NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant-appellants, two police officers employed by the City of Bayonne, appeal from post-trial orders dated December 12, 2011, and July 2, 2012, by which the court awarded $106,945.52 in attorney's fees and related expenses of plaintiff in this civil rights action. Defendants contend that the jury verdict of one dollar in nominal damages, awarded to only one of the two plaintiffs, did not justify such an award. Having reviewed the record and the arguments on appeal, we affirm in part and reverse in part. Although the trial court did not err in determining that plaintiff was entitled to recover attorney's fees and expenses under 42 U.S.C.A. § 1988, we remand for further consideration of the appropriate amount.

Plaintiffs Eliezer Mota, Sr., and Eliezer Mota, Jr., filed a five-count complaint against police officers Raymond Lynch and Joseph Stiles, the City of Bayonne, and the Bayonne Police Department. They alleged that the officers used excessive force and injured plaintiffs when they mistakenly responded to their residence to investigate a 911 call that originated in another residence.

In a prior unpublished opinion from the appeal of a summary judgment order in this case, Mota v. City of Bayonne, No. A-5118-08 (App. Div. Nov. 15, 2010), we recited the relevant facts as alleged by plaintiffs:1

In our prior decision, we affirmed the trial court's granting of summary judgment with respect to the claims of Mota Sr. but reversed summary judgment as to Mota Jr. Id. at 6-7. Before a jury trial was held on Mota Jr.'s claims, he voluntarily dismissed counts two and five of the complaint, his direct claims against the City of Bayonne and its police department for civil rights and common law violations. He proceeded to trial before the jury on the remaining counts alleging federal civil rights violations pursuant to 42 U.S.C.A. § 1983 and common law negligence. During the trial, the court dismissed the common law counts and any claims of liability of the City and its police department apart from claims of vicarious liability for the conduct of the two officers. The jury was asked to decide only the claims of civil rights violations when the individual officers entered plaintiff's residence and arrested him. The jury's verdict by special interrogatories was that the officers had violated Mota Jr.'s civil rights by using excessive force to subdue and arrest him. However, the jury awarded only one dollar in damages.

Plaintiff filed a motion for a new trial or, in the alternative, for additur. The trial court denied plaintiff's motion, and he did not file a notice of appeal challenging the court's ruling or the jury's verdict.

Plaintiff also filed an application for attorney's fees and litigation expenses pursuant to 42 U.S.C.A. § 1988. He sought a total of more than $140,000, including a 35% enhancement of counsel's itemized fee application, which totaled $98,821.81 in attorney's fees and $6,864.21 in litigation expenses. At oral argument on the motion, the trial court indicated it would award attorney's fees without specifying the amount. The court requested that the parties attempt to reach agreement on the items of services listed in plaintiff's application, but the parties were not able to reach agreement.

The court held a follow-up telephone hearing on the record on December 2, 2011. The court reviewed the listed items of attorney services that defendants challenged and generally found that the vast majority were proper in that plaintiff's attorneys had performed the services and the hours expended were reasonable. The court indicated that a few items totaling $725 in charges would be deducted from plaintiff's claim. Its order of December 12, 2011, awarded to plaintiff fees and expenses totaling $102,350.52.

Defendants then moved for reconsideration. Plaintiff cross-moved for additional attorney's fees expended to respond to defendants' motion for reconsideration. After hearing oral argument, the court issued a written opinion on May 13, 2012, awarding a total of $106,945.52 to plaintiff, which included $3,870.00 as additional fees. An order to that effect was entered on July 2, 2012.

On appeal, defendants make the following arguments: (1) the trial court erred in awarding any attorney's fees at all because Mota Jr. only won a "technical victory" with nominal damages; (2) even if Mota Jr. is entitled to attorney's fees, the court erred in failing to reduce the fee demand for services provided in pursuit of counts or defendants that did not result in a favorable verdict for plaintiffs; (3) the billing rate of plaintiffs' attorneys approved by the court was excessive; and (4) the court's final order of July 2, 2012, failed to deduct the $725 in services that the court had ruled would not be included in the attorney's fee award.

Generally, our standard of review from an award of attorney's fees allows us to reverse the trial court's rulings only if we find a clear abuse of its discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Here, we find no abuse of discretion in the billing rates for plaintiffs' attorneys approved by the court and, therefore, we reject without further discussion, R. 2:11-3(e)(1)(E), defendants' third argument. In addition, there is no dispute that the July 2, 2012 order neglected to deduct the $725 from the final award, as the court's earlier December 12, 2011 order had done. A minor adjustment in that amount must be made in the court's final award of fees.

Turning to defendants' two primary arguments, the Supreme Court stated in Rendine, supra, 141 N.J. at 334-35:

Here, the trial court reviewed plaintiff's certification of services during the telephone hearing of December 2, 2011, and it determined the lodestar amount to encompass all services claimed, with the exception of a few items as we have indicated. Thus, the court followed the initial procedural step required by Rendine to determine an appropriate award of attorney's fees.

Defendants argue, however, that the court failed to apply applicable United States Supreme Court precedents in determining whether to award attorney's fees at all for the federal civil rights violation the jury found in this case. A court's misapplication of the law renders its decision arbitrary and therefore beyond its discretion. See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997); Alves v. Rosenberg, 400 N.J.Super. 553, 562-63 (App. Div. 2008).

Relying on Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L. Ed. 2d 494 (1992), defendants contend that no attorney's fees should have been awarded at all because the jury made only a nominal damage award and only to one of the two plaintiffs. In Farrar, the plaintiffs alleged civil rights violations and demanded $17 million in damages. Id. at 106, 113 S. Ct. at 570, 121 L. Ed. 2d at 500. By special interrogatories, the jury found that a defendant had violated one plaintiff's civil rights but declined to award any damages. Ibid. On appeal, the Court of Appeals determined that the jury's verdict was equivalent to an award of nominal damages, which on remand the trial court fixed at one dollar. The trial court then awarded $280,000 in attorney's fees to the plaintiff. Id. at 107, 113 S. Ct. at 570-71, 121 L. Ed. 2d at 500.

On further appeal, the Supreme Court held that the nominal damages of one dollar allowed the plaintiff to be considered a "prevailing party" for purposes of an attorney's fee award under 42 U.S.C.A. § 1988. Farrar, supra, 506 U.S. at 112, 113 S. Ct. at 573, 121 L. Ed. 2d at 504. However, the "technical" and "insignificant" nature of plaintiff's victory did not justify an award of $280,000 in attorney's fees. Id. at 113, 115-16, 113 S. Ct. at 574-75, 121 L. Ed. 2d at 505-06. In the circumstances of that case, the plaintiff was not entitled to any attorney's fee award. Ibid.

Contrary to defendants' argument in this appeal, the jury's award of one dollar to Mota Jr. designated him a "prevailing party" under 42 U.S.C. § 1988, thus making him eligible to apply to the court for reimbursement of his attorney's fees. See also Jama v. Esmor Corr. Servs., Inc., 577 F.3d 169, 174-76 (3d Cir. 2009) (Farrar does not preclude an award of attorney's fees where the plaintiff is awarded only nominal damages of one dollar for civil rights violations).

Nevertheless, defendants are correct that Farrar mandates that the trial court consider "the degree of the plaintiff's overall success" in determining "the reasonableness" of a fee award. Farrar, supra, 506 U.S. at 114, 113 S. Ct. at 574, 121 L. Ed. 2d at 505. In fact, "the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L. Ed. 2d 40, 52 (1983); accord Marek v. Chesny, 473 U.S. 1, 11, 105 S.Ct. 3012, 3017, 87 L. Ed. 2d 1, 10 (1985).

Plaintiff contends that he achieved a high degree of success because he "received from the jury exactly what he requested — an affirmation that his federal civil rights were violated." He claims that, from the time of opening statements to closing argument at trial, his attorney argued before the jury that this case was not about recovering money from defendants but plaintiff's only purpose was to establish that the officers had used excessive and unjustified force against him and had thus violated his civil rights.

For several reasons, we reject plaintiff's argument that his degree of success in the litigation matched his objectives. First, plaintiff was in fact seeking an award of monetary damages from the jury, and subsequently from the trial judge when he made a motion for a new trial or an additur. The jury's verdict denied monetary recovery to plaintiff. Second, plaintiff's argument ignores the fact that his attorneys provided extensive legal services on behalf of Mota Sr., whose claims were dismissed in their entirety, and also that Mota Jr.'s claims were unsuccessful against the City of Bayonne and its police department for negligent hiring and supervision of Officers Lynch and Stiles, as were his other common law negligence claims.

Third, in Farrar, the Supreme Court rejected the notion that mere "affirmation" of a civil rights plaintiff's claims was sufficient to justify a substantial attorney's fee award. The Court stated: "To be sure, a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party. Of itself, `the moral satisfaction [that] results from any favorable statement of law' cannot bestow prevailing party status." Farrar, supra, 506 U.S. at 112-13, 113 S. Ct. at 573-74, 121 L. Ed. 2d at 504 (alteration in original) (quoting Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 2676, 96 L. Ed. 2d 654, 662 (1987)). Thus, if plaintiff had truly sought and received no more than an affirmation that his civil rights were violated, he would have been entitled to no fees, rather than the more than $100,000 award he seeks to uphold.

Moreover, in gauging the degree of success on the merits of plaintiff's claims, the court should not rely upon a declared strategy by which plaintiff's attorney argues to the jury that plaintiff is not interested in obtaining a money award. Such a strategy may enhance the jury's perception of plaintiff's motives and thus improve his chances of obtaining a favorable verdict on civil rights liability. Since the jury is not made aware at the same time that a liability verdict will likely result in monetary penalties against defendants in the form of attorney's fees to be paid to plaintiff's attorneys, the jury is deceived by such a strategy into misunderstanding how a liability verdict with nominal or low money damages affects defendants. In many civil rights cases, the attorneys' fees that the court awards are significantly greater than the damages the jury awards to the aggrieved plaintiff.

Furthermore, such a trial strategy creates a potential conflict between the interests of the attorney and his client. We cannot sanction plaintiff's trial strategy as a valid basis for concluding that plaintiff achieved a high-degree of success in the litigation, only an "affirmation" of his rights, while his attorneys stood to reap a substantial monetary benefit. The basic purpose of a civil rights damage award is "to compensate persons for injuries caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L. Ed. 2d 252, 259 (1978). Attorney fee awards in these cases were never intended to "produce windfalls to attorneys." Riverside v. Rivera, 477 U.S. 561, 580, 106 S.Ct. 2686, 2697, 91 L. Ed. 2d 466, 483 (1986).

The trial court did not give adequate consideration to the limited degree of success achieved by plaintiff in this litigation. Its oral rulings of December 2, 2011, and its written decision of May 31, 2012, focused on whether Mota Jr. was a prevailing party, whether his attorneys performed the services that they claimed they performed, and whether the hours expended for those services were reasonable. While the court was correct in concluding that Mota Jr. was a prevailing party, and while it did not abuse its discretion in reviewing the attorney's certification of services in detail and making findings as to services that were properly rendered, it failed to distinguish between those services that led to a successful result and those that did not.

In Rendine, supra, 141 N.J. at 336, the Court stated:

Here, the trial court should have considered the counts and parties dismissed from the litigation in determining a reasonable amount of attorney's fees.

In its written decision, the court concluded: "In light of the `common core of facts' and `related legal theories,' present in the complaint in this case, it would be impossible to extrapolate from Plaintiff's fee application those fees and costs associated with claims successfully brought to [the] jury and those that were not." We will not recount the detailed argument made by defendants on appeal pointing to items of attorney services listed in plaintiff's application that appear to have been pursued on counts related to negligent hiring or supervision by the City of Bayonne and its police department, or, for example, the time expended on behalf of Mota Sr. to defend unsuccessfully against defendants' motion for summary judgment as to Mota Sr. We state only that distinctions can be drawn in plaintiff's application between services rendered to achieve the limited success on Mota Jr.'s claim of civil rights violation and those claims that were ultimately not successful in the litigation. The trial court must make such distinctions and award an appropriate amount of attorney's fees that reflects the level of success in the litigation, especially where the attorney's fee award is disproportionate to the compensatory or other damages the jury awarded to plaintiff. Szczepanski v. Newcomb Medical Ctr., Inc., 141 N.J. 346, 366-67 (1995).

Although Mota Jr. as the prevailing party is entitled to reimbursement of a significant amount of attorney's fees and other litigation expenses, a more-detailed and critical analysis of the fee application is mandated by the cases we have cited.

Affirmed in part, reversed in part, and remanded for further consideration of an appropriate fee award in conformity with our decision. We do not retain jurisdiction.