DAVID SCHWARTZ VS. BOROUGH OF HIGHLAND PARK,ET AL.(L-4967-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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 posted on the internet, this opinion is only binding 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-2988-14T1

DAVID SCHWARTZ, PAT IURILLI,
GEORGE MANIKAS and RAYMOND
KOHLER,

Plaintiffs-Appellants/
Cross-Respondents,

v.

BOROUGH OF HIGHLAND PARK
and SCOTT LUTHMAN,

Defendants-Respondents/
Cross-Appellants.
_______________________________

Argued September 14, 2016 – Decided July 31, 2017

Before Judges Fuentes, Simonelli and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-4967-14.

Mark D. Oshinskie argued the cause for
appellants/cross-respondents.

Victoria D. Britton argued the cause for
respondents/cross-appellants (Mason, Griffin
& Pierson, PC, attorneys; Ms. Britton, of
counsel and on the briefs; Andrew M. Slom, on
the briefs).

PER CURIAM
 At all times relevant to this case, plaintiffs David Schwartz,

Pat Iurilli, George Manikas, and Raymond Kohler owned one-family

homes in the Borough of Highland Park (the Borough). Plaintiffs

filed a verified complaint challenging the constitutionality of a

municipal ordinance that required them to maintain the sidewalks

abutting their property in a safe condition. The trial court

issued a preliminary injunction restraining the Borough from

enforcing the ordinance against plaintiffs. The Borough

thereafter repealed the ordinance and replaced it with a different

ordinance, which plaintiffs have not challenged. Plaintiffs'

counsel sought an award of counsel fees under 42 U.S.C.A. §

1988(b), claiming plaintiffs were a "prevailing party" under the

catalyst theory recognized by our Supreme Court in Mason v. City

of Hoboken, 196 N.J. 51, 76 (2008). The trial court agreed and

awarded plaintiffs limited counsel fees.

On appeal, plaintiffs argue the trial court erred in limiting

its award of counsel fees. The Borough cross-appeals, arguing the

judge erred in finding plaintiffs were a "prevailing party." After

reviewing the record developed by the parties, we affirm the trial

court's February 17, 2015 order finding plaintiffs were a

prevailing party under the catalyst theory. We also affirm the

amount of counsel fees awarded to plaintiffs' counsel.

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 I

In 2012, the Borough mailed notices informing 1,220 real

property owners that the municipality was "in the midst of a

comprehensive community-wide sidewalk inspection program" in

response to a "significant number of complaints related to sidewalk

safety." The Borough also apprised the property owners that their

"public (parallel to the street) sidewalk was inspected . . . and

found to be in an unsafe condition." Pursuant to Highland Park,

Ordinance 941, § 368-15, it was the homeowners' responsibility to

keep the sidewalks and curbs in a safe condition. The Borough

listed "substantial cracking, gaps in the sidewalk, buckled

concrete, and/or raised sidewalks" as examples of "unsafe

condition[s]."

To ensure compliance, the Borough prepared to issue summonses

to any property owners who failed to heed its notice. To avoid

the issuance of a summons, a property owner had to: (1) apply for

a zoning permit, which signaled an intent to repair the sidewalk;

or (2) "[s]ign up for the Highland Park Sidewalk Improvement

Program[.]" The Borough instructed property owners with "unsafe"

sidewalks to contact the Director of Code Enforcement if they had

any questions or concerns.

In June 2014, plaintiffs received summonses charging them

with failure to repair their sidewalks in violation of Ordinance

3 A-2988-14T1
941, § 368-15. The four summonses were signed by Scott Luthman,

the Borough's Director of Code Enforcement. The summonses issued

to Schwartz, Iurilli, and Kohler identified the violation date as

June 16, 2014, and the summons issued to Manikas identified the

violation date as June 17, 2014.

On August 11, 2014, plaintiffs filed a verified complaint and

an order to show cause seeking declaratory relief under N.J.S.A.

2A:16-53 and 42 U.S.C.A. § 1983. Specifically, plaintiffs sought

a judicial declaration that Ordinance 941, § 368-15 violated

Article I, Paragraph 1 of the New Jersey Constitution, as well as

the Fifth and Fourteenth Amendments of the United States

Constitution. Plaintiffs also requested the court to issue a

preliminary injunction staying the prosecution of the summonses

and to "proceed summarily pursuant to [Rule] 4:42-3 and [Rule]

4:67."

In Count I of the verified complaint, plaintiffs alleged the

enforcement of Ordinance 941, § 368-15 violated their substantive

and procedural due process rights because the safety violations

cited in the summonses were caused by the roots of trees planted

and maintained by the Borough. Furthermore, plaintiffs do not own

the sidewalks abutting their properties and thus should not be

held legally responsible for their maintenance. In Count II,

plaintiffs alleged Ordinance 941, § 368-15 was unconstitutionally

4 A-2988-14T1
vague because "[t]here is no objective standard expressly stated,

or incorporated by reference[,]" that provides a reasonably

prudent person with the information necessary to determine "which

sidewalks are safe and which are unsafe." Finally, plaintiffs

alleged the Borough's Code Enforcement Official arbitrarily

indicated that an elevation exceeding "one-half inch" constituted

an unsafe sidewalk and then increased the boundary to three

quarters of an inch without affording prior notice to the public.

The matter came before the Law Division on September 12,

2014. Following oral argument, the trial judge granted plaintiffs'

application for a preliminary injunction and "vacated" the then

pending municipal court summonses. The trial judge selected

October 23, 2014 as the date to conduct "a hearing for final

injunctive relief[.]" Quoting our decision in Betancourt v. Town

of W. New York, 338 N.J. Super. 415, 422 (App. Div. 2001) (citation

omitted), the judge noted: "[A]n ordinance that contains language

that is so imprecise that it cannot be understood by persons of

ordinary intelligence does not give fair notice [of] the acts

which it forbids and[,] therefore[,] denies due process."

The judge provided the following summary of plaintiffs' legal

position as a basis for his decision to enjoin the Borough from

enforcing the ordinance:

Plaintiffs argue that the [c]ourt could
enjoin, or rather should enjoin defendant from
5 A-2988-14T1
 enforcing the ordinance because the ordinance
provides no objective criteria against which
a homeowner can evaluate whether he has
minimized any endangerment presented by a
sidewalk abutting his property, nor is any
such standard in another source incorporated
by reference.

The residents, based on what the [c]ourt has
before it, cannot have a clear idea of how
much unevenness is allowed and the
circumstances under which they will be
required to replace those slabs. . . . [T]he
[c]ourt is aware also that the [c]ourt cannot
substitute its judgment for that of the
municipal governing body but rather must
review the ordinance to determine whether its
enactment was arbitrary, capricious, or
unreasonable.

The standard for endangerment, the [c]ourt
finds, is arbitrary. Accordingly, the [c]ourt
. . . hereby [grants] temporary restraints
with respect to the enforcement of this
ordinance.

Shortly thereafter, plaintiffs' counsel filed an application

seeking attorney's fees and costs pursuant to 42 U.S.C.A. § 1988(b)

and Rule 4:42-9(a)(8). In response, the Borough argued plaintiffs

were not entitled to counsel fees as a matter of law because the

trial court's decision was not final and plaintiffs were therefore

not a "prevailing party" in the litigation. According to the

Borough, the court merely applied the well-established standards

in Crowe v. De Gioia, 90 N.J. 126 (1982), to determine whether

plaintiffs were entitled to preliminary injunctive relief.

6 A-2988-14T1
 In an order dated October 21, 2014, the trial judge denied

plaintiffs' application "without prejudice[.]" In an oral

opinion, the judge provided the following explanation for his

ruling:

[Plaintiffs' counsel's] application is
premature. There has been no determination
by this [c]ourt or a finder of fact that there
has been a violation by the defendant of
. . . 42 U.S.C.[A.] [§] 1983. And that case
is [proceeding] through the Civil Division
process in due course.

[Plaintiffs' counsel's] claim for
attorney[']s fees, again, is premature, and
the [c]ourt would note that in Stockton v.
Rhulen, [302 N.J. Super. 236 (App. Div. 1997)
(citing Singer v. State, 95 N.J. 487 (1984),
cert. denied, 469 U.S. 832, 105 S. Ct. 121,
83 L. Ed. 2d 64 (1984))], . . . [a] party was
the prevailing party when they obtained
substantially all of the relief they sought,
a declaration that the statute was invalid[,]
and an injunction against its enforcement[.]

. . . .

[Plaintiffs' counsel's] preliminary
injunctive relief on behalf of Highland Park's
residents1 was not a vindication of the merits
of his case. The [c]ourt specifically
considered the state statute2 that was being
challenged, and the [c]ourt concluded that the
same was constitutional. . . . What the
[c]ourt did find, however, was that the . . .
application of the statute [sic] was vague,

1
Despite the judge's statement that plaintiffs' counsel obtained
injunctive relief "on behalf of Highland Park's residents[,]" this
case is not a class action.
2
We believe the judge simply misspoke because plaintiffs did not
challenge the constitutionality of a state statute.
7 A-2988-14T1
 based on the inconsistent notices that were
being provided to the citizens with regard to
whether or not their sidewalks were in
violation of the ordinance.

Although the judge did not expressly apply the four-factor

analysis the Supreme Court established in Crowe, supra, 90 N.J.

at 132–34, when he enjoined the enforcement of the summonses issued

against plaintiffs, it is clear to us that he implicitly applied

these criteria to support his decision. Thus, the judge found

plaintiffs had "a reasonable probability of ultimate success on

the merits." Id. at 133 (citation omitted). The judge elaborated

on this issue in his October 21, 2014 decision:

So while the plaintiff[s] did obtain temporary
injunctive relief with respect to [their]
application to enjoin the [Borough] from
issuing further violations and/or prosecuting
those violations that were pending in the
municipal court, the plaintiff[s] from a
limited perspective prevailed in that respect.
But that is not fee shifting with regard to
the plaintiff[s'] prayer for relief.
Respecting 42 U.S.C.[A.] [§] 1983, the [c]ourt
finds that the application for attorney['s]
fees is premature[,] as that . . . issue has
not been yet determined in terms of whether
or not there was such a violation, and
therefore the motion for attorney['s] fees is
hereby denied for the aforementioned reasons
without prejudice.

[(Emphasis added).]

We denied plaintiffs' motion for leave to appeal in an order

dated December 29, 2014. Our order included supplemental language

acknowledging that the Borough had repealed Ordinance 941, § 368-
8 A-2988-14T1
15 following the trial court's October 21, 2014 order. In this

light, we noted that "plaintiffs may move again before the trial

court for attorney's fees and the trial court should consider

whether plaintiffs have prevailed in this litigation in obtaining

an injunction against enforcement of the ordinance and its

subsequent amendment."

Following our suggestion, plaintiffs returned to the trial

court with a new application for counsel fees, this time predicated

on the "catalyst theory." Quoting from our decision in Stockton,

supra, 302 N.J. Super. 236, plaintiffs argued that "'to qualify

as a prevailing party, a civil rights plaintiff must obtain at

least some relief' which 'at the time of the judgment or settlement

. . . modif[ies] the defendant's behavior in a way that directly

benefits the plaintiff.'" Id. at 241 (quoting Farrar v. Hobby,

506 U.S. 103, 111, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494, 503

(1992)).3 The Borough argued plaintiffs were not entitled to an

award of counsel fees because the preliminary injunctive relief

3
The panel in Stockton relied in part on the United States Supreme
Court's decision in Tex. State Teachers Ass'n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866
(1989), in which Justice O'Connor wrote: "Congress cannot have
meant 'prevailing party' status to depend entirely on the timing
of a request for fees: A prevailing party must be one who has
succeeded on any significant claim affording it some of the relief
sought, either pendente lite or at the conclusion of the
litigation." Id. at 791, 109 S. Ct. at 1493, 103 L. Ed. 2d at
876.

9 A-2988-14T1
the court granted was not based on 42 U.S.C.A. § 1983. The Borough

cited Sole v. Wyner, 551 U.S. 74, 127 S. Ct. 2188, 167 L. Ed. 2d

1069 (2007), for the proposition that securing preliminary

injunctive relief does not in and of itself make a litigant a

"prevailing party[.]"

On February 17, 2015, the trial judge entered an order

granting in part and denying in part plaintiffs' motion for

attorney's fees and costs. The judge found:

At no point during [the litigation] or in the
wake of the order to show cause did the [c]ourt
find a constitutional violation. The [c]ourt
sought to preliminarily take the decision
making out of the hands of the code
enforcement official so the case could proceed
without fines racking up for the [B]orough's
residents.

The ordinance was always constitutional. The
exact language of the ordinance is non-
controversial. And Section 368-15 set
forth[:] "It shall be the duty of any owner
or occupant of lands within the borough to
keep the sidewalk and curb abutting such lands
maintained and properly repaired so as to
minimize any endangerment to the public
health, safety, and welfare of any individuals
using the sidewalks[.]"

However, the judge found the Borough's decision to repeal

Ordinance 941, § 368-15 was based on "plaintiffs' consistent

advocacy." Relying on this court's decision in D. Russo, Inc. v.

Twp. of Union, 417 N.J. Super. 384 (App. Div. 2010), certif.

denied, 206 N.J. 328 (2011), the judge found "unsupported[]" the

10 A-2988-14T1
Borough's argument that plaintiffs were not "a catalyst for the

recent amendments to the sidewalk ordinance[.]" The judge also

cited our Supreme Court's decision in Mason, supra, 196 N.J. at

51, to conclude that plaintiffs were a "prevailing party" under

the catalyst theory:

The record further suggests that the change
in the ordinance, whether required by this
. . . [c]ourt or not, would not have occurred
but for plaintiffs' lawsuit. Furthermore,
while the plaintiff[s] [are] a prevailing
party under the catalyst theory, plaintiff[s]
[are] still only entitled to a reasonable
attorney's fee and cost under the statute.
The [c]ourt's decision takes into
consideration the plaintiffs' impact, the
skill and complexity of the case, and the
ultimate results received as a result of the
litigation.

The judge granted plaintiffs $11,362.50 in counsel fees and

$568 in costs. Although the Borough argued against an award of

any counsel fees, it did not object to the amount of fees awarded

by the court. According to plaintiffs' counsel, the fees awarded

by the trial court constituted 30.3 of the 240 billable hours

recorded for the underlying action. The judge found the following

items and hours spent were unreasonable: (1) sixty hours drafting

the complaint and brief; (2) twelve hours drafting and reviewing

OPRA documents; (3) seventy-one hours researching and writing the

application for the fee award; (4) four to five hours photographing

the sidewalk; (5) two hours surveying the addresses of downed

11 A-2988-14T1
trees; (6) an unspecified amount of time writing ten letters to

the trial court; and (7) five hours speaking with clients prior

to drafting the verified complaint.

II

We start our legal analysis by addressing the Borough's

argument on cross-appeal. The Borough argues plaintiffs cannot

be a prevailing party under 42 U.S.C.A. § 1983 because the trial

judge did not make "a final determination on the merits holding

that defendants engaged in any constitutional violations." We

disagree. Plaintiffs do not need a final determination on the

merits to be considered "a prevailing party" under the catalyst

theory. Indeed, we addressed this precise issue in D. Russo,

Inc., supra, 417 N.J. Super. at 384. Writing for the panel, our

colleague Judge Skillman noted:

Our courts . . . have recognized that success
in obtaining preliminary injunctive relief may
provide a sufficient foundation for an award
of the attorney's fees under a fee-shifting
statute even though the case became moot
before a final adjudication.

. . . .

In the absence of a judgment or enforceable
consent decree, the catalyst theory entitles
a plaintiff to an award of attorney's fees if
it "can demonstrate: (1) 'a factual causal
nexus between plaintiff's litigation and the
relief ultimately achieved'; and (2) 'that the
relief ultimately secured by plaintiffs had a
basis in law.'"

12 A-2988-14T1
 [Id. at 389–90 (citations omitted).]

Here, the trial judge found an explicit causal nexus between

plaintiffs' lawsuit and the Borough's decision to repeal Ordinance

941, § 368-15. The judge made specific findings concerning the

second prong of the catalyst theory when he preliminarily enjoined

the ordinance's enforcement. As we previously noted, the four-

prong analysis the judge was required to follow included an

assessment of whether the underlying claim had "a reasonable

probability of success on the merits." Crowe, supra, 90 N.J. at

133 (citation omitted). The record shows the Borough viewed

plaintiffs' claim in a similar light. Although the restraints

issued by the judge applied only to the summonses issued against

these four plaintiffs, the Borough voluntarily vacated all

enforcement actions pending at the time, consisting of sixty

individual summonses. More importantly, the judge's decision in

support of the preliminary injunction is replete with examples of

the ordinance's imprecision and vagueness.

Finally, we address plaintiffs' direct appeal challenging the

amount of counsel fees awarded by the trial judge. As we

emphasized above, the Borough did not oppose this aspect of

plaintiffs' case before the trial court. Our Supreme Court has

admonished that "a reviewing court will disturb a trial court's

award of counsel fees 'only on the rarest of occasions, and then

13 A-2988-14T1
only because of a clear abuse of discretion.'" Litton Indus.,

Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting

Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440

(2001)). An "abuse of discretion only arises on demonstration of

'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6,

20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and

occurs when the trial judge's "decision is 'made without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).

A trial court determines an attorney's fee award by following

the standard established by our Supreme Court in Rendine v.

Pantzer, 141 N.J. 292 (1995). The analysis begins by determining

the "lodestar[,]" which equals the "number of hours reasonably

expended multiplied by a reasonable hourly rate." Id. at 334–35.

To determine the lodestar, a trial court must first determine the

reasonableness of the prevailing counsel's proposed rates by

comparing them to the rates "'for similar services by lawyers of

reasonably comparable skill, experience, and reputation[]'" in the

community. Id. at 337 (quoting Rode v. Dellarciprete, 892 F.2d

1177, 1183 (3d Cir. 1990)). The next step requires the court to

determine whether the time expended is equivalent to the amount

14 A-2988-14T1
of time "competent counsel reasonably would have expended to

achieve a comparable result[.]" Id. at 336. When calculating the

lodestar, the court may exclude any excessive, redundant, and

unnecessary hours spent on the case. Id. at 335–36 (citations

omitted).

Once the lodestar is calculated, the trial court can then

adjust the amount. Id. at 336. The amount can be decreased if

the prevailing party achieved only limited success in relation to

the relief sought, ibid., but the amount may be increased if the

case was taken on a contingency basis. Id. at 340. Where

appropriate, "contingency enhancements in fee-shifting cases

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."

Id. at 343.

Here, the trial judge reduced the award of fees after

carefully reviewing plaintiffs' counsel's timesheets and the

description of the work plaintiffs' counsel performed. The judge

used his discretionary authority to reduce or outright disallow

time that he found excessive or not commensurate to the tasks

described. The judge accepted plaintiffs' counsel's $425 hourly

rate as reasonable. The Borough did not challenge the court's

lodestar analysis or determination. As an appellate court, we see

15 A-2988-14T1
no legally sustainable reason to question the trial judge's

ultimate determination concerning the amount of fees awarded.

Affirmed.

16 A-2988-14T1