                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0859-17T2

DONALD NUCKEL,

          Plaintiff-Appellant,

v.

NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY,
an agency of the State of New
Jersey, and MARCUS SALDUTTI,
Senior Legislative Officer of the
New Jersey Economic
Development Authority,

          Defendants-Respondents,

and

DOKA U.S.A., LTD,

     Intervenor-Respondent.
_____________________________

                    Argued 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.
            Martin R. Kafafian argued the cause for appellant
            (Beattie Padovano, LLC, attorneys; Arthur N. Chagaris,
            of counsel and on the briefs; Martin R. Kafafian, on the
            briefs).

            Ryan J. Brown, Deputy Attorney General, argued the
            cause for respondents (Gurbir S. Grewal, Attorney
            General, attorney; Raymond R. Chance, III, Assistant
            Attorney General, of counsel; Ryan J. Brown, on the
            brief).

            Justin D. Santagata argued the cause for intervenor-
            respondent (Kaufman Semeraro & Leibman, LLP,
            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 relocate its Little Ferry, New Jersey operations to a

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


                                                                       A-0859-17T2
                                       2
Program1 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.

      On September 29, 2016, plaintiff 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 NJEDA "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 "concerning real property in

[the Borough of] Wallington." On October 21, 2016, Marcus Saldutti, NJEDA'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 NJEDA 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 September 9, 2016
meeting of the NJEDA, which reflect the unanimous approval of Doka's award.
                                                                         A-0859-17T2
                                       3
      In a letter dated October 27, 2016, Doka's counsel confirmed to Mr.

Saldutti that Doka agreed to defend NJEDA in any litigation related to this

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

judgment, were 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 financial information. Counsel for

Doka opined that, other than the site photo, plaintiff's remaining 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 identified 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 requested 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 NJEDA to compel access to the six remaining documents.

Before the start of the summary proceeding, Judge Mary C. Jacobson, the


                                                                         A-0859-17T2
                                       4
vicinage's designated OPRA judge,3 granted Doka's motion to intervene. After

considering the arguments of counsel, Judge Jacobson ordered defendants to

submit the remaining documents for in camera review.

      While the OPRA litigation 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 subject 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 responded to the subpoena and provided WREIT with the documents

requested, which contained the same information plaintiff sought 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 acknowledged 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[.]"
                                                                        A-0859-17T2
                                       5
matter. Plaintiff nevertheless moved for an award of counsel fees and costs

before Judge Jacobson under the fee-shifting 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 Jacobson.

      As a threshold issue, the parties disagree on the applicable standard 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 trial courts will be disturbed only on the rarest of

occasions, and then only because of a clear abuse of discretion." 167 N.J. 427,


                                                                         A-0859-17T2
                                       6
444 (2001). NJEDA did not address the standard of review question in its

appellate brief.

      Our standard of review depends on the nature of the issues 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. Collier, 167 N.J.

427, 444 (2001). However, the issue before us is whether plaintiff is entitled to

an award of counsel fees under OPRA. Plaintiff argues Judge Jacobson erred as

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

Because 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, 196 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,

                                                                         A-0859-17T2
                                        7
            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 litigation 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.




                                                                        A-0859-17T2
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