                                NOT FOR PUBLICATION WITHOUT THE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 pos ted 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-2869-16T1


COMMITTEE OF PETITIONERS
TO PROTEST THE ADOPTION
OF ORDINANCE NO. 2016-01,
KENNETH E. PRINGLE, THOMAS
P. FAHY, LINDA SHARKUS,
LINDA CHELSEN, and KATRINA
CLAPSIS,

          Plaintiffs-Respondents,

v.

BOROUGH OF BELMAR,
MAYOR & COUNCIL OF THE
BOROUGH OF BELMAR, APRIL
CLAUDIO, Municipal Clerk of
the Borough of Belmar, and COLLEEN
CONNOLLY, Business Administrator
of the Borough of Belmar,

     Defendants-Appellants.
_______________________________

                    Argued September 21, 2018 – Decided April 24, 2019

                    Before Judges Simonelli, O'Connor and DeAlmeida.
            On appeal from Superior Court of New Jersey, Law
            Division, Monmouth County, Docket No. L-1392-16.

            Ramon E. Rivera argued the cause for appellants
            (Scarinci & Hollenbeck LLC, attorneys; Ramon E.
            Rivera, of counsel and on the brief; Shana T. Don and
            Craig A. Long, on the brief).

            Kenneth E. Pringle argued the cause for respondents
            (Pringle Quinn Anzano, PC, attorneys; Kenneth E.
            Pringle, of counsel and on the brief; Denise M. O'Hara,
            on the brief).

PER CURIAM

      Plaintiffs Committee of Petitioners to Protest the Adoption of Ordinance

No. 2016-01 (Committee), Kenneth E. Pringle, Thomas P. Fahy, Linda Sharkus,

Linda Chelsen and Katrina Clapsis were the prevailing parties in an action

challenging an ordinance they believed weakened or eliminated the protections

afforded by prior ordinances governing potential conflicts of interest arising

from so-called "Pay-to-Play" campaign contributions. Defendants the Borough

of Belmar (Borough), Mayor and Council of the Borough, April Claudio, and

Colleen Connolly,1 appeal from the November 10, 2016 and January 26, 2017

Law Division orders, which awarded attorney's fees and costs to plaintiffs under




1
 Claudio is the Borough's Municipal Clerk and Connolly is the Business
Administrator.
                                                                        A-2869-16T1
                                       2
the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. For the

reasons that follow, we affirm.

                                        I.

      Pringle was an individual plaintiff and member of the Committee. He was

also a partner in the law firm of Pringle Quinn Anzano, PC (PQA), which

represented plaintiffs in this matter. Pringle signed the certification verifying

the complaint filed on behalf of all plaintiffs, and he and his associate, Edward

R. Bonanno, Esq., were designated as trial counsel. Another PQA associate,

Denise M. O'Hara, also worked on the case.

      The parties engaged in extensive motion and appellate practice during the

course of this litigation.   Because this appeal only involves the award of

attorney's fees, we focus on that part of the record relating to the fee award.

      PQA filed a motion for a lodestar fee of $89,820, a forty percent

contingency enhancement, and $734.22 for costs. In support thereof, PQA

submitted certifications from Pringle, Bonanno, O'Hara, and an expert, Charles

J. Uliano, Esq. PQA also submitted an invoice showing the hourly rates charged

and services rendered by each PQA attorney.

      According to Pringle, PQA represented plaintiffs in other public interest

matters involving the Borough under the express understanding "that PQA's


                                                                           A-2869-16T1
                                        3
representation would be at no cost to them as clients, but that in the case of the

affirmative litigation matters, [PQA] reserved the right to seek to recover [its]

fees and costs from the Borough . . . to the extent allowed by law." PQA never

had a written retainer agreement with any of its public interest clients, including

plaintiffs, because PQA represented them on the express understanding that

PQA would not seek a fee from them and because the relief sought in these

matters was equitable in nature. In addition, PQA

            made clear to [its] clients verbally that [PQA] would be
            relying upon the decision in Tumpson [v. Farina, 218
            N.J. 450 (2014)] to assert claims that the Borough's
            conduct violated the [NJCRA], and that if [PQA was]
            successful, [PQA] would be seeking an award of [its]
            reasonable attorneys' fees and costs pursuant thereto.

      Pringle also certified that PQA charged $300 per hour for his services,

$250 per hour for Bonanno's services, and $225 for O'Hara's services, which

reflected the hourly rates PQA charged to its non-insurance company clients for

litigation matters. Pringle stated these hourly rates were comparable to the rates

other litigation attorneys in Monmouth County customarily charged and were

low in comparison to the rates charged by Monmouth County attorneys who

have comparable levels of skill, background and litigation experience as the

PQA attorneys. Pringle reviewed the time entries on the invoice and eliminated

charges he determined were duplicative, inefficient, or otherwise unnecessary

                                                                           A-2869-16T1
                                        4
under the circumstances of this case, or were arguably unreasonable for the

service described or not sufficiently detailed to enable him or the court to assess

whether the charges were reasonable.

      Uliano opined that the hourly rates PQA charged and the services rendered

in this matter were reasonable under RPC 1.5 and the guidelines established in

Rendine v. Pantzer, 141 N.J. 292 (1995) and Walker v. Giuffre, 209 N.J. 124

(2012).   Uliano stated the hourly rates PQA charged were lower than the

prevailing market rate in Monmouth County for an adequately experienced

attorney possessed of average skill and ordinary competence. He also stated the

hourly rates PQA charged were significantly lower than what civil litigation

attorneys of comparable backgrounds, skills and levels of experiences charged

in Monmouth County, as reflected in the PQA attorneys' biographies and the

quality of the submissions to the court.

      Uliano reviewed the invoice and noted the numerous time entries Pringle

eliminated because they were duplicative, unproductive, and otherwise not

appropriately billed under RPC 1.5. Uliano concluded that for an average

Monmouth County law firm to successfully litigate a case of this type against a

municipality, the firm would have to expend at least the amount of time the PQA

attorneys spent in this matter.


                                                                           A-2869-16T1
                                           5
      Defendants did not submit any certifications or documents countering

Pringle's and Uliano's certifications. Rather, they argued that plaintiffs were not

entitled to a fee award because there was no retainer agreement for this

contingency matter, as required by RPC 1.5 and Rule 1:21-7, and PQA provided

the services on a pro bono basis. Defendants noted that more than half of the

fee sought related to the services Pringle performed, and without a retainer

agreement specifying the scope of services, it was difficult to assess whether he

or any other attorney was acting on his behalf or on behalf of the other plaintiffs.

Defendants posited that if Pringle was acting on his own behalf, plaintiffs were

not entitled to attorney's fees under the NJCRA, as Pringle was essentially

appearing pro se. Defendants further argued there should be no fee award

because plaintiffs did not actually incur legal fees. In the alternative, defendants

argued the court should reduce the fee sought by one-fifth because a pro se

attorney is not entitled to recoup fees. Defendants also stated the hourly rates

charged and services rendered were not reasonable.

      In a November 3, 2016 oral opinion, the motion judge disagreed with

defendants' argument that PQA was not entitled to a fee award because there

was no written retainer agreement. The judge found there was no evidence of

any misunderstanding between plaintiffs and PQA as to PQA's agreement not to


                                                                            A-2869-16T1
                                         6
take payment from plaintiffs directly but reserving the right to pursue all legally

allowed fees. The judge determined that to award no fees was contrary to the

Legislature's intent to permit a fee award under the NJCRA, and would have the

effect of discouraging attorneys from taking on matters of public importance,

such as this one, where the only possibility for a fee award is by statute. The

judge also found that the lack of a retainer agreement did not affect her ability

to analyze the certifications and invoice to determine whether the fee sought was

reasonable.

      The judge also disagreed that Pringle's role in the case deprived plaintiffs

of their statutory right to a fee award in whole or in part. The judge found that

Pringle was not acting pro se, but rather, PQA represented all plaintiffs, and

Pringle's status as a member of the firm, a member of the Committee, and an

individual plaintiff did not strip plaintiffs of their statutory right to an award of

reasonable attorney's fees.

      The judge found that plaintiffs would have incurred the same fees and the

same work would have been performed on their behalf regardless of whether

Pringle was a plaintiff or a Committee member. The judge disagreed that it was

impossible to determine what services Pringle rendered as an attorney or in a

witness capacity, and found the distinction was readily discernible by a review


                                                                             A-2869-16T1
                                         7
of the invoice, which eliminated charges for services he rendered as a fact

witness. The judge also noted defendants failed to cite any authority supporting

their argument.

      As for the reasonableness of the rates PQA charged, the judge found

defendants submitted no certifications to refute Pringle's and Uliano's

certifications and merely made bald assertions that the rates were unreasonable.

The judge also noted that the Borough had once retained the Gibbons law firm

at a blended rate of $450 per hour, which was significantly higher than the rates

PQA charged in this matter. The judge further noted there was a distribution of

the work among the PQA attorneys, with some work done at an associate's rate

versus a partner's rate, and Uliano opined the rates PQA charged were

reasonable and significantly lower than what Monmouth County civil litigation

attorneys charged. The judge concluded the rates PQA charged were reasonable.

      As for the reasonableness of the services rendered, the judge found that

given the nature of the case, it was reasonable for more than one attorney to

work on it. However, the judge reviewed the invoice and reduced the charges

for duplicative or excessive work, work that PQA should have billed at a lower

rate, and unnecessary work. The judge was able to determine the reasonableness

of the time spent for a particular activity regardless of defendants'


                                                                         A-2869-16T1
                                       8
characterization of the entry as block billing. The judge concluded the services

rendered were reasonable and awarded plaintiffs a lodestar fee of $87,270.

      The judge also awarded a forty percent contingency enhancement, finding

PQA achieved a high degree of success, there was a high risk of non-payment

to the firm, and the matter was of a high degree of public importance. The judge

considered all of the factors in Rule 4:42-9, RPC 1.5(a), Rendine, Walker, and

other applicable case law in reaching this conclusion. In a November 10, 2016

order, the judge awarded a total fee of $122,178 plus $734.22 for costs.

      Plaintiffs subsequently filed a motion for a lodestar fee of $9795 plus

$179.90 for costs incurred on appeal, supported by an invoice and certifications

from the PQA attorneys and Uliano. Defendants submitted a certification from

their attorney stating the hourly rates his firm charged municipal entities in

public interest matters, which were lower than the rates PQA charged in this

matter.

      In a January 12, 2017 oral opinion, the judge found that PQA's hourly

rates were reasonable and consistent with those of attorneys with reasonably

comparable skill, experience and reputation in the community.        The judge

recited the procedural history of this case to emphasize the rapid sequence of

events and the extensive work that PQA performed in a relatively short time, as


                                                                           A-2869-16T1
                                       9
well as the need for skilled, experienced attorneys working on this matter. The

judge determined that the lower rates defendants' attorney charged to municipal

entities were not dispositive of the reasonableness and appropriateness of the

rates PQA charged.      The judge concluded that the information plaintiffs

provided regarding the experience and skill of the PQA attorneys, as supported

by Uliano, confirmed the rates PQA charged on appeal were reasonable.

      The judge reviewed the invoice and reduced the amount sought to

$9,656.15. The judge also found plaintiffs were entitled to $179.90 for costs

because defendants did not dispute them. The judge entered an order on January

26, 2017, memorializing the award. This appeal followed.

                                        II.

      "We review fee determinations by trial courts with deference and will

disturb them 'only on the rarest occasions, and then only because of a clear abuse

of discretion.'" DeSanctis v. Borough of Belmar, 455 N.J. Super. 316, 335 (App.

Div. 2018) (quoting Rendine, 141 N.J. at 317). "In our review of fees awarded

pursuant to fee-shifting provisions, we do consider whether the trial court

'sufficiently address[ed] the factors or the framework that [our Supreme Court]

established in Rendine.'" Ibid. (alterations in original) (quoting Walker, 209 N.J.

at 148).   "The Court reposed discretion in trial courts to establish any


                                                                           A-2869-16T1
                                       10
contingency enhancement in fee-shifting cases." Ibid. (quoting New Jerseyans

for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 158 (2005)).

We discern no abuse of discretion here.

      An award of attorney's fees is permitted "[i]n all cases where attorney's

fees are permitted by statute." R. 4:42-9(a)(8). The NJCRA permits an award

of reasonable attorney's fees and costs to the prevailing party. N.J.S.A. 10:6-

2(f); see also Tumpson, 218 N.J. at 479. Defendants argue that PQA, of which

Pringle was a member, is not entitled to recoup its fees because a pro se attorney

may not receive a fee award under the NJCRA, and an attorney acts pro se even

when representing additional parties.

       To support these arguments, defendants cite to unpublished opinions

from this court, a published trial court opinion, an unpublished out-of-state

lower court opinion, and published opinions from federal courts. However,

these opinions do not constitute precedent or bind us.         See Lipkowitz v.

Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 36 (App. Div. 2010); Trinity

Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); Meadowlands

Basketball Assoc. v. Dir., Div. of Taxation, 340 N.J. Super. 76, 83 (App. Div.

2001); R. 1:36-3.




                                                                          A-2869-16T1
                                        11
       The published opinions defendants cite, Kay v. Ehrler, 499 U.S. 432

(1991) and Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.

Super. 510 (App. Div. 2009), do not support their arguments.

      In Kay, an attorney filed a successful action on his own behalf challenging

the constitutionality of a Kentucky statute and requested a fee award under 42

U.S.C. § 1988. 499 U.S. at 434. The United States Supreme Court, in construing

the provisions of 42 U.S.C. § 1988, concluded that an attorney representing

himself or herself cannot claim the benefits of that statute's attorney's fees

provision. Id. at 437-38. The Court's reasons for that conclusion reveal its

preference for encouraging all litigants to engage the services of independent

counsel. As such, the Court commented on the need for even a pro se attorney

to have counsel capable of "framing the theory of the case, evaluating alternative

methods of presenting the evidence, cross-examining hostile witnesses,

formulating legal arguments, and . . . making sure that reason, rather than

emotion, dictates the proper tactical response to unforeseen developments in the

courtroom." Id. at 437. Thus, the Court concluded that allowing pro se attorney

litigants to secure an award of attorney's fees would create an unwanted

disincentive for attorneys to hire counsel. Id. at 438.




                                                                          A-2869-16T1
                                       12
      In Alpert, a law firm represented itself in litigation against former clients

for attorney's fees, expenses and collection fees under a retainer agreement and

as a sanction under Rule 1:4-8(d)(2). 410 N.J. Super. at 526-28. We held that

counsel proceeding pro se cannot recover attorney's fees for frivolous litigation

because Rule 1:4-8 "specifically permits only the reimbursement of attorneys'

fees and expenses incurred by a party. It does not permit the reimbursement of

a party's loss of income in dealing with frivolous litigation." Id. at 545. We

explained this reasoning also applied to attorneys appearing pro se, because "[t]o

compensate an attorney for his lost hours would confer on the attorney a special

status over that of other litigants who may also be subject to frivolous claims

and are appearing pro se." Id. at 546. Thus, we concluded that "an attorney

appearing pro se is not entitled to fees unless they are actually incurred as

opposed to imputed." Id. at 547. We noted, however, that our holding was

"directed solely to the language of Rule 1:4-8(d)(2)" and did not deal with "the

award of fees otherwise authorized by contract, rule, or statute." Id. at 546 n.8.

      The distinction between Kay and Alpert and the case here is that Pringle

was not acting pro se, representing only himself and his own interests. Rather,

a law firm represented him as well as the other plaintiffs, and the law firm was

not a party to the litigation. Thus, Kay and Alpert do not control here.


                                                                           A-2869-16T1
                                       13
      We are satisfied the judge properly determined that Pringle's status as a

member of PQA, a member of the Committee, and an individual plaintiff did not

strip plaintiffs of their statutory right to reasonable attorney's fees. Pringle was

not acting pro se with respect to the work he performed as an attorney because

he was not representing only himself, but four other members and the Committee

of which all plaintiffs were members. As such, regardless of whether or not

Pringle was a plaintiff, he would have generated the same amount in fees and

work in this matter. Pringle's membership on the Committee did not confer upon

him any responsibilities or benefits that were different from any of the other

plaintiffs. Rather, the claims plaintiffs were collectively pursuing were entirely

equitable in nature and served to benefit the Borough of Belmar electorate as a

whole.

      Second, none of the policy considerations in support of denying attorney's

fees to pro se attorneys apply here and they should not be extended to situations

where the plaintiff-attorney also represents other co-plaintiffs. There is no

evidence that Pringle prolonged the litigation to generate more fees or filed

frivolous claims or motions. Instead, the record confirms that Pringle obtained

the relief plaintiffs sought in the verified complaint, filed a successful summary




                                                                            A-2869-16T1
                                        14
judgment motion and motions to enforce compliance with court orders, and

obtained a swift resolution of this matter.

      By representing plaintiffs and himself, Pringle did not take advantage of

a remedy meant to help ordinary citizens obtain competent representation. Fee-

shifting statutes are enacted so "that plaintiffs with bona fide claims are able to

find lawyers to represent them[,] . . . to attract competent counsel in cases

involving statutory rights, . . . and to ensure justice for all citizens." New

Jerseyans for a Death Penalty Moratorium, 185 N.J. at 153 (alteration in

original) (quoting Coleman v. Fiore Bros., Inc., 113 N.J. 594, 598 (1989)). As

a result of this fee-shifting provision, Pringle was able to provide competent

representation to the other plaintiffs who were not attorneys because his firm

could not have afforded to undertake representing plaintiffs in this case were it

not for the holding in Tumpson, which afforded them the right to recover their

reasonable fees and costs if they prevailed.

      The fact that Pringle did not expect to be paid at all, and the amount of the

award, do not affect the nature of the fee award because "the reasonable counsel

fee . . . under fee-shifting statutes is determined independently of the provisions

of the fee agreement between [the] party and his or her counsel. The statutory

fee award may be comparable to or substantially different from the amount


                                                                           A-2869-16T1
                                       15
payable under a negotiated fee agreement." Id. at 156 (alteration in original)

(quoting Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 358 (1995)).

Thus, given that the statutory fee award is not dependent on the provisions of a

fee agreement, we find no merit in defendants' argument that the attorney's fees

would not have been the same had Pringle not been a plaintiff because PQA was

charging the pro bono matter at private client rates.

      Furthermore, the fee award did not create a windfall for PQA because the

relief sought was entirely equitable in nature and plaintiffs were entitled to

reasonable attorney's fees and costs under the fee-shifting provision of the

NJCRA. The award also did not create two distinct classes of pro se litigants

who are each afforded different remedies because PQA incurred fees in

connection with its representation of both the plaintiff-attorney and the non-

attorney plaintiffs in the same matter. Thus, unlike in Alpert, 410 N.J. Super. at

546-47, Pringle was not being compensated for lost hours or fees that were

imputed, but for fees actually incurred, as he represented parties other than

himself.

      Unlike in Kay, 499 U.S. at 437-38, an attorney-client relationship existed

between Pringle and other plaintiffs, and thus, Pringle was not acting solely pro

se with a personal interest in the outcome of the case. The interest in this case


                                                                          A-2869-16T1
                                       16
was equitable in nature and benefited the whole Borough of Belmar electorate,

making Pringle a disinterested and independent party similar to any of the other

plaintiffs.   Thus, PQA is entitled to fees generated in pursuing the claims

asserted in this matter on behalf the other plaintiffs, which were the same claims

Pringle made against defendants generating essentially the same fees.

                                       III.

      Defendants contend the judge erred by disregarding the prevailing hourly

rate in the entire State of New Jersey, arguing the judge should have taken

judicial notice of the prevailing rates in public sector legal market charged

statewide, as reflected in municipal resolutions appointing attorneys.

Defendants also argue the judge should have compared the rates PQA charged

with a comparable firm, and that attorneys practicing municipal law charge

between $150 and $220 per hour. 2 This argument lacks merit.

      In Rendine, 141 N.J. at 292, and Szczepanski, 141 N.J. at 346, the Court

addressed the issue of calculation of a reasonable attorney's fee payable under

fee-shifting statutes to the prevailing party. Although occasioned by cases

involving fee-shifting legislation, such as the New Jersey Law Against



2
  Again, defendants cite to a federal court opinion to support this argument,
which does not constitute precedent or bind us.
                                                                          A-2869-16T1
                                       17
Discrimination in Rendine and Szczepanski, these standards have been applied

in situations where the prevailing party is entitled to a fee award. See Incollingo

v. Canuso, 297 N.J. Super. 57, 63-64 (App. Div. 1997). The Court declared that

conformance with the standards announced in Rendine and Szczepanski would

permit "future fee determinations . . . [to] be disturbed only on the rarest

occasions, and then only because of a clear abuse of discretion." Rendine, 141

N.J. at 317.

      In Rendine, the Court explained that the trial judge must first "determine

the lodestar, 'the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.'" Id. at 333-34 (quoting Singer v. State,

95 N.J. 487, 499 (1984)). This requires the "court to evaluate carefully and

critically the aggregate hours and specific hourly rates advanced by counsel for

the prevailing party . . . ." Id. at 335. Time not reasonably expended should be

excluded. Ibid. "A reasonable hourly rate it to be calculated according to the

prevailing market rates in the relevant community." Id. at 337 (quoting Rode v.

Dellaciprete, 892 F. 2d 1177, 1183 (3d Cir. 1990)). In general, a reasonable

hourly rate is one "that would be charged by an adequately experienced attorney

possessed of average skill and ordinary competence  ̶̶ not those that would be




                                                                           A-2869-16T1
                                       18
set by the most successful or highly specialized attorney in the context of private

practice." Walker, 209 N.J. at 132-33 (quoting Singer, 95 N.J.at 500-01).

      The same standard applies when attorneys undertake representation

without expectation of payment.       See New Jerseyans for a Death Penalty

Moratorium, 185 N.J. at 156 (holding that a reasonable counsel fee is determined

independent of the fee arrangement between a party and counsel and stating that

an attorney's expectation of payment has no bearing on the fee award); see also

BJM Insulation & Constr., Inc. v. Evans, 287 N.J. Super. 513, 517 (App. Div.

1996) (stating that the terms under which an attorney has agreed to provide

representation to a client "is none of [the obligor party's] business").

      Here, the judge acted within her discretion in finding PQA's rates were

reasonable based on Uliano's and Pringle's uncontroverted certifications. The

judge correctly determined that PQA's rates were not only reasonable, they were

significantly lower than what civil litigation attorneys in Monmouth County

charge.

      The judge found that PQA's rates on appeal were reasonable and

consistent with those of attorneys with reasonably comparable skill, experience

and reputation in the community.         The judge also found the rates were

reasonable and consistent given the information provided by the PQA attorneys


                                                                           A-2869-16T1
                                       19
regarding their experience and skill, as supported by their expert's review and

as demonstrated by the quality of the work they performed.

        The judge's findings are supported by sufficient credible evidence in the

record, ̶̶and ̶̶thus ̶̶are ̶̶owed ̶̶deference. ̶̶ ̶̶Contrary ̶̶to ̶̶defendants’ ̶̶assertion ̶̶that ̶̶the ̶̶

relevant market constitutes the entire State of New Jersey, in the lodestar

method, "the number of hours reasonably expended by counsel is multiplied by

an hourly rate appropriate for the region and the lawyer's experience." Sutter v.

Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 104 (App. Div.

2009) (emphasis added).                The court should evaluate counsel's rates "in

comparison to rates 'for similar services by lawyers of reasonably comparable

skill, experience, and reputation' in the community." Furst v. Einstein Moomjy,

Inc., 182 N.J. 1, 22 (2004) (quoting Rendine, 141 N.J. at 337).

        Uliano certified that each PQA attorney's rate was lower than the

prevailing market rate charged by Monmouth County civil litigation attorneys

of comparable backgrounds, skills and levels of experience. Because Uliano's

opinion considered the prevailing rate in Monmouth County, where PQA is

located and the litigation ensued, the quality or nature of the legal services the

attorneys rendered and their experience, as reflected in their biographies, the




                                                                                                A-2869-16T1
                                                  20
judge did not err in relying upon Uliano's opinion to find PQA's rates were

reasonable.

      Defendants provided no evidence of the prevailing rates in New Jersey for

civil litigation attorneys, nor did they refute Uliano ̶̶or ̶̶Pringle’s ̶̶certifications,

instead arguing that their attorney's rates were much lower. However, the rates

charged by defendants' attorney are not dispositive because defendants do not

indicate what the prevailing rate is for legal services similar to the services PQA

provided. The rates of defendants' attorney are only indicative of the prevailing

rates of attorneys representing the Borough. Thus, the judge properly found that

comparing PQA's rates to defendants' attorney's rates was insufficient. One law

firm's decision to charge lower rates for certain types of clients or in particular

cases is not dispositive of the prevailing rate of attorneys of comparable skill,

experience, and reputation in the relevant community. Accordingly, the judge

acted within her discretion in finding Monmouth County represented the

relevant community and the rates PQA charged were reasonable.

      We reject defendants' request to take judicial notice of municipal

resolutions appointing counsel to determine the reasonable hourly rate

prevailing in the relevant community. "The purpose of judicial notice is to save

time and promote judicial economy by precluding the necessity of proving facts


                                                                                A-2869-16T1
                                          21
that cannot seriously be disputed and are either generally or universally known."

State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007). On appeal, we have

the discretion to "take judicial notice of any matter specified in Rule 201,

whether or not judicially noticed by the [trial] judge." N.J.R.E. 202(b); see

Marchak v. Claridge Commons, Inc., 261 N.J. Super. 126, 131-32 (App. Div.

1992). The subject matter that may be judicially noticed is set forth in Rule

201(b):

            (b) Notice of facts. Facts which may be judicially
            noticed include (1) such specific facts and propositions
            of generalized knowledge as are so universally known
            that they cannot reasonably be the subject of dispute,
            (2) such facts as are so generally known or are of such
            common notoriety within the area pertinent to the event
            that they cannot reasonably be the subject of dispute,
            (3) specific facts and propositions of generalized
            knowledge which are capable of immediate
            determination by resort to sources whose accuracy
            cannot reasonably be questioned, and (4) records of the
            court in which the action is pending and of any other
            court of this state or federal court sitting for this state.

            [N.J.R.E. 201(b).]

Essentially, facts that can be reasonably questioned or disputed may not be

judicially noticed. Ibid.

      In this case, taking judicial notice of the rates attorneys charge

municipalities does not support the proposition that their rates are indicative of


                                                                           A-2869-16T1
                                       22
the prevailing rates for attorneys who provide similar services and are of

reasonably ̶̶comparable ̶̶skill, ̶̶experience, ̶̶and ̶̶reputation ̶̶as ̶̶plaintiffs’ ̶̶attorneys. ̶̶ ̶̶

The municipal resolutions may indicate what municipalities are willing to pay

attorneys, but they do not indicate what attorneys charge private citizens in

lawsuits against municipalities or that the rates listed in the resolutions are the

prevailing rates for legal services similar to that which PQA provided to

plaintiffs.

                                                IV.

       Defendants contend the judge erred in finding that the absence of a

retainer agreement did not preclude a fee award because under Rule 1:21-7(c),

contingency agreements in tort matters must be memorialized in writing and

there is no case law addressing the waiver of the retainer agreement requirement

because of a fee-shifting statute. We rejected this argument in DeSanctis, 455

N.J. Super. at 335, and reject it again here.

       The judge did not err by awarding fees in the absence of a written retainer

agreement. In New Jerseyans for a Death Penalty Moratorium, 185 N.J. at 156,

the Court held that a reasonable counsel fee is determined independent of the

fee arrangement between a party and counsel and stated that an attorney's

expectation of payment has no bearing on the fee award.                           See also BJM


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Insulation & Constr., Inc., 287 N.J. Super. at 517 (stating that the terms under

which an attorney has agreed to provide representation to a client "is none of

[the obligor party's] business").    In New Jerseyans for a Death Penalty

Moratorium v. N.J. Dep't of Corr., 370 N.J. Super. 11, 15 (App. Div. 2004), we

affirmed the enhancement the trial court awarded where the plaintiff's firm

provided legal services pro bono without the benefit of any written retainer

agreement. We reasoned that "the possibility of compensation, i.e. contingent

compensation, inheres in the existence of the fee-shifting provision." Ibid.

      In construing the federal civil rights act on which the NJCRA is patterned,

the Supreme Court in Venegas v. Mitchell, 495 U.S. 82, 90 (1990), noted that

the fee-shifting provision "controls what the losing defendant must pay, not what

the prevailing plaintiff must pay his lawyer[,]" distinguishing retainer

agreements from what prevailing parties are entitled to under fee-shifting

statutes and noting that they do not affect one another. As our Supreme Court

noted in Szczepanski, 141 N.J. at 358-59:

            [T]he reasonable counsel fee payable to the prevailing
            party under fee-shifting statutes is determined
            independently of the provisions of the fee agreement
            between that party and his or her counsel. The
            statutory-fee award may be comparable to or
            substantially different from the amount payable under
            a negotiated fee agreement. The agreement determines
            the fee payable by the prevailing party to counsel, and

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            might reflect the risks inherent in the litigation, the
            plaintiff's financial resources, and the prospect that
            counsel will receive a significant fee in the event of a
            large verdict but no fee at all if the suit is unsuccessful.
            The statutory-fee award determines the fee payable by
            the unsuccessful party to the prevailing party. As our
            opinion in Rendine emphasizes, the focus of that
            determination is to ascertain what fee is reasonable,
            taking into account the hours expended, the lawyer's
            customary hourly rate, the success achieved, the risk of
            nonpayment, and other material factors. 141 N.J. at
            334-345. Although relevant, the fee payable under a
            contingent-fee agreement may bear little relation to the
            reasonable fee award authorized by statute, and in no
            event should the amount payable under the contingent-
            fee agreement serve as a ceiling on the amount payable
            by statute.

      As such, the judge properly found that the absence of a retainer agreement

itself did not preclude plaintiffs' right to an award of reasonable attorney's fees

under the fee-shifting provision.

      There was no dispute in this case as to the payment arrangement between

plaintiffs and PQA, and as such, the lack of a written retainer agreement has no

bearing on plaintiffs' entitlement to an award of reasonable attorney's fees and

costs. The absence of a retainer agreement between plaintiffs and PQA did not

affect what defendants, as the losing party, are obligated to pay under a fee -

shifting provision because the arrangement between the parties expressly

provided that fees were going to be sought pursuant to a fee-shifting provision.


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                                       25
      Notwithstanding the absence of a retainer agreement, the judge analyzed

the invoice and certifications submitted to determine whether the fees sought

were reasonable. From reviewing the invoice, the judge was able to determine

what work Pringle did as an attorney and struck those charges attributable to his

work as a fact witness. Thus, in accordance with the applicable case law and

Pringle's certification, the judge properly awarded attorney's fees in the absence

of a retainer agreement or contingency agreement pursuant to a fee-shifting

provision, which the plaintiffs agreed would be their sole avenue of recovering

fees and costs.

                                        V.

      Defendants contend that while fee enhancements serve to attract

competent counsel, Pringle needed no incentive to represent the Committee.

Defendants argue that PQA incurred little to no risk representing the Committee

because of the lack of novel and complex issues in this case, and PQA was not

precluded from taking on other employment because the time and number of

attorneys allocated to this matter was insignificant in light of the firm's size.

Defendants further argue that the judge erred in awarding a forty percent

contingency enhancement without considering that the fees will be paid from

public funds and did not support her finding that the issues presented in this case


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                                       26
were novel and complex. Defendants argue that given the lack of novel or

complex issues, the low risk of nonpayment by pro bono clients, mitigation of

economic risks, and Pringle's experience with the Faulkner Act, this case is

"typical" and does not warrant a forty percent enhancement.

      Once the lodestar has been determined, the judge must consider whether

the fee should be enhanced "to reflect the risk of nonpayment in all cases in

which the attorney's compensation entirely or substantially is contingent on a

successful outcome." Rendine, 141 N.J. at 337. The Rendine Court adopted

Justice Blackmun's dissent in Pennsylvania v. Delaware Valley Citizens'

Council for Clean Air, 483 U.S. 711, 747 (1987) (Blackmun, J., dissenting),

"that 'a court's job simply will be to determine whether a case was taken on a

contingent basis, whether the attorney was able to mitigate the risk of

nonpayment in any way, and whether other economic risks were aggravated by

the contingency of payment[.]'" Id. at 339. This is so because "it is the actual

risks or burdens that are borne by the lawyer or lawyers that determine whether

an upward adjustment is called for." Id. at 339-40 (quoting Delaware Valley,

483 U.S. at 747 (Blackmun, J., dissenting)).

      Judges may also consider the legal risks inherent in the claim and order

an additional enhancement where the result achieved "is significant and of broad


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                                      27
public interest." Id. at 328-29 (quoting Delaware Valley, 483 U.S. at 751

(Blackmun, J., dissenting)). Where "the likelihood of success is unusually

strong, a court may properly consider the inherent strength of the prev ailing

party's claim in determining the amount of contingency enhancement[,]" thereby

reducing or denying an enhancement. Id. at 341.

      Judges should also consider "the public importance of the matter, the

degree of success achieved, the high risk . . . of non-payment, and any other

factors that support the attorney's request for an enhancement." New Jerseyans

for a Death Penalty Moratorium, 185 N.J. at 158. "The enhancement '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.'" Ibid. (quoting Rendine, 141 N.J. at 343).

      The Rendine Court recognized that "[d]etermination of the amount by

which a lodestar fee should be enhanced to reflect the risk of nonpayment is

conceptually difficult because there is 'no such thing as a market hourly rate in

contingent litigation.'" 141 N.J. at 342. Finding that "fee awards of double the

lodestar represent the high end of attorney fee awards under fee-shifting

statutes," ibid., the Court "conclude[d] that contingency enhancements in fee-

shifting cases ordinarily should range between five and fifty-percent of the


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lodestar fee, with the enhancement in typical contingency cases ranging between

twenty and thirty-five percent of the lodestar," id. at 343. Further, the Court

held that "[s]uch enhancements should never exceed one-hundred percent of the

lodestar, and an enhancement of that size will be appropriate only in the rare and

exceptional case in which the risk of nonpayment has not been mitigated at all

. . . ." Ibid.

       Moreover, "[p]laintiff's status as a public entity is not a special

circumstance warranting denial of an award." Dunn ̶̶v. ̶̶State, ̶̶Dep’t ̶̶of ̶̶Human ̶̶

Servs., 312 N.J. Super. 321, 335 (App. Div. 1998). In Hunter v. Trenton Hous.

Auth., 304 N.J. Super. 70, 75 n.5 (App. Div. 1997), we emphasized that "the fact

that the party to be charged is a taxpayer-supported state agency" did not bar the

prevailing party's claim for counsel fees. Accordingly, the judge committed no

error in declining to consider defendants' public entity status in awarding fees.

       The judge also did not err by awarding a forty percent enhancement.

Under the facts of this case, the enhancement was reasonable and not excessive.

The judge correctly recognized the high risk of nonpayment to PQA given

plaintiffs' agreement with the firm that the litigation would not cost them

anything and PQA would rely entirely on the NJCRA's fee-shifting provision to

seek an award of reasonable fees and costs if plaintiffs prevailed.


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      The judge also recognized the public importance of the matter, which

protected plaintiffs' rights under the provisions of the Faulkner Act governing

referendum petitions resulting in a special election benefiting the whole

electorate. "[T]he right of referendum is about enfranchisement, about self-

government, and about giving citizens the right to vote on matters of importance

to their community." Tumpson, 218 N.J. at 480. "The referendum is direct

democracy in its purest sense, allowing citizens to take an appeal above the

heads of their elected officials and directly to the voters who can then approve

or reject an ordinance at the polls." Ibid.

      The judge also weighed all the factors in RPC 1.5(a), which provides that

in assessing the reasonableness of an award, courts must consider:

            (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;


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                                       30
            (6) the nature and length of the professional
            relationship with the client;

            (7) the experience, reputation, and ability of the lawyer
            or lawyers performing the services;

            (8) whether the fee is fixed or contingent.

            [Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,
            387 (2009)(quoting RPC 1.5(a)).]

The judge acknowledged the "immediate emergency time consuming effort" on

appeal; the novel issues presented by the defenses; the high degree of skill

required to perform the legal services properly; the high likelihood that

representation in this matter would preclude other employment due to its

emergent nature; the pace of the litigation; the prevailing rate of similar legal

services in the relevant locality; the public importance and equitable nature of

the relief sought; PQA's fee arrangement with plaintiffs centered on the fee-

shifting provision of the NJCRA; and PQA's relationship with the clients and

the experience, reputation and skill of the PQA attorneys.

      Pringle outlined in his certification the express verbal fee arrangement

PQA had with plaintiffs, which was contingent on prevailing and obtaining an

award of fees under NJCRA. He submitted a copy of his biography detailing

his education and thirty-two years of legal experience, and noted his relationship

with plaintiffs included providing legal services in connection with other public

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                                       31
interest matters related to the Borough. He also noted that defendants' delay in

complying with certain court orders resulted in additional litigation and

attorney's fees.

      Given that contingency awards at the high end of the range are appropriate

in cases where there is no mechanism to mitigate the risk of non-payment, PQA

was not able to mitigate the risk of nonpayment because its fees were dependent

upon obtaining an award of fees under NJCRA, and the relief sought is primarily

equitable in nature, a forty percent contingency enhancement was reasonable

and appropriate in this case. The relief sought was equitable in nature and of

broad public importance. PQA was not afforded the opportunity to mitigate the

risk of non-payment because, in light of the relief sought, it could not expect to

be compensated through a large contingent fee award nor could it expect that

plaintiffs would be able to pay its fees when they prevailed.

      For all of the foregoing reasons, we conclude the two awards of attorney's

fees and costs were proper and not an abuse of discretion.

      Affirmed.




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