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Somerset County Sheriff's Officers Fop Lodge #39 v. County of Somerset

April 29, 2008

SOMERSET COUNTY SHERIFF'S OFFICERS FOP LODGE #39, PLAINTIFF-APPELLANT,
v.
COUNTY OF SOMERSET AND SOMERSET COUNTY SHERIFF, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-0268-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically April 17, 2008

Before Judges Parrillo and S.L. Reisner.

Plaintiff, Somerset County Sheriff's Officers FOP Lodge #39 (FOP or plaintiff), appeals from a June 6, 2007 order of the trial court denying plaintiff's application for interest on an arbitration award plus counsel fees for the cost of plaintiff's action to enforce the award. We reverse and remand.

I.

Plaintiff FOP represents the Somerset County Sheriff's Officers. Following an interest arbitration to resolve a dispute over wages and other issues, plaintiff obtained an award requiring that its members receive a wage increase. Defendants, Somerset County (County or defendant) and Somerset County Sheriff, appealed the award to the Public Employment Relations Commission (PERC), which affirmed the award on November 21, 2006. Absent a stay, the County was required by statute to pay the award within fourteen days after PERC rendered its decision, N.J.S.A. 34:13A-16f(5)(b), or by December 5, 2006.

The County filed a notice of appeal to this court from the PERC decision on December 5, 2006, but did not obtain a stay. PERC denied the County's stay application on December 6, 2006, and denied the County's reconsideration motion on December 28, 2006. On February 20, 2007, when the County still had not paid the award, the FOP filed a verified complaint and order to show cause in the Law Division, seeking to enforce the arbitration award. Plaintiff also sought counsel fees for the cost of the enforcement application, plus interest on the arbitration award from December 5, 2007, the date on which the County was legally required to make payment.

The County filed a motion with the Appellate Division on March 7, 2007, seeking a stay of PERC's decision pending appeal, but withdrew the motion on March 20, 2007, after the trial court judge dismissed plaintiff's enforcement action in the mistaken belief that she lacked jurisdiction to enforce PERC's order due to the pending appeal. Thereafter, plaintiff, supported by PERC, moved before the trial court for reconsideration of the dismissal; that motion was granted on April 13, 2007.

By letter of April 16, 2007, plaintiff's counsel contacted defendant's counsel demanding immediate payment of the award. The next day, defendant filed another stay motion with this court. We denied that motion by order dated May 10, 2007, but the County still did not pay the award, although its counsel represented to the trial judge on May 11 that if its appellate stay motion were denied, the County would pay the award. Ultimately, the County paid the award on June 30, 2007.*fn1

In the interim, on June 6, 2007, the trial court judge entered an order enforcing the award but denying plaintiff's application for counsel fees and interest. The judge's rationale was that the County had pursued its appellate remedies and had made stay applications, and that awarding attorney fees and interest would "put a chilling effect on any entity's right to appeal any decision and to go through the necessary channels."

II.

We review the trial court's decision of a counsel fee application for abuse of discretion. See Furst v. Einstein Mooomjy, Inc., 182 N.J. 1, 25 (2004); Block v. Plosia, 390 N.J. Super. 543, 557 n.6 (App. Div. 2007). We apply the same standard in reviewing a trial court's decision concerning the award of prejudgment interest. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 478 (1988). However, our review of a trial judge's legal conclusions is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Elizabeth Police Superior Officers Ass'n v. City of Elizabeth, 180 N.J. Super. 511, 517 (App. Div. 1981). In this case, we are unable to agree with the trial court's legal reasoning and we conclude that it was a mistaken exercise of discretion to deny plaintiff's application.

Rule 4:42-9(a)(8) authorizes a court to award counsel fees "where permitted by statute." Pursuant to the arbitration statute, in the court's discretion, counsel fees may be awarded to a party, such as FOP, that ...


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