COMMITTEE OF TO PROTEST THE ADOPTION OF ORDINANCE NO. 2016-01 VS. BOROUGH OF BELMAR (L-1392-16, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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 pos ted on the
internet, this opinion is binding only 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-2869-16T1
COMMITTEE OF PETITIONERS
TO PROTEST THE ADOPTION
OF ORDINANCE NO. 2016-01,
KENNETH E. PRINGLE, THOMAS
P. FAHY, LINDA SHARKUS,
LINDA CHELSEN, and KATRINA
CLAPSIS,
Plaintiffs-Respondents,
v.
BOROUGH OF BELMAR,
MAYOR & COUNCIL OF THE
BOROUGH OF BELMAR, APRIL
CLAUDIO, Municipal Clerk of
the Borough of Belmar, and COLLEEN
CONNOLLY, Business Administrator
of the Borough of Belmar,
Defendants-Appellants.
_______________________________
Argued September 21, 2018 – Decided April 24, 2019
Before Judges Simonelli, O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1392-16.
Ramon E. Rivera argued the cause for appellants
(Scarinci & Hollenbeck LLC, attorneys; Ramon E.
Rivera, of counsel and on the brief; Shana T. Don and
Craig A. Long, on the brief).
Kenneth E. Pringle argued the cause for respondents
(Pringle Quinn Anzano, PC, attorneys; Kenneth E.
Pringle, of counsel and on the brief; Denise M. O'Hara,
on the brief).
PER CURIAM
Plaintiffs Committee of Petitioners to Protest the Adoption of Ordinance
No. 2016-01 (Committee), Kenneth E. Pringle, Thomas P. Fahy, Linda Sharkus,
Linda Chelsen and Katrina Clapsis were the prevailing parties in an action
challenging an ordinance they believed weakened or eliminated the protections
afforded by prior ordinances governing potential conflicts of interest arising
from so-called "Pay-to-Play" campaign contributions. Defendants the Borough
of Belmar (Borough), Mayor and Council of the Borough, April Claudio, and
Colleen Connolly,1 appeal from the November 10, 2016 and January 26, 2017
Law Division orders, which awarded attorney's fees and costs to plaintiffs under
1
Claudio is the Borough's Municipal Clerk and Connolly is the Business
Administrator.
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the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. For the
reasons that follow, we affirm.
I.
Pringle was an individual plaintiff and member of the Committee. He was
also a partner in the law firm of Pringle Quinn Anzano, PC (PQA), which
represented plaintiffs in this matter. Pringle signed the certification verifying
the complaint filed on behalf of all plaintiffs, and he and his associate, Edward
R. Bonanno, Esq., were designated as trial counsel. Another PQA associate,
Denise M. O'Hara, also worked on the case.
The parties engaged in extensive motion and appellate practice during the
course of this litigation. Because this appeal only involves the award of
attorney's fees, we focus on that part of the record relating to the fee award.
PQA filed a motion for a lodestar fee of $89,820, a forty percent
contingency enhancement, and $734.22 for costs. In support thereof, PQA
submitted certifications from Pringle, Bonanno, O'Hara, and an expert, Charles
J. Uliano, Esq. PQA also submitted an invoice showing the hourly rates charged
and services rendered by each PQA attorney.
According to Pringle, PQA represented plaintiffs in other public interest
matters involving the Borough under the express understanding "that PQA's
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3
representation would be at no cost to them as clients, but that in the case of the
affirmative litigation matters, [PQA] reserved the right to seek to recover [its]
fees and costs from the Borough . . . to the extent allowed by law." PQA never
had a written retainer agreement with any of its public interest clients, including
plaintiffs, because PQA represented them on the express understanding that
PQA would not seek a fee from them and because the relief sought in these
matters was equitable in nature. In addition, PQA
made clear to [its] clients verbally that [PQA] would be
relying upon the decision in Tumpson [v. Farina, 218
N.J. 450 (2014)] to assert claims that the Borough's
conduct violated the [NJCRA], and that if [PQA was]
successful, [PQA] would be seeking an award of [its]
reasonable attorneys' fees and costs pursuant thereto.
Pringle also certified that PQA charged $300 per hour for his services,
$250 per hour for Bonanno's services, and $225 for O'Hara's services, which
reflected the hourly rates PQA charged to its non-insurance company clients for
litigation matters. Pringle stated these hourly rates were comparable to the rates
other litigation attorneys in Monmouth County customarily charged and were
low in comparison to the rates charged by Monmouth County attorneys who
have comparable levels of skill, background and litigation experience as the
PQA attorneys. Pringle reviewed the time entries on the invoice and eliminated
charges he determined were duplicative, inefficient, or otherwise unnecessary
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under the circumstances of this case, or were arguably unreasonable for the
service described or not sufficiently detailed to enable him or the court to assess
whether the charges were reasonable.
Uliano opined that the hourly rates PQA charged and the services rendered
in this matter were reasonable under RPC 1.5 and the guidelines established in
Rendine v. Pantzer, 141 N.J. 292 (1995) and Walker v. Giuffre, 209 N.J. 124
(2012). Uliano stated the hourly rates PQA charged were lower than the
prevailing market rate in Monmouth County for an adequately experienced
attorney possessed of average skill and ordinary competence. He also stated the
hourly rates PQA charged were significantly lower than what civil litigation
attorneys of comparable backgrounds, skills and levels of experiences charged
in Monmouth County, as reflected in the PQA attorneys' biographies and the
quality of the submissions to the court.
Uliano reviewed the invoice and noted the numerous time entries Pringle
eliminated because they were duplicative, unproductive, and otherwise not
appropriately billed under RPC 1.5. Uliano concluded that for an average
Monmouth County law firm to successfully litigate a case of this type against a
municipality, the firm would have to expend at least the amount of time the PQA
attorneys spent in this matter.
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Defendants did not submit any certifications or documents countering
Pringle's and Uliano's certifications. Rather, they argued that plaintiffs were not
entitled to a fee award because there was no retainer agreement for this
contingency matter, as required by RPC 1.5 and Rule 1:21-7, and PQA provided
the services on a pro bono basis. Defendants noted that more than half of the
fee sought related to the services Pringle performed, and without a retainer
agreement specifying the scope of services, it was difficult to assess whether he
or any other attorney was acting on his behalf or on behalf of the other plaintiffs.
Defendants posited that if Pringle was acting on his own behalf, plaintiffs were
not entitled to attorney's fees under the NJCRA, as Pringle was essentially
appearing pro se. Defendants further argued there should be no fee award
because plaintiffs did not actually incur legal fees. In the alternative, defendants
argued the court should reduce the fee sought by one-fifth because a pro se
attorney is not entitled to recoup fees. Defendants also stated the hourly rates
charged and services rendered were not reasonable.
In a November 3, 2016 oral opinion, the motion judge disagreed with
defendants' argument that PQA was not entitled to a fee award because there
was no written retainer agreement. The judge found there was no evidence of
any misunderstanding between plaintiffs and PQA as to PQA's agreement not to
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take payment from plaintiffs directly but reserving the right to pursue all legally
allowed fees. The judge determined that to award no fees was contrary to the
Legislature's intent to permit a fee award under the NJCRA, and would have the
effect of discouraging attorneys from taking on matters of public importance,
such as this one, where the only possibility for a fee award is by statute. The
judge also found that the lack of a retainer agreement did not affect her ability
to analyze the certifications and invoice to determine whether the fee sought was
reasonable.
The judge also disagreed that Pringle's role in the case deprived plaintiffs
of their statutory right to a fee award in whole or in part. The judge found that
Pringle was not acting pro se, but rather, PQA represented all plaintiffs, and
Pringle's status as a member of the firm, a member of the Committee, and an
individual plaintiff did not strip plaintiffs of their statutory right to an award of
reasonable attorney's fees.
The judge found that plaintiffs would have incurred the same fees and the
same work would have been performed on their behalf regardless of whether
Pringle was a plaintiff or a Committee member. The judge disagreed that it was
impossible to determine what services Pringle rendered as an attorney or in a
witness capacity, and found the distinction was readily discernible by a review
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of the invoice, which eliminated charges for services he rendered as a fact
witness. The judge also noted defendants failed to cite any authority supporting
their argument.
As for the reasonableness of the rates PQA charged, the judge found
defendants submitted no certifications to refute Pringle's and Uliano's
certifications and merely made bald assertions that the rates were unreasonable.
The judge also noted that the Borough had once retained the Gibbons law firm
at a blended rate of $450 per hour, which was significantly higher than the rates
PQA charged in this matter. The judge further noted there was a distribution of
the work among the PQA attorneys, with some work done at an associate's rate
versus a partner's rate, and Uliano opined the rates PQA charged were
reasonable and significantly lower than what Monmouth County civil litigation
attorneys charged. The judge concluded the rates PQA charged were reasonable.
As for the reasonableness of the services rendered, the judge found that
given the nature of the case, it was reasonable for more than one attorney to
work on it. However, the judge reviewed the invoice and reduced the charges
for duplicative or excessive work, work that PQA should have billed at a lower
rate, and unnecessary work. The judge was able to determine the reasonableness
of the time spent for a particular activity regardless of defendants'
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characterization of the entry as block billing. The judge concluded the services
rendered were reasonable and awarded plaintiffs a lodestar fee of $87,270.
The judge also awarded a forty percent contingency enhancement, finding
PQA achieved a high degree of success, there was a high risk of non-payment
to the firm, and the matter was of a high degree of public importance. The judge
considered all of the factors in Rule 4:42-9, RPC 1.5(a), Rendine, Walker, and
other applicable case law in reaching this conclusion. In a November 10, 2016
order, the judge awarded a total fee of $122,178 plus $734.22 for costs.
Plaintiffs subsequently filed a motion for a lodestar fee of $9795 plus
$179.90 for costs incurred on appeal, supported by an invoice and certifications
from the PQA attorneys and Uliano. Defendants submitted a certification from
their attorney stating the hourly rates his firm charged municipal entities in
public interest matters, which were lower than the rates PQA charged in this
matter.
In a January 12, 2017 oral opinion, the judge found that PQA's hourly
rates were reasonable and consistent with those of attorneys with reasonably
comparable skill, experience and reputation in the community. The judge
recited the procedural history of this case to emphasize the rapid sequence of
events and the extensive work that PQA performed in a relatively short time, as
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well as the need for skilled, experienced attorneys working on this matter. The
judge determined that the lower rates defendants' attorney charged to municipal
entities were not dispositive of the reasonableness and appropriateness of the
rates PQA charged. The judge concluded that the information plaintiffs
provided regarding the experience and skill of the PQA attorneys, as supported
by Uliano, confirmed the rates PQA charged on appeal were reasonable.
The judge reviewed the invoice and reduced the amount sought to
$9,656.15. The judge also found plaintiffs were entitled to $179.90 for costs
because defendants did not dispute them. The judge entered an order on January
26, 2017, memorializing the award. This appeal followed.
II.
"We review fee determinations by trial courts with deference and will
disturb them 'only on the rarest occasions, and then only because of a clear abuse
of discretion.'" DeSanctis v. Borough of Belmar, 455 N.J. Super. 316, 335 (App.
Div. 2018) (quoting Rendine, 141 N.J. at 317). "In our review of fees awarded
pursuant to fee-shifting provisions, we do consider whether the trial court
'sufficiently address[ed] the factors or the framework that [our Supreme Court]
established in Rendine.'" Ibid. (alterations in original) (quoting Walker, 209 N.J.
at 148). "The Court reposed discretion in trial courts to establish any
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contingency enhancement in fee-shifting cases." Ibid. (quoting New Jerseyans
for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 158 (2005)).
We discern no abuse of discretion here.
An award of attorney's fees is permitted "[i]n all cases where attorney's
fees are permitted by statute." R. 4:42-9(a)(8). The NJCRA permits an award
of reasonable attorney's fees and costs to the prevailing party. N.J.S.A. 10:6-
2(f); see also Tumpson, 218 N.J. at 479. Defendants argue that PQA, of which
Pringle was a member, is not entitled to recoup its fees because a pro se attorney
may not receive a fee award under the NJCRA, and an attorney acts pro se even
when representing additional parties.
To support these arguments, defendants cite to unpublished opinions
from this court, a published trial court opinion, an unpublished out-of-state
lower court opinion, and published opinions from federal courts. However,
these opinions do not constitute precedent or bind us. See Lipkowitz v.
Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 36 (App. Div. 2010); Trinity
Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); Meadowlands
Basketball Assoc. v. Dir., Div. of Taxation, 340 N.J. Super. 76, 83 (App. Div.
2001); R. 1:36-3.
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The published opinions defendants cite, Kay v. Ehrler, 499 U.S. 432
(1991) and Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.
Super. 510 (App. Div. 2009), do not support their arguments.
In Kay, an attorney filed a successful action on his own behalf challenging
the constitutionality of a Kentucky statute and requested a fee award under 42
U.S.C. § 1988. 499 U.S. at 434. The United States Supreme Court, in construing
the provisions of 42 U.S.C. § 1988, concluded that an attorney representing
himself or herself cannot claim the benefits of that statute's attorney's fees
provision. Id. at 437-38. The Court's reasons for that conclusion reveal its
preference for encouraging all litigants to engage the services of independent
counsel. As such, the Court commented on the need for even a pro se attorney
to have counsel capable of "framing the theory of the case, evaluating alternative
methods of presenting the evidence, cross-examining hostile witnesses,
formulating legal arguments, and . . . making sure that reason, rather than
emotion, dictates the proper tactical response to unforeseen developments in the
courtroom." Id. at 437. Thus, the Court concluded that allowing pro se attorney
litigants to secure an award of attorney's fees would create an unwanted
disincentive for attorneys to hire counsel. Id. at 438.
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In Alpert, a law firm represented itself in litigation against former clients
for attorney's fees, expenses and collection fees under a retainer agreement and
as a sanction under Rule 1:4-8(d)(2). 410 N.J. Super. at 526-28. We held that
counsel proceeding pro se cannot recover attorney's fees for frivolous litigation
because Rule 1:4-8 "specifically permits only the reimbursement of attorneys'
fees and expenses incurred by a party. It does not permit the reimbursement of
a party's loss of income in dealing with frivolous litigation." Id. at 545. We
explained this reasoning also applied to attorneys appearing pro se, because "[t]o
compensate an attorney for his lost hours would confer on the attorney a special
status over that of other litigants who may also be subject to frivolous claims
and are appearing pro se." Id. at 546. Thus, we concluded that "an attorney
appearing pro se is not entitled to fees unless they are actually incurred as
opposed to imputed." Id. at 547. We noted, however, that our holding was
"directed solely to the language of Rule 1:4-8(d)(2)" and did not deal with "the
award of fees otherwise authorized by contract, rule, or statute." Id. at 546 n.8.
The distinction between Kay and Alpert and the case here is that Pringle
was not acting pro se, representing only himself and his own interests. Rather,
a law firm represented him as well as the other plaintiffs, and the law firm was
not a party to the litigation. Thus, Kay and Alpert do not control here.
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We are satisfied the judge properly determined that Pringle's status as a
member of PQA, a member of the Committee, and an individual plaintiff did not
strip plaintiffs of their statutory right to reasonable attorney's fees. Pringle was
not acting pro se with respect to the work he performed as an attorney because
he was not representing only himself, but four other members and the Committee
of which all plaintiffs were members. As such, regardless of whether or not
Pringle was a plaintiff, he would have generated the same amount in fees and
work in this matter. Pringle's membership on the Committee did not confer upon
him any responsibilities or benefits that were different from any of the other
plaintiffs. Rather, the claims plaintiffs were collectively pursuing were entirely
equitable in nature and served to benefit the Borough of Belmar electorate as a
whole.
Second, none of the policy considerations in support of denying attorney's
fees to pro se attorneys apply here and they should not be extended to situations
where the plaintiff-attorney also represents other co-plaintiffs. There is no
evidence that Pringle prolonged the litigation to generate more fees or filed
frivolous claims or motions. Instead, the record confirms that Pringle obtained
the relief plaintiffs sought in the verified complaint, filed a successful summary
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judgment motion and motions to enforce compliance with court orders, and
obtained a swift resolution of this matter.
By representing plaintiffs and himself, Pringle did not take advantage of
a remedy meant to help ordinary citizens obtain competent representation. Fee-
shifting statutes are enacted so "that plaintiffs with bona fide claims are able to
find lawyers to represent them[,] . . . to attract competent counsel in cases
involving statutory rights, . . . and to ensure justice for all citizens." New
Jerseyans for a Death Penalty Moratorium, 185 N.J. at 153 (alteration in
original) (quoting Coleman v. Fiore Bros., Inc., 113 N.J. 594, 598 (1989)). As
a result of this fee-shifting provision, Pringle was able to provide competent
representation to the other plaintiffs who were not attorneys because his firm
could not have afforded to undertake representing plaintiffs in this case were it
not for the holding in Tumpson, which afforded them the right to recover their
reasonable fees and costs if they prevailed.
The fact that Pringle did not expect to be paid at all, and the amount of the
award, do not affect the nature of the fee award because "the reasonable counsel
fee . . . under fee-shifting statutes is determined independently of the provisions
of the fee agreement between [the] party and his or her counsel. The statutory
fee award may be comparable to or substantially different from the amount
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payable under a negotiated fee agreement." Id. at 156 (alteration in original)
(quoting Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 358 (1995)).
Thus, given that the statutory fee award is not dependent on the provisions of a
fee agreement, we find no merit in defendants' argument that the attorney's fees
would not have been the same had Pringle not been a plaintiff because PQA was
charging the pro bono matter at private client rates.
Furthermore, the fee award did not create a windfall for PQA because the
relief sought was entirely equitable in nature and plaintiffs were entitled to
reasonable attorney's fees and costs under the fee-shifting provision of the
NJCRA. The award also did not create two distinct classes of pro se litigants
who are each afforded different remedies because PQA incurred fees in
connection with its representation of both the plaintiff-attorney and the non-
attorney plaintiffs in the same matter. Thus, unlike in Alpert, 410 N.J. Super. at
546-47, Pringle was not being compensated for lost hours or fees that were
imputed, but for fees actually incurred, as he represented parties other than
himself.
Unlike in Kay, 499 U.S. at 437-38, an attorney-client relationship existed
between Pringle and other plaintiffs, and thus, Pringle was not acting solely pro
se with a personal interest in the outcome of the case. The interest in this case
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was equitable in nature and benefited the whole Borough of Belmar electorate,
making Pringle a disinterested and independent party similar to any of the other
plaintiffs. Thus, PQA is entitled to fees generated in pursuing the claims
asserted in this matter on behalf the other plaintiffs, which were the same claims
Pringle made against defendants generating essentially the same fees.
III.
Defendants contend the judge erred by disregarding the prevailing hourly
rate in the entire State of New Jersey, arguing the judge should have taken
judicial notice of the prevailing rates in public sector legal market charged
statewide, as reflected in municipal resolutions appointing attorneys.
Defendants also argue the judge should have compared the rates PQA charged
with a comparable firm, and that attorneys practicing municipal law charge
between $150 and $220 per hour. 2 This argument lacks merit.
In Rendine, 141 N.J. at 292, and Szczepanski, 141 N.J. at 346, the Court
addressed the issue of calculation of a reasonable attorney's fee payable under
fee-shifting statutes to the prevailing party. Although occasioned by cases
involving fee-shifting legislation, such as the New Jersey Law Against
2
Again, defendants cite to a federal court opinion to support this argument,
which does not constitute precedent or bind us.
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Discrimination in Rendine and Szczepanski, these standards have been applied
in situations where the prevailing party is entitled to a fee award. See Incollingo
v. Canuso, 297 N.J. Super. 57, 63-64 (App. Div. 1997). The Court declared that
conformance with the standards announced in Rendine and Szczepanski would
permit "future fee determinations . . . [to] be disturbed only on the rarest
occasions, and then only because of a clear abuse of discretion." Rendine, 141
N.J. at 317.
In Rendine, the Court explained that the trial judge must first "determine
the lodestar, 'the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.'" Id. at 333-34 (quoting Singer v. State,
95 N.J. 487, 499 (1984)). This requires the "court to evaluate carefully and
critically the aggregate hours and specific hourly rates advanced by counsel for
the prevailing party . . . ." Id. at 335. Time not reasonably expended should be
excluded. Ibid. "A reasonable hourly rate it to be calculated according to the
prevailing market rates in the relevant community." Id. at 337 (quoting Rode v.
Dellaciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). In general, a reasonable
hourly rate is one "that would be charged by an adequately experienced attorney
possessed of average skill and ordinary competence ̶̶ not those that would be
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set by the most successful or highly specialized attorney in the context of private
practice." Walker, 209 N.J. at 132-33 (quoting Singer, 95 N.J.at 500-01).
The same standard applies when attorneys undertake representation
without expectation of payment. See New Jerseyans for a Death Penalty
Moratorium, 185 N.J. at 156 (holding that a reasonable counsel fee is determined
independent of the fee arrangement between a party and counsel and stating that
an attorney's expectation of payment has no bearing on the fee award); see also
BJM Insulation & Constr., Inc. v. Evans, 287 N.J. Super. 513, 517 (App. Div.
1996) (stating that the terms under which an attorney has agreed to provide
representation to a client "is none of [the obligor party's] business").
Here, the judge acted within her discretion in finding PQA's rates were
reasonable based on Uliano's and Pringle's uncontroverted certifications. The
judge correctly determined that PQA's rates were not only reasonable, they were
significantly lower than what civil litigation attorneys in Monmouth County
charge.
The judge found that PQA's rates on appeal were reasonable and
consistent with those of attorneys with reasonably comparable skill, experience
and reputation in the community. The judge also found the rates were
reasonable and consistent given the information provided by the PQA attorneys
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regarding their experience and skill, as supported by their expert's review and
as demonstrated by the quality of the work they performed.
The judge's findings are supported by sufficient credible evidence in the
record, ̶̶and ̶̶thus ̶̶are ̶̶owed ̶̶deference. ̶̶ ̶̶Contrary ̶̶to ̶̶defendants’ ̶̶assertion ̶̶that ̶̶the ̶̶
relevant market constitutes the entire State of New Jersey, in the lodestar
method, "the number of hours reasonably expended by counsel is multiplied by
an hourly rate appropriate for the region and the lawyer's experience." Sutter v.
Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 104 (App. Div.
2009) (emphasis added). The court should evaluate counsel's rates "in
comparison to rates 'for similar services by lawyers of reasonably comparable
skill, experience, and reputation' in the community." Furst v. Einstein Moomjy,
Inc., 182 N.J. 1, 22 (2004) (quoting Rendine, 141 N.J. at 337).
Uliano certified that each PQA attorney's rate was lower than the
prevailing market rate charged by Monmouth County civil litigation attorneys
of comparable backgrounds, skills and levels of experience. Because Uliano's
opinion considered the prevailing rate in Monmouth County, where PQA is
located and the litigation ensued, the quality or nature of the legal services the
attorneys rendered and their experience, as reflected in their biographies, the
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judge did not err in relying upon Uliano's opinion to find PQA's rates were
reasonable.
Defendants provided no evidence of the prevailing rates in New Jersey for
civil litigation attorneys, nor did they refute Uliano ̶̶or ̶̶Pringle’s ̶̶certifications,
instead arguing that their attorney's rates were much lower. However, the rates
charged by defendants' attorney are not dispositive because defendants do not
indicate what the prevailing rate is for legal services similar to the services PQA
provided. The rates of defendants' attorney are only indicative of the prevailing
rates of attorneys representing the Borough. Thus, the judge properly found that
comparing PQA's rates to defendants' attorney's rates was insufficient. One law
firm's decision to charge lower rates for certain types of clients or in particular
cases is not dispositive of the prevailing rate of attorneys of comparable skill,
experience, and reputation in the relevant community. Accordingly, the judge
acted within her discretion in finding Monmouth County represented the
relevant community and the rates PQA charged were reasonable.
We reject defendants' request to take judicial notice of municipal
resolutions appointing counsel to determine the reasonable hourly rate
prevailing in the relevant community. "The purpose of judicial notice is to save
time and promote judicial economy by precluding the necessity of proving facts
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that cannot seriously be disputed and are either generally or universally known."
State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007). On appeal, we have
the discretion to "take judicial notice of any matter specified in Rule 201,
whether or not judicially noticed by the [trial] judge." N.J.R.E. 202(b); see
Marchak v. Claridge Commons, Inc., 261 N.J. Super. 126, 131-32 (App. Div.
1992). The subject matter that may be judicially noticed is set forth in Rule
201(b):
(b) Notice of facts. Facts which may be judicially
noticed include (1) such specific facts and propositions
of generalized knowledge as are so universally known
that they cannot reasonably be the subject of dispute,
(2) such facts as are so generally known or are of such
common notoriety within the area pertinent to the event
that they cannot reasonably be the subject of dispute,
(3) specific facts and propositions of generalized
knowledge which are capable of immediate
determination by resort to sources whose accuracy
cannot reasonably be questioned, and (4) records of the
court in which the action is pending and of any other
court of this state or federal court sitting for this state.
[N.J.R.E. 201(b).]
Essentially, facts that can be reasonably questioned or disputed may not be
judicially noticed. Ibid.
In this case, taking judicial notice of the rates attorneys charge
municipalities does not support the proposition that their rates are indicative of
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the prevailing rates for attorneys who provide similar services and are of
reasonably ̶̶comparable ̶̶skill, ̶̶experience, ̶̶and ̶̶reputation ̶̶as ̶̶plaintiffs’ ̶̶attorneys. ̶̶ ̶̶
The municipal resolutions may indicate what municipalities are willing to pay
attorneys, but they do not indicate what attorneys charge private citizens in
lawsuits against municipalities or that the rates listed in the resolutions are the
prevailing rates for legal services similar to that which PQA provided to
plaintiffs.
IV.
Defendants contend the judge erred in finding that the absence of a
retainer agreement did not preclude a fee award because under Rule 1:21-7(c),
contingency agreements in tort matters must be memorialized in writing and
there is no case law addressing the waiver of the retainer agreement requirement
because of a fee-shifting statute. We rejected this argument in DeSanctis, 455
N.J. Super. at 335, and reject it again here.
The judge did not err by awarding fees in the absence of a written retainer
agreement. In New Jerseyans for a Death Penalty Moratorium, 185 N.J. at 156,
the Court held that a reasonable counsel fee is determined independent of the
fee arrangement between a party and counsel and stated that an attorney's
expectation of payment has no bearing on the fee award. See also BJM
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Insulation & Constr., Inc., 287 N.J. Super. at 517 (stating that the terms under
which an attorney has agreed to provide representation to a client "is none of
[the obligor party's] business"). In New Jerseyans for a Death Penalty
Moratorium v. N.J. Dep't of Corr., 370 N.J. Super. 11, 15 (App. Div. 2004), we
affirmed the enhancement the trial court awarded where the plaintiff's firm
provided legal services pro bono without the benefit of any written retainer
agreement. We reasoned that "the possibility of compensation, i.e. contingent
compensation, inheres in the existence of the fee-shifting provision." Ibid.
In construing the federal civil rights act on which the NJCRA is patterned,
the Supreme Court in Venegas v. Mitchell, 495 U.S. 82, 90 (1990), noted that
the fee-shifting provision "controls what the losing defendant must pay, not what
the prevailing plaintiff must pay his lawyer[,]" distinguishing retainer
agreements from what prevailing parties are entitled to under fee-shifting
statutes and noting that they do not affect one another. As our Supreme Court
noted in Szczepanski, 141 N.J. at 358-59:
[T]he reasonable counsel fee payable to the prevailing
party under fee-shifting statutes is determined
independently of the provisions of the fee agreement
between that party and his or her counsel. The
statutory-fee award may be comparable to or
substantially different from the amount payable under
a negotiated fee agreement. The agreement determines
the fee payable by the prevailing party to counsel, and
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might reflect the risks inherent in the litigation, the
plaintiff's financial resources, and the prospect that
counsel will receive a significant fee in the event of a
large verdict but no fee at all if the suit is unsuccessful.
The statutory-fee award determines the fee payable by
the unsuccessful party to the prevailing party. As our
opinion in Rendine emphasizes, the focus of that
determination is to ascertain what fee is reasonable,
taking into account the hours expended, the lawyer's
customary hourly rate, the success achieved, the risk of
nonpayment, and other material factors. 141 N.J. at
334-345. Although relevant, the fee payable under a
contingent-fee agreement may bear little relation to the
reasonable fee award authorized by statute, and in no
event should the amount payable under the contingent-
fee agreement serve as a ceiling on the amount payable
by statute.
As such, the judge properly found that the absence of a retainer agreement
itself did not preclude plaintiffs' right to an award of reasonable attorney's fees
under the fee-shifting provision.
There was no dispute in this case as to the payment arrangement between
plaintiffs and PQA, and as such, the lack of a written retainer agreement has no
bearing on plaintiffs' entitlement to an award of reasonable attorney's fees and
costs. The absence of a retainer agreement between plaintiffs and PQA did not
affect what defendants, as the losing party, are obligated to pay under a fee -
shifting provision because the arrangement between the parties expressly
provided that fees were going to be sought pursuant to a fee-shifting provision.
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Notwithstanding the absence of a retainer agreement, the judge analyzed
the invoice and certifications submitted to determine whether the fees sought
were reasonable. From reviewing the invoice, the judge was able to determine
what work Pringle did as an attorney and struck those charges attributable to his
work as a fact witness. Thus, in accordance with the applicable case law and
Pringle's certification, the judge properly awarded attorney's fees in the absence
of a retainer agreement or contingency agreement pursuant to a fee-shifting
provision, which the plaintiffs agreed would be their sole avenue of recovering
fees and costs.
V.
Defendants contend that while fee enhancements serve to attract
competent counsel, Pringle needed no incentive to represent the Committee.
Defendants argue that PQA incurred little to no risk representing the Committee
because of the lack of novel and complex issues in this case, and PQA was not
precluded from taking on other employment because the time and number of
attorneys allocated to this matter was insignificant in light of the firm's size.
Defendants further argue that the judge erred in awarding a forty percent
contingency enhancement without considering that the fees will be paid from
public funds and did not support her finding that the issues presented in this case
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26
were novel and complex. Defendants argue that given the lack of novel or
complex issues, the low risk of nonpayment by pro bono clients, mitigation of
economic risks, and Pringle's experience with the Faulkner Act, this case is
"typical" and does not warrant a forty percent enhancement.
Once the lodestar has been determined, the judge must consider whether
the fee should be enhanced "to reflect the risk of nonpayment in all cases in
which the attorney's compensation entirely or substantially is contingent on a
successful outcome." Rendine, 141 N.J. at 337. The Rendine Court adopted
Justice Blackmun's dissent in Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air, 483 U.S. 711, 747 (1987) (Blackmun, J., dissenting),
"that 'a court's job simply will be to determine whether a case was taken on a
contingent basis, whether the attorney was able to mitigate the risk of
nonpayment in any way, and whether other economic risks were aggravated by
the contingency of payment[.]'" Id. at 339. This is so because "it is the actual
risks or burdens that are borne by the lawyer or lawyers that determine whether
an upward adjustment is called for." Id. at 339-40 (quoting Delaware Valley,
483 U.S. at 747 (Blackmun, J., dissenting)).
Judges may also consider the legal risks inherent in the claim and order
an additional enhancement where the result achieved "is significant and of broad
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public interest." Id. at 328-29 (quoting Delaware Valley, 483 U.S. at 751
(Blackmun, J., dissenting)). Where "the likelihood of success is unusually
strong, a court may properly consider the inherent strength of the prev ailing
party's claim in determining the amount of contingency enhancement[,]" thereby
reducing or denying an enhancement. Id. at 341.
Judges should also consider "the public importance of the matter, the
degree of success achieved, the high risk . . . of non-payment, and any other
factors that support the attorney's request for an enhancement." New Jerseyans
for a Death Penalty Moratorium, 185 N.J. at 158. "The enhancement '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.'" Ibid. (quoting Rendine, 141 N.J. at 343).
The Rendine Court recognized that "[d]etermination of the amount by
which a lodestar fee should be enhanced to reflect the risk of nonpayment is
conceptually difficult because there is 'no such thing as a market hourly rate in
contingent litigation.'" 141 N.J. at 342. Finding that "fee awards of double the
lodestar represent the high end of attorney fee awards under fee-shifting
statutes," ibid., the Court "conclude[d] that contingency enhancements in fee-
shifting cases ordinarily should range between five and fifty-percent of the
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lodestar fee, with the enhancement in typical contingency cases ranging between
twenty and thirty-five percent of the lodestar," id. at 343. Further, the Court
held that "[s]uch enhancements should never exceed one-hundred percent of the
lodestar, and an enhancement of that size will be appropriate only in the rare and
exceptional case in which the risk of nonpayment has not been mitigated at all
. . . ." Ibid.
Moreover, "[p]laintiff's status as a public entity is not a special
circumstance warranting denial of an award." Dunn ̶̶v. ̶̶State, ̶̶Dep’t ̶̶of ̶̶Human ̶̶
Servs., 312 N.J. Super. 321, 335 (App. Div. 1998). In Hunter v. Trenton Hous.
Auth., 304 N.J. Super. 70, 75 n.5 (App. Div. 1997), we emphasized that "the fact
that the party to be charged is a taxpayer-supported state agency" did not bar the
prevailing party's claim for counsel fees. Accordingly, the judge committed no
error in declining to consider defendants' public entity status in awarding fees.
The judge also did not err by awarding a forty percent enhancement.
Under the facts of this case, the enhancement was reasonable and not excessive.
The judge correctly recognized the high risk of nonpayment to PQA given
plaintiffs' agreement with the firm that the litigation would not cost them
anything and PQA would rely entirely on the NJCRA's fee-shifting provision to
seek an award of reasonable fees and costs if plaintiffs prevailed.
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The judge also recognized the public importance of the matter, which
protected plaintiffs' rights under the provisions of the Faulkner Act governing
referendum petitions resulting in a special election benefiting the whole
electorate. "[T]he right of referendum is about enfranchisement, about self-
government, and about giving citizens the right to vote on matters of importance
to their community." Tumpson, 218 N.J. at 480. "The referendum is direct
democracy in its purest sense, allowing citizens to take an appeal above the
heads of their elected officials and directly to the voters who can then approve
or reject an ordinance at the polls." Ibid.
The judge also weighed all the factors in RPC 1.5(a), which provides that
in assessing the reasonableness of an award, courts must consider:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
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(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the lawyer
or lawyers performing the services;
(8) whether the fee is fixed or contingent.
[Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,
387 (2009)(quoting RPC 1.5(a)).]
The judge acknowledged the "immediate emergency time consuming effort" on
appeal; the novel issues presented by the defenses; the high degree of skill
required to perform the legal services properly; the high likelihood that
representation in this matter would preclude other employment due to its
emergent nature; the pace of the litigation; the prevailing rate of similar legal
services in the relevant locality; the public importance and equitable nature of
the relief sought; PQA's fee arrangement with plaintiffs centered on the fee-
shifting provision of the NJCRA; and PQA's relationship with the clients and
the experience, reputation and skill of the PQA attorneys.
Pringle outlined in his certification the express verbal fee arrangement
PQA had with plaintiffs, which was contingent on prevailing and obtaining an
award of fees under NJCRA. He submitted a copy of his biography detailing
his education and thirty-two years of legal experience, and noted his relationship
with plaintiffs included providing legal services in connection with other public
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31
interest matters related to the Borough. He also noted that defendants' delay in
complying with certain court orders resulted in additional litigation and
attorney's fees.
Given that contingency awards at the high end of the range are appropriate
in cases where there is no mechanism to mitigate the risk of non-payment, PQA
was not able to mitigate the risk of nonpayment because its fees were dependent
upon obtaining an award of fees under NJCRA, and the relief sought is primarily
equitable in nature, a forty percent contingency enhancement was reasonable
and appropriate in this case. The relief sought was equitable in nature and of
broad public importance. PQA was not afforded the opportunity to mitigate the
risk of non-payment because, in light of the relief sought, it could not expect to
be compensated through a large contingent fee award nor could it expect that
plaintiffs would be able to pay its fees when they prevailed.
For all of the foregoing reasons, we conclude the two awards of attorney's
fees and costs were proper and not an abuse of discretion.
Affirmed.
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