RAFAEL VALENTIN v. BOROUGH OF PENNS GROVE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0834-15T2
RAFAEL VALENTIN,
Plaintiff-Appellant,
v.
BOROUGH OF PENNS GROVE and
SARAH RENNER in her official
capacity of the Records Custodian
of the BOROUGH OF PENNS GROVE,
Defendants-Respondents.
________________________________________
Submitted May 2, 2017 – Decided May 2, 2018
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Docket No. L-0088-
15.
Law Offices of Conrad J. Benedetto, attorneys
for appellant (Conrad J. Benedetto, on the
brief).
Puma, Telsey & Rhea, PA, attorney for
respondents (Adam I. Telsey and Kristin J.
Telsey, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiff Rafael Valentin appeals from a September 18, 2015
order denying reconsideration of an order awarding sanctions under
Rule 1:4-8 to defendants the Borough of Penns Grove and Sarah
Renner. We affirm.
I.
The following facts are found in the certifications, the
other documents filed with the trial court, and the hearing
transcripts.
On April 24, 2015, plaintiff submitted to Renner, the
Borough's Acting Clerk, a request for information under the Open
Public Records Act,
N.J.S.A. 47:1A-1 to -13 (OPRA). The request
"ask[ed] that copies of the materials listed be provided via
electronic mail" or "CD ROM via mail".
Renner later certified: She received plaintiff's request on
April 24, and she compiled all responsive documents by the due
date of May 5. See
N.J.S.A. 47:1A-5. However, the documents were
too voluminous for her to scan and email. On May 5, she telephoned
plaintiff and left a message. When he had not called her back by
May 6, she sent him an email referencing her telephone call and
stating: "The response to your April 24 OPRA request is ready.
However, the documents are [too] voluminous for email. They can
be picked up anytime." She received no response from plaintiff.
2 A-0834-15T2
On May 26, 2015, plaintiff filed a complaint and an order to
show cause against the Borough and against Renner in her official
capacity as the Borough's record custodian. The complaint was
signed and verified by Charles E. Reynolds of the Law Firm of
Conrad J. Benedetto. Reynolds asserted that "[a]s of the date of
their Verified Complaint, [plaintiff] has not received any
response to the April 24, 2015 OPRA request." Reynolds contended
defendants had violated OPRA by not providing plaintiff with copies
of the requested documents. On May 27, 2015, the trial court
signed plaintiff's order to show cause and required defendant to
appear for a hearing on June 19.
On May 29, defense counsel sent Reynolds a letter giving
notice that "you have filed the above referenced Verified Complaint
dated May 22, 2015 in violation of Rule 1:4-8," demanding the
complaint be withdrawn within twenty-eight days, and stating
defendants would seek sanctions otherwise. The notice recounted
Renner's call, attached her email, noted she still had not heard
from plaintiff or his counsel, and reiterated that "the documents
remain ready and waiting at the Penns Grove Clerk's Office."
Renner later certified: On June 1, plaintiff called Renner
and apologized for not checking his email. He said he had no idea
the documents had been made ready and were waiting for him.
Plaintiff picked up the documents that day.
3 A-0834-15T2
On June 5, defense counsel sent Reynolds a letter referencing
the earlier notice under Rule 1:4-8(b). The letter related the
June 1 events, and stated that if the complaint was not withdrawn,
defendant would seek sanctions for any legal fees they were forced
to incur.
On June 9, defendants filed an answer to the complaint. They
filed Renner's certification, which attached her May 5 memorandum
to plaintiff responding to his OPRA request, as well as her May 6
email to him. Defendants also filed a certification from their
counsel attaching his May 29 and June 5 letters.
Reynolds sent defense counsel a June 9 letter responding to
his May 29 and June 5 letters. Reynolds's letter stated that the
documents produced to plaintiff on June 1 were inadequate, and
that "[p]laintiff will not withdraw his complaint." In response,
on June 18, defendants filed with the trial court Reynolds's June
9 letter, the approximately 100 pages of documents Renner had
produced to plaintiff, Renner's handwritten notes documenting her
attempts to reach plaintiff on May 5 and 6, defendants' signed
acknowledgement he received the documents on June 1, and second
certifications from defense counsel and from Renner, both
disputing the document production were inadequate.
The hearing commenced as scheduled on June 19. Plaintiff's
counsel failed to appear. Benedetto's office called the trial
4 A-0834-15T2
court asking if Benedetto could appear by phone. The court denied
the firm's request for phone argument. The firm then requested
an adjournment, which the court also denied.
The trial court put the following on the record. The court
was not agreeable to a request to appear by phone made "five
minutes before" the hearing. The court expected plaintiff's
counsel to be at the hearing because there were "a lot of things
I'd like to discuss and it would be easier to have counsel here."
The court was "not going to take an adjournment request right at
the hearing date and time. We're ready to go. That's something
that should have been posed to us well in advance." Plaintiff's
counsel obtained an order to show cause setting a hearing date,
failed to appear for the hearing, and had offered no explanation
why his office's call was not made earlier.
At the trial court's request, defense counsel called
Benedetto's office. The office advised that an attorney named
Dorizio was assigned to represent plaintiff and was on trial in
the Bucks County Court of Common Pleas in Pennsylvania. Defense
counsel called the Bucks County court and was advised that "there
were no trials being conducted at this time."
Plaintiff also attempted to submit a reply brief as the
hearing was starting. Under the May 27 order, plaintiff's reply
was due by June 16, three days before the hearing. The trial
5 A-0834-15T2
court told defense counsel that "right as I was walking out, my
secretary got some kind of reply to your response" but it was
lengthy and the court had not read it. Defense counsel said he
called his office fifteen minutes or so after the hearing was
supposed to start, and learned that plaintiff had just served a
reply brief. The court noted defense counsel did not receive
plaintiff's submission until "15 minutes into the hearing time and
that's just too late and counsel's not here."
The trial court turned to the merits. The court noted that
plaintiff's complaint merely alleged that an OPRA request was made
and no documents were provided. The court found that, "before
this Complaint was ever filed," defendants made available to
plaintiff the extensive documents he requested, called him, and
emailed him. The court noted plaintiff later acknowledged
receiving the email and the documents.
The trial court dismissed plaintiff's complaint with
prejudice. The court denied plaintiff's motion for fees, ruling
the catalyst theory did not apply because plaintiff's OPRA request
"was the catalyst, not this proceeding. Why they even bothered
to file this proceeding is not clear from what we have and the
case should have been withdrawn."
On July 8, defendants filed a motion for sanctions pursuant
to Rule 1:4-8. Defendants' attorneys filed two certifications
6 A-0834-15T2
which added the following. In the June 19 call, the Bucks County
court had indicated that neither Dorizio nor any attorney from
Benedetto's office was on trial or scheduled for trial. There was
no explanation why Reynolds was not available for the June 19
hearing.
On August 7, Benedetto filed a certification, stating that a
contract attorney had been assigned to represent plaintiff at the
1:30 p.m. hearing on June 19, that the attorney had attended a
9:00 a.m. status conference in Bucks County which became a trial,
and that Benedetto was out of town on personal business. Benedetto
asked that no sanctions be imposed.
On August 14, the trial court granted defendants' motion for
sanctions, finding as follows. Plaintiff's complaint alleged a
failure to provide documents under OPRA. ORPA requests must be
taken seriously and "the town did, in fact, take it seriously.
They responded and made the documents available." Once plaintiff's
counsel received the Rule 1:4-8 letters, he should have recognized
he "didn't have a claim anymore." He had "plenty of opportunity"
to withdraw the complaint or to make a "demand that was more
specific," but he failed to withdraw the complaint, failed to have
anyone at the hearing to give an explanation, and filed "no
responses" until the court was "walking out on the bench." "[A]s
a result, the citizens of Penns Grove [had to] pay $1725 . . . for
7 A-0834-15T2
counsel to represent them on a case that really had no basis."
The court ordered that Benedetto, his firm, and Reynolds were
jointly and severally liable to reimburse defendants $1725.
Around the end of August, plaintiff filed a motion for
reconsideration of the award of sanctions. The trial court denied
the motion at a September 18 hearing. The court reiterated that
plaintiff filed a complaint seeking documents, defendants
responded that they had produced all responsive documents, and
plaintiff did not dispute that by filing a response prior to the
hearing or attending the hearing in person or through counsel.
The court found that once plaintiff's counsel knew defendants had
answered plaintiff's OPRA request, it was "very cavalier" for
plaintiff and his counsel to "pursue something that they know that
there's no reason to pursue."
On October 13, 2015, plaintiff filed a notice of appeal from
the September 18 order.
II.
Defendants argue plaintiff cannot now appeal the June 19,
2015 judgment dismissing the complaint, because it was not the
subject of a timely reconsideration motion or a timely notice of
appeal. We agree.
In his notice of appeal filed October 13, 2015, plaintiff
stated he appealed from the order entered on "September 18, 2015,"
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namely the order denying reconsideration of the August 14 sanctions
order. He similarly appealed only the September 18 order in his
amended notice of appeal.
"In civil actions the notice of appeal . . . shall designate
the judgment, decision, action or rule, or part thereof appealed
from[.]" R. 2:5-1(f)(3)(A). "[I]t is clear that it is only the
judgments or orders or parts thereof designated in the notice of
appeal which are subject to the appeal process and review." Fusco
v. Bd. of Educ. of City of Newark,
349 N.J. Super. 455, 461-62
(App. Div. 2002) (quoting Pressler, Current N.J. Court Rules, cmt.
6 on R. 2:5-1(f)(3)(i) (2002)). "Consequently, if the notice
designates only the order entered on a motion for reconsideration,
it is only that proceeding and not the order that generated the
reconsideration motion that may be reviewed." Pressler & Verniero,
Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2018); see, e.g.,
Fusco,
349 N.J. Super. at 462. Thus, plaintiff "has no right to
our consideration of this issue." 1266 Apartment Corp. v. New
Horizon Deli, Inc.,
368 N.J. Super. 456, 459 (App. Div. 2004).
Nonetheless, plaintiff's case information statement (CIS)
said he sought to appeal not only the September 18 order but also
the August 14 sanctions order and June 19 judgment dismissing his
complaint. If "a motion for reconsideration . . . implicate[s]
the substantive issues in the" order sought to be reconsidered,
9 A-0834-15T2
and if "the basis for the motion judge's ruling on [that order]
and [the] reconsideration motion[ is] the same," then "an appeal
solely from . . . the denial of reconsideration may be sufficient
for an appellate review of the [earlier order], particularly where
those issues are raised in the CIS." Fusco,
349 N.J. Super. at
461. In such an instance, we may "choose to exercise our
discretion" to review the earlier order. Potomac Aviation, LLC
v. Port Auth. of N.Y. & N.J.,
413 N.J. Super. 212, 222 (App. Div.
2010).
We choose to exercise our discretion to review the August 14
sanctions order, because "the basis for the motion judge's ruling
on [that order] and the reconsideration motion was the same."
Ibid. (quoting Fusco,
349 N.J. Super. at 461).
By contrast, the bases for the motion judge's June 19 judgment
dismissing the complaint and its September 18 order denying
reconsideration of the sanctions order were not "the same." Fusco,
349 N.J. Super. at 459-60. The dismissal ruling examined whether
defendants had responded to plaintiff's OPRA request. The ruling
denying reconsideration turned on whether the requirements for
sanctions under Rule 1:4-8 were met.
We decline to exercise any discretion we may possess to
consider an appeal from the June 19 judgment. That judgment stated
that plaintiff's "complaint [and] Order to show cause is dismissed
10 A-0834-15T2
with prejudice." Thus, the June 19 judgment was a final judgment.
Plaintiff did not seek to reconsider or appeal that judgment within
the time periods set by the rules.
The trial court's June 19 judgment did not reserve any issues.
This was not a situation where an order was not final because "the
judge reserved on the issue of counsel fees and costs[.]" N.J.
Mfrs. Ins. Co. v. Prestige Health Grp., LLC,
406 N.J. Super. 354,
358 (App. Div. 2009). Indeed, no motion for sanctions had yet
been filed. "A motion for sanctions" may be filed up to "20 days
following the entry of final judgment." R. 1:4-8(b)(2) (emphasis
added).
In any event, after defendants filed a motion for sanctions,
plaintiff opposed sanctions without challenging the dismissal.
After sanctions were granted, he only sought to reconsider the
sanctions order. Moreover, he filed his reconsideration motion
more than two months after the judgment, well beyond the non-
extendable twenty-day limit. R. 4:49-2; see R. 1:3-4(c). His
notice of appeal was filed almost four months after the judgment,
far beyond the forty-five day limit. R. 2:4-1(a). His notice of
appeal said he was appealing only the September 18 order denying
reconsideration of the sanctions. Under those circumstances, we
will not exercise our discretion to allow plaintiff at this late
date to challenge a final judgment he never challenged before.
11 A-0834-15T2
Accordingly, we review only the August 14 order granting
sanctions and the September 18 order denying reconsideration of
the sanctions.
III.
The "decision to award attorney's fees pursuant to Rule 1:4-
8 is addressed to the judge's sound discretion[.]" McDaniel v.
Man Wai Lee,
419 N.J. Super. 482, 498 (App. Div. 2011). "[W]e
apply an abuse of discretion standard." United Hearts, LLC v.
Zahabian,
407 N.J. Super. 379, 390 (App. Div. 2009). The trial
court's order "will be reversed on appeal only if it 'was not
premised upon consideration of all relevant factors, was based
upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment.'" McDaniel,
419 N.J. Super.
at 498 (quoting Masone v. Levine,
382 N.J. Super. 181, 193 (App.
Div. 2005)). We must hew to that standard of review.
Under Rule 1:4-8, an opposing party must first serve a
"written notice and demand" on the attorney who signed the
pleading. R. 1:4-8(b)(1). That notice must warn that sanctions
will be sought "if the offending paper is not withdrawn within 28
days of service of the written demand," but if "the subject of the
application for sanctions is a motion whose return date precedes
the expiration of the 28-day period, the demand shall give the
movant the option of either consenting to an adjournment of the
12 A-0834-15T2
return date or waiving the balance of the 28-day period then
remaining." Ibid. Here, defendants gave repeated notices which
included those warnings, and plaintiff failed to "request an
adjournment of the return date," so he was "deemed to have elected
the waiver." Ibid. In other words, plaintiff had to withdraw the
complaint prior to the return date on the order to show cause to
avoid Rule 1:4-8's application.
Rule 1:4-8(b)(1) authorizes sanctions if a party's pleading,
motion, or other paper "violated [paragraph (a) of] this rule."
Paragraph (a) requires that counsel ensure that
(1) the paper is not being presented for any
improper purpose, such as to harass or to
cause unnecessary delay or needless increase
in the cost of litigation;
(2) the claims, defenses, and other legal
contentions therein are warranted by existing
law or by a non-frivolous argument for the
extension, modification, or reversal of
existing law or the establishment of new law;
(3) the factual allegations have evidentiary
support or, as to specifically identified
allegations, they are either likely to have
evidentiary support or they will be withdrawn
or corrected if reasonable opportunity for
further investigation or discovery indicates
insufficient evidentiary support[.]
[R. 1:4-8(a) (emphasis added).]
The circumstances here showed plaintiff violated at least
subparagraphs (1) and (3) of Rule 1:4-8(a).
13 A-0834-15T2
After plaintiff sent defendants an April 24 OPRA request,
Renner called plaintiff on May 5 and emailed him on May 6 that
"[t]he response to your April 24 OPRA request is ready" and "can
be picked up anytime." On June 1, plaintiff called Renner,
apologized for not checking his email, and picked up the responsive
documents. Defendants' May 29 and June 5 letters under Rule 1:4-
8 brought those facts to the attention of plaintiff's counsel.
Yet plaintiff's counsel never withdrew or corrected the central
factual allegation in plaintiff's May 26 complaint: that he "has
not received any response to the April 24, 2015 OPRA request." By
instead pursuing this inaccurate complaint, plaintiff's counsel
forced defendants to file a June 9 answer to the complaint and
order to show cause, and appear for the show-cause hearing on June
19.
Defendants' June 9 answer reiterated that they had proffered
documents in response to plaintiff's OPRA request on May 5 and 6,
and that plaintiff had received the documents on June 1. In his
June 9 letter to defendants, plaintiff's counsel acknowledged that
responses were provided to plaintiff on June 1. Counsel claimed
they were inadequate. Nonetheless, plaintiff's counsel still did
not amend or withdraw the complaint's inaccurate allegation that
no response had been received. Plaintiff's counsel also did not
file in court a timely reply brief or certification claiming the
14 A-0834-15T2
response was inadequate. Plaintiff's counsel also failed to appear
at the June 19 hearing. As a result, plaintiff's inaccurate
complaint and show-cause order were considered and dismissed at
that hearing.
The trial court found plaintiff's attorneys cavalierly chose
to "pursue something that they know there's no reason to pursue,"
with the apparent purpose "to harass or to – to injure the town
in some way." The court found plaintiff "needlessly increased the
cost of litigation." Thus, the court did "describe the conduct
determined to be a violation of this rule and explain the basis
for the sanction imposed." R. 1:4-8(d).
"'[C]ontinued prosecution of a claim or defense may, based
on facts coming to be known to the party after the filing of the
initial pleading, be sanctionable as baseless or frivolous even
if the initial assertion of the claim or defense was not.'" United
Hearts,
407 N.J. Super. at 390 (citation omitted). "The sanctions
created in Rule 1:4-8 are specifically designed to deter the filing
or pursuit of frivolous litigation." LoBiondo v. Schwartz,
199 N.J. 62, 98 (2009) (emphasis added). Rule 1:4-8(a)(3) "imposes a
continuing duty on the attorney . . . who filed the pleading to
correct or withdraw the allegations or the denials contained
therein based upon further investigation and discovery." Ibid.
If counsel fails to do so, "reasonable fees may be awarded . . .
15 A-0834-15T2
from that point in the litigation at which it becomes clear that
the action is frivolous." Id. at 99 (citing DeBrango v. Summit
Bancorp,
328 N.J. Super. 219, 229-30 (App. Div. 2000)).
In DeBrango, the plaintiffs had a reasonable basis to file a
complaint, but Summit Bank sent them a Rule 1:4-8 notice and a May
29, 1998 letter showing their factual allegation was incorrect.
328 N.J. Super. at 223-24. We ruled that "after plaintiffs
received the May 29, 1998 letter, they lacked a 'good faith' basis
to proceed against the bank, and the litigation became frivolous.
Plaintiffs' attorney was obligated at that time to withdraw the
complaint against Summit Bank because its contentions lacked
sufficient evidentiary support." Id. at 228 (citing R. 1:4-
8(a)(3)).
Similarly, once plaintiff's counsel received defendants' May
29 and June 5 letters, and their June 9 answer, which made clear
the falsity of plaintiff's allegation that no response had been
received to his OPRA request, plaintiff's counsel was obligated
to withdraw or amend the complaint. By failing to do so, and thus
forcing defendants to answer the inaccurate complaint and defend
the order to show cause, plaintiff's counsel violated Rule 1:4-8.
Plaintiff argues that, at the June 19 hearing, the trial
court should have considered his certification, and Benedetto's
request to be heard by phone. However, neither could have
16 A-0834-15T2
eliminated the basis for sanctions: that, despite knowing for at
least two weeks that plaintiff had received a response to his OPRA
request, plaintiff's counsel had neither withdrawn nor amended the
complaint claiming no response had been received to plaintiff's
OPRA request, and instead had proceeded to a hearing on that
baseless claim. In any event, plaintiff's reliance on both fails.
First, whether to permit telephonic argument is left to the
discretion of the trial court. R. 1:6-2(e) (providing a trial
court "may direct argument of any motion by telephone conference
without court appearance" (emphasis added)). "Where the technique
of oral argument of motions by telephone is employed, it obviously
must be scheduled in advance by the court[.]" Pressler & Verniero,
Current N.J. Court Rules, cmt. 6 on R. 1:6-2 (2018). The court
here did not abuse its discretion in denying a request to
participate by phone made only five minutes before the June 19
hearing. Moreover, Benedetto and his office offered no explanation
why plaintiff's counsel Reynolds was unavailable to appear at the
hearing.
At the August 14 sanctions hearing, plaintiff's counsel
argued that staffing problems required the reassignment of the
hearing to a contract attorney, and cited Benedetto's August 7
certification that the attorney's 9 a.m. status conference in
Pennsylvania became a trial. Even if true, the failure to request
17 A-0834-15T2
phone argument until five minutes before the 1:30 p.m. hearing
gave ample grounds to reject the belated request, particularly as
the court wished counsel to be present. Finally, plaintiff has
not shown how mere argument would have altered the uncontested
fact that plaintiff did not withdraw or amend the complaint.
Second, plaintiff's counsel did not provide plaintiff's
certification, or the reply brief it was attached to, to the trial
court until the judge was walking onto the bench. Defense counsel
did not see it because it was sent to his office while he was in
court for the hearing. The reply brief had been due three days
before the hearing, no extension had been sought, and no reason
was offered for the delay in supplying either the reply brief or
the certification.
Plaintiff now argues his certification was a response to
defendants' June 18 submission, but his certification was dated
June 17, and his certification used essentially the same language
as his counsel's June 9 letter. It was not an abuse of discretion
for the court on June 19 to refuse to consider a reply brief and
certification it had no chance to read and defense counsel had no
chance to see because it was not sent until the hearing started.
In any event, we are not reviewing the June 19 order, but the
trial court's rulings regarding sanctions issued at the August 14
and September 18 hearings. At those hearings, the court considered
18 A-0834-15T2
the same points as plaintiff raised in his belated certification,
namely plaintiff's assertions that defendants' response was
incomplete and plaintiff acted in good faith.
Moreover, plaintiff's certification did not change that he
was pursuing a complaint alleging he had not received a response
to his OPRA request when in fact he had received a response.
Indeed, in his certification, plaintiff admitted picking up the
response from Renner on June 1, even as he denied receiving any
email or telephone message telling him the response was ready for
pickup. The certification claimed the response was incomplete,
but gave no reason why plaintiff had not sought to raise that
claim by amending his complaint in the weeks that followed.
Furthermore, plaintiff's certification failed to demonstrate
that defendants' response was incomplete. Renner supplied
plaintiff with documents and a response letter listing plaintiff's
requests (in bold) and her responses.
Enclosed are your responses to your OPRA
request dated April 24, 2014 as follows:
[1.] Provide the current vacant rate of vacant
properties including address and listed owned
on record.
Please clarify this request. Assuming,
without clarification that this is a request
for an address/owner lists of all vacant
properties in the Borough, the Borough does
not maintain such a list. Therefore, no
records exist.
19 A-0834-15T2
[2.] Provide the current number of absentee
landlords including banks and provide name and
address.
The Borough does not maintain such a list.
Therefore no records exist.
[3.] Provide current ordinance requirements
for absentee landlords.
Document does not exist.
[4.] Provide the most recent Master Plan of
the Borough of Penns Grove.
Documents are attached[.]
[5.] Please provide copies of all invoices for
legal services that relate to the defense of
Penns Grove and Acting Clerk, Sarah Renner's
defense on the matter titled: Scarpaci v.
Renner, Salem County Superior Court, Docket
No.: L-58-15[.] This request is to include
unbilled legal fees. If an invoice is not yet
prepared, a Certification from all lawyers
relation to this matter is requested.
Unbilled legal fees and/or a certification
from all lawyers are not an appropriate OPRA
request. At this time, there are no records
in response to this request for unbilled legal
fees. Invoice documents are attached.
[6.] Please provide copies of all invoices for
any expenses that relate to the defense of
Penns Grove and Acting Clerk Sarah Renner's
defense on the matter titled: Scarpaci v.
Renner, Salem County Superior Court, Docket
No.: L-58-15. This request is to include
unbilled legal fees. If an invoice is not yet
prepared, a Certification from all lawyers
related to this matter is requested.
20 A-0834-15T2
Unbilled legal fees and/or a certification
from all lawyers are not an appropriate OPRA
request. At this time, there are no records
in response to the request.
[7.] Any complaint filed regarding the
occupancy of 11-D N. Virginia Avenue, Penns
Grove, NJ 08069 for the past five (5) years.
Documents regarding property 11-D N. Virginia
Avenue are attached.
[8.] Any complaint filed regarding the use of
11-D N. Virginia Avenue, Penns Grove, NJ 08069
for the past five (5) years.
Documents regarding property 11-D N. Virginia
Avenue are attached.
[9.] Any complaint filed regarding the Zoning
of 11-D N. Virginia Avenue, Penns Grove, NJ
08069 for the past five (5) years.
Documents regarding property 11-D N. Virginia
Avenue are attached.
[10.] All Documents in your possession for the
past five (5) years regarding 11-D N. Virginia
Avenue, Penns Grove, NJ 08069 for the past
five (5) years.
Documents regarding property 11-D N. Virginia
Avenue are attached.
[11.] Any Agreement between Penns Grove and
NJ DCA regarding zoning, planning or occupancy
regarding commercial units.
There is no such agreement. No records exist.
21 A-0834-15T2
Plaintiff concedes he received full responses for requests 4 and
7, but claims he did not receive adequate responses to the
remainder of his document requests.
Regarding requests 1-3, plaintiff certified while defendants
claim no "items relative to this request exist, Plaintiff believes
that it does" as the items were "discussed in Borough Council
meetings prior to Plaintiff's OPRA requests." However, plaintiff
provided no details of a discussion stating those records actually
existed.1 Defendants provided the trial court with certifications
by Renner and by the Borough's counsel that no such documents
existed. Counsel certified he had "reviewed the Borough's entire
ordinance[s]" and was "confident there are no known ordinances"
responsive to request 3.
Moreover, Renner certified that requests 1 and 2 would require
her "to search all Borough records for references to any vacant
properties" and "absentee landlords," and "calculate the 'rate'"
and "create a list," respectively. However, "OPRA does not require
public agencies to create records." Sussex Commons Assocs., Ltd.
Liab. Co. v. Rutgers,
210 N.J. 531, 544 (2012) (citing MAG Entm't,
LLC v. Div. of Alcoholic Beverage Control,
375 N.J. Super. 534,
1 At the August 14 hearing, plaintiff's counsel argued the
documents "were referenced by the Mayor of Penns Grove [and a
council member] during an April Borough Council meeting," but no
proof or certification to that effect was ever submitted.
22 A-0834-15T2
546, 549 (App. Div. 2005)). "OPRA is 'not intended [to be] a
research tool [that] litigants may use to force government
officials to identify and siphon useful information." Matter of
N.J. Firemen's Ass'n Obligation to Provide Relief Applications
Under Open Pub. Records Act,
230 N.J. 258, 276 (2017) (alterations
in original) (quoting MAG,
375 N.J. Super. at 546). "'OPRA does
not require record custodians to conduct research among its records
for a requestor and correlate data from various government records
in the custodian's possession.'" MAG,
375 N.J. Super. at 546-47
(citation omitted); accord, e.g., Lagerkvist v. Office of
Governor,
443 N.J. Super. 230, 237 (App. Div. 2015). "The request
should not require the records custodian to undertake a subjective
analysis to understand the nature of the request. Seeking
particular information from the custodian is permissible;
expecting the custodian to do research is not." Paff v. Galloway
Twp.,
229 N.J. 340, 355 (2017).
This case is unlike Paff v. Galloway, where the requested
email information "was stored electronically[,] and, by the
Township's own admission, could have been produced within [two to
three] minutes."
229 N.J. at 344, 346, 357. The Court emphasized
that the definition of "Government record" in OPRA allowed requests
for "'information stored or maintained electronically,'" so "[t]he
issue in this case is simply one of statutory interpretation."
23 A-0834-15T
2 Id. at 351 (quoting
N.J.S.A. 47:1A-1.1). "By OPRA's [plain]
language, information in electronic form, even if part of a larger
document, is itself a government record. Thus, electronically
stored information extracted from an email is not the creation of
a new record or new information; it is a government record." Id.
at 353, 356. Therefore, "[w]ith respect to electronically stored
information," the Court rejected that "'OPRA only allows requests
for records, not requests for information.'" Id. at 356 (citation
omitted).
Here, by contrast, there was no indication that the requested
information was "information stored or maintained electronically."
N.J.S.A. 47:1A-1.1. Rather, the documents produced by the Borough
were forms that were handwritten, hand-signed, or both, indicating
it kept paper records or image-processed copies thereof. For "any
paper, written or printed book, document, . . . or image processed
document,"
N.J.S.A. 47:1A-1.1, OPRA "only allows requests for
records, not requests for information." Burke v. Brandes,
429 N.J. Super. 169, 174 (App. Div. 2012) (quoting Bent v. Twp. of
Stafford Police Dep't,
381 N.J. Super. 30, 37 (App. Div. 2005)).
The Court in Paff v. Galloway stressed that "OPRA provisions
distinguish between paper records and records in electronic form"
and give the latter "different treatment."
229 N.J. at 354.
24 A-0834-15T2
Moreover, because "OPRA only allows requests for records, not
requests for information" from paper documents, "it is 'incumbent
on the requestor to perform any correlations and analysis he may
desire.'" MAG,
375 N.J. Super. at 547 (citation omitted). The
Court in Paff v. Galloway ruled MAG "sensibly stated that OPRA did
not countenance '[w]holesale requests for general information to
be analyzed, collated and compiled by the responding government
entity' or 'open-ended searches of an agency's files.'"
229 N.J.
at 353 (alteration in original) (quoting MAG,
375 N.J. Super. at
379). The Court distinguished MAG based on the facts in Paff v.
Galloway: "Paff circumscribed his request to a two-week period and
identified the discrete information he sought. The records
custodian did not have to make a subjective judgment to determine
the nature of the information covered by the request." Id. at
356.
By contrast, plaintiff's requests 1 and 2 asked for "open
ended searches" in which the Borough's files would be "analyzed"
to calculate a rate, and "compiled" into a list. Id. at 355
(quoting MAG,
375 N.J. Super. at 549). Renner certified she was
not certain how to define "absentee landlord"; did not understand
his request to calculate a "vacant rate," and requested
clarification which plaintiff did not provide; and was "not sure
[she was] even qualified to make those calculations." As in MAG,
25 A-0834-15T2
requests 1 and 2 "'failed to identify with any specificity or
particularity the governmental records sought,'" and instead
improperly asked Renner "to do research" and "to undertake a
subjective analysis[.]" Id. at 355 (quoting MAG,
375 N.J. Super.
at 549).
Requests 5 and 6 sought legal "invoices for legal services"
for the Scarpaci case. Defendants produced part of an April 10,
2015 invoice addressed to the Borough. Plaintiff claimed the
invoice "is incomplete and can't be authenticated." However, he
failed to show the rest of the invoice related to the Scarpaci
case, or why it could not be authenticated based on its production
by the Borough.
Requests 5 and 6 also sought "unbilled legal fees," and
stated: "If an invoice is not yet prepared, a Certification from
all lawyers related to this matter is requested." However, OPRA
does not authorize plaintiff to ask lawyers "to create"
certifications that do not exist. Sussex Commons,
210 N.J. at
544. Moreover, legal fees "unbilled" by the outside counsel to
the Borough are by definition not in a record "that has been
received," "made, maintained, or kept on file in the course of his
or its official business by any officer, commission, agency or
authority of the State or of any political subdivision thereof,"
as required by OPRA's definition of a "Government record."
26 A-0834-15T
2 N.J.S.A. 47:1A-1.1. Both Renner and the Borough's counsel
certified counsel did not provide the Borough with information on
unbilled fees.
Defendants certified they provided documents in response to
requests 8-10 regarding a particular address, including
complaints. Plaintiff's certification said no such documents were
provided. However, our review shows defendants produced numerous
documents regarding that address, including a complaint.
Finally, defendants certified that no documents existed
responsive to request 11 for "[a]ny agreement between the Borough
and NJ DCA." Plaintiff's certification simply stated "it is
Plaintiff's belief that these documents so exist [sic]," even
though Renner and the Borough's counsel certified no such agreement
existed. As with requests 1-3, plaintiff argues his good-faith
belief precludes the entry of sanctions.
Under Rule 1:4-8, "[i]mposing sanctions is not appropriate
where a party 'has a reasonable good faith belief in the merit of
his action.'" Tagayun v. AmeriChoice of N.J., Inc.,
446 N.J.
Super. 570, 580 (App. Div. 2016) (citation omitted). However, a
plaintiff's subjective belief must satisfy "a test of objective
reasonableness." Wyche v. Unsatisfied Claim & Judgment Fund of
State,
383 N.J. Super. 554, 561 (App. Div. 2006); see J.O. v. Twp.
of Bedminster,
433 N.J. Super. 199, 221 (App. Div. 2013); see also
27 A-0834-15T2
LoBiondo,
199 N.J. at 99. Plaintiff provided no evidence showing
his belief was objectively reasonable.
Our review of the details of plaintiff's request simply
confirms our overall conclusion. The issue under Rule 1:4-8 is
whether plaintiff properly pursued a complaint and order to show
cause based on the allegation that he "has not received any
response to [his] OPRA request" when he in fact received
defendant's response weeks before. Our review shows plaintiff
received defendants' written response addressing every request.
Moreover, he was given documents responsive to seven of his eleven
requests. Further, he did not show an objectively reasonable
belief that, despite the certification of the records custodian
and Borough counsel, responsive documents existed regarding the
other four requests. Under these circumstances, it was improper
for plaintiff to persist in litigating a complaint and show-cause
order based on the allegation he had received no response
whatsoever. See DeBrango,
328 N.J. Super. at 227-28.
At the August 14 sanctions hearing, and again at the September
18 hearing, the trial court considered plaintiff's arguments about
his particular requests. The court characterized requests 1 and
2 as "interrogatories" improperly seeking information rather than
documents. The court heard but did not accept plaintiff's argument
that he had a good-faith belief the requested documents existed.
28 A-0834-15T2
The court focused on the central issue that plaintiff's counsel
persisted in prosecuting a complaint and show-cause order based
on an allegation counsel knew was false but which he made no effort
to withdraw or amend. The court did not abuse its discretion in
finding sanctions warranted.
IV.
Plaintiff next challenges the September 18 order denying
reconsideration. "We review the court's denial of [plaintiff]'s
motion for reconsideration under an abuse of discretion standard."
Granata v. Broderick,
446 N.J. Super. 449, 468 (App. Div. 2016).
Plaintiff argues that at the September 18 reconsideration
hearing, the trial court overlooked his submission of plaintiff's
certification on June 19. Plaintiff misapprehends the
reconsideration standard. Under Rule 4:49-2, "a motion for
rehearing or reconsideration" must state "the matters or
controlling decisions which counsel believes the court has
overlooked" when the court made the decision of which
reconsideration is sought. See, e.g., Cummings v. Bahr,
295 N.J.
Super. 374, 384 (App. Div. 1996). "The basis to such a motion,
thus, focuses upon what was before the court in the first
instance." Lahue v. Pio Costa,
263 N.J. Super. 575, 598 (App.
Div. 1993).
29 A-0834-15T2
Plaintiff makes no argument that the trial court overlooked
anything at the August 14 hearing when it imposed sanctions. At
that hearing, the court acknowledged that plaintiff sent to the
court just before the June 19 hearing the reply brief, to which
plaintiff's certification was attached. Plaintiff cannot overturn
the August 14 ruling by arguing the court (like plaintiff) did not
mention that reply brief or its accompanying certification at the
September 18 reconsideration hearing.
In any event, as discussed above, the trial court rejected
the points made in plaintiff's belated certification, namely that
defendants' response was incomplete and that plaintiff acted in
good faith. The court found no excuse for plaintiff's counsel
decision to persist in litigating a complaint based on the false
allegation that plaintiff had not received a response to his OPRA
request.
V.
Plaintiff has not challenged that $1725 was the appropriate
amount of sanctions if sanctions were appropriate. The "sanction
imposed for violation of paragraph (a) of [Rule 1:4-8]" may include
"an order directing payment to the movant of some or all of the
reasonable attorneys' fees and other expenses incurred as a direct
result of the violation[.]" R. 1:4-8(d). "The sanctions that are
permitted to be awarded, however, are not unbounded, but are
30 A-0834-15T2
specifically [limited to] 'a sum sufficient to deter repetition
of such conduct.'" LoBiondo,
199 N.J. at 99 (quoting R. 1:4-
8(d)). Moreover, "the Rule imposes a temporal limitation on any
fee award, holding that reasonable fees may be awarded only from
that point in the litigation at which it becomes clear that the
action is frivolous." Id. at 99 (citing DeBrango,
328 N.J. Super.
at 229-30).
It became clear that pursuing the complaint's charge was
frivolous by June 9. By then, plaintiff's counsel was indisputably
aware that defendants had responded to plaintiff's OPRA request
and that plaintiff had picked up the response on June 1. Because
plaintiff's counsel failed to withdraw or amend the complaint's
charge that no response had been received to plaintiff's OPRA
complaint, defendants were required to answer the baseless
complaint on June 9 and appear to oppose the meritless order to
show cause on June 19.
Defendants supplied the trial court with an invoice stating
that from June 9 to June 19, in answering the complaint and the
order to show cause, and in preparing for and attending the
hearing, they expended 11.5 hours at $150 per hour and thus sought
$1725. The trial court found that "the time expended" was
"reasonable" and "[t]he rate clearly is well within the market"
given the "experience and training" of defense counsel. Therefore,
31 A-0834-15T2
the court found "$1,725 is fair and reasonable." Thus, the court
did not "accept passively" defendants' submissions, and did
"evaluate carefully and critically the aggregate hours and
specific hourly rates advanced by counsel for the prevailing party
to support the fee application.'" Walker v. Giuffre,
209 N.J.
124, 131 (2012) (quoting Rendine v. Pantzer,
141 N.J. 292, 335
(1995)).
Here, as in Masone, "[p]laintiff does not contend that the
work performed or the time expended was unnecessary or excessive.
In this instance, the sanction imposed is closely correlated to
the litigation sought to be discouraged. Under these
circumstances, there is no mistaken exercise of the motion judge's
discretion."
382 N.J. Super. at 194-95.
Affirmed.
32 A-0834-15T2
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