Opinion
DOCKET NO. A-1065-13T3
06-18-2015
CARMENA STONEY, Plaintiff, and LINDA VANDEUSEN, Plaintiff-Appellant/Cross-Respondent, v. MAPLE SHADE TOWNSHIP, Defendant-Respondent/Cross-Appellant.
Anthony J. Brady, Jr., argued the cause for appellant/cross-respondent. Eric L. Harrison, argued the cause for respondent/cross-appellant (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the brief; Raina M. Pitts, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2884-07. Anthony J. Brady, Jr., argued the cause for appellant/cross-respondent. Eric L. Harrison, argued the cause for respondent/cross-appellant (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the brief; Raina M. Pitts, on the brief). PER CURIAM
Plaintiff Linda Vandeusen and defendant Maple Shade Township (the "Township") appeal from the October 22, 2013 Law Division order awarding attorney's fees and costs to plaintiff's attorney. We affirm on the appeal and cross appeal.
I.
Plaintiff is a disabled South Carolina resident who occasionally visits New Jersey. Stoney v. Maple Shade Twp., 426 N.J. Super. 297, 302 (App. Div. 2012). She is a self-acknowledged "tester," who travels to places just to test for handicap accessibility. Ibid. In this capacity, plaintiff has filed at least fifty lawsuits. Ibid. n.1.
On October 12, 2007, plaintiff and Carmena Stoney filed suit against the Township alleging failure to afford proper access to five public properties. They demanded compensatory damages and equitable relief. On December 7, 2009, the trial court dismissed Stoney's claims for her failure to provide discovery, and she never moved to reinstate.
The jury trial began on June 21, 2010. At trial, plaintiff's expert called for seventy-five modifications to Township properties. Id. at 319. After three days of trial, the jury entered a verdict finding that the Township wrongfully excluded plaintiff from two of the five locations at issue. Specifically,
[t]he jury found that defendant discriminated against plaintiff because of her disability by either wrongfully excluding her from or denying her access to the park and a bathroom in the Municipal Building, but rejected her other claims as to the Municipal Building, sidewalks on Main Street, and the police station.The jury denied any compensatory damages.
[Id. at 305.]
Plaintiff moved for injunctive relief and nominal damages. Id. at 306. The trial court granted the former but denied the latter. Ibid. On October 18, 2014, the court ordered the Township to lower the resistance on two of the Township's bathroom doors, and to either add a disabled-access picnic table to the local park or remove all picnic tables, representing two of the seventy-five modifications called for by plaintiff's expert.
Plaintiff moved for attorney's fees and costs, requesting $73,873 in fees, which included a one-third fee enhancement. The court reduced plaintiff's billing entries, without indicating which entries were eliminated, and also reduced counsel's hourly rate to $300, without explanation. Id. at 319. Concluding that the case was not particularly complicated, the court denied a fee enhancement and simply multiplied 132 hours by $300 and awarded plaintiff $39,600 in fees and $7,400 in costs. Ibid. Defendant appealed the fee award, and, in pertinent part, plaintiff cross-appealed the denial of injunctive relief as to the grading of the sidewalk around the local park. Id. at 307.
This court issued a published opinion on May 11, 2012. Id. at 297. We found that the trial court abused its discretion in denying plaintiff injunctive relief, and remanded for application of the proper analysis. Id. at 317. Additionally, we vacated and remanded the attorney fee award because the trial court failed to properly explain the award, or to consider plaintiff's "limited success[.]" Id. at 319 ("That plaintiff's expert called for seventy-five modifications and persuaded the court as to only two should have been taken into account in the ultimate attorney fee award."). However, we expressed "no view on whether injunctive relief should issue and, if so, what would be a reasonable fee in light of the actual result achieved." Id. at 320.
Notably, we did not vacate the award of costs. Ibid.
On remand, the parties resolved the injunctive relief issue by a consent order, and the Township agreed to repave the sidewalk in the local park. Plaintiff re-applied for attorney's fees, and the trial court heard oral argument and issued an oral opinion on October 11, 2013. The court adopted the Township's position regarding hours, but plaintiff's position regarding hourly rate, awarding 188.4 hours at $400 per hour, for a lodestar of $75,360. Applying a twenty-five percent reduction for plaintiff's partial success, the court awarded plaintiff $56,520 in attorney's fees, plus $200 in costs.
On appeal, plaintiff contests the fee award, arguing that the court erred by: (1) failing to properly and thoroughly analyze the itemized hours; (2) applying a twenty-five percent reduction for limited success; (3) failing to award a fee enhancement; and (4) failing to award plaintiff's expert's fees. On cross-appeal, the Township argues the trial court failed to reduce the lodestar in a manner commensurate with plaintiff's limited success.
II.
"[F]ee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We award attorney's fees only where "'expressly provided for by statute, court rule, or contract.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001)). Here, plaintiff is entitled to fee shifting as a prevailing party under both state and federal statutes. Stoney, supra, 426 N.J. Super. at 317; see N.J.S.A. 10:5-27.1; 42 U.S.C.A. § 12205.
Fee determinations begin with the calculation of the lodestar, which is "the number of hours reasonably expended multiplied by a reasonable hourly rate." Rendine, supra, 141 N.J. at 334-35. Counsel's hours must be "set forth in sufficient detail . . . ." Id. at 337. In turn, the trial court must "evaluate carefully and critically the aggregate hours . . . advanced by counsel for the prevailing party to support the fee application." Id. at 335. The "court should exercise its discretion to exclude from the lodestar calculation hours for which counsel's documentary support is marginal." Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 368 (1995).
The parties do not presently dispute plaintiff's counsel's hourly rate. Accordingly, we will not address whether that rate was reasonable.
Hours that are "'excessive, redundant, or otherwise unnecessary'" are not reasonably expended, and should be excluded. Rendine, supra, 141 N.J. at 335 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). The court should compare the hours submitted to "those that competent counsel reasonably would have expended to achieve a comparable result[.]" Id. at 336.
The trial court may also reduce the lodestar for partial or substantially limited success, or grant a contingency enhancement "to reflect the risk of nonpayment" in cases where the attorney's payment was substantially contingent upon a successful outcome. Id. at 336-37. "[T]he court must determine whether the expenditure of counsel's time on the entire litigation was reasonable in relation to the actual relief obtained, and, if not, reduce the award proportionately." Singer v. State, 95 N.J. 487, 500 (citation omitted), cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984).
The United States Supreme Court has rejected contingency fee enhancement under federal fee-shifting statutes, and so enhanced relief is limited to that provided for by our state statutes. Stoney, supra, 426 N.J. Super. at 320 n.12.
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In reducing the award, the court may either "identify specific hours that should be eliminated, or . . . simply reduce the award to account for the limited success." Stoney, supra, 426 N.J. Super. at 319 (citation and internal quotations omitted). However, there need not be a strict proportionality between the relief obtained and the fee award. Rendine, supra, 141 N.J. at 336. "'[U]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.'" Ibid. (quoting Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct. 2686, 2694, 91 L. Ed. 2d 466, 479 (1986)).
Here, the trial court reviewed the itemized hours submitted by plaintiff's counsel, as well as the Township's detailed objections, and summarily adopted the Township's position that plaintiff's counsel reasonably billed 188.4 hours. While we generally disfavor the summary adoption of the position of a party, we do not find the result here to constitute a clear abuse of discretion based upon our review of the comprehensive and convincing analysis submitted by defendant. Many of the hours requested by plaintiff were not supported by competent evidence, and were therefore properly rejected by the trial court. Of the 551.5 hours listed in plaintiff's various documents, only 270.2 hours were supported by certifications. Additionally, many of the itemized hours were clearly excessive. For example, in a fifteen-day span starting on May 18, 2011, plaintiff's counsel certified that he spent 109.9 hours on "[r]esearch and writing injunctive relief[,]" despite his assertions of expertise and high hourly rate.
The court also applied a twenty-five percent lodestar reduction to reflect plaintiff's partial success. In relation to the hours supported by plaintiff's counsel's certifications, the trial court, in both striking excessive hours and applying a proportional reduction, cut the fee award in half. Including the uncertified hours, the court effectively cut the requested fee award by seventy-five percent.
While plaintiff achieved only limited success, the twenty-five percent lodestar reduction tempered the proportional reduction in relation to the steep cuts to the claimed hours of plaintiff's counsel. Moreover, while our prior opinion may have suggested a greater reduction, plaintiff achieved tangible relief on remand, rendering her prior appeal a partial success. While plaintiff originally called for seventy-five changes, the issues before this court on that appeal were more limited, and so plaintiff's proportional success was greater. Additionally, we note that plaintiff achieved success regarding two of the five properties that she cited as unlawfully excluding her or denying her access.
Given the full context, including plaintiff's limited success at trial, her partial success on appeal, and the heightened deference owed to the trial court, Rendine, supra, 141 N.J. at 317, we discern no clear abuse of discretion in the calculation of the lodestar or the application of the proportional reduction. Accordingly, we find no basis to disturb the trial court's attorney fee award.
As to contingency enhancement, we find plaintiff's arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We briefly note that plaintiff sought compensatory and nominal damages in addition to equitable relief, and she ultimately lost on the majority of her claims. See Walker v. Giuffre, 209 N.J. 124, 138-39 (2012). Therefore, we discern no clear abuse of discretion in the trial court's decision not to award a contingency fee enhancement.
Regarding expert's fees, our prior appeal vacated the previous attorney fee award, but did not disturb the award of costs. The only issue regarding costs before the trial court on remand would have been costs that were incurred after the completion of the trial. Based on the record before us, we discern no abuse of discretion in the court's decision to award additional costs of $200.
Affirmed on the appeal and cross appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION