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Fanelli v. Union County Sheriff's Office

June 14, 2007

VIRGINIA FANELLI, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
UNION COUNTY SHERIFF'S OFFICE AND THE COUNTY OF UNION,*FN1 DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND RALPH FROEHLICH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS UNION COUNTY SHERIFF; WILLIAM V. MALCOM, INDIVIDUALLY AND HIS OFFICIAL CAPACITY AS UNION COUNTY UNDERSHERIFF; ANNA BUCKLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A UNION COUNTY SHERIFF'S OFFICER; VINCENT DITROLIO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A UNION COUNTY SHERIFF'S OFFICER; AND BARRY MIGLIORE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A UNION COUNTY SHERIFF'S OFFICER,*FN2 DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4935-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2007

Before Judges Parrillo and Sapp-Peterson.

This is an appeal and cross-appeal of the trial court order granting counsel fees and costs to plaintiff Virginia Fanelli following the settlement of her Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, claim against the Union County Sheriff's Office (UCSO) and the County of Union (County) (collectively defendants). Plaintiff contends the trial court abused its discretion when it reduced the lodestar by (1) excluding work her attorney performed in connection with disciplinary charges filed against her and (2) excluding work performed by paraprofessional Adam Mangino (Mangino). Plaintiff contends the court also erred when it denied a contingency fee enhancement and supplemental attorney's fees. Defendants contend plaintiff is estopped from challenging the counsel fee award because plaintiff accepted the check they issued pursuant to the court's order. In their cross-appeal, defendants claim the lodestar should be further reduced because the attorneys' hourly rates, as fixed by the trial court, were excessive. We vacate the counsel fees and costs awarded and remand for further proceedings on plaintiff's application for paraprofessional fees, a contingency fee enhancement, and supplemental fees. In all other respects, we affirm.

By way of factual background, plaintiff is a former sheriff's officer with UCSO. She served in that capacity for more than fourteen years before she claimed she was constructively discharged. According to plaintiff, in August 1998, she was approached by Undersheriff William V. Malcolm (Malcolm) in connection with disciplinary charges he filed against another sheriff's officer, James A. MacDonald (MacDonald). The original charges included an allegation that MacDonald submitted overtime records for a period of time that he was not working, but was instead at plaintiff's residence. Plaintiff denied the allegation and refused to testify against MacDonald. Plaintiff claimed that because of this refusal, she was thereafter subjected to a series of adverse employment actions, which included disciplinary charges filed against her on July 3, 2001.

On July 8, 2001, plaintiff retained Bruce McMoran (McMoran) of McMoran, O'Connor & Bramley to represent her. In November 2001, plaintiff filed a complaint in the Law Division against UCSO, Sheriff Ralph Froehlich, Malcolm, Captains Barry Migliore and Vincent DiTrolio,*fn3 and Lieutenant Anna Buckley, alleging a violation of CEPA, intentional infliction of emotional distress and tortious interference with employment.

Plaintiff subsequently amended her complaint to add the County as a defendant and to remove her common-law claims, which she voluntarily dismissed. Prior to settlement, plaintiff voluntarily dismissed all of the claims against the individually-named defendants. Thus, at the time of settlement, the CEPA claim was the only remaining cause of action, and UCSO and the County were the only remaining defendants.

As part of the settlement, the parties agreed that plaintiff could file an application with the court for counsel fees and costs. McMoran submitted a certification indicating that he, his partner, two associates and a paraprofessional devoted 3,402.75 hours to the resolution of this matter at rates ranging from $490 per hour for lead counsel to $150 per hour for paraprofessional support. The total lodestar fee sought was $1,062,199.20, increased by a forty percent contingency enhancement of $424,879.68, plus $36,373.54 in costs and disbursements, for a total of $1,523,452.30.

Defendants opposed the amount of the fees sought, claiming the hourly rate submitted was excessive. According to defendants, the prevailing market rate for attorneys with similar experience ranged from a high of $300 per hour, to a low of $150 per hour. In addition, defendants claimed that the fees sought for services performed by the paraprofessional should be disallowed because there was no fee agreement between plaintiff and Mangino and also because the services performed were duplicative. McMoran argued that the fee agreement was between Mangino and the law firm, which Mangino billed at $150 per hour. McMoran also urged that the services were necessary.

The court, in a written opinion, made the following findings:

The Court has reviewed the certifications and briefs submitted by the parties. In the Certification of Bruce McMoran, he details the experience, qualifications and hourly rate of himself and Douglas S. Bramley. . . .

Mr. McMoran's practice has been exclusive to employment law since 1976. He is a partner in the firm of McMoran, O'Connor & Bramley. He has tried many employment law cases. He has taught and spoken to groups extensively on the subject of employment law. . . .

Mr. Bramley is a partner with McMoran, O'Connor & Bramley and has been practicing law since 1998. He is admitted to practice in the States of New Jersey and New York. He is a member of the NJSBA Labor and Employment Section and is Co-Chair of the Employment Torts Sub-Committee. . . . Mr. Bramley has not submitted a certification setting forth his experience in trying employment cases.

The Court has reached the conclusion that based on the experience and qualifications of Mr. McMoran, an hourly rate of $450.00 is reasonable and appropriate under the circumstances of this case.

Attached to the certification submitted by Mr. McMoran is a Law Journal article which states that the average mean rate for all partners is $394 per hour. The Court has decided that based on the experience and qualifications of Mr. Bramley, an hourly rate of $285.00 is reasonable and appropriate.

Mr. McMoran's certification does not address the background, experience or billing rates of Micha[e]l F. O'Connor or Justin D. Burns. Mr. McMoran's reply brief does address in argument the background and work of Adam Mangino. A certification of Adam Mangino was attached to the initial submission providing his extensive background in law enforcement. With regard to employment matters he recites:

For the past several years I have worked on employment related cases on an almost daily basis including initial client interviews; witness interviews; discovery and deposition preparation (attendance and review); complete trial preparation; client testimony (review and preparation); locating and developing of evidence; preparing trial exhibits; preparing visual aids ...


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