                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1301-12T3

KATHERINE FELICIANO,

      Plaintiff-Respondent/
      Cross-Appellant,                   APPROVED FOR PUBLICATION

                                            February 21, 2014
v.
                                           APPELLATE DIVISION
JEFFREY N. FALDETTA,

      Defendant-Appellant/
      Cross-Respondent,

and

JENNY GONZALEZ,

      Defendant.

__________________________________


          Argued November 7, 2013 – Decided February 21, 2014

          Before Judges Grall, Waugh, and Nugent.

          On appeal from the Superior Court of New
          Jersey, Law Division, Cumberland County,
          Docket No. L-0132-09.

          Stephen A. Rudolph argued the cause for
          appellant/cross-respondent (Rudolph & Kayal,
          attorneys; Mr. Rudolph, on the briefs).

          Daniel E. Rosner and Edward J. Tucker argued
          the   cause  for  respondent/cross-appellant
          (Rosner & Tucker P.C., attorneys; Mr. Rosner
          and Mr. Tucker, of counsel and on the
          brief).
           Mark W. Davis argued the cause for amicus
           curiae New Jersey Association of Justice
           (Stark & Stark, attorneys; Mr. Davis, on the
           brief).

      The opinion of the court was delivered by

WAUGH, J.A.D.

      Defendant Jeffrey Faldetta appeals the Law Division's award

of    counsel    fees       under     Rule       4:58-2,      which    governs     the

consequences     of    a    failure    to       accept   an   offer    of   judgment.

Plaintiff Katherine Feliciano cross-appeals, arguing that the

trial judge should have calculated the fees at a higher hourly

rate and enhanced the lodestar amount after it was established.

We affirm.

                                         I.

      We discern the following facts and procedural history from

the record on appeal.

      On March 7, 2007, while driving in rainy weather, the motor

vehicle owned by defendant Jenny Gonzalez and driven by Faldetta

struck the vehicle driven by Feliciano.                       As a result of the

accident, Feliciano alleged that she suffered permanent injuries

to her neck and lower back, with permanent residuals including

muscle damage.

      Feliciano filed a personal injury action against Faldetta

and   Gonzalez    in       February   2009.         Gonzalez     was   subsequently

granted summary judgment, dismissing the claim against her on



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the basis that Faldetta was not her agent at the time of the

accident.     Faldetta moved for summary judgment in April 2010,

arguing that Feliciano's alleged injuries failed to satisfy the

verbal threshold established by N.J.S.A. 39:6A-8(a).                       The motion

was denied in May.

    In    June,     Feliciano       served      and   filed     an   offer   to   take

judgment in the amount of $15,000, as permitted by Rule 4:58-1.

Faldetta rejected the offer.               Following a three-day trial in May

2012,   the   jury      returned       a   verdict     in   favor     of   Feliciano,

determining      that      she   had       suffered    permanent       injuries    and

awarding her $50,000 in damages for pain and suffering.

    On    July     3,   Feliciano      filed     a    motion   seeking     attorney's

fees, litigation expenses, and interest pursuant to Rule 4:58-2.

In support of the motion, Feliciano filed certifications by the

two attorneys who had worked on the case.                      They sought a total

of $62,780 in legal fees.           Faldetta filed a brief in opposition,

arguing     that     the     fees      were     unwarranted,         excessive,    and

unreasonable.

    On September 18, the trial judge issued a written decision

explaining his reasons for awarding $42,230 in counsel fees,

$6,831.09 in litigation expenses, and $6,998.67 in interest.                         On

the same day, the trial judge entered judgment against Faldetta

for $109,185.27.        This appeal and cross-appeal followed.




                                            3                                A-1301-12T3
                                               II.

          On     appeal,      Faldetta       argues          that        (1)        Rule        4:58    is

unconstitutional           because      it     treats        plaintiffs             more    favorably

than defendants, (2) the trial judge failed to consider that the

award created undue hardship for Faldetta because the insurance

policy         covering    the    Gonzalez        vehicle      had        a    policy       limit       of

$50,000,         (3)    the     award    was      duplicative            because       Feliciano's

attorneys were entitled to a contingent fee, and (4) the trial

judge erred in determining the hourly rate and the hours spent

on which the award was based.                         Feliciano argues in the cross-

appeal that the judge should have (1) chosen higher hourly rates

and (2) awarded an enhanced fee under the principles set forth

in Rendine v. Pantzer, 141 N.J. 292, 340-42 (1995).

          Because the issue of the constitutionality of Rule 4:58 was

not raised in the trial court, we decline to consider it on

appeal.          Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.

542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960));

see       also   State     v.    Robinson,        200   N.J.        1,    20-22       (2009).            In

addition,         Faldetta       failed      to       give    notice           to    the        Attorney

General, as required by Rule 2:5-1(h) if the constitutionality

of    a    state       "enactment"      is   challenged.             See       R.M.        v.    Supreme




                                                  4                                              A-1301-12T3
Court, 185 N.J. 208, 213 (2005) (noting that the Supreme Court

was represented by Attorney General in constitutional challenge

to Rule 1:20-9).

      We take the same position with respect to the argument that

the   trial   judge     erred    by    failing    to   consider    and    apply    the

provision     in    Rule     4:58-2(b)    that    "[n]o    allowances      shall    be

granted pursuant to paragraph (a) if they would impose undue

hardship."        Although the issue of who would pay the fee award

was mentioned during oral argument, there was nothing in the

opposition         to   the     motion,        particularly       certifications,

concerning Faldetta's financial position.                   In addition, it is

not clear whether Faldetta has a viable Rova Farms1 claim against

the carrier who defended the action and declined the offer of

judgment.     If he does, the carrier would be required to pay the

judgment, including the fees and expenses awarded under Rule

4:58-2.     If it is determined that Faldetta has no such claim, he

has   the   option      of   seeking     relief   from    that    portion    of    the

judgment under Rule 4:50, at which time he would be required to

provide     the    financial     information      he     failed   to     provide   in

opposition to the motion.



1
  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.
474 (1974).




                                           5                                A-1301-12T3
     We reject Faldetta's argument that the counsel fee award is

duplicative because plaintiff's attorneys are also entitled to a

contingent fee of one-third of the amount of the judgment.                     His

argument assumes that plaintiff's counsel is entitled to both

the contingent fee and the fees awarded under Rule 4:58-2.                    That

assumption is, in our opinion, inconsistent with the wording of

the rule, which provides that "the claimant shall be allowed"

costs of suit, legal fees, and interest.                     To hold that the

contingent fee must be deducted from the fee award under the

rule would provide a windfall to Faldetta at the expense of

Feliciano.      Her   attorneys    are      entitled   to    the   fee   awarded

pursuant to Rule 4:58-2 for the work done after the offer of

judgment was rejected and fair compensation from their client

for the period prior to that.2

     Finally,    we   turn   to   the    issue   of    the    quantum    of   fees

awarded.     Faldetta takes issue with the trial judge's acceptance

of the hours submitted by Feliciano's attorneys and the hourly

rate applied to those hours.            Feliciano argues that the judge

set the hourly rates too low and erred in declining to award a

fee enhancement.

2
  There may be a dispute between Feliciano and her attorneys as
to the amount of any additional compensation sought by her
attorneys.   If there is such a dispute, it can be resolved
through fee arbitration pursuant to Rule 1:20A-3 or suit
following compliance with Rule 1:20A-6.



                                        6                                A-1301-12T3
    Rule 4:58-2 "accords [the] judge no discretion regarding

whether or not to award attorney's fees and costs of suit in an

offer of judgment case."       Wiese v. Dedhia, 188 N.J. 587, 592

(2006).      The     amount    of     the    assessment,    however,        is

discretionary.      Packard-Bamberger & Co. v. Collier, 167 N.J.

427, 444 (2001).     "We will disturb a trial court's determination

on counsel fees only on the 'rarest occasion,' and then only

because of clear abuse of discretion."           Strahan v. Strahan, 402

N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine, supra,

141 N.J. at 317).

    In calculating the amount of reasonable attorney's fees,

courts determine the "lodestar," defined as the "number of hours

reasonably   expended"    by    the       attorney,   "multiplied     by     a

reasonable hourly rate."       Furst v. Einstein Moomjy, Inc., 182

N.J. 1, 21 (2004); Rendine, supra, 141 N.J. at 334-35.                   "The

court must not include excessive and unnecessary hours spent on

the case in calculating the lodestar."           Furst, supra, 182 N.J.

at 22.    The court is required to make findings on each element

of the lodestar fee.     Ibid.; R.M. v. Supreme Court, 190 N.J. 1,

11 (2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103

S. Ct. 1933, 1940, 76 L. Ed. 2d 40, 51 (1983)).

    The trial judge carefully reviewed both the hours requested

and the hourly rates sought.          He found that the time spent by




                                      7                             A-1301-12T3
the     attorneys     was        reasonable,    that    the        hours     were     not

duplicative, and that they had not been increased to inflate the

fees.     He declined to accept the requested hourly rates for the

two attorneys, $500 for trial counsel and $400 for the other

attorney.     Although he did not apply the hourly rates urged by

Faldetta, he described them as more in line with the relevant

legal    community.         He    chose   hourly   rates      of    $350    and     $250,

respectively.       We see no "clear abuse of discretion" in the

judge's determination of the hourly rate or the number of hours

eligible for reimbursement, which find adequate support in the

record.

      Finally, the judge determined that a fee enhancement was

not appropriate in this case.               Here, the judge did not explain

his   reasons    with   the       same    degree   of   detail      as     required    by

Rendine and subsequent case law.                We, nevertheless, agree with

his conclusion that a fee enhancement was not required in this

case.     We note that the purpose of the fee-shifting provisions

of Rule 4:58 is to encourage settlement rather than to provide

an incentive for representation of plaintiffs in certain types

of cases.       Rendine, supra, 141 N.J. at 341-42.                      That is one

reason why the fee award is limited to the period after the

refusal to accept an offer of judgment.                  Even if the judge had

the discretion to enhance the fees, he was not required to do so




                                            8                                  A-1301-12T3
and our review of the record convinces us that he did not abuse

any such discretion in declining to do so.   The fee awarded was

fair and reasonable under the circumstances of this case.

    Affirmed.




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