SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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TOWNSHIP OF TEANECK and ISSA ABBASI, T eaneck C ustodian of R ecords , Plaintiffs

- Appellants,

v. ELIE C. JONES, Defendant

- Respondent.

______________________________

Argued February 5, 2019

– Decided July 12, 2019 Before Judges Rothstadt, Gilson and Natali. On appeal from the Superior Court of New Je rsey, Chancery Division, Bergen County, Docket N o. C

000 014

- 17. John L. Shahdanian argued the cause for appellants (Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; John L. Shahdanian, of counsel; William F. Rupp, on the brief s). Walter M ichael Luers argued the cause for respondent.
PE R CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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Plaintiffs Township of Teaneck and its Custodian of Records, Issa Abbasi, appeal from the Chancery Division's (1) March 9, 2017 denial of their application for a preliminary injunction; (2) July 21, 2017 grant of partial summary judgment to defen dant Elie C. Jones; (3) August 25, 2017 award of attorney s ' fees to defendant ; 1 and (4) September 14, 2017 dismissal of their complaint for injunctive relief and declaratory judgment. The complaint sought relief under the Declaratory Judgment Act (DJA) , N .J.S.A. 2A:16

- 50 to

- 62 . It alleged that between November 16, 2016 and January 17, 2017, defendant, with whom Teaneck has a history of contentious litigation, submitted 380 requests under the Open Public Records Act (OPRA), N.J.S.A. 47:1A

- 1 to

- 13. Plaintiffs sought a declaration that the requests were an abuse of the OPRA process and constituted harassment, thereby reliev ing plaintiffs of any oblig ation to respond
to defendant's voluminous requests and entitling them to a permanen t injunction prohibiting defendant from submitting any further OPRA requests . In the alternative, they sought permission to assess a special handling fee to be paid by

1 Although plaintiffs' appellate case information statement identified as an order under appeal the Chancery Division's August 25, 2017 denial of their motion for reconsideration, their brief does not address that portion of the motion judge's order. We therefore consider that challenge to be waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp. , 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) ("An issue that is no t briefed is deemed waived upon appeal")

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def endant to reimburse plaintiffs for costs incurred in responding to defendant's OPRA requests.
For the reasons that follow, we dismiss plaintiffs ' appeal as moot, except as to the award of counsel fees , which we affirm , substantially for the reason
expres sed by Judge Robert P. Contillo in his written decision accompany ing the
order that award ed fees. A detailed discussion of the matter's procedural history is necessary to give context to our determination. As noted, plaintiffs ' complaint was filed in
response to defendant's OPRA request s , without plaintiffs ever responding to them as required by OPRA . Plaintiffs allege d that defendant's requests covered "a wide variety of topics dating as far back as the year 2000," included "d uplicates and triplicates of previous OPRA requests for which [plaintiffs] had previously responded," and requested "documents which do not exist," or were "so vague and incoherent as not to be susceptible of response." P laintiff s also alleged the sole mo tive behind defendant's request was to harass and abuse Teaneck in order to coerce a settlement of defendant's claims in a separate lawsuit.
On Janu ary 17, 2017, plaintiffs filed their complaint and simultaneously sought to preliminarily enjoin defendant f rom filing additional OPRA requests

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On February 2, 2017, defendant voluntarily withdrew 290 of his 380 OPRA requests, and filed an answer and counterclaim alleging violations of OPRA and
his commo n law right of access based on plaintiff s ' failure to resp ond to thirty

one of the remaining identified OPRA requests. At oral argument on March 1, 2017 , plaintiffs argued that a preliminary injunction should be ordered under the court 's inherent power "to prevent abuse and protect public officials under OPRA" as discussed in our opinion in MAG
Entm ' t, LLC v. Div

. of Alcoholic Beverage Control , 375 N.J. Super. 534, 546 (App. Div. 2005). Defendant argued that the court did not have subj ect matter jurisdiction to issue the relief that plaintiffs sought, that his voluntary withdrawal of 290 OPRA requests balances the equities in his favor, that a preliminary injunction would amount to a prior restraint on his political speech, and that pla intiffs should have sought relief under the procedures of OPRA section 5(g), N.J.S.A. 47:1A

- 5(g). Judge Contillo denied the application . In his twenty

- page written decision, the judge applied "standard injunction jurisprudence" and stated that

u nder the l aw "there does not appear to be a right vested in records custodians to seek affirmative relief against a requestor under OPRA, " for " a total ban on OPRA requests" regardless of how frivolous or abusive the requests are.5 A

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Therefore, plaintiffs failed to de monstrate a reasonable likelihood of success on the merits of their declaratory judgment action. Further, he found that defendant's OPRA requests did not cause immediate and irreparable harm to plaintiffs because they had a rem edy under OPRA

-- to deny th e request

-- and that the potential for plaintiffs' denial of a request to result in an award of
at torneys ' fees against the municipality did not constitute irreparable harm. Although the judge acknowledged a "court's inherent power to prevent abuse and to protect the public officials involved in handling and responding to OPRA requests," he was not convi n ce d "at this stage of the litigation" that a
restrai nt was "reasonable or necessary" to plaintiffs addressing "the remaining,

un - abandoned OPRA request s ." Accordingly , th e judge denied plaintiffs' request for preliminary relief

. At a case management conference held on March 29, 2017, the parties agreed to "prioritize" defendant's request and to the e ntry of an order that required plaintiffs to respond to defendant's thirty

- one OPRA requests within forty

- five days. The parties later resolved twenty

- six of the requests, leaving five in dispute. As to those unresolved requests, o n June 5, 2017, defendant filed a motion for summary judgme nt , arguing that plaintiffs failed to provide6 A

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the documents requested according to the timetable created by the March 29 order. On July 13, 2017, Judge Contillo denied summary judgment as to f our of the five OPRA requests. As to the remaining request, which sought copies of "settlement documents and cost [s] to [Teaneck] for all legal settlements for
discrimination or any other reason from 2000

- 2016," the judge held that plaintiffs cannot deny the request on the basis of lack of specificity, the extensive number of third pa rties who may possess such documents, or the substantial disruption to its operations that fulfilling the request would allegedly

cause. In reaching his decision, Judge Contillo relied upon our opinion in Burnett v. Cty

. of Gloucester , 415 N .J. Super. 506 (App. Div. 2010), and the fact that plaintiffs failed to provide any credible evidence that they attempted to reach an accommodation with defendant pursuant to N.J.S.A. 47:1A

- 5(g). He ordered plaintiffs to comply with defendant's OPRA request or to seek a reasonable accommodation. On August 1, 2017, defendant moved for an award of attorney s ' fees and
costs pursuant to N.J.S.A. 47:1A

- 6 and Rule 4:42

- 9(a)(8). In his supporting certification of services , defendant's counsel set forth all of the information required under Rule 4:42

- 9 (b), including that which addressed the RPC 1.5(a)7 A

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factors, supported by detailed billing records. The records indicated that after a voluntary reduction "for lack of success" of 7.1 hours of attorney time and 2.0 hours of law clerk time , at a total value of $2,528.50 , defendant's attorneys sought a total award of $ 20 , 647.53

. On August 10, 2017, plaintiffs cross

- moved for reconsideration of the judge's denial of their application for a pr eliminary injunction. They relied upon
t he New Jersey Supreme Court 's August 3, 2017 opinion in Carter v. Doe , 230 N.J. 258 (2017)

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O n August 24, 2017 , after considering the parties' oral arguments, Judge Contillo reconsidered in light of the holding in Carter , and concluded that it did not alter his conclusion that a public entity receiving a burdensome OPRA request cannot seek preliminary relief in the courts. Rather , when a public entity is faced with this problem, the proper recourse is to first seek a reasonable

2 In Carter , the Supreme Court held that when an agency denied an OPRA request, only the requestor could seek judicial review. The Court "conclude[d] that section 6 of OPRA's special procedure for review of an agency's denial must prevail over the general DJA statut e. Accordingly, after an agency has denied a request, section 6 is triggered, and only the requestor may seek judicial review of the agency's decision." Id. at 278. It then upheld the denial of OPRA requests for firefighters' financial disclosures based upon privacy interests, while not "reach[ing] the question of whether a public entity may file a pre

- denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA's privacy prong, N.J.S.A. 47:1A

- 1." Id. at 279.8 A

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accommodation fr om th e requestor, and if that does not resolve the issue, then the public entity is to deny the OPRA request. Addressing defendant's application for attorneys ' fees, Judge Contillo found that defendant was entitled to an award of fees under the "catalyst t heory" because there was " a factual causal nexus between the litigation and the overall relief ultimately achieved by [ d ] efendant " and a basis in law for the disclosure of the records. He concluded that being a defendant seeking relief through a countercl aim did not affect the analysis, and that defendant's counterclaims satisfied the factual

- nexus and basis

- in

- law requirements. According to the judge, the cost for time expended by defendant's attorney in opposing th e relief sought by plaintiffs was recove rable because plaintiff s ' application was "at variance with OPRA, and

. . . [caused] production of the
lion's sha re of unwithdrawn OPRA requests. " T he judge would not a ward the fees associate d with " unsuccessfully advocating for production of records

. . . a s to which [Teaneck], substantially prevailed on the merits ." For that reason, the judge further reduced the award to $19,098.00 in attorneys' fees and $826.03 in costs after finding that counsels' rates were "fair and reasonable, and that the quantum of hours overall [were] reasonable and proportionate, and the expenses fair, reasonable and customary."9 A

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On September 12, 2017, plaintiffs and defendant reached a settlement as to how plaintiffs would respond to defendant's remaining OPRA request. Accordin gly, at a case management conference on September 14, 2017, plaintiffs' counsel advised Judge Contillo that the parties agreed upon "a reasonable accommodation" and plaintiffs were in the process of responding to
defendant's request. 3 Defendant asked for the dismissal of the parties ' remaining claims and plaintiffs did not object or take any action to preserve any claims. Judge Contillo entered the order dismiss ing plaintiffs' complaint and defendant's counterclaim with prejudice. This appeal followed. On appeal, plaintiffs raise three arguments : (1) they were entitled to injunctive and declaratory relief "to pr e vent abuse under OPRA," which the judge had "inherent power" to grant and which was authorized by the DJA ; (2) their denial of defendant's one O PRA request was proper because it was "overbro a d," lacked specificity , and because of its timespan, would be over burdensome fo r plaintiffs to a ttempt to respond ; and (3) defendant was not entitled to attorneys ' fees because he was not a " prevailing party" as plaintiffs

3 We understand that plaintiffs have supplied in excess of four thousand pages of records in accordance with their agreement and that they entered into a consent order staying payment of the aw a rded counsel fees pending a ppeal.10 A

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did not reject his request and , even if defendant was entitled to fees, the award was "excessive in light of the limited relief granted." We conclude that plaintiff s ' first two contentions are now moot. "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Stop & Shop Supermarket Co., LLC v. Cty. of Bergen , 450 N.J. Super. 2 86, 291 (App. Div. 2017) (finding an OPRA requestor's claim moot where the records were provided before the requestor filed a DJA action) (quoting Betancourt v. Trinitas Hosp. , 415 N.J. Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, [or] a judgment cannot grant effective relief[.]" Ibid. (alteration s in original) (quoting Cinque v. N.J. Dep't of Corr ., 261 N.J. S uper. 242 , 2 43 (App. Div. 1993) ).

" A n issu e is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Comando v. Nugiel , 436 N.J. Super. 203, 219 (App. Div. 2014) (quoting Greenfield v. N.J. Dep't of
Corr. , 382 N.J. Super. 254, 257

- 5 8 (App. Div. 2006)). When p arties to a litigation resolve the original issue in their case, the matter is technically moot

. De Vesa v. Dorsey , 134 N.J. 420, 428 (1993) (Pollock, J., concurring); see also11 A

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Matthew G. Carter Apartments v. Richardson , 417 N. J. Super. 60, 67 (App. Div. 2010)

. "On occasion, however, courts have decided an otherwise moot appeal 'where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review.'" Betancourt , 415 N.J. Super. at 311 (qu oting Zirger v. Gen. Accident Ins. Co. , 144 N.J. 327, 330 (1996)) ; see also Carter , 230 N.J. at 279.
In Stop & Shop Supermarket Co., LLC , we considered the concept of mootness in t he context of a DJA action filed by a requestor of records. We stated the following :

[T]he remedy of a declaratory judgment is circumscribed by the salutary qualification that the jurisdiction of the courts may not be invoked in the absence of an actual controversy. [W ]here the issue is moot, declaratory judgment will not lie because of the absence of an actual controversy. Because Stop & Shop received the records, its right to receive them is a moot issue, and it has no entitlement to proceed under the [DJA]. [ Stop & Shop Supermarket Co., LLC , 450 N.J. Super. at 294 (alterations in original) (citations and internal quotation mark s omitted) .] In this DJA matter, Teaneck has supplied the requested records. It is undisputed therefore that the parties resolved through agreement all of the issues regarding defendant's OPRA requests once plaintiffs' application s for12 A

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preliminary restraints and declaratory relief were denied. Although Judge Contillo later granted partial summary judgment, the relief awarded was simply
to direct plaintiffs to either produce the documents , or negotiate a reasonable accommodation, or deny defendant's one remaining request

. The judge was never asked to rule on whether a permanent injunction was warranted as demanded by plaintiffs. Instead, t he parties w orked out a resolution and they ultimately agreed to the dismissal of their claims with prejudice.
W e do not believe that this moot appeal requires our attention because it is "one of substantial importance, likely to reoccur but capable of e vading review." For that reason, plaintiffs ' arguments do not warrant our consideration where granting relief to them , if we were so inclined, would no longer be of any value to the parties under the present cir c u m stances , as there is no dispute about
def endant's OPRA request

. We therefore address only plaintiffs ' challenge to Judge Contillo's award of counsel fees to defendant. Plaintiffs argue that defendant was not a "prevailing party" under OPRA because plaintiffs never denied defendant's
OPRA requests, but rather filed their complaint to enjoin defendant 's abusive use of OPRA. According to plaintiff, because defendant's initial requests were harassing , he cannot be considered a prevailing party

. With regard to the one13 A

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OPRA r equest about which the judge required a response or for the parties to resolve, plaintiffs concede that they denied defendant's request , but they argue defendant was afforded only limited relief and the fee award should be reduced to reflect this fact. W e disagree with pla intiffs' contentions. Whether OPRA applies to a litigant's application for fees is a " legal
conclusion [] subject to [our] de novo review. " Wronko v. N.J. Soc'y for Prevention of Cruelty to Animals , 453 N.J. Super. 73, 79 (App. Div. 2018) (citing O'Shea v. Twp. of W

. Milford , 410 N.J. Super. 371, 379 (App. Div. 2009))

. If it does, w e review awards of counsel fees for an abuse of discretion. McGowan v. O'Rourke , 391 N.J. Super. 502, 508 (App. Div. 2007). Determinations regarding counsel fees "will be di sturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Ibid. (quoting
Packard

- Bamberger & Co. v. Collier , 167 N.J. 427, 444 (2001)). An OPRA "requestor who prevails in any proceeding shall be entitled to a reasonab le attorney's fee." N.J.S.A. 47:1A

- 6. A requestor is entitled to attorney s ' fees "[i]f the court determines that the custodian [of the record] unjustifiably denied access to the record in question[.]" New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr. , 185 N.J. 137, 153 (2005); see also Wronko , 453 N.J. Super. at 82.14 A

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The purpose of the fee shifting provision of OPRA is to ensure "that plaintiffs with bona fide claims are able to find lawyers to represent them[,]

. . . to attract compet ent counsel in cases involving an infringement of statutory rights[,]

. . . and to ensure justice for all citizens." Coleman v. Fiore Bros., Inc. , 113 N.J. 594, 598 (1989). Our courts use the "catalyst theory" to determine whether a plaintiff is a prevail ing party in a litigation. A plaintiff must 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.'" Mason v. City of Hoboken , 196 N.J. 51, 76 (2008) (citing Singer v. State , 95 N.J. 487, 494 (1984)). Applying those guiding principles , we conclude that Judge Contillo correctly determined defendant was a prevailing party. In this case, there was a factual causal nexus bet ween defendant's counterclaims and the ultimate agreement between the parties to fulfill those requests. Furthermore, there was a basis in law for the relief granted to defendant, as the judge found that plaintiffs and defendant needed to reach a "reasona ble accommodation" in accordance with N.J.S.A. 47:1A

- 5(g). Notably, we agree with the judge's determination that plaintiffs ' filing of a DJA complaint without responding to defendant's initial15 A

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request by invoking OPRA and seeking a reasonable accommodatio n or denying the request, resulted in defendant realizing costs for legal fees to respond to plaintiffs' attempt to avoid producing any records to which he should not have been exposed and which OPRA does not contemplate if as here a requestor prevails

. S ee N.J.S.A. 47:1A

- 6 ("A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee" (emphasis added)). Turning to the judge's determination o f the amount of counsel fees awarded, we discern no abuse of discretion. In determi ning the amount of the award, a court must calculate the "lodestar," which is the number of hours reasonably expended by the successful party's counsel, multiplied by a reasonable hourly rate. Litton Indus., Inc. v. IMO Indus., Inc. , 200 N.J. 372, 386 (20 09). In calculating the "lodestar," the court considers:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances;16 A

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-- even a high degree of success

-- might be acquiring that one smoking gun record hidden amongst hundreds of pages or . . . it may be the absence of any records." Ibid. (internal quotation marks omitted).17 A

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Judge Contillo found that counsel's hourly rates and the number of hours expended by counsel were reasonable. Consequently, he awarded defendant approximately ninety percent of the fees sought, crediting plaintiffs more than the amount deducted by defenda nt's counsel for time spent seeking the production of the four categories of records to which the judge found on summary judgment defendant was not entitled. The record demonstrates that the application for fees and counsel's certification of services we re thorough. The certification outlined counsel's qualifications, hourly rate, and compensation in similar matters, and provided
detail s about the work counsel performed and the time expended. Accordingly, we discern no abuse of discretion in the amount of fees and costs awarded. Affirmed in part; dismissed as moot i n part.