ROBERT BURKE v. PAUL V. MARGIOTTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0731-10T4

ROBERT BURKE,

Plaintiff-Appellant,

v.

PAUL V. MARGIOTTA and

THE TOWNSHIP OF WAYNE,

Defendants-Respondents.

___________________________________________________

Argued May 3, 2011 Decided May 20, 2011

Before Judges Parrillo, Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No.

L-4707-09.

Peter Dickson argued the cause for appellant (Potter and Dickson, attorneys; Mr. Dickson and R. William Potter, on the briefs).

Matthew J. Giacobbe, Township Attorney, argued the cause for respondents (John J. McKniff, Assistant Township Attorney, on the brief).

PER CURIAM

This appeal challenges the adequacy of an award of counsel fees under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.

Plaintiff Robert Burke is a co-owner and operations manager of the Wayne Auto Spa, a commercial business establishment in Wayne Township. Burke and the Auto Spa applied to the Wayne Planning Board for the land use approvals required to construct a wind turbine. The Board denied the application, and Burke filed an action challenging that denial in which he eventually prevailed.

During the pendency of that action, on September 12, 2009, Burke submitted a request under OPRA for the production of the bid submissions for Wayne's retention of a wind-energy expert and of the invoices and other documentation relating to Wayne's payments of counsel fees for the Board's representation in that action. On October 1, 2009, the Wayne municipal clerk, Paul V. Margiotta, who also serves as the municipality's custodian of public records, notified Burke that the bid submissions could not be produced because they did not exist and that the invoices and other documentation relating to Wayne's payment of counsel fees were protected by the attorney-client privilege. The denial of production of the documents relating to the payment of counsel fees was supported by a legal opinion by a municipal attorney.

On November 2, 2009, Burke brought this action to compel production of those documents, naming as defendants both the Township of Wayne and Margiotta. By letter dated November 4, 2009, Margiotta advised Burke that it had come to his attention that Burke "may be contemplating legal action against the Township" over his OPRA request and that "[o]ur new Township Attorney" reviewed the request and determined that the legal billing documents could be provided with appropriate redactions. Burke received those documents on November 12, 2009. It is undisputed that the production of those documents complied with Burke's OPRA request. However, this action continued with respect to Burke's application for counsel fees.

Defendants opposed the application on the ground that the municipality had changed its position regarding Burke's OPRA request solely because of the alleged change of the municipal attorney and therefore this action was not the catalyst for production of the disputed documents. There was a substantial delay in the hearing on this application, apparently due to settlement efforts and a question whether an evidentiary hearing would be required for a decision.

On April 29, 2010, Burke filed a motion for disqualification of both the municipal attorney who had given the original advice that the documents sought by Burke were privileged and the municipal attorney who determined that the documents were not privileged on the theory that those attorneys would be potential witnesses in the anticipated evidentiary hearing regarding Wayne's reason for changing its position as to the applicability of the attorney-client privilege to the disputed documents.

Both Burke's application for counsel fees and his motion for the disqualification of Wayne's present and former municipal attorneys were argued before the trial court on May 24, 2010. The court denied Burke's motion for disqualification. However, the court found that this action had been the catalyst for Wayne's production of the disputed documents and that Burke was therefore entitled to reasonable counsel fees as a prevailing party in an OPRA action. By an order entered on June 2, 2010, the court directed the parties to undertake reaching an agreement on what were reasonable counsel fees under the circumstances and, if they were unsuccessful, for Burke's counsel to submit a detailed certification of the services he had rendered.

On June 22, 2010, defendants' counsel sent a letter to Burke's attorney, which proposed to settle his counsel fee application for $10,626. However, Burke rejected this proposed settlement. Therefore, the determination of the amount of reasonable counsel fees was submitted to the trial court for determination.

Burke's counsel submitted detailed certifications of services in support of his application. These certifications indicated that Burke had incurred a total of $29,009.55 for counsel fees and costs incurred in pursuing this OPRA action. Burke also sought a "lodestar enhancement" of 50%, which resulted in a total request of $43,514.36 for counsel fees and costs.

In its opposition to Burke's counsel fee application, defendants submitted the June 22, 2010 letter of its attorney to Burke's attorney, which had proposed settling Burke's counsel fee application for $10,626. In his July 27, 2010 letter transmitting that letter, defendants' attorney contended that "beginning with January 27, 2010, the work that [Burke's attorney] lists in his bill is not related to the OPRA request but deals with his motion to [disqualify defendants' attorneys]."

Without conducting oral argument, the trial court entered an order on August 27, 2010, which awarded Burke $10,626 for counsel fees and $795.55 for costs incurred in the action. This order was not accompanied by any opinion explaining the court's reasons for limiting the counsel fee award to $10,626. The only statement of reasons for the award was a short handwritten note at the foot of the order, which stated:

This was not a particularly complex issue from a substantive point of view. The court finds no justification for any enhancement. It really is simply a dispute over the quantum of attorney fees at this point.

Burke appeals from the August 27, 2010 order limiting the counsel fee award to $10,626. Defendants have not cross-appealed from the trial court's determination that Burke was a prevailing party who is entitled under OPRA to an award of reasonable attorneys fees. See Mason v. City of Hoboken, 196 N.J. 51, 70-79 (2008).

Initially, we note that defendants have not disputed Burke's entitlement to all counsel fees he incurred up to November 12, 2009, when defendants produced the documents sought by Burke's OPRA request. Defendants also apparently do not dispute Burke's entitlement to the additional counsel fees he incurred between November 12, 2009 and January 27, 2007 pursuing his claim for counsel fees. See Courier News v. Hunterdon Cnty. Prosecutor's Office, 378 N.J. Super. 539, 547 (App. Div. 2005) (holding that prevailing plaintiff in OPRA action "is

. . . entitled to be compensated for the time spent by counsel in preparing a counsel fee petition"). Defendants only dispute Burke's entitlement to a "lodestar enhancement" of his counsel fee award and to the counsel fees he incurred in connection with his motion for disqualification of defendants' attorneys.

We affirm the trial court's determination that Burke is not entitled to any "lodestar enhancement" of the counsel fees he incurred in pursuing this OPRA action. However, we reverse the court's limitation of the counsel fee award to $10,626 and remand the case to the trial court for a redetermination of that award and detailed findings of fact and conclusions of law.

Enhancement of the lodestar in an OPRA case is not ordinarily warranted "because the economic risk in securing access to a particular governmental record will be minimal." New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 157 (2005). "However, unusual circumstances occasionally may justify an upward adjustment of the lodestar." Ibid. Those unusual circumstances include the "public importance" of the OPRA document request, the novelty of the issues presented by the request, and the "risk of failure" in securing the requested documents. Ibid.

This case did not involve any of these or other circumstances that could warrant an enhancement of the fee award. Burke made a "garden-variety" request for production of documents related to his challenge to the denial of an application for a land use approval. Wayne recognized shortly after the filing of Burke's action that it had erred in concluding that those documents were protected by the attorney-client privilege. Thus, the action did not involve a publicly important or novel issue.

Furthermore, Wayne released the disputed documents only ten days after the action was filed. At that point there was no "risk of failure" in Burke securing the requested documents. The only remaining dispute related to Burke's entitlement to counsel fees.

Moreover, in our view, the argument Wayne relied upon in opposing Burke's application for counsel fees -- that its prior municipal attorney had given erroneous legal advice, which its new municipal attorney had corrected, unrelated to the filing of this action, and that Wayne was therefore somehow not responsible for the withholding of documents in violation of OPRA as a result of its prior attorney's advice -- was frivolous. Consequently, despite the length of time that it has taken to settle the issue, the risk of nonpayment of Burke's reasonable counsel fees was minimal. Therefore, even though the trial court's statement of reasons for denying Burke's request for enhancement of his counsel fee award attached to the August 27, 2010 order was inadequate, that part of its decision was clearly correct.

In limiting the counsel fee award to Burke to $10,626, which was only a little more than a third of the $29,009.55 in fees set forth in the certifications of Burke's counsel, the trial court made no findings of fact or conclusions of law. Rule 1:7-4(a) requires the court to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." See City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 125-26 (App. Div.), certif. denied, 199 N.J. 515 (2009). The trial court failed to discharge that responsibility in this case.

Defendants surmise that the court must have accepted the argument set forth in their July 27, 2009 letter that Burke was not entitled to counsel fees incurred in connection with their motion to disqualify defendants' counsel. However, if that was the basis for the court's decision, the court had an obligation to say so explicitly, and to make findings of fact and conclusions of law that would support that ruling. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300-01 (App. Div. 2009).

Furthermore, Burke argues, and the record seems to support, that a significant portion of the counsel fees he incurred after January 27, 2010 were not directly related to his motion for disqualification of Wayne's municipal attorneys, and that defendants have not presented any argument for failing to award him those counsel fees. Therefore, even if the trial court determines, with appropriate findings of fact and conclusions of law, that Burke is not entitled to an award of the fees he incurred in connection with the motion for disqualification, it must determine which counsel fees were attributable to that motion and which were attributable to other aspects of Burke's application for counsel fees. We note in this respect that Burke's motion for disqualification was denied on May 24, 2010, and that he incurred substantial additional counsel fees after that date.

Accordingly, we reverse the part of the August 27, 2010 order that limited the counsel fee award to Burke to $10,626 and remand that part of the counsel fee application to the trial court for redetermination in conformity with this opinion. We affirm the part of the August 27, 2010 order that denied Burke any enhancement of the counsel fee award.