July 16, 2010
JOHN PAFF, PLAINTIFF-APPELLANT,
STATE TREASURER AND DIRECTOR OF THE OFFICE OF MANAGEMENT & BUDGET, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 3, 2010
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 Division of Law did in fact calculate post-judgment interest.
On appeal, plaintiff contends that the trial court erred in denying his application for costs and attorney's fees incurred when seeking to collect post-judgment interest on his OPRA award. He maintains that the trial court mistakenly denied his application for class certification and granted summary judgment for defendants without discovery. Plaintiff also argues that in this ruling, the trial court improperly relied on the DAG's representation at oral argument that the State paid post-judgment interest when it was due.
We agree with the trial court's ruling that plaintiff is not entitled to counsel fees under the OPRA statute for bringing this lawsuit. The OPRA statute provides that "[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor, may institute a proceeding to challenge the custodian's decision by filing an action in Superior Court." N.J.S.A. 47:1A-6. The statute further provides that "[a] requester who prevails in any proceeding shall be entitled to a reasonable attorney's fee." Ibid. In a fee-shifting case, a party who has been awarded reasonable attorney's fees is also entitled to the reasonable "fees and costs incurred in satisfying the judgment." Tanksley v. Cook, 360 N.J. Super. 63, 66 (App. Div. 2003).
OPRA allows reasonable attorney's fees for services rendered in an OPRA suit. N.J.S.A. 47:1A-6. Although plaintiff filed his affidavit of services under the OPRA docket number, he was seeking compensation for services rendered in the within action in lieu of prerogative writs which was not an OPRA suit. This is a class action suit brought under a theory of conversion and is not limited to situations where the State failed to pay interest on OPRA awards.
In addition, plaintiff did not need to bring the within action to recover his post-judgment interest. The issues of whether plaintiff was entitled to post-judgment interest and, if so, the amount of that interest should have been resolved in the OPRA suit where the award was made, and relief should have been first sought in that suit. See Reliable Water Co. v. Monroe Twp. Mun. Utils. Auth., 146 N.J. Super. 291, 293 (App. Div. 1977) (plaintiff, after obtaining a judgment against the defendant, moved in the underlying action to compel payment of post-judgment interest on the judgment); Brown v. Davkee Inc., 324 N.J. Super. 145, 146 (App. Div. 1999) (plaintiff moved in the underlying action, contesting the date and percentage of post-judgment award calculation). Post-judgment interest, like prejudgment interest, becomes part of the judgment and is not entered in a separate action. See Pryce v. Scharff, 384 N.J. Super. 197, 212 (App. Div. 2006) (stating that post-judgment interest is part of the judgment); see also Bd. of Educ. of Newark v. Levitt, 197 N.J. Super. 239, 246 (App. Div. 1984) (describing interest on money awards as "an essential and integral part of the award itself since the purpose of the fixed-sum award is to make petitioner whole"); cf. R. 4:48-3(a) (providing that receipt of the amount due on a judgment together with interest and costs allows the court to enter a satisfaction of the judgment).
The disproportionate fees and costs of over $8,000 to collect $650 in post-judgment interest is due to the selection of a complex procedure where a simple application in the OPRA suit should have resolved the issue. Attorney's fees and costs awarded under OPRA must be "reasonable," and this separate lawsuit generating another filing fee and steep attorney's fees was not reasonable.
We also affirm the trial court's denial of class certification and dismissal of the class action. At the outset, we note that plaintiff moved for certification of a class action, and the court ruled that the record did not support certification. Plaintiff now argues that the court's ruling was premature because discovery had not been conducted, an argument that was not raised below. We reject this argument under the doctrine of invited error. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503-04 (1996). Plaintiff cannot argue before the trial court that he was entitled to class certification and then on appeal contend that a decision on class certification was premature.
In addition, one element a plaintiff must prove in order to be entitled to class certification is numerosity, that is, that "the class is so numerous that joinder of all members is impracticable." R. 4:32-1(a)(1). This plaintiff has not done. The DAG represented on the record that the State does have a policy of paying post-judgment interest. Plaintiff did not challenge that representation before the trial court. Plaintiff now argues that the trial court erroneously relied on the unsworn, hearsay allegations of the DAG. However, that representation was made by the DAG to the court on the record, and was thus governed by RPC 3.3 regarding an attorney's professional duty of candor to the court. We find no plain error on the part of the trial court for relying on that unchallenged representation. R. 2:10-2. Further, we question whether plaintiff can satisfy the requirements of typicality and adequacy of representation since his claim has been resolved. See R. 4:32-1(a)(3) and (4) (requiring as a prerequisite to a class action that "the claims or defenses of the representative parties are typical of the claims or defenses of the class, and . . . the representative parties will fairly and adequately protect the interests of the class").
We note that plaintiff had brought the suit in order to compel the State to pay post-judgment interest to himself and others. However, plaintiff has now been paid post-judgment interest so his personal claim is moot. Nothing in this record suggests that there is a large pool of potential litigants with viable claims against the State for post-judgment interest. Accordingly, the trial court properly denied plaintiff's request for attorney's fees and class certification and granted summary judgment for defendant, dismissing the complaint.