Ackerman v. Money Store

749 A.2d 893, 330 N.J. Super. 366, 1999 N.J. Super. LEXIS 454
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 27, 1999
StatusPublished

This text of 749 A.2d 893 (Ackerman v. Money Store) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ackerman v. Money Store, 749 A.2d 893, 330 N.J. Super. 366, 1999 N.J. Super. LEXIS 454 (N.J. Ct. App. 1999).

Opinion

KENTZ, J.S.C.

(Retired and temporarily assigned on recall).

OPINION

This matter is a sequel to Ackerman v. The Money Store, 321 N.J.Super. 308, 728 A.2d 873 (Law Div.1998). It is now before the Court by way of plaintiffs motion for attorneys’ fees and costs. Plaintiff seeks an award of $134,691.34 which includes $89,026.25 in attorneys’ fees, $1,151.84 in costs and a fifty percent contingent fee enhancement. See Rendine v. Pantzer, 141 N.J. 292, 661 A.2d 1202 (1995). The facts of this case have been set forth by this Court in Ackerman and are incorporated herein by reference. Ackerman, supra, 321 N.J.Super. at 310, 728 A.2d 873.

I. The Power of the Court to Award Interim Attorney’s Fees and Costs Pursuant to the New Jersey Law Against Discrimination (“LAD”).

The first issue I will address is whether the Court has the power to grant interim attorney’s fees and costs under the New Jersey Law Against Discrimination (“LAD”). See N.J.S.A 10:5— 27.1.

The Court has performed extensive research regarding the issue of interim attorney’s fees and costs under the LAD, but has not discovered any New Jersey case law on point. The Appellate Division, however, has recognized that several orders awarding attorney’s fees may issue in a continuing case before final disposition of the matter. S.N. Golden Estates, Inc. v. Continental Casualty Company, 317 N.J.Super. 82, 89, 721 A.2d 307 (App.Div.1998) (where the underlying action concerned a question of insurance coverage, duty to defend and indemnify). The New Jersey Supreme Court stated in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993) that “[i]n construing the terms of the LAD, this Court has frequently looked to federal precedent gov[372]*372erning Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e to § 2000e-17 ... as ‘a key source of interpretive authority.’ ” Id. at 600, 626 A.2d 445 (citing Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 96, 570 A.2d 903 (1990)). In Lehmann, the New Jersey Supreme Court looked to federal eases interpreting Title VTI and used that information to interpret the LAD. See ibid.

There are two federal cases which are a help to the Court in interpreting the instant matter. Kyriazi v. Western Electric Company, 461 F.Supp. 894 (D.N.J.1978) involved a gender based employment discrimination class action suit brought pursuant to Title VII. Id. at 898. Plaintiffs prevailed on the issue of liability, although damages were not yet awarded. Id. at 950. In pertinent part, the court opined that “[djefendants shall pay to counsel for plaintiffs all reasonable attorneys’ fees, expenses and costs for these proceedings culminating in the judgements as to liability, 42 U.S.C. § 2000e- 5(k).” Ibid. Compensatory and punitive damages were to be determined and awarded to plaintiff at a later time. Kyriazi, supra, 461 F.Supp. at 950.

The other ease is Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778 (3d Cir.1982) which involved a gender based employment discrimination suit brought pursuant to Title VII. Id. at 779. Plaintiff sought to appeal a district court order that denied an interim award of attorney’s fees. Ibid. The Third Circuit Court of Appeals granted defendant’s motion to dismiss the appeal due to the interim nature of the district court’s order, as it was not final. Ibid. The court’s opinion states in part:

[T]here can be little doubt as to the power of a district court to issue an interim order directing payment of attorney’s fees under section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. s 2000e - 5(k) ... in cases of protracted litigation where a party’s ability to obtain redress for a civil rights violation would be imperiled without such an award ... The power of the district court to grant interim attorney’s fees as to some significant and relatively discrete portion of a case, ... such as the liability phase, is in no way undermined by the fact that a formal, final judgment in favor of the plaintiff has not yet been rendered...
[Yakowicz, supra, 683 F.2d at 781-82.]

[373]*373Defendants argue that the above two cases do not support plaintiffs motion. Defendants contend that Kyriazi is not analogous to the present case in part because it did not involve interim counsel fees nor any state statutory civil rights claim. Further, defendants claim that the court’s holding in Yakowicz, as quoted above, was dicta and the present case does not involve protracted litigation nor are interim attorney’s fees necessary to insure redress.

Since no New Jersey state case law exists concerning interim attorney’s fees pursuant to the LAD, the Court finds it necessary to turn to the federal case law interpreting Title VII for guidance. See Lehmann, supra, 132 N.J. at 600, 626 A.2d 445 (citing Grigoletti, supra, 118 N.J. at 96, 570 A.2d 903). Therefore in view of the holdings in Kyriazi and Yakowicz, I am satisfied that a court has the power to order interim attorneys’ fees and costs under the LAD.

II. Plaintiff’s Status as a Prevailing Party

The second issue I will address is whether plaintiff is a prevailing party pursuant to N.J.S.A. 10:5-27.1 which provides in part:

In any action or proceeding brought under this act, the prevailing party may be awarded a reasonable attorney’s fee as part of the cost, provided however, that no attorney’s fee shall be awarded to the respondent unless there is a determination that the charge was brought in bad faith.
[Ibid.]

A prevailing party is defined as a party that succeeds “ ‘on any significant issue in litigation [that] achieves some of the benefit the parties sought in bringing suit.’” Szczepanski v. Newcomb Med. Center, 141 N.J. 346, 355, 661 A.2d 1232 (citing Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (quoting Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978)). A prevailing plaintiff must demonstrate the existence of a causal nexus between litigation and relief granted, that the relief had basis in law and that an enforceable judgment was issued against defendant.

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Related

Hensley v. Eckerhart
461 U.S. 424 (Supreme Court, 1983)
Ackerman v. the Money Store
728 A.2d 873 (New Jersey Superior Court App Division, 1998)
Lehmann v. Toys 'R' US, Inc.
626 A.2d 445 (Supreme Court of New Jersey, 1993)
Golden Estates v. Continental Cas.
721 A.2d 307 (New Jersey Superior Court App Division, 1998)
Grigoletti v. Ortho Pharmaceutical Corp.
570 A.2d 903 (Supreme Court of New Jersey, 1990)
DB v. Bloom
896 F. Supp. 166 (D. New Jersey, 1995)
Szczepanski v. Newcomb Medical Center, Inc.
661 A.2d 1232 (Supreme Court of New Jersey, 1995)
Rendine v. Pantzer
661 A.2d 1202 (Supreme Court of New Jersey, 1995)
Gallo v. Salesian Soc., Inc.
676 A.2d 580 (New Jersey Superior Court App Division, 1996)
HIP v. K. Hovnanian at Mahwah
676 A.2d 1166 (New Jersey Superior Court App Division, 1996)
FERIOZZI v. City of Atlantic City
633 A.2d 581 (New Jersey Superior Court App Division, 1993)
Kyriazi v. Western Electric Co.
461 F. Supp. 894 (D. New Jersey, 1978)
Davidson v. Roselle Park Soccer Federation
700 A.2d 900 (New Jersey Superior Court App Division, 1996)
In re the Estate of Reisen
713 A.2d 576 (New Jersey Court of Chancery, 1998)
Rode v. Dellarciprete
892 F.2d 1177 (Third Circuit, 1990)

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Bluebook (online)
749 A.2d 893, 330 N.J. Super. 366, 1999 N.J. Super. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ackerman-v-money-store-njsuperctappdiv-1999.