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Grubbs v. Knoll4/15/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 9, 2005
In this fraud/legal malpractice action involving a residential real estate transaction, defendant Louis B. Chapman, Esq., and third-party defendant Feinman & Chapman, P.A., (Chapman) appeal, and defendants Kenneth C. and Diana Knoll (Knolls) cross-appeal, from a counsel fee award of $174,393 against Chapman and in favor of the Knolls.
Both Chapman and the Knolls contend that the trial judge erred in his determination of the overall attorney fee award. Chapman asserts that the award should have been proportionate to the jury's determination of Chapman's percentage of liability which was found to be ten percent. Chapman also argues that the trial court erred in failing to sanction third-party defendants Zoe Stevens and Varley & Stevens Realtors, Ltd. (Stevens) for a discovery violation that had a significant effect on the trial, and in failing to charge the jury on the Knolls' responsibility to mitigate their damages.
On the cross-appeal, the Knolls argue that the trial court erred in ruling that Chapman was not jointly and severally liable for all of the Knolls' compensatory damages including attorneys fees and in denying Knolls' request for an enhancement of the fee award. Except to reverse on holding Chapman responsible for one-third of the attorneys fees and costs incurred in the conduct of the trial, we affirm as to the remaining issues on the appeal and all of the issues raised on the cross-appeal. We also affirmatively hold Chapman 100 percent responsible for the attorney fees and costs in connection with the application for such fees and costs.
I.
On June 30, 1998, plaintiffs Peter Grubbs and his wife Kathy L. Cody (Grubbs) filed a complaint in the Passaic County Special Civil Part against the Knolls and the Knolls' attorney, defendant Louis V. Chapman, seeking the return of certain monies which were placed in escrow in conjunction with a residential real estate transaction between the Grubbs and the Knolls. On October 13, 1998, Judge Scancarella granted the Knolls' motion to transfer the case to the Passaic County Law Division.
On October 16, 1998, the Knolls filed an answer, a counterclaim against the Grubbs, a cross-claim against Chapman, and a third-party complaint against Feinman & Chapman, P.A., Varley & Stevens Realtors, Ltd., and Zoe Stevens. In their counterclaim, the Knolls alleged that the Grubbs had committed fraud by failing to reveal that the property they sold to the Knolls was severely constrained by wetlands. In their cross-claim/third-party complaint, the Knolls asserted that the Stevens defendants had violated the Consumer Fraud Act (CFA), and that the Chapman defendants had committed legal malpractice.
The matter was tried by a jury on various dates in September and October 2001. On October 29, 2001, the jury returned a verdict in favor of the Knolls on their common law fraud, consumer fraud, and legal malpractice claims in the amount of $75,650. The jury also found that the Grubbs on their original complaint were only entitled to the return of one-half of the escrowed monies. The jury allocated sixty percent of liability to Stevens, thirty percent to the Grubbs, and ten percent to Chapman. According to the final judgment entered on December 4, 2001, the Stevens defendants were required, under the CFA, to pay three times the amount of the full verdict ($226,950), plus attorney's fees and costs of suit. Chapman defendants were ordered to pay $7594.45, plus attorney's fees, while the Grubbs were ordered to pay $22,786.34 without any attorney's fees because there was no legal or st
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