SUPERIOR COURT OF NEW JERSE Y

APPELLATE DIVISION

DOCKET NO . A

- 0859

- 17T2

DONALD NUCKEL,

Plaintiff

- Appellant,

v.

NEW JERSEY ECONOMIC

DEVELOPMENT AUTHORITY,

an a gency of the State of New

Jersey, and MARCUS SALDUTTI,

Senior Legislative Officer of the

New Jersey Economic

Development Authority,

Defendant s

- Respondents

,

and

DOKA U.S. A.

, LTD

,

Intervenor

- Respondent.

____________________ _________

A rgu ed January 16, 2019

- Decided May 19, 2020

Before Judges Fuentes, Accurso, and Vernoia.

On appeal from the Superior Court of New Jersey, Law

Division, Mercer County , Docket No. L

- 0001

- 17

.

NOT FOR PUBLICATION WITHOUT THE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

- 3.2 A

- 0859

- 17T2 Martin R. Kafafian argued the cause for appellant

( Beattie Padovan o, LLC , attorneys ; Arthur N. Chagaris,

of counsel a nd on the brief s ; Martin R. Kafafian , on the

brief s ).

Ryan J. Brown

, Deputy Attorney General, argued the

cause for respondents ( Gurbir S. Grewal, Attorney

General, attorney ; Raymond R. Chance, III, Assistant

Attorney Genera l, of counsel; Ryan J. Bro wn, on the

brief).

Justin D. Santagata argued the cause for intervenor

respondent ( Kaufman Semeraro & Leibman , LL P

, attorneys; Justin D. Santagata, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Plaintiff Donald Nuckel owns various properties in the Borough of

Wallington in Bergen County and is a principal in the Wallington Real Estate

Investment Trust (WREIT)

. Defendant New Jersey Economic Development

Authority (NJEDA) is an independent state agency established under N.J.S.A.

34:1B

- 1 to

- 21.36. Intervenor Doka USA Ltd. (Doka) is a wholly

- owned

subsidiary of an Austrian construction conglomerate with a leased facility in

Little Ferry, New Jersey.

Doka decided to reloca te its Little Ferry

, New Jersey operations to a

different location. In September 2016, Doka qualified for the Grow New Jersey3 A

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Program 1 and was granted an estimated annual award of $300,000 " for a 10

- year

term" 2 to purchase and open a new facility in the Borough of Wallington. Doka

elected to purchase a twenty

- six

- acre tract in Wallington from Farmland Dairies,

Inc., which abuts a property owned by WREIT

.

O n September 29, 2016

, p laintiff filed a request with the NJEDA under

the Open Public Records Act (OPRA), N.J.S.A. 47:1A

- 1 to

- 13

, seeking all

documents and communications by either Doka or NJ E D A "in support of its

applications for a NJ Grow tax credit[.]" Plaintiff's counsel thereafter narrowed

the scope of the request by seeking only documents "con cerning real property in

[the B orough of] Wallington." On October 21, 2016, Marcus Saldutti

, NJ E D A's

Senior Legislative Officer and designated OPRA records custodian

, emailed

Doka 's representative to apprise him of plaintiff's request for records and to

ascertain Doka's position on the matter, including whether Doka was willing to

defend NJ E D A in any litigation related to this request.

1 The Grow New Jersey Assistance Program " is available to businesses creating

or retaining jobs in New Jersey and making a qualified capital investment at a

qualified business facility in a qualified incentive area. " Successful applicants

are awarded tax credits.

2 The appellate record includes a copy of the minutes of the Sept ember 9, 2016

meeting of the NJ E D A, which reflect the unanimous approval of Doka 's award.4 A

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In a letter dated October 27, 2016, Doka's counsel confirmed to Mr.

Saldutti that Doka agreed to defend NJ E D A in any litigation related to this

matter. Doka's counsel also identified the following eight documents that

, in his

judgment, w ere responsive to plaintiff's request : (1) a concept plan, (2) an

incentive map, (3) a letter of interest, (4) an environmental summary, (5) site

photographs, (6) a site plan email, (7) a layered new structure document, and (8)

a demolition plan with Doka's salary and financia l information. Counsel for

Doka opined that

, other than the site photo, plaintiff's remainin g requests were

vague

, improper

, and reference trade secrets. Thus, in Doka’s view, these

requests were not subject to disclosure under OPRA.

On October 28, 2016, plaintiff submitted a second OPRA request seeking

the eight records Doka's counsel identif ied in the October 27, 2016 letter. On

November 16, 2016, in response to the second OPRA request, Mr. Saldutti

provided plaintiff the incentive map and site photographs, but did not produce

the other request ed documents because they contained Doka's trade secrets and

proprietary information.

Pursuant to N.J.S.A. 47:1A

- 6

, plaintiff filed an Order to Show Cause

(OTSC) against NJ E D A to compel access to the six remaining documents.

Before the start of the summary proceeding

, Judge Mary C. Jacobson, the5 A

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vicinage's designated OPRA judge, 3 granted Doka's motion to intervene

. After

considering the arguments of counsel, J udge Jacobson ordered defendants to

submit the remaining documents for in camera review.

While th e OPRA litigat ion was pending before Judge Jacobson

, WREIT

issued a subpoena to Doka in a related tax litigation seeking : (1) any and all

documents related to a contract between Farmland Dairies and Doka, (2) letters

of intent related to the purchase or sale of the subj ect properties, (3)

environmental reports related to the subject property, and (4) any other

documents that would be relied on to show the value of the subject properties

.

Doka respon ded to th e subpoena and provided WREIT with the documents

requested, which contained the same information plaintiff s ought in the OPRA

summary proceedings.

Doka's counsel thereafter apprised Judge Jacobson that plaintiff was in

possession of the information he sought in the OPRA case

, rendering the case

moot. Plaintiff ac knowledged that Doka had provided the information at issue

in the OPRA case in response to the subpoena issue by WREIT in the Tax Court

3 Pursuant to N.J.S.A. 47:1A

- 6 , a summary action filed in the Superior Court to

seek access to a government record "shall be heard in the vicinage where it is

filed by a Superior Court Judge who has been designated to hear such cases

because of that judge’s knowledge and expertise in matters relating to access to

government records [

. ] "6 A

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matter. Plaintiff nevertheless moved for an award of counsel fees and costs

before Judge Jacobson under the fee

- shiftin g provision in N.J.S.A. 47:1A

- 6

based on the catalyst theory adopted by the Supreme Court in Mason v. City of

Hoboken

, 196 N.J. 51, 76 (2008).

After considering the arguments of counsel, Judge Jacobson denied

plaintiff's application for counsel fees and dismissed the OPRA complaint with

prejudice

. The judge found the record developed in this case was not sufficient

to satisfy the elements of the catalyst theory

. Against this backdrop, plaintiff

appeals arguing the judge erred in denying his request for counsel fees. We

disagree and affirm substantially for the reasons expressed by Judge Jacobs on

.

As a threshold issue, t he parties disagree on the applicable stan dard of

review this court should employ

. Plaintiff argues we should review the trial

court's decision de novo because determining whether plaintiff is entitled to an

attorneys' fees award under OPRA is purely a legal issue. N. Jersey Media Grp.,

Inc. v. Bergen Cnty. Prosecutor's Office

, 447 N.J. Super. 182, 194 (App. Div.

2016)

. Doka maintains that the relevant standard of review is abuse of discretion

under Packard

- Bamberger & Co. v. Collier

, in which the Supreme Court stated :

"fee determinations by tri al courts will be disturbed only on the rarest of

occasions, and then only because of a clear abuse of discretion." 167 N.J. 4 27,7 A

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444 (2001)

. NJ E D A did not address the standard of review question in its

appellate brief.

Our standard of review depends on the nature of the issue s before us. If

plaintiff's appeal is predicated on the amount of counsel fees the trial court

awarded him as a prevailing requestor under OPRA, the standard of review

would be abuse of discretion. Packard

- Bamberger & Co. v. Colli er

, 167 N.J.

427

, 444 (2001). However, the issue before us is whether plaintiff is entitled to

an award of counsel fees under OPRA

. P laintiff argues Judge Jacobson erred as

a matter of law when she rejected the applicability of the catalyst theory.

Beca use this is purely a legal question, it is subject to de novo review. Toll

Bros. v. Twp. of W. Windsor

, 173 N.J. 502, 549 (2002).

A plaintiff need not obtain a final judgment on the

merits or secure a consent decree from a defendant in

order to be considered a " prevailing party" under the

catalyst theory. In order to be awarded counsel fees

under the catalyst theory, a plaintiff must demonstrate

(1) a factual causal nexus between the litigation and the

relief ultimately achieved; and (2) that the relief

ultimately secured by plaintiff had a basis in law.

[ Jones v. Hayman

, 418 N.J. Super. 291

, 305 (App. Div.

2011) ( quoting Mason

, 19 6 N.J. 72

- 76 ) .]

Mindful of this legal standard, Judge Jacobson found:

[T] he documents are ultimately provided by Doka in

the context of the WREIT versus Farmland Dairies,8 A

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- 17T2 New Jersey Tax Docket Number 590

- 2017. Doka was

subpoenaed to provide information in that case. We

have representations and there have been

certification [s] filed by Doka's counsel and documents

attached to show what the subpoena requested and what

they provided. But the documents that Mr. Nuckel got

through that litigatio n with Farmland Dairies in the tax

court were documents that were also requested here, but

the catalyst for his getting those documents was the

subpoena in the tax case and not any ruling from this

Court, not any settlement that was achieved by the

parties in this court, and not any voluntary action from

the [NJ] EDA that is connected to this litigation.

Plaintiff has the burden of proof to show the OPRA litigation was the

catalyst for disclosure. Mason

, 196 N.J. at 57

. Judge Jacobson's ultimate

conclusion is predicated on these undisputed facts. We discern no legal basis to

disturb Judge Jacobson's decision.

Affirmed

.