Opinion
DOCKET NO. A-2015-12T3
07-16-2014
PETER INGRIS, Plaintiff-Appellant, v. BOROUGH OF CALDWELL, SGT. PELLEGRINI, Defendants-Respondents.
Peter Ingris, appellant pro se. Respondents have not filed brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7082-12.
Peter Ingris, appellant pro se.
Respondents have not filed brief. PER CURIAM
Plaintiff Peter Ingris, who is self-represented, appeals from a December 18, 2012 order dismissing his verified complaint asserting a cause of action under New Jersey's Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. He filed the complaint, along with an order to show cause, seeking to compel the production of documents related to the Borough of Caldwell's (the Borough) contract with J&M Towing, specifically, a copy of any agreement and the rotation schedule for towing operators. At the hearing on the return date of the order to show cause, Ingris also sought reimbursement of his filing fees. That request was denied. We affirm.
On his notice of appeal, Ingris states he appeals from the dismissal of his complaint; from the court's refusal to impose a statutory penalty of $1000 on the custodian of the relevant records, defendant Borough Police Department Sergeant Michael Pellegrini; and from the denial of his request that he be reimbursed "reasonable attorney's fees." At the hearing, however, Ingris did not assert entitlement to either attorney's fees or the $1000 sanction, although they are included in the relief sought in his complaint. Ingris was also self-represented in the proceedings in the Law Division.
Three orders regarding the scheduling were issued, as apparently Ingris had difficulty in obtaining a process server who could accomplish service on the Borough within the time frame required by the court. Finally, on December 18, 2012, when the matter was scheduled, Ingris failed to appear until contacted by the judge's law clerk. He denied having prior notice other than the phone call. The claim was disputed by the attorney for the Borough, who said he had spoken to Ingris regarding the hearing days prior, and mentioned the scheduled date and time in an email. The claim was also problematic in light of the law clerk having informed the judge that she spoke to Ingris on the phone regarding the hearing, and the hearing date and time, on several occasions.
In any event, the Borough, prior to the return date, had emailed to Ingris the Borough clerk's certification regarding all the existing J&M documents, and had provided him with a copy of an ordinance related to the agreement with J&M. Apparently, no actual contract existed. When asked before the hearing if service of the papers via email sufficed, Ingris refused to "wave [sic] [his] right to be served with all papers via regular mail and certified mail RRR."
At the hearing, Ingris disputed that the Borough had provided him with all the relevant documents. He claimed that he had independently obtained a partial rotation schedule, not included in the materials supplied by the Borough, and therefore did not think the Borough was being forthright. When the judge asked Ingris directly the reason he failed to attach that document to his certification, or to identify the source from which he obtained it, Ingris did not respond. He said he was unable to produce the paper at the hearing because he had come directly from home as soon as he was notified that he needed to be in court, and did not have sufficient time to stop by his office to obtain it.
Finding that Ingris had not met his burden of proof, the court dismissed the matter. The judge specifically found the Borough had met its obligations, and because the Borough attorney had to wait over an hour for Ingris to appear, she denied his request for reimbursement of the filing fees.
We set forth in full plaintiff's alleged claims of error:
I. THE APPELLATE COURT SHOULD REVERSE THE TRIAL COURT'S ORDER BECAUSE THE TRIAL COURT VIOLATED DOCTRINE OF FUNDAMENTAL FAIRNESS AND CAUSED UNDUE PREJUDICE TOWARDS APPELLANTWe consider all these points, phrased in sweeping generalities, not to be supported in the record or in the law. They are so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
II. APPELLATE COURT SHOULD REVERSE TRIAL COURT'S ORDER BECAUSE THE TRIAL COURT DENIED APPELLANT HIS RIGHT FOR DUE PROCESS AND FOR FAIR TRIAL AND WAS PREJUDICIAL TOWARDS PRO SE LITIGANT
III. IT WOULD BE PROPER FOR APPELLATE COURT TO REVERSE TRIAL COURT'S ORDER FOR APPELLANT WAS SURPRISED DUE [TO] RESPONDENT'S FAILURE TO SERVE TIMELY COMPLETE ANSWERING PAPERS AND DUE [TO] LOWER COURT'S UNTIMELY NOTICE ABOUT THE NEW HEARING DATE
IV. THE APPELLATE COURT SHOULD REVERSE THE TRIAL COURT'S ORDER BECAUSE TRIAL COURT ERRED AS A MATTER OF LAW VIOLATING N.J.S.A. TITLE 47
Ingris's notice of appeal includes two items he did not address at the time of the hearing, that being for a $1000 statutory penalty to be imposed on Pellegrini, and for attorney's fees. Since he neither raised the issue before the trial judge, nor addressed it in his brief on appeal, we will not consider it. See State v. Galicia, 210 N.J. 364, 383 (2012).
Furthermore, in order to be entitled to penalties, attorney's fees, or costs of suit, Ingris would have had to be found to be a "prevailing party." Spectraserv v. Middlesex Utils., 416 N.J. Super. 565, 583 (App. Div. 2010). Merely because the Borough produced documents after the filing of his lawsuit did not entitle him to compensation. Ibid. A complainant is the "prevailing party" only "if he or she achieves the desired result because the complaint brought about change (voluntary or otherwise) in the custodian's conduct." Ibid. (quoting Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 432 (App. Div. 2006) (quoting Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000)), certif. denied, 189 N.J. 426 (2007). Nothing we have been provided with establishes that Ingris's request caused a change in the municipality's practices. From what we can glean from the record, Ingris made his request on September 5, 2012, and filed suit on September 18, 2012. He was supplied with such documents as existed by email on November 30, 2012, prior to the scheduled court appearance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION