Committee of Petitioners to Protest the Adoption of Ordinance No. 2016-01 v. Borough of Belmar, DOCKET NO. A-2869-16T1

• Decision Date: 24 April 2019
• Docket Number: DOCKET NO. A-2869-16T1
• Parties: 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.
• Court: New Jersey Superior Court — Appellate Division

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.

DOCKET NO. A-2869-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 21, 2018
April 24, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Simonelli, O'Connor and DeAlmeida.

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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

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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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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...