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  • 1.  Quick trivial pursuit for name of case

    Posted 06-23-2016 11:43 AM
    If a parties' agreement contains a specific contractual provision mandating ("shall") the payment of counsel fees upon a default, a trial court doesn't have jurisdiction to deny a counsel fee award when there's a default - its only inquiry is as to the reasonableness of the fees.

    I'm sure I saw a case to this effect (published or not, I can't say). Anyone else agree..and, more importantly, anyone know the name of the case?



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  • 2.  RE: Quick trivial pursuit for name of case

    Posted 06-23-2016 12:05 PM

    Possibly these cases may help: 20-2-0157 Orr v. Orr, App. Div. (per curiam); See Barr v. Barr, 418 N.J. Super. 18, 31-32 (App. Div. 2011) (citing Pacifico v. Pacifico, 190 N.J. 258, 265 (2007)

     

    Frank




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  • 3.  RE: Quick trivial pursuit for name of case

    Posted 06-23-2016 12:08 PM
    Think the case you are looking for is Belfer v. Merling.  Copied some language from the opinion below.

    (a) Property Settlement Agreement
    As a general rule, contracts which permit the aggrieved party to recover fixed or reasonable attorney's fees as part of his or her damages are enforceable unless some larger public policy mandates a contrary result. Center Grove Assocs. v. Hoerr, 146 N.J.Super. 472, 474, 370 A.2d 55 (App.Div.1977). However, any fee arrangement is subject to judicial review as to its reasonableness. Cohen v. Fair Lawn Dairies, Inc., 44 N.J. 450, 452, 210 A.2d 73 (1965).

    A claim for attorney's fees pursuant to a contractual agreement is not an award of fees under R. 4:42–9. Rather, it is an element of damages which must be proved in the same manner as any other item and which must be assessed by the finder of fact as a matter of right and in the actual amount established by the proofs. Jennings v. Cutler, 288 N.J.Super. 553, 567, 672 A.2d 1215 (App.Div.1996). However, expenses can be scaled down by *142 the court to reflect that the attorney's efforts were expended in part on warrantless claims. Cohen v. Fair **444 Lawn Dairies, Inc., 86 N.J.Super. 206, 216–17, 206 A.2d 585 (App.Div.), aff'd 44 N.J. 450, 210 A.2d 73 (1965). When a court enforces an agreement and awards the actual, reasonable, and necessary expenses of the aggrieved party in maintaining the action as part of his or her general damages, the court is merely adjudicating damages for breach of contract. Id. at 215, 206 A.2d 585.

    We conclude that the court erred when it found that plaintiff had breached the PSA, thereby entitling Linda to a counsel fee award.2 Plaintiff contends that the deadlock committee had no jurisdiction to resolve the dispute that occurred on April 19, 1994, as to whether plaintiff could fire Bruce, and that, therefore, plaintiff never breached the PSA by filing suit.

    Belfer v. Merling, 322 N.J. Super. 124, 141-43, 730 A.2d 434, 443-44 (App. Div. 1999)

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