On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4707-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Espinosa and Skillman.
This appeal challenges the adequacy of an award of counsel fees under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
Plaintiff Robert Burke is a co-owner and operations manager of the Wayne Auto Spa, a commercial business establishment in Wayne Township. Burke and the Auto Spa applied to the Wayne Planning Board for the land use approvals required to construct a wind turbine. The Board denied the application, and Burke filed an action challenging that denial in which he eventually prevailed.
During the pendency of that action, on September 12, 2009, Burke submitted a request under OPRA for the production of the bid submissions for Wayne's retention of a wind-energy expert and of the invoices and other documentation relating to Wayne's payments of counsel fees for the Board's representation in that action. On October 1, 2009, the Wayne municipal clerk, Paul V. Margiotta, who also serves as the municipality's custodian of public records, notified Burke that the bid submissions could not be produced because they did not exist and that the invoices and other documentation relating to Wayne's payment of counsel fees were protected by the attorney-client privilege. The denial of production of the documents relating to the payment of counsel fees was supported by a legal opinion by a municipal attorney.
On November 2, 2009, Burke brought this action to compel production of those documents, naming as defendants both the Township of Wayne and Margiotta. By letter dated November 4, 2009, Margiotta advised Burke that it had come to his attention that Burke "may be contemplating legal action against the Township" over his OPRA request and that "[o]ur new Township Attorney" reviewed the request and determined that the legal billing documents could be provided with appropriate redactions. Burke received those documents on November 12, 2009. It is undisputed that the production of those documents complied with Burke's OPRA request. However, this action continued with respect to Burke's application for counsel fees.
Defendants opposed the application on the ground that the municipality had changed its position regarding Burke's OPRA request solely because of the alleged change of the municipal attorney and therefore this action was not the catalyst for production of the disputed documents. There was a substantial delay in the hearing on this application, apparently due to settlement efforts and a question whether an evidentiary hearing would be required for a decision.
On April 29, 2010, Burke filed a motion for disqualification of both the municipal attorney who had given the original advice that the documents sought by Burke were privileged and the municipal attorney who determined that the documents were not privileged on the theory that those attorneys would be potential witnesses in the anticipated evidentiary hearing regarding Wayne's reason for changing its position as to the applicability of the attorney-client privilege to the disputed documents.
Both Burke's application for counsel fees and his motion for the disqualification of Wayne's present and former municipal attorneys were argued before the trial court on May 24, 2010. The court denied Burke's motion for disqualification. However, the court found that this action had been the catalyst for Wayne's production of the disputed documents and that Burke was therefore entitled to reasonable counsel fees as a prevailing party in an OPRA action. By an order entered on June 2, 2010, the court directed the parties to undertake reaching an agreement on what were reasonable counsel fees under the circumstances and, if they were unsuccessful, for Burke's counsel to submit a detailed certification of the services he had rendered.
On June 22, 2010, defendants' counsel sent a letter to Burke's attorney, which proposed to settle his counsel fee application for $10,626. However, Burke rejected this proposed settlement. Therefore, the determination of the amount of reasonable counsel fees was submitted to the trial court for determination.
Burke's counsel submitted detailed certifications of services in support of his application. These certifications indicated that Burke had incurred a total of $29,009.55 for counsel fees and costs incurred in pursuing this OPRA action. Burke also sought a "lodestar enhancement" of 50%, which resulted in a total request of $43,514.36 for counsel fees and costs.
In its opposition to Burke's counsel fee application, defendants submitted the June 22, 2010 letter of its attorney to Burke's attorney, which had proposed settling Burke's counsel fee application for $10,626. In his July 27, 2010 letter transmitting that letter, defendants' attorney contended that "beginning with January 27, 2010, the work that [Burke's attorney] lists in his bill ...