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


July 8, 2011


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

Per curiam.


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. Super. 600, 616 (App. Div. 2006); Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 84 (App. Div. 1997).

The undisputed facts are that plaintiff incurred legal fees and expenses in an action in which he resisted the efforts of defendants to subject the decisions he made as municipal clerk regarding OPRA requests to the mandatory review of the Borough attorney. This fit squarely within the description of legal representation mandated by N.J.S.A. 40A:9-134.1, i.e. "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[.]"

The Borough argues that because it had the prerogative to decide whether to provide legal representation or approve the retention of counsel, plaintiff could not retain counsel of his choice or seek reimbursement for legal expenses without its consent. Clearly, the Borough had a conflict of interest that precluded it from providing representation. It retained the statutory obligation to provide the "necessary means for the defense" to plaintiff, circumscribed not by who chose the lawyer but by a standard of reasonableness. In those cases in which a municipal clerk's legal expenses are incurred in a defense that falls within one of the exceptions under N.J.S.A. 40A:9-134.1 and the proceeding is dismissed or determined in the clerk's favor, the municipality shall reimburse the municipal clerk for the reasonable costs of the defense. Where the costs of defense are based on the same hourly rate authorized by the municipality for services rendered to it by the municipal attorney, there shall be a presumption that the hourly rate is reasonable. [Emphasis added.]

There being no evidence or argument that the legal fees were unreasonable, there was sufficient credible evidence to support the judgment entered by the court.

We next turn to the entire controversy argument. The trial judge concluded that plaintiff's claim for legal fees was not barred by the entire controversy doctrine because his claim did not accrue until the disposition of the declaratory judgment action.

A cause of action accrues when a "plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action." Burd v. New Jersey Tel. Co., 76 N.J. 284, 291 (1978). The focus is upon the plaintiff's knowledge regarding two elements, injury and fault. Lynch v. Rubacky, 85 N.J. 65, 70 (1981). The cause of action accrues when the party discovers or should have discovered "that he may have a basis for an actionable claim . . . [or] knows or has reason to know that he has a right of redress." Lopez v. Swyer, 62 N.J. 267, 272, 274 (1973). Accrual is not delayed until such time as the plaintiff learns the full extent of his injuries. See Grunwald v. Bronkesh, 131 N.J. 483, 495-96 (1993).

Therefore, plaintiff's cause of action accrued when the Borough refused to provide a legal defense to him after filing the order to show cause. However, that fact does not require the application of the entire controversy bar here.

As a general matter, the entire controversy doctrine requires that all aspects of the controversy between parties to litigation be included in a single action. However, "[t]he equitable nature of the doctrine[] bar[s] its application where to do so would be unfair in the totality of the circumstances and would not promote any of its objectives, namely, the promotion of conclusive determinations, party fairness, and judicial economy and efficiency." K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 70 (2002) (quoting Pressler, Current N.J. Rules, comments 1 & 2 on R. 4:30A (2002)).

In this case, the Borough plainly failed to comply with its statutory obligation. The Borough has not argued that it has suffered any prejudice as a result of plaintiff's failure to join his claim in the earlier action. It has presented no argument that it would have approached the defense of this claim differently or would have been in a better position if plaintiff had asserted his claim in the earlier action. See id. at 75; Joel v. Morrocco, 147 N.J. 546, 549 (1997). There was little or no drain upon judicial economy since the trial here was brief and the full measure of plaintiff's damages was unknown untilthe first action ended. Accordingly, we are satisfied that, as a matter of equity, plaintiff's claim was not barred by the entire controversy doctrine.



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