Opinion
DOCKET NO. A-3483-13T4
04-14-2015
TRUDI LUCA, Plaintiff-Appellant, v. JEAN WAGNER, Defendant-Respondent.
Trudi Luca, appellant pro se. Legal Services of Northwest Jersey, attorneys for respondent (Grace E. Kelly, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Warren County, Docket No. DC-2397-13. Trudi Luca, appellant pro se. Legal Services of Northwest Jersey, attorneys for respondent (Grace E. Kelly, on the brief). PER CURIAM
Plaintiff Trudi Luca appeals from the order of the Law Division, Special Civil Part awarding defendant Jean Wagner's attorney, Legal Services of Northwest Jersey, $1892.50 as counsel fees incurred by representing Wagner in this action filed by Trudi Luca seeking $7700 in damages. After reviewing the record before us, we reverse.
On July 27, 2013, Wagner entered into a lease agreement with Michael Luca to rent a residential property located in the Town of Phillipsburg, Warren County. The term of the lease was for one year, commencing on August 1, 2013 and ending on August 1, 2014. Pursuant to "Clause 8. Security Deposits" of this printed lease agreement, Wagner was required to pay $700 "as security deposit." On the same day she signed the lease, Wagner paid Michael Luca $800 in cash. Michael Luca gave Wagner a signed handwritten receipt that states: "7/27/13 I Michael Luca received $800 cash for August rent 2013, for apartment 101 [at an address in] Phillipsburg, NJ 08865." It is undisputed that this $800 payment by Wagner was intended to constitute payment for the $700 rent due for August 1, 2013, and a $100 down payment toward the $700 security deposit required under Clause 8 of the lease.
Later that same day, Wagner wrote a letter to Michael Luca advising him that "being in the proposed apartment triggered two delayed allergic reaction[s] requiring me to take medication." Wagner characterized her allergic reactions as "life threatening." Wagner also objected to certain "hidden fees" Michael Luca told her she would be responsible for paying in addition to her monthly rent, after she had signed the lease agreement. Wagner also complained about the lighting conditions at the time she signed the lease, and noted that "tax records" revealed he was not "the sole owner" of the property. Wagner concluded the letter by advising Michael Luca that based on the added costs of these fees and her financial situation, she "[could not] afford the place." She thus requested Michael Luca to "[p]lease return the $800 by check or money order to me within five days to my mailbox."
On August 21, 2013, Wagner filed a pro se complaint in the Law Division, Special Civil Part against Michael Luca, alleging numerous violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and unconscionable provisions in the lease agreement under N.J.S.A. 12A:2-302 of the Uniform Commercial Code. By way of damages, Wagner demanded the return of the $800 and treble damages. Michael Luca, and although she was not named as a party, Trudi Luca, filed a joint pro se answer to this compliant, and a counterclaim alleging both common law fraud and defamation. Mr. and Mrs. Luca sought $7700 in damages under N.J.S.A. 2A:32-1, based on the amount of rent Wagner would have paid at the conclusion of the one-year lease term and punitive damages.
While the case described above was pending before the Special Civil Part, on September 6, 2013, Michael Luca filed a non-payment of rent summary dispossession complaint against Wagner alleging, as a jurisdictional prerequisite, that she was in possession of the premises under a written lease and was in arrears on her rental obligation in the amount of $760. This amount represented the rent owed for the month of September 2013, a twenty-five dollars late charge, and a thirty-five dollars "court cost." The landlord/tenant court dismissed this complaint on October 23, 2013, noting, "[l]andlord already has possession."
On November 1, 2013, nine days after the court dismissed the summary dispossession case against Wagner, Trudi Luca filed a complaint in the Special Civil Part alleging breach of contract against Wagner. As a factual predicate, Trudi Luca alleged Wagner
entered into a lease agreement for the rental property located at [an address in] Phillipsburg, N.J., County of Warren. Said property is owned by [plaintiff] Trudi Luca and her spouse Michael Luca. See attached."The attachment was denoted Certification of Complaint and alleged,
Defendant Wagner breached her lease agreement [by] (1) one, non-payment of rent. Plaintiff hereby demands judgment in the amount of $7,700.00 plus interest and costs of suit. This figure represents Defendant's and Plaintiffs one (1) year "contract" and/or lease Agreement.Wagner, represented by Legal Services of Northwest Jersey, filed an answer to Trudi Luca's complaint, asserting as a defense that "goods or services were not received" and Wagner "did not enter into any contract or lease agreement with Plaintiff."
The case Wagner filed pro se against Michael Luca asserting CFA violations and seeking treble damages, and the counterclaim Michael Luca and Trudi Luca filed against Wagner alleging common law fraud and defamation, came for trial before the Special Civil Part on December 2, 2013. Legal Services of Northwest Jersey represented Wagner. Michael Luca appeared pro se. Before the start of trial, Wagner's counsel objected to "Trudi Luca being at counsel table. She's not a party to this matter and she's not an attorney, to my knowledge." Michael Luca responded by pointing out to the court that Trudi Luca "was there at the action and she is [a] registered owner on the property . . . She was there from the time we signed the lease."
This prompted the following colloquy:
THE COURT: Well, why are you the - - why are you the defendant?
MICHEAL LUCA: Well, Jean Wagner wouldn't let my wife go on; she kept assuming to me, as you can look into her complaint to the Court; she registered - - she's a registered owner.
Miss Jean Wagner looked up all our properties and my wife is on every single
one of the properties, Your Honor, just like, probably most people.
THE COURT: All right. She's not a party - - she's currently not a party to this litigation, so you [addressing Trudi Luca] may be excused.
Trudi Luca later testified at trial as a witness. After hearing the testimony of the witnesses and considering a number of exhibits admitted into evidence, the court dismissed both Wagner's complaint and Michael Luca's counterclaim.
The court found Michael Luca returned to Wager the $100 she paid him in partial satisfaction of her security deposit obligation under the lease agreement.
After several adjournments, the case filed by Trudi Luca against Wagner came to trial on January 30, 2014. The same judge who tried the previous case presided over this case. Wagner appeared before the trial court represented by Legal Services of Northwest Jersey. Trudi Luca did not appear. When the judge inquired if Wagner's counsel had an application in light of Trudi Luca's failure to appear, counsel responded:
I'm asking for fees . . . for the time spent preparing an answer. In our answer, we indicated . . . Miss Wagner had not entered into . . . any contract or lease with Trudi Luca.
. . . .
Our answer to her complaint indicated that there - - Miss Wagner had entered into no
contract with her and that we were seeking fees. . . .
So we continue to seek fees for our time - - the time spent by Legal Services preparing the answer and appearing here in court today.
[(Emphasis added).]
The record does not support Wagner's counsel representation to the trial court. Wagner's answer to Trudi Luca's complaint was in the form made available under Appendix XI-F of the Rules Governing the Courts of New Jersey in small claims cases involving contractual matters. The "Civil Action Answer" filed here reflects Wagner placed an "X" in two boxes to indicate the defenses: "The goods or services were not received" and that Wagner "did not enter into any contract or lease agreement with Plaintiff." This "answer" does not mention or contain any references to a potential request for counsel fees by Wagner's counsel.
Our Supreme Court has consistently and clearly held that:
Courts in New Jersey have traditionally adhered to the American Rule as the principle that governs attorneys' fees. This guiding concept provides that, absent authorization by contract, statute or rule, each party to a litigation is responsible for the fees charged by his or her attorney.
[Walker v. Giuffre, 209 N.J. 124, 127 (2012).]
The Court codified the "American Rule" in Rule 4:42-9(a), which unequivocally states that "[n]o fee for legal services shall be allowed" except under the specifically enumerated exceptions. One of those specifically enumerated exceptions is found under Rule 4:42-9(a)(7), which allows a court to award counsel fees "[a]s expressly provided by these rules with respect to any action[.]" Here, Wagner's counsel has argued Legal Services of Northwest Jersey is entitled to an award of counsel fees under Rule 4:37-1(a), which states:
By Plaintiff; By Stipulation. Subject to the provisions of [Rule] 4:32-2(e) (class actions), [Rule] 4:53-1 (receivership actions) and [Rule] 4:60-18 (attachment actions), an action may be dismissed by the plaintiff without court order by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or by filing a stipulation of dismissal specifying the claim or claims being dismissed, signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice.
There is nothing in the language of Rule 4:37-1(a) that expressly provides for a court to award counsel fees to Legal Services of Northwest Jersey or any other attorney under these circumstances. The decision of the trial court awarding Wagner's attorney fees incurred in the defense of this case is reversed. The order awarding $1892.50 to Legal Services of Northwest Jersey is vacated.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION