• Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning
  by Linda S. Ershow-Levenberg
• Client Capacity — Assessment and Advocacy
  by Donald D. Vanarelli
• Evictions From Long-Term Care
  by William P. Isele
• Special Needs Settlement Planning: Preserving Public Benefits and Enhancing the Injured Party’s Quality of Life
  by Shirley B. Whitenack and Regina M. Spielberg
• The Use of Trusts in Divorce When Planning for the Disabled Spouse or Child
  by Susan L. Goldring
• Special Needs Estate Planning
  by Lawrence A. Friedman
• The Powerful Power of Attorney
  by Regina M. Spielberg
• Recent Revisions to the Social Security Administration’s Program Operations Manual System (POMS) Relating to Special Needs Trusts
  by Thomas D. Begley Jr.
• Guardianship Applications and Attorney’s Fees
  by Brenda McElnea
• Mediation as a Tool in Contested Guardianship Proceedings
  by Sharon Rivenson Mark
• Think Globally, Age Locally: New Jersey’s Global Options for Long-Term Care
  by Lauren S. Marinaro
• Elder Law’s New Frontier — VA Benefits
  by Robert F. Brogan
• Litigating Medicaid Issues in Federal Court
  by John W. Callinan
• Surveying the Recent Legislative Landscape: What Inures to the Benefit of Older Clients in New Jersey?
  by Marilyn Askin and Jennifer Judd

Special thank you to the Law Office of Donald D. Vanarelli Blog

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Read Blog Post by Ann Kiernan, Esq.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Rule 2:6-1(a) provides that on appeal from a summary judgment motion, the appendix shall include “all items submitted to the court on the summary judgment motion.”

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The Court in Furst cautioned against using attorney fee applications as an opportunity “to become mired in a second round of litigation.” Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). This admonition assumes, however, that the attorney certifications will be “sufficiently detailed to allow a trial court to determine the nature of the work performed and by whom, as well as the reasonableness of the hourly rate and the hours expended.” Id. at 25.

An award of counsel fees is calculated by determining the “lodestar,” i.e. a reasonable hourly charge multiplied by the number of hours expended. Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In determining the lodestar, the court should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with “comparable skill, experience, and reputation.” Id. at 337. The court must determine reasonable hourly billing rates that are “fair, realistic, and accurate.” Ibid.

The next step in this analysis requires the court to determine the hours that were reasonably expended pursuing the statutory objectives. Furst, supra, 182 N.J. at 22. Once the reasonable number of hours have been ascertained, the court should reduce the lodestar if the prevailing party achieved modest success in relation to the relief sought. Id. at 23. In going about this task, however, there need not be a direct proportionality between the fee and the damages recovered. Ibid. Finally, when the attorney has been retained on a contingency fee basis, the trial court may determine whether to enhance the fee, giving consideration to the results achieved, the risks involved, and the relative likelihood of success for the undertaking. Ibid.

Attorney fees should only be awarded for work done on successful claims. Counsel has the responsibility of justifying the fees requested by connecting the hours utilized to the claims that were successfully prosecuted.

RPC 1.5(a) sets forth the factors necessary to determine whether an attorney fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and]
(8) whether the fee is fixed or contingent.

Rule 4:42-9(b) requires that an attorney submit an affidavit of service addressing the factors listed in RPC 1.5(a).

The personal opinion of a trial judge predicated solely on his or her own professional experiences does not satisfy the analysis required by the Court under Rendine to determine a reasonable hourly rate. Under Rendine, “a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community.” Rendine, supra, 141 N.J. at 337.

Once the court ascertains the “prevailing market rates in the community” it can then “assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ibid.

The Court in Perdue v. Kenny A., ____ U.S. ____, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494, 501-02 (2010), compiled what it characterized as “six important rules” in determining an award of counsel fees to prevailing parties in fee-shifting cases:

First, a reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case . . .

Second, the lodestar method yields a fee that is presumptively sufficient to achieve this objective. Indeed, we have said that the presumption is a strong one.

Third, although we have never sustained an enhancement of a lodestar amount for performance, we have repeatedly said that enhancements may be awarded in rare and exceptional circumstances.

Fourth, . . . the novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors presumably are fully reflected in the number of billable hours recorded by counsel. We have also held that the quality of an attorney’s performance generally should not be used to adjust the lodestar because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.

Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant.

Finally, a fee applicant seeking an enhancement must produce specific evidence that supports the award. This requirement is essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation that is objective and capable of being reviewed on appeal.

[Purdue, supra, ___ U.S. at ___, 130 S. Ct. at 1672-73, 176 L. Ed. 2d at 505-06.]

For additional guidance, see:

ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC. (App. Div.; A-1573-08T2, A-1456-08T2; July 30, 2010) (We are not convinced the court’s $100 per hour adjustment made to Popiel’s assigned hourly rate and its conclusion that an hourly rate of $350 was fair and realistic for the overall work performed on the case was unreasonable and a clear abuse of discretion in light of the information Popiel provided, his experience and skill, and the relevant market.)

D’Agostino v. Maldonado (Chan. Div., BER-C-84-09, Koblitz, P.J. Ch., June 30, 2010) (In this case, the hourly rates charged by plaintiff’s counsel (the highest being $275 per hour) are reasonable in comparison to fees customarily charged in Bergen County.)

Crespo v. City of Newark (App. Div.; A-5526-08T3; May 4, 2010) (In our view, the award of fees at a rate of $275 per hour was reasonable.)

KVL AUDIO VISUAL SERVICES, INC. v. Hackworth (App. Div.; A-6263-07T2; January 15, 2010) (Judge Goldman also considered the rates for the Hotel’s counsel, which ranged from $325 per hour to $250 per hour. The judge reduced those rates to a “blended rate” of $225 per hour.)

A Nationwide Sampling Of Law Firm Billing Rates, published by the National Law Journal, December 8, 2008

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

N.J. has a strong public policy favoring the enforcement of settlements that resolve contested matters. Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J. 600 (1983). “[S]ettlements are favored and will be enforced whenever voluntarily agreed to by the parties.” Cap City Products Co., Inc. v. Louriero, 332 N.J. Super. 499, 508 (App. Div. 2000).

Litigants have an interest in finality and repose once a settlement has been consummated and reported to the court. The court also has an institutional interests in the orderly and efficient disposition of litigation, and in conserving public resources so that reported settlements are processed and the associated case files are closed permanently and expeditiously.

Nonetheless, a reported settlement may be vacated if there is proof of compelling circumstances. Nolan ex rel. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). A party seeking to set aside a settlement agreement generally has the burden of proving his incapacity or incompetence to contract or other extraordinary circumstance sufficient to vitiate the agreement. Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005). Proven duress, deception, fraud, undue pressure, unseemly conduct, incapacity or incompetence may be sufficient to vacate a settlement agreement. Ibid.

In addition, because a settlement agreement is a form of a contract, see Pascarella, supra, 190 N.J. Super. at 124, factual questions may sometimes arise as to whether a litigant actually entered into the contract, or whether his or her counsel was authorized to state to the opposing party and to the court that an agreement had been reached. Under the Rules of Professional Conduct, an attorney “shall abide by a client’s decision” when deciding whether to accept a settlement agreement. RPC 1.2. An attorney may not settle a case on a client’s behalf without the client’s unqualified assent.

In Amatuzzo v. Kozmiuk, 305 N.J. Super. 469 (App. Div. 1997), the defendant opposed the plaintiff’s motion to enforce a civil settlement involving a transfer of rights to the defendant’s property, asserting that he had not authorized his attorney to agree to the settlement. Id. at 473. During settlement negotiations, the defendant refused to sign a Stipulation of Settlement. Ibid. The defendant’s lawyer nevertheless sent a fax to her adversary, representing that she had the authority to settle the case on behalf of her client. Id. at 474. The trial court enforced the settlement over the defendant’s objection, in part because it found that “the action and conduct of [defendant’s counsel] in this case bound [defendant] who permitted [his counsel] to be held out as having express or implied authority[.]” Ibid. The trial court reached that determination without conducting an evidentiary hearing.

On appeal, the court reversed the trial court’s decision in Amatuzzo and remanded the case for an evidentiary hearing. The court noted that the defendant had certified that he did not agree to settle with the plaintiff, and when presented with the settlement agreement, he had, by his account, strenuously objected to some of the provisions of the agreement. Id. at 473. In those circumstances, the ocurt held that the defendant’s certification was sufficient to raise a “material and substantial issue,” and thus required the trial court to “conduct a hearing to ascertain the intent of the parties at the various critical times in the proceedings.” Id. at 474.

The plaintiff in Amatuzzo, as the party seeking to enforce the settlement, had the burden on remand at the evidentiary hearing of “establishing that a contract of settlement was entered into.” Id. at 475. With further respect to the applicable burden of proof, the court noted that if the trial court is persuaded that the defendant’s counsel had neither express nor implied authority to settle, “it would not be defendant’s burden to demonstrate extraordinary circumstances to bar the enforcement of the purported settlement.” Id. at 475. “It is only where a contract of settlement is actually held to exist that the party seeking to vacate the settlement must show compelling circumstances.” Ibid.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Equity may allow rescission in light of a unilateral mistake in a contract under certain circumstances. Conduit & Foundation Corp. v. City of Atl. City, 2 N.J. Super. 433, 439 (Ch. Div. 1949). A party seeking rescission must show “‘special circumstances justifying a departure from the generally controlling principle that parties are bound by the contracts they make for themselves.’” Dugan Constr. Co. v. N.J. Tpk. Auth., 398 N.J. Super. 229, 243-44 (App. Div. 2008) (quoting Intertech Assocs. v. City of Paterson, 255 N.J. Super. 52, 59-60 (App. Div. 1992)).

In Conduit, supra, 2 N.J. Super. at 440, the court set forth a four-part test against which we review whether to rescind a contract based upon a claim of unilateral mistake. The court has affirmed this test in later opinions, stating:

“The essential conditions to [] relief by way of rescission for mistake are
(1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable;
(2) the matter as to which the mistake was made must relate to the material feature of the contract;
(3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and
(4) it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain.”

[Dugan, supra, 398 N.J. Super. at 242 (quoting Cataldo Constr., supra, 110 N.J. Super. at 418-19).]

See also Restatement (Second) of Contracts § 153 (1981).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

A judge may select a figure for taxes on alimony that is less than exact and fairly derived to avoid repeated applications for recalculation of alimony based upon insubstantial changes in federal and state tax laws and decreases in exemptions and deductions. Lepis v. Lepis, 83 N.J. 139, 154 (1980) (noting that courts “should make greater efforts to provide in advance for change [so as to] enhance the stability of judicially fashioned arrangements and make unnecessary a return to court”).

Mathematical precision is not required. The determination of an appropriate tax adjustment, like the determination of other factors relevant to appropriate alimony, requires a sound exercise of discretion based upon competent evidence and an accurate understanding of tax consequences. Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). . . .
[Navin v. Navin, A-6745-04 (App. Div. Jan. 25, 2007), slip op. at 11-12.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Rule 5:6B provides that “[b]efore a [cost of living adjustment (COLA)] is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice.”

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The child support guidelines specify that “if the initial child support order is entered when a child is 12 years of age or older, that order and all subsequent orders shall be adjusted upward by 14.6%. Whenever the 14.6% adjustment is made, it should be noted in the guidelines worksheet or in the support order.” Pressler, supra, Appendix IX-A, para. 17.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The child support guidelines provide that if the non-custodial parent exercises regular [visitation] [t]ime with the child[ren], the court may reduce . . . [the child] support award to accommodate variable expenses (food and transportation) incurred by the noncustodial parent during . . . [such] periods.

In determining if such an adjustment is appropriate, the court should consider whether the non-custodial parent has incurred variable expenses for the child[ren] during [visitation] [t]ime and if . . . [such] [t]ime has reduced the other parent’s variable expenses for the child.
[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, para. 13 (2010).]

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.