Porreca v. City of Millville
16 A.3d 1057
N.J. Super. Ct. App. Div.2011Background
- Porreca, a Millville taxpayer, filed prerogative writs actions—Abatement Litigation (L-764-07) and Inspection Fee Litig. (L-414-08)—alleging malfeasance and improper fee collection.
- City of Millville took corrective actions before and after suit, rescinding abatements and changing procedures, including escrow practices for reviews and inspections.
- On settlement (August 7, 2009), the City and Porreca addressed the litigation outcomes; the agreement was silent on attorney's fees but released certain claims.
- Paragraph 5 of the settlement released all claims for damages between the parties; no explicit waiver of attorney's fees was stated in the text.
- Porreca moved for attorney's fees ($60,131) and costs, arguing fund in court under Rule 4:42-9(a)(2) and Henderson; City opposed, citing no prevailing party and release bars.
- Trial court denied the fees, finding Henderson inapplicable and no fund in court; appellate court reversed and remanded to address waiver and fee entitlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Henderson apply and a fund in court exist? | Porreca seeks fees under fund in court doctrine. | City argues no prevailing party; no fund in court since issues resolved pre-litigation. | entitlement recognized; fund in court exists due to post-litigation relief benefitting taxpayers |
| Did the settlement release waive attorney's fees? | Release of 'damages' does not expressly waive fees; silence preserves fee rights. | Release language and overall context show waiver of claims including fees. | ambiguity warranting extrinsic evidence; remand to determine waiver scope |
| Was Porreca a prevailing party under Rule 4:42-9(a)(2)? | Achieved tangible benefits to taxpayers; prevailing party status warranted fees. | Relief largely occurred pre-suit; no prevailing party. | yes, achieved concrete relief (Sun Bank refunds, cell towers on tax rolls) and is prevailing |
| What standard governs appellate review of fee entitlement? | De novo review of law and facts on fee issue. | Discretionary rulings should be affirmed absent abuse. | de novo review applies to legal questions; remand for waiver resolution remains |
Key Cases Cited
- Henderson v. Camden County Municipal Utilities Authority, 176 N.J. 554 (2003) (fund in court allows fee awards where benefit accrues to others)
- Silverstein v. Shadow Lawn Savings & Loan Ass'n, 51 N.J. 30 (1968) (attorney's fees awarded under fund in court doctrine where others benefit)
- Sarner v. Sarner, 38 N.J. 463 (1962) (fund in court concept; benefit to class supports fee award)
- Trimarco v. Trimarco, 396 N.J. Super. 207 (App.Div. 2007) (fund in court sufficiency without lump sum fund; benefit to court control)