs:

            I believe the plaintiff is entitled to an award of
            attorneys' fees for the preparation and the filing of the
            summary judgment motion. . . . I don't believe that
            [the] motion should have taken an entire month of a
            senior person's time to prepare. That is unreasonable,
            particularly, when we look at what the summary

                                                                         A-3854-16T1
                                       17
judgment motion would have had to have been on the
Consumer Fraud Act alone.

And so on that, the [c]ourt will allow as and for the
preparation of the summary judgment motion, the
[c]ourt will allow the plaintiff 40 hours at a blended
rate of $300 an hour. The [c]ourt has used a blended
rate because it believes that . . . it's unreasonable to
have the entire motion done by some of the most
senior people in the firm. And so the [c]ourt has
simply blended a rate of . . . what the defendant argues
and what the plaintiff argues. We'll make it a blended
rate of [$]300 an hour. And so as and for the
preparation of the summary judgment motion, plaintiff
will be awarded $12,000.

There had to be some discovery here. . . . There had
to be review of document request [sic], there had to be
some scheduling, et cetera. The [c]ourt will allow 20
hours of preparing and reviewing discovery but, again,
it's going to be at the blended rate of [$]300 because
much of that could have been delegated to a junior
person with a senior person reviewing it. And so
that's $6,000 for the discovery.

So for the discovery and the summary judgment
motion and we'll allow for some time for drafting of
the complaint and that practicality, the [c]ourt will
allow six hours for that, again, at the blended rate, so
that's $1,800. So the [c]ourt will allow $19,800.

I'll say the following. In the event of any appeal, this
[c]ourt recognizes that the difficult challenge
presented was the [c]ourt was caught between a rock
and [a] hard [place]. It was not for the [c]ourt to go
through all hundreds of entries of the plaintiff and try
and see, can I discern what is or isn't the Consumer
Fraud Act issue here. My attempts at doing that into
the wee hours of the morning advised me that that
wasn't . . . the way to do it. It couldn't be because I

                                                           A-3854-16T1
                          18
            found very little distinction.   So it wasn't for the
            [c]ourt to do that exercise.

            The [c]ourt has examined the bills. The [c]ourt has
            determined that certain -- that what would a
            reasonable attorney have to do to get this result and to
            the extent that's not the standard, then the [c]ourt
            would have had to have determined that. I couldn't
            award the plaintiff any fees. And, as I said, I don't
            think that's fair and plaintiff was a successful
            Consumer Fraud Act claimant, and so the [c]ourt will
            award that amount of fees.

      Under the CFA, "the court shall . . . award reasonable attorneys' fees,

filing fees and reasonable costs of suit" to a prevailing plaintiff "who suffers

any ascertainable loss of moneys or property" because of a violation of the

statute. N.J.S.A. 56:8-19. The court's first step in awarding a reasonable

amount of attorneys' fees is determining the lodestar, "which equals 'the

number of hours reasonably expended multiplied by a reasonable hourly rate.'"

Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004) (quoting Rendine, 141

N.J. at 335). Rule 4:42-9(b) requires an application for counsel fees to be

supported by an affidavit addressing the following pertinent factors articulated

in RPC 1.5(a):

            (1) the time and labor required, the novelty and
            difficulty of the questions involved, and the skill
            requisite to perform the legal service properly; (2) the
            likelihood, if apparent to the client, that the
            acceptance of the particular employment will preclude
            other employment by the lawyer; (3) the fee
            customarily charged in the locality for similar legal

                                                                        A-3854-16T1
                                      19
            services; (4) the amount involved and the results
            obtained; (5) the time limitations imposed by the
            client or by the circumstances; (6) the nature and
            length of the professional relationship with the client;
            (7) the experience, reputation, and ability of the
            lawyer or lawyers performing the services; (8)
            whether the fee is fixed or contingent.

      A trial court must use a four-prong test to determine the lodestar amount.

Furst, 182 N.J. at 22-23.        First, the trial court "must determine the

reasonableness of the rates proposed by prevailing counsel in support of the

fee application." Id. at 22 (citing Rendine, 141 N.J. at 335). Here, the court

evaluates the "rate of the prevailing attorney in comparison to rates 'for similar

services by lawyers of reasonably comparable skill, experience, and reputation'

in the community."     Ibid. (citing Rendine, 141 N.J. at 337).        The second

determination is "whether the time expended in pursuit of the 'interests to be

vindicated,' the 'underlying statutory objectives,' and recoverable damages is

equivalent to the time 'competent counsel reasonably would have expended to

achieve a comparable result. . . .'" Ibid. (citing Rendine, 141 N.J. at 336). The

court may determine that the hours expended on a case are excessive if it was

not "reasonable under the circumstances." Id. at 22-23.

      Third, although proportionality is not required between the damages

recovered and the award, the court "should decrease the lodestar if the

prevailing party achieved limited success in relation to the relief he had



                                                                          A-3854-16T1
                                       20
sought." Id. at 23 (citing Rendine, 141 N.J. at 336). Fourth, an attorney may

be entitled to a fee enhancement if there is a contingent-fee arrangement. Ibid.

(citing Rendine, 141 N.J. at 338). If a fee enhancement is appropriate, "the

court should consider the result achieved, the risks involved, and the relative

likelihood of success in the undertaking" to determine the amount of

enhancement. Ibid. (citing Rendine, 141 N.J. at 340-41).

      As an intermediate appellate court, we disturb fee determinations made

by the trial judge only if there is evidence of a clear abuse of discretion. This

"may be demonstrated 'if the discretionary act was not premised upon

consideration of all relevant factors, was based upon consideration of

irrelevant or inappropriate factors, or amounts to a clear error in judgment.'"

Heyert v. Taddese, 431 N.J. Super. 388, 444 (App. Div. 2013) (quoting

Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).          Here, the

methodology used by the judge is untethered to the standards adopted by our

Supreme Court for determining an award of counsel fees.            The ultimate

conclusions reached by the judge were thus arbitrary. The judge's comments at

the end also revealed a misunderstanding and a lack of appreciation of the

difficult task performed by attorneys in these types of cases and undermines

the salutary social policy of the CFA's fee-shifting provision.




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                                       21
      Plaintiff also sought an award of $24,377.39 in litigation costs and filing

fees. Although N.J.S.A. 56:8-19 expressly requires the court to award plaintiff

"filing fees and reasonable costs of suit," the judge did not award plaintiff any

compensation to cover these costs or provide any explanation for this omission

in her April 13, 2017 oral decision or the April 18, 2017 final order.

      More than twenty years ago, our Supreme Court declared that "in

allowing for private suits in addition to actions instituted by the Attorney

General, [the CFA] contemplates that consumers will act as 'private attorneys

general.'" Lemelledo v. Benefit Mgmt. Corp., 150 N.J. 255, 268 (1997). Thus,

as a matter of public policy, the Legislature enacted fee-shifting provisions in

remedial statutes like the CFA to induce competent counsel and advance the

public interest through private enforcement of statutory rights that the

government alone cannot enforce. Pinto v. Spectrum Chems. & Lab. Prods.,

200 N.J. 580, 593 (2010). The Court has noted that:

            In a consumer fraud action, the Legislature has
            recognized that the right of access to the courts is
            meaningless unless the injured party has the resources
            to launch a suit. Fee-shifting provides an incentive to
            competent counsel to undertake high-risk cases and to
            represent victims of fraud who suffer relatively minor
            losses.

            [Furst, 182 N.J. at 21.]




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      Here, Lindsay admitted that MLSP has a history of instituting criminal

actions as a means of collecting its unpaid invoices. This outrageous abuse of

our criminal justice system is precisely the type of unconscionable commercial

practice the CFA was designed to protect consumers from and deter

unscrupulous commercial entities from engaging in. However, the salutary

purpose of the CFA is undercut if the professional work performed by

competent private counsel in the course of representing consumers victimized

by such practices is arbitrarily undervalued by the judges entrusted to enforce

the CFA's fee-shifting provision.

      Pursuant to N.J.S.A. 56:8-19, plaintiff is entitled to an award of counsel

fees that reflects the work performed to bring about a successful outcome for

the consumer, independent of the "proportionality between damages recovered

and counsel-fee awards even if the litigation, as in this case, vindicates no

rights other than those of the plaintiff."   Szczepanski v. Newcomb Med. Ctr.,

141 N.J. 346, 366 (1995). Furthermore, plaintiff's counsel was entitled to have

the judge carefully consider and determine its application for a contingency

enhancement adopted in Rendine, 141 N.J. at 337 and subsequently reaffirmed

in Walker v. Giuffre, 209 N.J. 124, 128-29 (2012). Finally, in all CFA actions,

a prevailing consumer is entitled "to filing fees and reasonable costs of suit."

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



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Reversed and remanded. We do not retain jurisdiction.




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