On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2889-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Koblitz.
Defendants Powder Mill Shopping Plaza and Holly Gardens, Inc., owners of the Powder Mill complex (Powder Mill), which includes the Powder Mill Shopping Plaza (Shopping Plaza) and the Powder Mill Corporate Park (Corporate Park), appeal the trial judge's award of counsel fees to plaintiff Bobbie Humphries under the fee-shifting provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. §12205, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-27.1. After considering the contentions raised on appeal in light of defendants' arguments we affirm in part and reverse in part. We remand for the trial judge to enter an order reducing Humphries's counsel fees by the twenty percent enhancement she awarded.
Humphries alleged that several aspects of the Shopping Plaza's parking facilities were not in compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG), 28 C.F.R. §36 Appendix A §§4.6.2 - 4.6.4 (2010), N.J.S.A. 39:4-198 and the applicable provisions of N.J.A.C. 5:23-7.10, which govern accessible parking requirements. The parties resolved part of their dispute by a settlement that required defendants to pay Humphries $2500 in damages and to modify the parking area at the Shopping Plaza to become compliant with the ADAAG. The partial settlement left to the trial court a determination whether four or six handicap parking spaces were required at the Shopping Plaza and a decision on the issue of counsel fees. The trial judge determined that five handicap spaces were necessary in the ninety-four space lot at Powder Mill, the only lot that could provide individuals with disabilities access to the Shopping Plaza. Able-bodied patrons of the Shopping Plaza used other parking lots at lower levels of Powder Mill connected by stairs to the Shopping Plaza. The trial judge awarded counsel fees to plaintiff, in the amount of $74,683.81, including a twenty percent enhancement, after granting plaintiff's counsel a 120-day extension to file his application for counsel fees.
Defendants raise the following issues on appeal:
I. THE PLAINTIFF, BOBBIE HUMPHRIES, WAS NOT THE PREVAILING PARTY AS DEFINED BY STATUTE AND DID NOT SUCCEED ON ANY SIGNIFICANT ISSUE IN THE LITIGATION OR ACHIEVE ANY SIGNIFICANT BENEFIT SOUGHT BY BRINGING THE SUIT AND IS NOT ENTITLED TO ATTORNEY FEES.
II. THE DETERMINATION OF THE PARKING COUNT RELIED ON BY THE COURT IS WITHOUT FOUNDATION ON THE RECORD.
III. PLAINTIFF'S FEE MOTION IS DEFECTIVE AND OUT OF TIME.
IV. THE COURT ERRED BY ALLOWING PLAINTIFF/RESPONDENT TO CONTEST DOCUMENTS THAT HAD BEEN ADMITTED AS STIPULATED FACTS BY THE PARTIES.
Before Humphries filed suit, Disabled Advocates Working for Northwest (DAWN) wrote a letter to defendants on April 28, 2005, complaining about insufficient handicap spaces and curb cuts. Defendants responded on May 5, 2005, that the complex was built many years ago, pursuant to laws and approvals in effect at that time. None of the changes you suggest can be made without substantial time, effort, expense and, ultimately, governmental approvals.
Plaintiff initially contacted her lawyer on May 19, 2005, after having trouble accessing a restaurant at the Shopping Plaza. Plaintiff, a member of DAWN, is confined to a wheelchair because of a spinal cord injury she suffered in 1973. She drives a van with a wheelchair platform lift. Plaintiff did not contact DAWN regarding the accessibility of the parking facilities at Powder Mill, and was unaware of any contact between DAWN and defendants. Several days after Humphries contacted counsel, DAWN also reached out to him regarding accessibility at Powder Mill.*fn2
On June 15, 2005, plaintiff's attorney contacted defense counsel concerning the accessibility issues at Powder Mill. In his letter, plaintiff's counsel advised defense counsel that the Shopping Plaza's parking lot contained too few handicap parking spaces, inadequate signage at existing handicap parking spaces, improper location of handicap parking spaces, absence of accessibility signage, and inadequate access to the stores at the complex including a broken-up curb ramp at the west end and a suicide ramp at the east end of the Plaza.*fn3
Plaintiff's counsel further advised defense counsel that if his clients did not promptly agree to fix these issues, a lawsuit would be filed.
Defense counsel responded with two letters. First, he wrote explaining he would need six weeks to address these issues with his client who was out-of-town. Ten weeks later, on August 25, 2005, he wrote another letter, asserting that Valley National Bank was responsible for making some of the requested accommodations, the "suicide ramp" was not intended for handicap access, and his client would improve signage, "patch" areas and add one handicap space. No time frame for these efforts was provided. Plaintiff's counsel responded requesting drawings of the planned remediation within thirty days and a copy of a contract with a vendor to make the accommodations within forty-five days thereafter. Defense counsel replied by saying that his client was engaged in reviewing the site with town officials, who were later determined to be a town police officer.
Humphries filed suit on October 13, 2005. Her expert, Edward Hoff, prepared a report after his February 14, 2007, site inspection. He opined that three lots contained 156 parking spots serving patrons of the Shopping Plaza. Two of the lots were on a lower level accessible to the Shopping Plaza by stairs. These lots contained handicap spots for customers of the establishments they were initially intended to serve. These handicap spots could not serve the Shopping Plaza due to their location. Pursuant to ADAAG, 28 C.F.R. §36 App. A, §§ 4.6.2 - 4.6.4 (2010), and N.J.A.C. 5:23-7.10, 156 parking spots require six handicap spots, with at least one spot being van accessible. He also indicated that all curb ramps that served the Shopping Plaza from the parking lot were too steep to comply with regulations.
Defendants conceded that able-bodied patrons of the Shopping Plaza used two other parking lots located at a lower level because the ninety-four space lot on the same level as the Shopping Plaza was insufficient to service all of the shoppers. Defendants presented no expert in opposition to Mr. Hoff.
On March 20, 2008, the parties entered into a stipulation of settlement resolving most of the issues of the case. Defendants agreed to provide striping and signage for the existing handicap spots, repair two of the three ramps that serviced the Shopping Plaza and pay Humphries $2500. The parties had two unresolved issues that they agreed the judge would decide. They framed those two issues as follows: pursuant to the ADA and NJ Law whether the appropriate number of handicapped [sic] parking spaces at Powder Mill Shopping Plaza is four or six; and attorney's fees and costs pursuant to the ADA and the LAD pertaining to the subject matter of this Stipulation.
They also agreed that the attached "stipulated facts and documents for trial... may be relied upon by the parties." The stipulated facts and documents relevant to this appeal are:
5. Invoices of MST Masonry dated June 25, 2005 and July 20, 2005 detailing work done to defendants' site [that] were supplied to plaintiff's counsel on January 2, 2007. ...