Before Judges Muir, Jr., Wallace, Jr., and Cuff.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 22, 1999
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
In this appeal, we review two orders concerning plaintiff's application for attorneys' fees. One order declared that plaintiff had not waived her right to seek attorneys' fees from the settling defendants. The other order denied the fee application on the basis that the terms of the settlement did not trigger an entitlement to attorneys' fees. Defendants appeal from the initial order; plaintiff appeals from the order denying her fee application on the merits. We affirm the order finding no waiver but reverse the order denying the fee application.
On December 30, 1992, plaintiff Bea Warrington filed a complaint against defendants Village Supermarket, Inc., East Orange Center Urban Renewal Associates, and the Construction Official of the City of East Orange, which alleged that the shopping cart corral of a newly constructed Shop-Rite food market violated the Handicapped Access Law (HAL), N.J.S.A. 52:32-4 to-10, and its implementing regulations, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213. Plaintiff sought compensatory and punitive damages, as well as injunctive relief. Specifically, she sought revocation of the supermarket's certificate of occupancy, and removal or modification of the shopping cart corral which obstructed access to the supermarket for wheelchair-bound disabled persons. She also sought attorneys' fees and costs in accordance with the LAD and ADA. An amended complaint named the Fire Official of the City of East Orange as a defendant.
The record reveals that the shopping cart corral located on the premises of the supermarket was structured with a series of posts and metal railings for the purpose of preventing the shopping carts from being removed from the premises. The configuration of the corral provided a passage of thirty-two inches in width, too narrow to allow passage of persons in wheelchairs. The food market is a public building and subject to the New Jersey Barrier-Free Construction Law and its regulations, which requires a minimum thirty-six inch passage to assure accessibility by disabled persons.
The corral was equipped with a swinging gate designed to afford handicapped accessibility when the gate was open. However, the gate was secured with a padlock and a disabled person required the assistance of an employee to gain access to the building. Plaintiff contended that it was difficult to get the attention of an employee and that it "often took a considerable amount of time and imposed significant inconvenience, especially in inclement weather."
Prior to the scheduled trial date, the parties settled all substantive issues. A consent judgment was entered on August 24, 1994. The preamble to the consent judgment provides "that these parties have agreed upon a settlement of the substantive matters at issue in this litigation...." The judgment further provides that defendant Village Supermarkets, Inc. will assure a clear opening through the corral and dictates the location, width, height and hours of the opening. It also requires the landlord and the appropriate municipal officials to enforce the terms of the judgment. Finally, the judgment provides that "this matter is dismissed as to all defendants with prejudice."
When the consent judgment was submitted to defense counsel, the cover letter from plaintiff's counsel referred to the proposed judgment "ending this litigation as between our clients." Then, in a letter dated September 2, 1994, plaintiff's counsel forwarded a copy of the filed consent judgment to counsel and said, "[T]his brings the substantive aspects of the case to a close. Later this week I will submit to you a request for attorneys' fees."
On or about March 3, 1995, plaintiff filed a motion to declare she retained the right to apply for attorneys' fees. In an opinion dated January 30, 1996, the motion judge declared that plaintiff had not waived her right to seek attorneys' fees. The motion judge found that the consent judgment was silent on the issue of attorneys' fees. However, she analyzed federal cases concerning a settling party's right to attorneys' fees and determined that a prevailing plaintiff is entitled to fees absent an express waiver. Having found plaintiff had not expressly waived her right to seek attorneys' fees, the motion judge ruled that plaintiff retained her right to apply for attorneys' fees. The motion judge also held that R. 4:42-9(d) did not bar the fee application because it did not expressly require an application for attorneys' fees to be made prior to final adjudication of the substantive issues. Furthermore, to the extent the rule would bar such an application, this case presented special circumstances to relax the rule.
On appeal, defendants argue that the motion judge erred in finding the consent judgment did not waive plaintiff's right to apply for attorneys' fees. They contend that plaintiff waived this right when the judgment was silent on the issue of fees. They further argue that the motion judge misapplied the law to the facts of the case. Plaintiff asserts that the failure to refer to attorneys' fees in the judgment did not relinquish her rights. She insists that any waiver must be express and unequivocal and that defendants wrongly assumed that resolution of the substantive issues included the issue of attorneys' fees.
Under the "American Rule," to which New Jersey subscribes, a prevailing party may not recover counsel fees from the losing party. Rendine v. Pantzer, 141 N.J. 292, 322 (1995); Van Horn v. City of Trenton, 80 N.J. 528, 538 (1979). However, such fees may be awarded when expressly authorized by statute, court rule, or contractual provision. Department of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 504 (1983); In re ...