Underwood Props., LLC v. City of Hackensack
| Citation | 269 A.3d 509,470 N.J.Super. 202 |
| Decision Date | 24 January 2022 |
| Docket Number | DOCKET NO. A-0044-20 |
| Parties | UNDERWOOD PROPERTIES, LLC, Plaintiff-Appellant/Cross-Respondent, v. CITY OF HACKENSACK and Deborah Karlsson, in her professional capacity as Records Custodian for the City of Hackensack, Defendants-Respondents/Cross-Appellants. |
| Court | New Jersey Superior Court – Appellate Division |
Leonard E. Seaman argued the cause for appellant/cross-respondent (Law Offices of Richard Malagiere, PC, attorneys; Richard Malagiere, of counsel; Leonard E. Seaman, Livingston, of counsel and on the briefs).
Steven W. Kleinman argued the cause for respondents/cross-appellants (Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys; Steven W. Kleinman, of counsel and on the briefs).
Before Judges Alvarez, Mawla, and Mitterhoff.
The opinion of the court was delivered by
MAWLA, J.A.D.
Plaintiff Underwood Properties, LLC appeals from a July 24, 2020 order, denying its application under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to compel defendants City of Hackensack and its records custodian Deborah Karlsson to produce privileged documents, and awarding plaintiff counsel fees.
Defendants cross-appeal and also challenge the counsel fee award. We affirm in all respects.
The dispute underlying the OPRA litigation regards the Hackensack Planning Board's zoning determinations and ordinances adopted in the City's redevelopment plan, which are the subject of two separate lawsuits involving these parties. On August 12, 2019, plaintiff's counsel submitted two OPRA requests "from Richard Malagiere." The first sought "[a]ny and all [emails] relating to official business of the City of Hackensack, such as to constitute a government record, to or from [the deputy mayor's personal email address] from November 2017 through present[.]" The second sought "[t]ext messages, [emails], and any other ... correspondence" involving nine city officials and the deputy mayor, about a particular planning board application and subsequent resolution and ordinance for a two-year time period. Karlsson denied the first, calling it invalid because it failed "to identify the content and/or subject of the" emails and would require the City to undertake an open-ended search. She requested an extension to respond to the second. On August 28, 2019, plaintiff's counsel submitted a third request seeking communications to and from the deputy mayor's personal email account, narrowing the search terms to specific words.
Karlsson provided seventeen pages of records in response to the second request and thirteen pages for the third. She also submitted a Vaughn index1 explaining why certain records were withheld or redacted as privileged. However, Karlsson declined to produce records responsive to seven search terms generating over 400 emails, asserting "it is the City's position that any of the above search terms producing more than 400 [emails] are too general for the City to review" and would constitute an open-ended records search.
Plaintiff's counsel filed a complaint in lieu of prerogative writs and an order to show cause alleging defendants violated OPRA by: "(1) denying access to records for search terms generating over 400 responsive [emails], and (2) improperly asserting privileges and exemptions to withhold four categories of [emails] responsive to the ‘approved’ search terms, when those [emails] should have been provided along with the rest of [d]efendants' partial production ...." Plaintiff sought in camera review of the privileged documents. Defendants opposed the emergent application, arguing plaintiff's counsel lacked standing to file the OPRA complaint, could not be awarded attorney's fees, and the requests were properly denied as overly broad.
On January 9, 2020, Judge Bonnie J. Mizdol ordered defendants to produce certain documents directly to plaintiff and to provide the privileged documents—namely, emails between the deputy mayor and four city officials—to the court. On February 13, 2020, following her in camera review, the judge ordered defendant to produce three of the four categories of emails, but found one category "wholly exempted from production under the deliberative process and attorney-client privilege[.]" Plaintiff moved for $14,560.20 in counsel fees, supported by an affidavit of services pursuant to N.J.S.A. 47:1A-6 and RPC 1.5(a).
Defendants moved for reconsideration of the order requiring production of the privileged materials. The judge granted reconsideration and reclassified all categories of emails she reviewed in camera as privileged. She denied plaintiff's request for counsel fees associated with the documents she reviewed in camera.
In May 2020, plaintiff moved to compel production of the documents ordered to be produced in January, and again sought counsel fees. Defendants withheld a portion of the documents on grounds of privilege. Additionally, they argued plaintiff lacked standing to seek counsel fees because the OPRA request was submitted in the name of Malagiere, plaintiff's attorney. The judge ordered defendants to produce the disputed records for in camera review.
Thereafter, the judge entered the July order, which is the subject of these appeals, accompanied by a detailed forty-two-page written opinion. She concluded nine of the ten documents withheld by defendants were protected from disclosure by the deliberative process privilege and beyond the scope of plaintiff's request; the tenth document was protected by the attorney-client privilege.
Acknowledging that OPRA standing is not a "straightforward" issue, the judge noted N.J.S.A. 47:1A-6 states: " ‘A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may institute a proceeding to challenge the custodian's decision,’ and that ‘[t]he right to institute any proceeding under this section shall be solely that of the requestor.’ " (alteration in original). However, she concluded plaintiff had standing because plaintiff's counsel "has the power to act under implied authority to handle matters on behalf of his client as long as he is given consent."
The judge also noted She concluded "it is more than apparent here that an attorney may request documents on behalf of a client and subsequently file suit under the client's name." She concluded plaintiff could seek fees because plaintiff's counsel filed the OPRA request on behalf of his client and within the scope of his representation.
Thus, "the 831 pages of records would not have been effected[ ] but for [p]laintiff's filing of suit in this case ... and that [p]laintiff's success is limited here to only the records that [d]efendants initially produced ... pursuant to the court's January ... order."
The judge performed a lodestar analysis and addressed each RPC 1.5(a) factor. At the outset, she noted plaintiff's counsel billed in quarter hour increments and modified it to "the more widely-accepted six-minute billing increment." The judge analyzed and reduced certain billing entries she found excessive and concluded the remaining factors either favored an award of fees or did not militate against it. Hence, "only the portion of attorneys' fees and costs attributable to litigation of the original [order to show cause]" were compensable because "no subsequent litigation has resulted in further production of documents" and the purpose of the OPRA request was not vindicated.
The judge found plaintiff's challenge to the 346-page Vaughn index caused defendants to produce thirty-five pages and noted each page of the index "addresses three entries on average, [and] the court extrapolates that approximately 3,633 pages, representing approximately 1,038 documents [346 x 3=1,038], were withheld from production." Therefore, she concluded "less than [twenty percent] of the documents originally sought were actually produced." The judge awarded plaintiff $3,750, or roughly one-half of the lodestar amount.
Our review of a trial court's interpretation of OPRA is de novo. See O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 8, 42 A.3d 910 (App. Div. 2012). "Findings of fact, however, are reviewed deferentially." Ibid. (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974) ).
"[A] reviewing court will disturb a trial court's award of counsel fees ‘only on the rarest of occasions, and then only because of a clear abuse of discretion.’ "
Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386, 982 A.2d 420 (2009) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444, 771 A.2d 1194 (2001) ). This is because a "trial court [is] in the best position to weigh the equities and arguments of the parties ...." Packard-Bamberger & Co., 167 N.J. at 447, 771 A.2d 1194. We reverse only if the award is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985) ).
On appeal, plaintiff argues the judge erred...
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