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Attorney Fees May Be Awarded Under the New Jersey Invasion of Privacy Statute Even in Cases of Nominal Jury Verdict

Plaintiff K.C. was a former student at a New Jersey high school and Defendant Christopher Doyle was her teacher at the same high school.  While in college, she received a message from a former classmate that her intimate photos were being shared on a website called Anon-IB. Investigation into the matter led K.C. to learn that the images, which she had shared with her boyfriend (whose phone had been stolen), were posted from Doyle’s IP address. K.C. sued Doyle, claiming a violation of the invasion of privacy statute, N.J.S.A. 2A:58D-1; intentional infliction of emotional distress; and common law invasion of privacy by intrusion on seclusion. In K.C. v. Doyle, 2025 N.J. Super. Unpub. LEXIS 415 (App. Div. Mar. 18, 2025), the issue before the Appellate Division was whether the trial court was wrong in denying Plaintiff’s application for attorney’s fees and costs due to a low jury award.

Following a jury trial, Doyle was found liable under the invasion of privacy statute and common law invasion of privacy and K.C. was awarded $10,000 in compensatory damages but no punitive damages. Thereafter, K.C. made an application to recover her attorney’s fees and costs totaling $245,667.74. This amount included a request for attorney’s fees, fee enhancement, and court costs. The trial court denied Plaintiff’s motion to recover these fees under the invasion of privacy statute. Plaintiff filed an appeal alleging that the trial court had abused its discretion in declining to award the attorney’s fees.

Upon appeal, the Appellate Division agreed with Plaintiff. The court noted that the invasion of privacy statute provides that the court “may award” a plaintiff reasonable attorney’s fees and other litigation costs. The Court noted that while the statute does not require a court to award a plaintiff attorney’s fees, it does authorize a court to make such an award where appropriate.

Here, the Appellate Division found that the trial court made a mistake and relied on irrelevant factors to decide that Plaintiff should not be permitted to recover attorney’s fees and costs. According to the Court, there was no provision in the statute which prevented recovery of attorney’s fees based on the court’s view that the jury’s low award and refusal to award punitive damages was an indication of what the jury thought of the arguments the party made to the jury.

The Appellate Division disagreed with the trial court’s conclusion that the limited result that the jury gave to K.C. supported awarding no fees. The Court observed that a court should not reject a fee award based on the fact that the jury’s damages award was low or only award fees proportionately to the amount of damages a plaintiff recovered.

Further, the Court observed that Rule of Professional Conduct RPC 1.5(a) applicable to attorneys provides factors that should be considered in determining whether the fee sought was reasonable. According to the Appellate Division, the trial court failed to consider these factors, instead, considered matters outside the record including conjecture that the jury’s verdict suggested Doyle’s violation was minor. Additionally, the Appellate Division noted that the trial court failed to consider the certification submitted by K.C.’s attorneys, which included copies for time entries and expanded on the contingency fee arrangement between K.C. and her counsel.

Therefore, the Court reversed the trial court’s order denying Plaintiff’s application for attorney’s fees and remanded the matter back to the trial court. The Appellate Division ordered the trial court upon remand to conduct a review of the details provided by the attorneys and determine the amount of fees and costs to be awarded.

No Attorney’s Fees Permitted Under Offer of Judgment Rule When not Preserved Under High-Low Agreement

Plaintiff Lucia Serico filed a motion for attorney’s fees following a jury trial in a medical malpractice case based upon an offer of judgment she had made before the trial. While the jury was deliberating, she entered into a high-low agreement with the defendant. When the jury returned a verdict of $6 million, which was in excess of the $1 million high number in her high-low agreement, she requested that she be awarded attorney’s fees based upon the pre-trial offer of judgment she had made of $750,000. The issue before the New Jersey Supreme Court in Serico v. Rothberg, 2018 N.J. LEXIS 928 (July 19, 2018), was whether she may collect attorney’s fees when the verdict exceeded the high number in her high-low agreement.

This claim involved a medical malpractice action for the failure to diagnose the colon cancer of Benjamin Serico, who passed away before the trial. Before the trial, plaintiff made an offer of judgment in the amount of $750,000, which defendant Rothberg declined to accept. During the trial, the parties entered into a high-low agreement with the “low” of $300,000 and the “high” of $1 million. The agreement was placed on the record.

Neither party mentioned the offer of judgment made under Rule 4:58, nor did they explicitly waive or preserve any rights under the rule. However, the parties did explicitly include interest in the   $1 million high number. Further, it was confirmed on the record that the defendant’s insurance coverage was limited to a $1 million policy.

After the verdict, the plaintiff filed a motion for attorney’s fees based upon the offer of judgment rule. (Under this rule, if the award is 120% or more than the offer of judgment, the plaintiff is entitled to an award of litigation expenses, including attorney’s fees.) This motion was denied by the trial court and that decision was affirmed by the Appellate Division. The plaintiff then petitioned the Supreme Court for certification, which appeal was accepted by the Court. However, the Supreme Court agreed with the two lower courts and affirmed.

The Court reviewed the purpose of the offer of judgment rule. It was designed to encourage and promote early out-of-court settlements. However, a high-low agreement has a different purpose. Based upon this type of agreement, the parties would let the matter proceed to trial with any outcome limited to the agreed upon limits by the parties.

The Supreme Court noted that this agreement was entered into during jury deliberations. Thus, it “was not intended to avoid litigation expenses or save time; it was entered to mitigate the inherent risk to the parties of a jury verdict and to limit subsequent appeals.” However, the agreement was silent as to the Rule 4:58 offer of judgment expenses.

The Court found that this issue was governed by the laws of contracts. It held that it must “look to the expressed intent of the parties and the context of the agreement.” The Court examined the trial transcript when the high-low agreement was placed on the record. The parties explained their positions as to the agreement and expressed that $1 million would be a hard limit with no interest or medical expenses added on. Further, the Supreme Court found compelling that the plaintiff requested that the defendant’s counsel place on the record that the insurance policy limit was $1 million with no secondary insurance.

The Court held that the settlement through the high-low agreement superseded and extinguished the offer of judgment. It found that the parties intended $1 million to be the maximum recovery, including all expenses and fees, and that they anticipated that it would replace any prior agreements. Because the high-low agreement superseded the offer of judgment, if plaintiff intended to pursue an award of fees under Rule 4:58, she would have been required to explicitly preserve the right to pursue them when entering into the high-low agreement. The Court noted that a “critical” aspect of any high-low agreement is finality and that both parties “benefit from the strict and explicit limitation of financial exposure that such agreements provide.” Accordingly, the Supreme Court affirmed the decisions of the trial court and Appellate Division, denying the plaintiff’s application for attorneys fees and costs.

Appellate Division Limits Attorneys’ Fees in OPRA Case

By:  Sanmathi (Sanu) Dev, Esq.

On November 27, 2017, the New Jersey Appellate Division in Kennedy v. Montclair Center Corporation Business Improvement District issued an unpublished decision in which it determined that the Open Public Records Act (“OPRA”) does not entitle a plaintiff to attorneys’ fees after the public agency satisfied his document request.

Scott Kennedy made an OPRA request to the Montclair Center Corporation Business Improvement District (“Montclair Center”). Not having received an adequate response, Kennedy filed suit against the Montclair Center alleging that it had no OPRA custodian, had no OPRA request form, and charged excessive copying costs in violation of OPRA. After the lawsuit was filed, the Montclair Center provided the requested documents to Kennedy but maintained its position that it was not a public agency subject to OPRA. In a separate action decided in 2014, the Appellate Division ruled that the Montclair Center was a public agency subject to OPRA.[1]

On remand, the trial court addressed the issue of attorneys’ fees. Kennedy argued that he was a prevailing party entitled to attorneys’ fees for both receiving the documents from the Montclair Center and for obtaining a decision from the Appellate Division that the Montclair Center was a public agency. The trial court disagreed and only awarded Kennedy counsel fees through the receipt of the documents. Kennedy then appealed to the Appellate Division.

The Appellate Division disagreed with Kennedy and affirmed the trial court. In analyzing N.J.S.A. 47:1A-6, the Appellate Division reasoned that the fee-shifting provision of OPRA only applies to successful challenges regarding access to public records. Further, the right to counsel fees only belongs to an OPRA requestor. The Appellate Division explained that once a party receives full access to requested documents, the party is no longer considered a requestor. In short, a party that chooses to pursue additional relief after obtaining access, even if the relief sought is under OPRA, is no longer an OPRA requestor. Thus, when Kennedy pursued his lawsuit against the Montclair Center after it provided him with the documents, he was no longer a requestor entitled to counsel fees.

[1] Kennedy v. Montclair Ctr. Corp. Bus. Improvement Dist., 2014 N.J. Super. Unpub. LEXIS 1654 (App. Div. June 24, 2014)

Third Circuit Holds Parents Entitled to Attorneys’ Fees on IDEA Procedural Issue

Special education cases can be quite expensive for school districts to litigate. This is especially so when parents are prevailing parties and the fee-shifting provision of the Individuals with Disabilities Education Act (“IDEA”) requires the school district to reimburse the parents for attorneys’ fees. Typically, parents are only entitled to attorneys’ fees if they are successful on the underlying merits of the case, not when they succeed on procedural or interlocutory issues. However, on October 11, 2017, the Third Circuit Court of Appeals in H.E. v. Walter D. Palmer Leadership Learning Partners Charter School held that parents can recover attorneys’ fees involving procedural issues if they vindicate a procedural right under the IDEA that is not “temporary forward-looking injunctive relief.”

In this case, the parents enrolled their three children with disabilities in the Walter D. Palmer Leadership Learning Partners Charter School (“Charter School”) located in Pennsylvania. The students were eligible for services under the IDEA. The parents alleged that the Charter School failed to meet its obligations to provide a free appropriate public education (“FAPE”) to the students. In 2014, the parents and the Charter School entered into a settlement agreement resolving all of the parents’ claims regarding the children. The settlement agreement called for the Charter School to fund compensatory education hours for each student and to contribute towards the parents’ attorneys’ fees. The Charter School permanently closed in December 2014 and never fulfilled its obligations under the agreement.

As a result, the parents filed for due process against the Charter School and the Pennsylvania Department of Education (“PDE”) alleging that the agreement with the Charter School was voidable and that PDE should provide compensatory education to their children due to the Charter School’s previous failure to provide them with a FAPE. The hearing officer dismissed the parents’ administrative due process complaint reasoning that the parents were required to initiate an enforcement action against the Charter School through the settlement-of-claims process.

The parents appealed the hearing officer’s decision to District Court, which reversed and remanded the case. The District Court reasoned that the parents’ complaint sought enforcement of the settlement agreement, which could be heard by way of a due process complaint. The District Court instructed the hearing officer to render a substantive decision regarding the parents’ FAPE claims.

The parents filed a motion in District Court seeking attorneys’ fees as prevailing parties for their victory in reversing the hearing officer’s initial decision dismissing their administrative due process petition. The District Court denied the parents’ request for attorneys’ fees, reasoning that they were not prevailing parties under the IDEA because they were only successful in a procedural issue and not a substantive one on the merits.

The parents appealed to the Third Circuit Court of Appeals, which reversed the District Court and agreed with the parents. The Third Circuit held that if a parent vindicates a procedural right under the IDEA which is not “temporary forward-looking injunctive relief,” that parent is considered a prevailing party and entitled to attorneys’ fees. In this case, the Third Circuit found that when the parents were successful in reversing the hearing officer’s dismissal, they vindicated a permanent procedural right that cannot be nullified later and therefore the relief obtained is not considered “temporary forward-looking injunctive relief.”

Attorney’s Fees Denied in OPRA Case for Failure to Cooperate

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Grieco. Within three days of learning of this omission, the Borough provided the missing document.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.

Frivolous Fee Award Against Pro Se Plaintiffs Limited by New Jersey Appellate Division

Under New Jersey law, fees may be obtained against attorneys for the filing of a frivolous lawsuit based upon a court rule, Rule 1:4-8. Attorneys fees for the filing of a frivolous pleading may be obtained against a party based upon a statute, N.J.S.A. 2A:15-59.1. The published decision of Tagayun v. AmeriChoice of New Jersey, 2016 N.J. Super. LEXIS 127 (App. Div. Sept. 20, 2016), demonstrates the difficulty in successfully obtaining attorneys fees under this statute.

This case involved a claim by Dr. Tagayun and Robert S. Mandell, her husband and office manager, against defendant AmeriChoice, contesting her termination as a provider. The Plaintiffs filed their complaint pro se. AmeriChoice contended that the complaint was frivolous because the contract between the parties provided for arbitration of all disputes and, as to Mandell, his claim was frivolous because he was not a party to the contract. Thus, he had no standing to enforce the contract.

The trial judge dismissed the original complaint without prejudice, sending the claim to arbitration as to Tagayun. The judge dismissed Mandell’s claim due to lack of standing. However, the plaintiffs filed an amended complaint, which was substantively the same, except they added the law firm and individual attorneys representing AmeriChoice as additional named defendants.

The trial court judge concluded that both the original complaint and the amended complaint were frivolous. As a sanction for the filing of these frivolous pleadings, the trial judge awarded fees in the amount of $10,073.20 for the filing of the original complaint and $6,599.40 for the filing of the amended complaint. The plaintiffs appealed both fee awards to the Appellate Division.

To award fees under N.J.S.A. 2A:15-59.1, the court must find that the claim was pursued “in bad faith, solely for the purpose of harassment, delay or malicious injury” or that the non-prevailing party knew or should have known it “was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

There was no evidence that the complaints were filed for the purpose of harassment, delay or malicious injury. Rather, the defendants argued that they were frivolous because they lacked a legal basis, i.e., the contract contained an arbitration clause which mandated all disputes would go to arbitration and Mandell lacked standing.

However, the Appellate Division found that the complaint by Tagayun was not frivolous because  of the Supreme Court’s decision in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), holding that arbitration provisions which did not contain a knowing waiver of the constitutional right to a jury trial were unenforceable. Based upon Atalese, even though Tagayun’s complaint was dismissed, it was deemed not frivolous.

As to Mandell, the court noted that it was clear that he was not a party to the contract and, thus, the trial court properly dismissed his claim. However, the Appellate Division found that his claim was not frivolous. Although his claim may have been ill-founded, it was not filed in bad faith. He had presented an argument that he was a third party beneficiary. Although the court declined to accept that argument, it showed that an award of sanctions was not merited.

Just because a party loses their case, it does not mean that sanctions for frivolous litigation should be imposed. The Appellate Division emphasized that “the term frivolous should not be employed broadly or it could limit access to the court system.”

However, the Appellate Division did find that the award of fees for the filing of the Amended Complaint was merited. By that point in the litigation, Tagayun had been advised by the court that her claim had to be arbitrated and Mandell had been told that he had no standing to assert a claim under the contract. Thus, the Appellate Division did affirm the award of fees as to the amended complaint.

This case demonstrates the difficulty in obtaining fees for the filing of a frivolous lawsuit against a pro se party. The frivolous lawsuit statute has a more stringent standard to meet than pursuing fees against an attorney under the court rule, Rule 1:4-8. If there is at least a colorable argument as to the basis of the complaint filed by a pro se party, the court will likely find that it was not filed in bad faith and, hence, no award of fees would be merited.

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