On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-516-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Plaintiff John Paff appeals from the order of June 30, 2009, that denied his motion for class certification, denied his motion for partial summary judgment, denied his application for attorney's fees, and granted defendant's motion for summary judgment, dismissing the complaint. We affirm.
The genesis of this lawsuit is an earlier action filed by plaintiff against the Division of Law, Paff v. Division of Law, Docket No. L-0592-08, brought under the Open Public Records Act (OPRA) N.J.S.A. 47:1A -1 to -13, (the OPRA suit). In that action, by order dated July 21, 2008, plaintiff was awarded $17,938.90 in costs and attorney's fees pursuant to the fee shifting provision in the OPRA statute. N.J.S.A. 47:1A-6. The order made no provision for post-judgment interest.
Not having received payment of the $17,938.90, on December 24, 2008, plaintiff's counsel wrote the opposing Deputy Attorney General (DAG)*fn1 in the OPRA suit reminding her that the award had not been paid and requesting post-judgment interest pursuant to Rule 4:42-11. On January 15, 2009, the State issued plaintiff a check in the sum of $17,938.90, which was the amount of the award but without any post-judgment interest. On January 22, 2009, the date that plaintiff's counsel received the check, he wrote to the DAG requesting a legal basis for not paying post-judgment interest. Receiving no response, plaintiff commenced this action in lieu of prerogative writs one month later on February 25, 2009.
In this action, plaintiff contended that defendants, the State Treasurer and the Director of the Office of Management and Budget, violated Rule 4:42-11(a) by failing to pay post-judgment interest on money judgments, awards and orders against the State. The complaint set forth a claim of conversion against defendants for not paying post-judgment interest and sought to compel them to do so. Plaintiff sought class action certification in order to represent all persons who were entitled to post-judgment interest from the State since March 1, 2003, but did not receive it. He also sought the post-judgment interest that he claimed was due to him by the State.
Thereafter, the parties agreed that the amount of post-judgment interest due plaintiff was $650, and the State issued him a check in that sum which was received by plaintiff's counsel on May 7, 2009. Defendants then moved for summary judgment on the basis that plaintiff had been paid the interest he sought and his claim had become moot. Defendants also sought summary judgment on the class action claim, contending that plaintiff had not filed a timely tort claims notice as required by N.J.S.A. 59:8-7 and -8; that the claims were barred by the statute of limitations, N.J.S.A. 59:8-8; and that an action in lieu of prerogative writs was procedurally improper and time barred. Plaintiff moved for partial summary judgment in favor of plaintiff on the issue of liability and for class certification.
The trial court found that the facts did not support a class action suit, although it did indicate that it would place in the order language to the effect that judgments submitted for payment must comply with the provisions of Rule 4:42-11.*fn2 The trial court also stated that it would consider an application for additional attorney's fees from plaintiff's counsel.
Thereafter, plaintiff's counsel submitted a certification dated June 19, 2009, which he filed in the OPRA suit. The certification, however, sought attorney's fees for the work done in this case, Paff v. State Treasurer, Docket No. L-0516-09, to collect the $650 in post-judgment interest. The amount sought was $8,092.50, representing a $200 filing fee and 22.55 hours at $350 per hour. He did not include in his calculation time spent on the class action aspects of the case, time spent negotiating the amount of interest, and time spent preparing the certification of services or time spent after he was advised by the State that the interest would be paid.
In light of this application, the trial court considered "whether the OPRA facet of this case would trigger the award of counsel fees because the original application which resulted in the counsel fees was an OPRA case." The court reached the conclusion "that OPRA would not apply, that this is a separate action, an action initiated probably at least a year after the OPRA case was filed and that you cannot use the umbrella of OPRA and apply it to this case."
The trial court also amended its previous decision on the class action issue, noting that the dismissal of plaintiff's class action suit was based in large part on a representation by the DAG in this case that the ...