Hillcrest Garden, Inc. v. Victorian Florist, Inc., 2010 WL 4137191 (App. Div. Oct. 22, 2010). In this credit contract appeal, the agreement provided for “reasonable attorneys’ fees of 25% of the unpaid balance due” if suit had to be brought to collect on the contract. Counsel for the prevailing party argued that the plain language of that provision meant that the court should simply have entered judgment for such fees. The Special Civil Part, Passaic County, disagreed, and the Appellate Division affirmed. Despite the pre-printed form, counsel was required to establish that the claimed fees were reasonable by submitting an affidavit of services.
This is a cautionary tale for all attorneys who apply for a counsel fee award. Rule 4:42-9 provides that “all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a),” except in tax and mortgage foreclosure actions. No matter how small the fee request, trial judges will require an affidavit, and the Appellate Division will reverse fee awards made without the supporting justification that such an affidavit contains.