DAVID SCHWARTZ VS. BOROUGH OF HIGHLAND PARK,ET AL.(L-4967-14, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2988-14T1
DAVID SCHWARTZ, PAT IURILLI,
GEORGE MANIKAS and RAYMOND
KOHLER,
Plaintiffs-Appellants/
Cross-Respondents,
v.
BOROUGH OF HIGHLAND PARK
and SCOTT LUTHMAN,
Defendants-Respondents/
Cross-Appellants.
_______________________________
Argued September 14, 2016 – Decided July 31, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-4967-14.
Mark D. Oshinskie argued the cause for
appellants/cross-respondents.
Victoria D. Britton argued the cause for
respondents/cross-appellants (Mason, Griffin
& Pierson, PC, attorneys; Ms. Britton, of
counsel and on the briefs; Andrew M. Slom, on
the briefs).
PER CURIAM
At all times relevant to this case, plaintiffs David Schwartz,
Pat Iurilli, George Manikas, and Raymond Kohler owned one-family
homes in the Borough of Highland Park (the Borough). Plaintiffs
filed a verified complaint challenging the constitutionality of a
municipal ordinance that required them to maintain the sidewalks
abutting their property in a safe condition. The trial court
issued a preliminary injunction restraining the Borough from
enforcing the ordinance against plaintiffs. The Borough
thereafter repealed the ordinance and replaced it with a different
ordinance, which plaintiffs have not challenged. Plaintiffs'
counsel sought an award of counsel fees under 42 U.S.C.A. §
1988(b), claiming plaintiffs were a "prevailing party" under the
catalyst theory recognized by our Supreme Court in Mason v. City
of Hoboken, 196 N.J. 51, 76 (2008). The trial court agreed and
awarded plaintiffs limited counsel fees.
On appeal, plaintiffs argue the trial court erred in limiting
its award of counsel fees. The Borough cross-appeals, arguing the
judge erred in finding plaintiffs were a "prevailing party." After
reviewing the record developed by the parties, we affirm the trial
court's February 17, 2015 order finding plaintiffs were a
prevailing party under the catalyst theory. We also affirm the
amount of counsel fees awarded to plaintiffs' counsel.
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I
In 2012, the Borough mailed notices informing 1,220 real
property owners that the municipality was "in the midst of a
comprehensive community-wide sidewalk inspection program" in
response to a "significant number of complaints related to sidewalk
safety." The Borough also apprised the property owners that their
"public (parallel to the street) sidewalk was inspected . . . and
found to be in an unsafe condition." Pursuant to Highland Park,
Ordinance 941, § 368-15, it was the homeowners' responsibility to
keep the sidewalks and curbs in a safe condition. The Borough
listed "substantial cracking, gaps in the sidewalk, buckled
concrete, and/or raised sidewalks" as examples of "unsafe
condition[s]."
To ensure compliance, the Borough prepared to issue summonses
to any property owners who failed to heed its notice. To avoid
the issuance of a summons, a property owner had to: (1) apply for
a zoning permit, which signaled an intent to repair the sidewalk;
or (2) "[s]ign up for the Highland Park Sidewalk Improvement
Program[.]" The Borough instructed property owners with "unsafe"
sidewalks to contact the Director of Code Enforcement if they had
any questions or concerns.
In June 2014, plaintiffs received summonses charging them
with failure to repair their sidewalks in violation of Ordinance
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941, § 368-15. The four summonses were signed by Scott Luthman,
the Borough's Director of Code Enforcement. The summonses issued
to Schwartz, Iurilli, and Kohler identified the violation date as
June 16, 2014, and the summons issued to Manikas identified the
violation date as June 17, 2014.
On August 11, 2014, plaintiffs filed a verified complaint and
an order to show cause seeking declaratory relief under N.J.S.A.
2A:16-53 and 42 U.S.C.A. § 1983. Specifically, plaintiffs sought
a judicial declaration that Ordinance 941, § 368-15 violated
Article I, Paragraph 1 of the New Jersey Constitution, as well as
the Fifth and Fourteenth Amendments of the United States
Constitution. Plaintiffs also requested the court to issue a
preliminary injunction staying the prosecution of the summonses
and to "proceed summarily pursuant to [Rule] 4:42-3 and [Rule]
4:67."
In Count I of the verified complaint, plaintiffs alleged the
enforcement of Ordinance 941, § 368-15 violated their substantive
and procedural due process rights because the safety violations
cited in the summonses were caused by the roots of trees planted
and maintained by the Borough. Furthermore, plaintiffs do not own
the sidewalks abutting their properties and thus should not be
held legally responsible for their maintenance. In Count II,
plaintiffs alleged Ordinance 941, § 368-15 was unconstitutionally
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vague because "[t]here is no objective standard expressly stated,
or incorporated by reference[,]" that provides a reasonably
prudent person with the information necessary to determine "which
sidewalks are safe and which are unsafe." Finally, plaintiffs
alleged the Borough's Code Enforcement Official arbitrarily
indicated that an elevation exceeding "one-half inch" constituted
an unsafe sidewalk and then increased the boundary to three
quarters of an inch without affording prior notice to the public.
The matter came before the Law Division on September 12,
2014. Following oral argument, the trial judge granted plaintiffs'
application for a preliminary injunction and "vacated" the then
pending municipal court summonses. The trial judge selected
October 23, 2014 as the date to conduct "a hearing for final
injunctive relief[.]" Quoting our decision in Betancourt v. Town
of W. New York, 338 N.J. Super. 415, 422 (App. Div. 2001) (citation
omitted), the judge noted: "[A]n ordinance that contains language
that is so imprecise that it cannot be understood by persons of
ordinary intelligence does not give fair notice [of] the acts
which it forbids and[,] therefore[,] denies due process."
The judge provided the following summary of plaintiffs' legal
position as a basis for his decision to enjoin the Borough from
enforcing the ordinance:
Plaintiffs argue that the [c]ourt could
enjoin, or rather should enjoin defendant from
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enforcing the ordinance because the ordinance
provides no objective criteria against which
a homeowner can evaluate whether he has
minimized any endangerment presented by a
sidewalk abutting his property, nor is any
such standard in another source incorporated
by reference.
The residents, based on what the [c]ourt has
before it, cannot have a clear idea of how
much unevenness is allowed and the
circumstances under which they will be
required to replace those slabs. . . . [T]he
[c]ourt is aware also that the [c]ourt cannot
substitute its judgment for that of the
municipal governing body but rather must
review the ordinance to determine whether its
enactment was arbitrary, capricious, or
unreasonable.
The standard for endangerment, the [c]ourt
finds, is arbitrary. Accordingly, the [c]ourt
. . . hereby [grants] temporary restraints
with respect to the enforcement of this
ordinance.
Shortly thereafter, plaintiffs' counsel filed an application
seeking attorney's fees and costs pursuant to 42 U.S.C.A. § 1988(b)
and Rule 4:42-9(a)(8). In response, the Borough argued plaintiffs
were not entitled to counsel fees as a matter of law because the
trial court's decision was not final and plaintiffs were therefore
not a "prevailing party" in the litigation. According to the
Borough, the court merely applied the well-established standards
in Crowe v. De Gioia, 90 N.J. 126 (1982), to determine whether
plaintiffs were entitled to preliminary injunctive relief.
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In an order dated October 21, 2014, the trial judge denied
plaintiffs' application "without prejudice[.]" In an oral
opinion, the judge provided the following explanation for his
ruling:
[Plaintiffs' counsel's] application is
premature. There has been no determination
by this [c]ourt or a finder of fact that there
has been a violation by the defendant of
. . . 42 U.S.C.[A.] [§] 1983. And that case
is [proceeding] through the Civil Division
process in due course.
[Plaintiffs' counsel's] claim for
attorney[']s fees, again, is premature, and
the [c]ourt would note that in Stockton v.
Rhulen, [302 N.J. Super. 236 (App. Div. 1997)
(citing Singer v. State, 95 N.J. 487 (1984),
cert. denied, 469 U.S. 832, 105 S. Ct. 121,
83 L. Ed. 2d 64 (1984))], . . . [a] party was
the prevailing party when they obtained
substantially all of the relief they sought,
a declaration that the statute was invalid[,]
and an injunction against its enforcement[.]
. . . .
[Plaintiffs' counsel's] preliminary
injunctive relief on behalf of Highland Park's
residents1 was not a vindication of the merits
of his case. The [c]ourt specifically
considered the state statute2 that was being
challenged, and the [c]ourt concluded that the
same was constitutional. . . . What the
[c]ourt did find, however, was that the . . .
application of the statute [sic] was vague,
1
Despite the judge's statement that plaintiffs' counsel obtained
injunctive relief "on behalf of Highland Park's residents[,]" this
case is not a class action.
2
We believe the judge simply misspoke because plaintiffs did not
challenge the constitutionality of a state statute.
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based on the inconsistent notices that were
being provided to the citizens with regard to
whether or not their sidewalks were in
violation of the ordinance.
Although the judge did not expressly apply the four-factor
analysis the Supreme Court established in Crowe, supra, 90 N.J.
at 132–34, when he enjoined the enforcement of the summonses issued
against plaintiffs, it is clear to us that he implicitly applied
these criteria to support his decision. Thus, the judge found
plaintiffs had "a reasonable probability of ultimate success on
the merits." Id. at 133 (citation omitted). The judge elaborated
on this issue in his October 21, 2014 decision:
So while the plaintiff[s] did obtain temporary
injunctive relief with respect to [their]
application to enjoin the [Borough] from
issuing further violations and/or prosecuting
those violations that were pending in the
municipal court, the plaintiff[s] from a
limited perspective prevailed in that respect.
But that is not fee shifting with regard to
the plaintiff[s'] prayer for relief.
Respecting 42 U.S.C.[A.] [§] 1983, the [c]ourt
finds that the application for attorney['s]
fees is premature[,] as that . . . issue has
not been yet determined in terms of whether
or not there was such a violation, and
therefore the motion for attorney['s] fees is
hereby denied for the aforementioned reasons
without prejudice.
[(Emphasis added).]
We denied plaintiffs' motion for leave to appeal in an order
dated December 29, 2014. Our order included supplemental language
acknowledging that the Borough had repealed Ordinance 941, § 368-
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15 following the trial court's October 21, 2014 order. In this
light, we noted that "plaintiffs may move again before the trial
court for attorney's fees and the trial court should consider
whether plaintiffs have prevailed in this litigation in obtaining
an injunction against enforcement of the ordinance and its
subsequent amendment."
Following our suggestion, plaintiffs returned to the trial
court with a new application for counsel fees, this time predicated
on the "catalyst theory." Quoting from our decision in Stockton,
supra, 302 N.J. Super. 236, plaintiffs argued that "'to qualify
as a prevailing party, a civil rights plaintiff must obtain at
least some relief' which 'at the time of the judgment or settlement
. . . modif[ies] the defendant's behavior in a way that directly
benefits the plaintiff.'" Id. at 241 (quoting Farrar v. Hobby,
506 U.S. 103, 111, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494, 503
(1992)).3 The Borough argued plaintiffs were not entitled to an
award of counsel fees because the preliminary injunctive relief
3
The panel in Stockton relied in part on the United States Supreme
Court's decision in Tex. State Teachers Ass'n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866(1989), in which Justice O'Connor wrote: "Congress cannot have
meant 'prevailing party' status to depend entirely on the timing
of a request for fees: A prevailing party must be one who has
succeeded on any significant claim affording it some of the relief
sought, either pendente lite or at the conclusion of the
litigation." Id. at 791, 109 S. Ct. at 1493, 103 L. Ed. 2d at
876.
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the court granted was not based on 42 U.S.C.A. § 1983. The Borough
cited Sole v. Wyner, 551 U.S. 74, 127 S. Ct. 2188, 167 L. Ed. 2d
1069 (2007), for the proposition that securing preliminary
injunctive relief does not in and of itself make a litigant a
"prevailing party[.]"
On February 17, 2015, the trial judge entered an order
granting in part and denying in part plaintiffs' motion for
attorney's fees and costs. The judge found:
At no point during [the litigation] or in the
wake of the order to show cause did the [c]ourt
find a constitutional violation. The [c]ourt
sought to preliminarily take the decision
making out of the hands of the code
enforcement official so the case could proceed
without fines racking up for the [B]orough's
residents.
The ordinance was always constitutional. The
exact language of the ordinance is non-
controversial. And Section 368-15 set
forth[:] "It shall be the duty of any owner
or occupant of lands within the borough to
keep the sidewalk and curb abutting such lands
maintained and properly repaired so as to
minimize any endangerment to the public
health, safety, and welfare of any individuals
using the sidewalks[.]"
However, the judge found the Borough's decision to repeal
Ordinance 941, § 368-15 was based on "plaintiffs' consistent
advocacy." Relying on this court's decision in D. Russo, Inc. v.
Twp. of Union, 417 N.J. Super. 384 (App. Div. 2010), certif.
denied, 206 N.J. 328 (2011), the judge found "unsupported[]" the
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Borough's argument that plaintiffs were not "a catalyst for the
recent amendments to the sidewalk ordinance[.]" The judge also
cited our Supreme Court's decision in Mason, supra, 196 N.J. at
51, to conclude that plaintiffs were a "prevailing party" under
the catalyst theory:
The record further suggests that the change
in the ordinance, whether required by this
. . . [c]ourt or not, would not have occurred
but for plaintiffs' lawsuit. Furthermore,
while the plaintiff[s] [are] a prevailing
party under the catalyst theory, plaintiff[s]
[are] still only entitled to a reasonable
attorney's fee and cost under the statute.
The [c]ourt's decision takes into
consideration the plaintiffs' impact, the
skill and complexity of the case, and the
ultimate results received as a result of the
litigation.
The judge granted plaintiffs $11,362.50 in counsel fees and
$568 in costs. Although the Borough argued against an award of
any counsel fees, it did not object to the amount of fees awarded
by the court. According to plaintiffs' counsel, the fees awarded
by the trial court constituted 30.3 of the 240 billable hours
recorded for the underlying action. The judge found the following
items and hours spent were unreasonable: (1) sixty hours drafting
the complaint and brief; (2) twelve hours drafting and reviewing
OPRA documents; (3) seventy-one hours researching and writing the
application for the fee award; (4) four to five hours photographing
the sidewalk; (5) two hours surveying the addresses of downed
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trees; (6) an unspecified amount of time writing ten letters to
the trial court; and (7) five hours speaking with clients prior
to drafting the verified complaint.
II
We start our legal analysis by addressing the Borough's
argument on cross-appeal. The Borough argues plaintiffs cannot
be a prevailing party under 42 U.S.C.A. § 1983 because the trial
judge did not make "a final determination on the merits holding
that defendants engaged in any constitutional violations." We
disagree. Plaintiffs do not need a final determination on the
merits to be considered "a prevailing party" under the catalyst
theory. Indeed, we addressed this precise issue in D. Russo,
Inc., supra, 417 N.J. Super. at 384. Writing for the panel, our
colleague Judge Skillman noted:
Our courts . . . have recognized that success
in obtaining preliminary injunctive relief may
provide a sufficient foundation for an award
of the attorney's fees under a fee-shifting
statute even though the case became moot
before a final adjudication.
. . . .
In the absence of a judgment or enforceable
consent decree, the catalyst theory entitles
a plaintiff to an award of attorney's fees if
it "can demonstrate: (1) 'a factual causal
nexus between plaintiff's litigation and the
relief ultimately achieved'; and (2) 'that the
relief ultimately secured by plaintiffs had a
basis in law.'"
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[Id. at 389–90 (citations omitted).]
Here, the trial judge found an explicit causal nexus between
plaintiffs' lawsuit and the Borough's decision to repeal Ordinance
941, § 368-15. The judge made specific findings concerning the
second prong of the catalyst theory when he preliminarily enjoined
the ordinance's enforcement. As we previously noted, the four-
prong analysis the judge was required to follow included an
assessment of whether the underlying claim had "a reasonable
probability of success on the merits." Crowe, supra, 90 N.J. at
133 (citation omitted). The record shows the Borough viewed
plaintiffs' claim in a similar light. Although the restraints
issued by the judge applied only to the summonses issued against
these four plaintiffs, the Borough voluntarily vacated all
enforcement actions pending at the time, consisting of sixty
individual summonses. More importantly, the judge's decision in
support of the preliminary injunction is replete with examples of
the ordinance's imprecision and vagueness.
Finally, we address plaintiffs' direct appeal challenging the
amount of counsel fees awarded by the trial judge. As we
emphasized above, the Borough did not oppose this aspect of
plaintiffs' case before the trial court. Our Supreme Court has
admonished that "a reviewing court will disturb a trial court's
award of counsel fees 'only on the rarest of occasions, and then
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only because of a clear abuse of discretion.'" Litton Indus.,
Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting
Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440
(2001)). An "abuse of discretion only arises on demonstration of
'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6,
20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and
occurs when the trial judge's "decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
A trial court determines an attorney's fee award by following
the standard established by our Supreme Court in Rendine v.
Pantzer, 141 N.J. 292 (1995). The analysis begins by determining
the "lodestar[,]" which equals the "number of hours reasonably
expended multiplied by a reasonable hourly rate." Id. at 334–35.
To determine the lodestar, a trial court must first determine the
reasonableness of the prevailing counsel's proposed rates by
comparing them to the rates "'for similar services by lawyers of
reasonably comparable skill, experience, and reputation[]'" in the
community. Id. at 337 (quoting Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990)). The next step requires the court to
determine whether the time expended is equivalent to the amount
14 A-2988-14T1
of time "competent counsel reasonably would have expended to
achieve a comparable result[.]" Id. at 336. When calculating the
lodestar, the court may exclude any excessive, redundant, and
unnecessary hours spent on the case. Id. at 335–36 (citations
omitted).
Once the lodestar is calculated, the trial court can then
adjust the amount. Id. at 336. The amount can be decreased if
the prevailing party achieved only limited success in relation to
the relief sought, ibid., but the amount may be increased if the
case was taken on a contingency basis. Id. at 340. Where
appropriate, "contingency enhancements in fee-shifting cases
ordinarily should range between five and fifty-percent of the
lodestar fee, with the enhancement in typical contingency cases
ranging between twenty and thirty-five percent of the lodestar."
Id. at 343.
Here, the trial judge reduced the award of fees after
carefully reviewing plaintiffs' counsel's timesheets and the
description of the work plaintiffs' counsel performed. The judge
used his discretionary authority to reduce or outright disallow
time that he found excessive or not commensurate to the tasks
described. The judge accepted plaintiffs' counsel's $425 hourly
rate as reasonable. The Borough did not challenge the court's
lodestar analysis or determination. As an appellate court, we see
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no legally sustainable reason to question the trial judge's
ultimate determination concerning the amount of fees awarded.
Affirmed.
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