                                NOT FOR PUBLICATION WITHOUT THE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-2758-17T2

ROBERT J. TRIFFIN,

          Plaintiff,

v.

WILLIAM J. BERRY, JR.,
JAMES L. STANKO, CHAMPION
PUMPING AND PAVING, INC.,
CHAMPION PAVING, and
DURATECH,

          Defendants,

and

WILLIAM J. BERRY, JR.,

          Third-Party Plaintiff-Appellant,

v.

ALAN STANKO, DURATECH,
JOSEPH GILK, RICKY GILK,
and HARDDRIVES LLC,

     Third-Party Defendants-Respondents.
____________________________________
             Submitted February 27, 2019 – Decided March 25, 2019

             Before Judges Koblitz, Currier, and Mayer.

             On appeal from Superior Court of New Jersey, Law
             Division, Morris County, Docket No. DC-001423-17

             Fran J. Garb, attorney for appellant.

             Respondents have not filed briefs.

PER CURIAM

      Third-party plaintiff William J. Berry, Jr. appeals from a September 13,

2017 order entering default judgment against third-party defendants Alan

Stanko, Duratech, Joseph Gilk, Ricky Gilk, and Harddrives, LLC. Berry also

appeals from a January 12, 2018 order denying reconsideration of the judgment.

We affirm.

      Plaintiff Robert J. Triffin obtained a judgment, in the amount of $4426.32,

against Berry for a dishonored check.         Berry simultaneously obtained a

judgment against third-party defendants for $7514. Berry's judgment is the

subject of this appeal.

      Plaintiff purchases dishonored checks and then sues the non-paying party

to enforce payment.       In this matter, Berry issued a check to third-party

defendants in the amount of $3800. The check was cashed at a licensed check



                                                                         A-2758-17T2
                                        2
cashing agency.       However, the check was dishonored by Berry's bank for

insufficient funds.

      Plaintiff purchased the right to the dishonored check and demanded

payment of the face amount from Berry in accordance with N.J.S.A. 2A:32A-1.

After Berry refused to pay, plaintiff filed suit to collect the $3800 dishonored

check amount, plus interest and costs.

      In connection with plaintiff's suit to collect the dishonored check, Berry

filed a third-party complaint against third-party defendants alleging fraud,

misrepresentation, breach of contract, and violation of the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -195, seeking "the amount of $1,800 together with

treble damages . . . ."

      According to the allegations in the third-party complaint, in June 2016,

Berry wrote a check for $3800 payable to Duratech for paving work done in

2015. Subsequently, Duratech, through Stanko and the Gilks, claimed Berry

still owed the $3800 for paving work. Berry issued another check on June 29,

2016, but Berry disputed $3800 remained due. According to Berry, the parties

then negotiated a different amount for the 2015 paving work. Berry instructed

Duratech, Stanko, and the Gilks to destroy the $3800 check.           With the

understanding that the $3800 check would be destroyed, on June 30, 2016, Berry


                                                                        A-2758-17T2
                                         3
issued a check for $1800 payable to Duratech. That check was cashed on July

1, 2016.

       After receiving plaintiff's complaint, Berry reviewed his financial records.

He discovered an April 11, 2015 contract with the Gilks and Harddrives, LLC,

for the 2015 paving work and realized he had no contract with Stanko or

Duratech. The contract price for the paving work was $4350, which Berry paid

in full.

       When he was served with plaintiff's complaint, Berry learned the $3800

check was not destroyed and was presented to Berry's bank for payment.

       Berry claimed Stanko and Duratech fraudulently misrepresented that he

still owed money for the 2015 paving work.          Additionally, Berry asserted

Duratech, Stanko, and the Gilks violated the CFA by making "an

unconscionable, deliberate and knowing act of fraudulent misrepresentation"

that Berry owed additional money for paving work. In his third-party complaint,

Berry demanded "$1,800 together with treble damages, attorney fees, pre- and

post-judgment interest and costs of suit . . . ."

       Plaintiff and Berry each filed motions for summary judgment in support

of their claims. Plaintiff sought $4924.88 from Berry for the dishonored check,




                                                                           A-2758-17T2
                                          4
including interest and costs. Berry filed a motion for summary judgment as to

liability on his third-party claims.

      On June 28, 2017, the motion judge granted plaintiff's motion, entering

judgment against Berry in the amount of $4426.32. The judge also granted

Berry's summary judgment motion, finding liability against third-party

defendants.1 The judge instructed Berry to submit "proofs with respect to the

amount due to him by [third-party defendants] or appear at a proof hearing to

determine the same."

      Berry filed a certification in support of his damage claims against third-

party defendants.     Berry requested reimbursement for the amount of the

judgment entered in favor of plaintiff ($4426.32) and the $1800 check, and

requested the amount be trebled in accordance with the CFA for a total of

$18,678.96, excluding attorney's fees, costs, and interest.        Berry sought

attorney's fees in the amount of $14,304 and costs in the amount of $813.59.

Berry demanded a total of $33,796.55 on his third-party claims.




1
  Third-party defendants were in default for failure to answer Berry's third-party
complaint.



                                                                          A-2758-17T2
                                        5
      On September 13, 2017, the judge entered default judgment against third-

party defendants in the amount of $7514. 2 The judge noted the relief in the ad

damnum clauses of the third-party complaint demanded "the amount of $1,800

together with treble damages, attorney fees, pre- and post-judgment interest and

costs of suit on all other legal and equitable relief found by the trier of fact."

The judge explained that "[n]owhere does [Berry] demand judgment of both the

$1,800 and the $4,426.32." The judge also determined that Berry never paid

third-party defendants the $3800 because Berry's certification, dated May 11,

2017, stated he "timely instruct[ed] . . . [his] bank on or about June 30, 2016 not

to fund the check #10550 in the amount of $3,800 . . . ." Based on these findings,

the judge concluded, "[t]here is simply no justification to treble the $3,800."

      On the issue of Berry's attorneys' fees, the judge stated N.J.S.A. 56:8-19

authorizes the award of "reasonable attorneys' fees," and found Berry's request

for fees in the amount of $14,304 was "not reasonable." In reviewing the

certification of services, the judge determined counsel's certification

            was significantly deficient as to the [t]hird [p]arty
            [d]efendants. It appears that the majority of the legal
            work was for services in defense of the [p]laintiff's
            claim which was sustained.        The [t]hird [p]arty

2
   The judge calculated judgment in favor of Berry for $1800, which the judge
trebled in accordance with the CFA, plus $130 for costs and $1984 for attorney's
fees.
                                                                           A-2758-17T2
                                        6
      [d]efendants defaulted and there was no heavy lifting
      thereafter. Consequently, the [c]ourt has . . . reviewed
      the billing and determined what it considered was a
      reasonable fee for the services rendered. Furthermore,
      there was no justification for costs totaling $813.59.
      The only costs awarded are $130 which pertain to the
      [t]hird [p]arty action.

Plaintiff filed a motion for reconsideration, which the judge denied.

On appeal, plaintiff argues the following:

      POINT I

      THE LOWER COURT ERRED WHEN IT FAILED TO
      FULLY APPLY THE CONSUMER FRAUD ACT AS
      A BROAD REMEDIAL LEGISLATION ENACTED
      FOR THE PROTECTION OF CONSUMERS OF A
      VARIETY OF GOODS AND SERVICES.

      POINT II

      THE LOWER COURT ERRED WHEN IT FAILED TO
      ACKNOWLEDGE THAT DEFENDANT DID PAY
      THE PLAINTIFF THE DAMAGES AWARDED BY
      THE COURT AND THAT THIS PAYMENT IS ALSO
      AN ASCERTAINABLE LOSS DEFENDANT
      SUSTAINED BY THE CONDUCT OF HIS CO-
      DEFENDANTS      AND     THIRD    PARTY
      DEFENDANTS.

      POINT III

      THE LOWER COURT ERRED WHEN IT FAILED TO
      AWARD DEFENDANT, AS A PREVAILING
      PARTY, ALL REASONABLE ATTORNEY FEES,
      FILING FEES AND COSTS OF SUIT INCURRED TO
      DEFENDANT THE [sic] PLAINTIFF'S LITIGATION

                                                                   A-2758-17T2
                                 7
            AND PURSUE THE DEFENDANT'S LITIGATION
            AGAINST CO-DEFENDANTS AND THIRD PARTY
            DEFENDANTS.

      We review a trial court's legal conclusions de novo, while deferring to all

factual conclusions that have substantial support in credible evidence. Verry v.

Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017); Rova Farms Resort v. Inv's

Ins. Co., 65 N.J. 474, 483-84 (1974). Our review of discretionary decisions

focuses on whether the trial court "pursue[d] a manifestly unjust course."

Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div. 1996)

(quoting Gittleman v. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App.

Div. 1967)).

      A pleading, whether a complaint, cross-claim, or third-party complaint,

must set forth "the facts on which the claim is based, showing that the pleader

is entitled to relief, and a demand for judgment for the relief to which the pleader

claims entitlement." R. 4:5-2. In asserting a CFA claim, a heightened standard

for pleading applies, requiring "particulars of the wrong, with dates and items if

necessary, . . . insofar as practicable." Hoffman v. Hampshire Labs, Inc., 405

N.J. Super. 105, 112 (App. Div. 2009) (quoting R. 4:5-8(a)).

      The purpose of a pleading is to "fairly apprise the adverse party of the

claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford


                                                                            A-2758-17T2
                                         8
Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983). A pleading need not "spell

out the legal theory upon which it is based" so long as the pleading asserts facts

sufficient to notify the defendant of the conduct at issue and the relief soug ht.

Teilhaber v. Greene, 320 N.J. Super. 453, 464 (App. Div. 1999) (quoting Farese

v. McGarry, 237 N.J. Super. 385, 390 (App. Div. 1989)).

      Berry's cross-claim and third-party complaint assert "breach of

obligations" and violations of the CFA. In the counts addressed to "breach of

obligations," Berry claims third-party defendants breached their bargained-for

duties to Berry by cashing the $3800 check. The ad damnum clause seeks

"$1,800 together with pre- and post-judgment interest and costs of suit,

including but not limited to all costs and damages that may be granted in favor

of the plaintiff and against [Berry], and any and all other legal and equitable

damages . . . ."

      In the counts alleging a violation of the CFA, Berry claims third-party

defendants defrauded him by falsely promising to destroy the $3800 check in

return for his issuing a new check in the amount of $1800. In alleging a violation

of the CFA, Berry claims, "[a]s a direct result of the actions of [third-party

defendants], . . . Berry suffered a loss in the amount of $1800, in addition to

attorney fees, costs of suit, the loss of interest on said funds, and enormous


                                                                          A-2758-17T2
                                        9
physical stress and repercussions for being sued by the herein [p]laintiff." In

his prayer for relief on the CFA claims, Berry demands $1800, "together with

treble damages, attorney fees pre- and post-judgment interest and costs of suit

on all other legal and equitable relief . . . ."

      Having reviewed the record, including the prayers for relief set forth in

Berry's cross-claim and third-party complaint, we are satisfied the trial court

correctly held Berry failed to assert a claim for treble damages for any amount

Berry might be obliged to pay to plaintiff as a result of third-party defendants'

misrepresentations and fraud. The amount to be trebled, per Berry's stated CFA

claim against third-party defendants, is limited to $1800.

      We next consider Berry's claim that the trial court erred in failing to award

the full amount of the attorney's fees requested.       We review an award of

attorney's fees for a "clear abuse of discretion," and disturb an award "only on

the rarest of occasions." Heyert v. Taddese, 431 N.J. Super. 388, 444 (App. Div.

2013).

      The motion judge held Berry was entitled only to the fees associated with

prosecuting his claims against third-party defendants.          Since third-party

defendants never answered the third-party complaint, default was entered. The

judge concluded there was "no heavy lifting" involved in Berry obtaining default


                                                                           A-2758-17T2
                                          10
judgment against third-party defendants.        In reviewing the certification

submitted by Berry's counsel, the judge observed that most of the legal fees

related to Berry's defense of plaintiff's claim. The judge explained Berry's

litigation with plaintiff did not overlap with his litigation against third-party

defendants and thus discounted most of the attorney's fees on that basis.

      We discern no basis to disturb the amount of fees awarded by the judge.

The judge assessed the legal tasks performed by Berry's counsel related to the

third-party claims and the time expended in connection with the prosecution of

the third-party complaint in determining a "reasonable" fee award.

      Affirmed.




                                                                            A-2758-17T2
                                      11
