ELENA GONZALEZ v. RICK CUTTRELL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3929-19
ELENA GONZALEZ,
Plaintiff-Respondent,
v.
RICK CUTTRELL, Custodian of
Records for the Township of Neptune,
Defendant,
and
TOWNSHIP OF NEPTUNE,
Defendant-Appellant.
________________________________
Argued October 14, 2021 – Decided October 28, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0461-18.
Michael R. Burns argued the cause for appellant
(Marmero Law, LLC, attorneys; Michael R. Burns, on
the briefs.)
Donald F. Burke argued the cause for respondent (Law
Office of Donald F. Burke, attorneys; Donald F. Burke
and Donald F. Burke, Jr., on the brief).
PER CURIAM
Defendant Township of Neptune appeals from the Law Division's May 11,
2020 order granting plaintiff Elena Gonzalez's application for counsel fees and
costs following the Township's denial of her request for an investigation report
under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the
common law. We affirm substantially for the reasons set forth in the
comprehensive written decisions rendered by Judge Lisa P. Thornton on August
1, 2018, May 9, 2019, and May 11, 2020.
The parties are fully familiar with the procedural history and facts of this
matter and, therefore, we need only recite the most salient details here.
Beginning in 2006, the Township employed plaintiff as a police officer. In 2013,
plaintiff and a second officer filed complaints against the Township with the
Equal Opportunity Employment Commission, alleging discrimination, sexual
harassment, and a hostile work environment. In response, the Township retained
Gregory K. Turner Consulting and Investigations L.L.C. (Turner) to
independently investigate plaintiff's claims. Plaintiff cooperated with the
investigation.
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In January 2014, Turner completed its investigation and prepared a written
"investigation report." The Township refused to give plaintiff a copy of the
report.
On January 18, 2018, plaintiff submitted a written request to the
Township's Custodian of Records for a copy of Turner's investigation report
under OPRA and the common law. On January 24, 2018, the Custodian denied
plaintiff's request. In his denial letter, the Custodian stated that the report was
exempt from disclosure under OPRA because it concerned a sexual harassment
complaint. See N.J.S.A. 47:1A-1.1. The Custodian also alleged the report
constituted attorney work product. The Custodian did not address plaintiff's
common law claim.
On February 6, 2018, plaintiff filed a complaint against the Township and
the Custodian. Plaintiff again asserted she was entitled to access the Turner
report under OPRA and the common law. She also sought counsel fees and
costs.
Defendants filed an answer to the complaint, and Judge Thornton
scheduled oral argument for April 2, 2018. However, shortly before the hearing
date, the parties notified the court they were attempting to resolve the case. On
April 10, 2018, the parties executed a consent order under which the Township
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agreed to give plaintiff a copy of the Turner report with redacted names and
personal identifiers.
However, the parties did not resolve the issue of plaintiff's request for
counsel fees. Plaintiff sought fees under "the catalyst theory" recognized by our
Supreme Court in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008).
In our recent decision in Gannett Satellite Info. Network, LLC v. Twp. of
Neptune, 467 N.J. Super. 385, 411-12 (App. Div. 2021), we summarized the
Court's holding in Mason as follows:
In [Mason,] . . . the Court considered whether the
plaintiff was entitled to attorney's fees when a
government agency voluntarily disclosed records after
the plaintiff filed a lawsuit claiming a right to access to
the records under OPRA and the common law. The
Court adopted the "catalyst theory" and held that
requestors are "entitled to attorney's fees under OPRA
. . . when they can demonstrate: (1) 'a factual causal
nexus between [the] litigation and the relief ultimately
achieved'; and (2) 'that the relief ultimately secured by
[the requestor] had a basis in law.'"
[Id. at 411 (second, third, and fourth alterations in
original) (quoting Mason, 196 N.J. at 76).]
We then noted that the Mason Court
commented that "[t]he parties ha[d] not addressed at
length whether the question of attorney's fees merits
different treatment in an action brought under the
common law[,]" and that "[a]bsent an apparent,
theoretical basis for such a distinction, we conclude that
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the catalyst theory applies to common law suits as
well."
[Ibid. (alterations in the original) (quoting Mason, 196
N.J. at 79).]
The parties in Gannett disagreed whether this language in Mason
constituted "dicta or a definitive holding that attorney's fees are available to a
plaintiff that successfully pursues a common law right of access." Id. at 412.
However, we held that our court was
required . . . to follow the decisions of the Supreme
Court, and in Mason the Court stated that in a case
involving the common law right of access, attorneys'
fees may be awarded under the catalyst theory unless
there is "an apparent, theoretical basis" for declining to
apply that theory.
[Ibid. (citing Mason, 196 N.J. at 79).]
Judge Thornton applied these principles and determined plaintiff could
recover her counsel fees and costs under the catalyst theory. Turning to the first
prong of the Mason test, the judge found "there [was] a factual causal nexus
between plaintiff's complaint and [the Township's] decision to disclose the
report." The judge explained:
Initially, defendants denied plaintiff's request. While
defense counsel claims in his belated certification[] that
he was "personally involved in discussions with the
Township committee [. . .] with respect to release of the
Turner [r]eport" in January of 2018, there is no
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indication that these discussions occurred before
plaintiff's request to the custodian on January 18th. At
no time before plaintiff filed the complaint on February
8, 2018, did defendants offer to provide access. More
importantly, the court was not advised that the parties
were discussing resolution of the matter until April
2018, on the eve of the hearing. Finally, because
plaintiff's right to obtain the internal investigation is
well settled, it is unclear why defendants objected to
disclosure when the request was made by way of the
common law right of access.
In concluding that plaintiff also satisfied the second prong of the Mason
test, Judge Thornton determined that the Turner report was exempt from
disclosure under OPRA because it was "information generated by or on behalf
of public employers or public employees in connection with any sexual
harassment complaint filed with a public employer . . . ." See N.J.S.A. 47:1A-
1.1. However, the judge found that plaintiff had a right to the report under the
common law right to access public records.
In so ruling, Judge Thornton stated:
There should be little doubt that access should have
been provided based on the common law. The "Turner
[r]eport" was created at defendants' request, to evaluate
plaintiff's allegations. Plaintiff was encouraged to
cooperate with Mr. Turner and submit to an interview
based on assurances that the investigation would be
performed by an "independent" third party.
Examination of the report is essential to evaluate if [the
Township] provided "an effective avenue to complain"
about harassment or contributed to the alleged harm
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caused "through its negligence, intent, or apparent
authorization of the harassing conduct." [Lehman v.
Toys 'R' Us, 132 N.J. 587, 623-24 (1996)]. As the
[Supreme] Court concluded in [Payton v. NJ Tpk.
Auth., 148 N.J. 524, 541 (1997)], confidentiality
supports the public interest to maximize reporting of
sexual harassment.
[(footnote omitted).]
The judge continued:
However, the scourge of abuse will continue unabated
if the claims of victims are defeated because access to
evidence is denied. On the facts of the present case,
plaintiff's need for disclosure far outweighs the public's
need for confidentiality. Any harm that could result
from disclosure can be mitigated by a protective order
to redact the names of witnesses or other pertinent
information. Payton, 148 N.J. at 559.
The Township moved for reconsideration, which Judge Thornton denied
on May 9, 2019. The judge reviewed plaintiff's attorney's billing records and,
on May 11, 2020, ordered the Township to pay plaintiff $9405 in counsel fees
and $325.07 in costs. This appeal followed.
On appeal, the Township raises the same contentions it unsuccessfully
presented to Judge Thornton. It argues that "the trial court's decision to award
legal fees under the common law was in error and should be reversed." We
disagree.
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The standards governing our review of a trial judge's decision on an
application for counsel fees and costs are well established. As we stated in
Gannett, "the award of attorney's fees under the common law is committed to
the sound discretion of the trial court, after consideration of all relevant factors."
467 N.J. Super. at 412. A trial court's award of counsel fees "will be disturbed
only on the rarest occasions, and then only because of a clear abuse of
discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995).
Applying these principles, we discern no basis for disturbing Judge
Thornton's determination that plaintiff could recover her counsel fees and costs
under Mason's catalyst theory. Like Judge Thornton, we find no "apparent,
theoretical basis" for declining to apply that theory to plaintiff's common law
claim. Mason, 196 N.J. at 79. The judge's findings are fully supported by the
record and her legal conclusions are unassailable.
Affirmed.
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