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Ian I. Shore v. Borough of Paramus and James J. Tedesco

July 8, 2011

IAN I. SHORE, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF PARAMUS AND JAMES J. TEDESCO, III, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-035385-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Yannotti and Espinosa.

Defendants Borough of Paramus and James J. Tedesco, III, Mayor, appeal from a judgment in favor of plaintiff Ian Shore and the dismissal of its counterclaim. The judgment required the Borough to reimburse plaintiff, the Borough's former municipal clerk, for legal expenses of $13,006.25 plus interest and costs he incurred in defending against a lawsuit related to the performance of his official duties. For the reasons that follow, we affirm.

The Borough initiated litigation against plaintiff by filing a complaint and order to show cause, Borough of Paramus v. Shore, Docket No. BER-L-8240-08. The pertinent facts regarding that litigation are set forth in the written opinion of Judge Peter E. Doyne, A.J.S.C, and need not be repeated at length here. The litigation concerned a conflict between the Borough and plaintiff, as municipal clerk, as to whether plaintiff's decisions regarding requests made pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA) were subject to the Borough attorney's mandatory review, consideration and comment. The Borough sought declaratory judgment on two issues: (1) that it was reasonable and appropriate for its attorney and governing body to review "non-routine" OPRA requests, and (2) that it was reasonable and appropriate for its attorney to review the Borough clerk's "non-routine" OPRA responses when requested prior to their release to the OPRA requestor.

Plaintiff asked the Borough to provide him with legal representation for this litigation. When the Borough refused, he retained an attorney to represent him.

Judge Doyne denied the Borough's application for declaratory judgment, stating, Given . . . the construct as presented, the delay engendered by the [Borough's] demand, the inconvenience to the OPRA requestor, and the inability of the disseminators of information, such as newspapers or any other media outlets, to readily obtain information to which it is entitled, the [Borough's] request simply cannot be countenanced.

Thereafter, plaintiff filed this action, alleging that the municipality's failure to provide him a legal defense in the earlier action violated N.J.S.A. 40A:9-134.1. Aside from certain exceptions not applicable here, that statute provides:

The governing body of a municipality shall provide its municipal clerk with necessary means for the defense of any action or legal proceeding arising out of and directly related to the clerk's lawful exercise of authority in the furtherance of official duties . . . . [Emphasis added.]

Defendants filed an answer and counterclaim in which the Borough sought to recoup costs incurred under a contract that plaintiff allegedly entered into without authorization. In addition, defendants argued that plaintiff's claim was barred by the entire controversy doctrine.

Plaintiff was the only witness at the trial of this matter. In addition to finding the Borough obligated to provide plaintiff with legal representation, the trial judge found that the counterclaim lacked any merit because there was sufficient evidence showing that plaintiff did not sign the contract in question without proper authorization.

In this appeal, defendants argue that the Borough did not violate N.J.S.A. 40A:9-134.1, that plaintiff's claim was barred by the entire controversy doctrine, and that plaintiff violated accepted practices by entering into a contract with a service provider without proper authorization. After carefully considering the record and briefs, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

Our scope of review of a judge's findings in a non-jury trial is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We determine whether the record contains sufficient, credible evidence to support the judgment, giving special deference to a trial judge's factual findings that are substantially influenced by the judge's opportunity to observe the witnesses directly. State v. Ernst & Young, L.L.P., 386 N.J. ...


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