NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0089-24
JOSEPH J. EMMONS, III, Administrator of the ESTATE OF JOSEPH J. EMMONS, JR., APPROVED FOR PUBLICATION March 20, 2026 Plaintiff-Appellant, APPELLATE DIVISION
v.
ELMWOOD HILLS HEALTHCARE CENTER, LLC,
Defendant-Respondent. ____________________________
Argued February 24, 2026 – Decided March 20, 2026
Before Judges Firko, Perez Friscia, and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2996- 21.
Richard J. Talbot argued the cause for appellant (Law Office of Andrew A. Ballerini, attorneys; Richard J. Talbot, of counsel and on the briefs).
Thaddeus J. Hubert, IV, argued the cause for respondent (Goldberg Segalla LLP, attorneys; Thaddeus J. Hubert, IV, of counsel and on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D. This appeal concerns a dispute over the proper interpretation and
application of a counsel fee-shifting provision contained in the New Jersey
Nursing Home Responsibilities and Rights of Residents Act (the NHA),
N.J.S.A. 30:13-1 to -19. Relevant here, N.J.S.A. 30:13-8(a) states as follows:
Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The Department of Health and Senior Services may maintain an action in the name of the State to enforce the provisions of this [A]ct and any rules or regulations promulgated pursuant to this [A]ct. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for their violation. Any plaintiff who prevails in any such action shall be entitled to recover reasonable attorney's fees and costs of the action.
[(Emphasis added).]
Plaintiff Joseph J. Emmons, III, Administrator of the Estate of Joseph J.
Emmons, Jr., his father, filed a complaint against defendant Elmwood Hills
Healthcare Center, LLC (Elmwood Hills)—a nursing home, alleging
negligence, gross negligence, violations under the NHA, including N.J.S.A.
30:13-5(j),1 and wrongful death. Plaintiff claimed Elmwood Hills caused and
1 The NHA rights of nursing home residents, N.J.S.A. 30:13-5(j) states:
Every resident of a nursing home shall: [h]ave the right to a safe and decent living environment and considerate and respectful care that recognizes the
A-0089-24 2 exacerbated decedent's decubitus ulcers, commonly referred to as pressure
injuries or bed sores, which led to his demise. After obtaining a $100,000 jury
verdict in his favor, plaintiff sought fees under the NHA. The judge rejected
plaintiff's request for counsel fees and costs. She concluded he had not
prevailed on his NHA cause of action under N.J.S.A. 30:13-8(a) because he
failed to prove damages caused by a violation of rights. Specifically, the judge
ruled plaintiff was not eligible for mandatory counsel fees and costs under the
NHA because he failed to establish the alleged NHA violations were the
proximate cause of decedent's injuries, resulting in the jury not reaching an
award of damages under the NHA cause of action. Plaintiff appeals from the
provision of the August 2, 2024 order of final judgment denying his
application for counsel fees and costs under the NHA.
The sole issue raised by plaintiff on appeal is whether the judge erred in
denying his application for counsel fees and costs under the NHA. Plaintiff
contends he is a prevailing party as defined by the NHA because he established
Elmwood Hills committed NHA violations and was not required to prove
___________________ dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person's care consistent with sound nursing and medical practices.
A-0089-24 3 proximate cause. Plaintiff also argues that he prevailed because the jury
awarded compensatory damages on his negligence claim stemming from the
same conduct as alleged in his NHA claims. We hold that a plaintiff must
prove proximate cause as a result of an NHA violation in order to be
considered a prevailing party under the NHA. Accordingly, for the reasons
that follow, we affirm the judge's denial of counsel fees and costs under the
NHA.
I.
The facts and procedural history of this case are summarized from the
record as follows. Decedent resided at Elmwood Hills in Blackwood from
October 26, 2019 through May 23, 2020. Prior to his admission to Elmwood
Hills, decedent was admitted to Inspira Medical Center (Inspira) after
experiencing respiratory failure and septic shock. While at Inspira, decedent
developed deep tissue pressure injuries on his right buttock and hip. After his
discharge from Inspira, decedent was transferred to Atrium Post Acute Care
(Atrium), a physical rehabilitation center and nursing home.
Decedent's condition worsened, and he was transferred back to Inspira
for treatment of urosepsis and respiratory failure for the second time. On
September 6, 2019, decedent was discharged from Inspira and re-admitted to
Atrium, where he remained until October 26, 2019. A doctor at Atrium
A-0089-24 4 diagnosed decedent with "significant cognitive dysfunction" and noted he
could only understand his name. Decedent was unable to walk on his own,
which required the use of a wheelchair. Upon admission to Elmwood Hills,
decedent was placed on a care plan specifically designed for his "risk of skin
breakdown" based on his prior history of pressure injuries. Around March or
April of 2020, decedent developed another pressure injury on his right buttock
and hip.
On April 14, 2020, Elmwood Hills brought in Dr. Chin Yi Li to treat
decedent's pressure injuries. Dr. Yi continued treating decedent until he was
discharged. Plaintiff alleged the pressure injuries were exacerbated because
they were untreated for an extended period of time, caused by Elmwood Hills's
failure to properly administer care. Plaintiff asserted Elmwood Hills should
have discovered decedent's bed sores sooner.
On May 12, 2020, a podiatrist from Jefferson Hospital identified
additional pressure injuries on decedent's heels. On May 23, 2020, decedent
was discharged from Elmwood Hills and transferred to Jefferson Hospital.
Regrettably, decedent passed away eight days later.
On October 1, 2021, plaintiff filed a twelve-count complaint against
Elmwood Hills alleging common law negligence and gross negligence,
inadequate supervision and monitoring, negligent hiring of staff, negligent
A-0089-24 5 monitoring/management/supervision of staff, punitive damages, NHA
violations, and counts naming fictitious defendants. Plaintiff sought
compensatory and punitive damages generally, as well as attorney's fees and
costs under the Omnibus Budget Reconciliation Act (OBRA), 42 C.F.R. §
483.25, and the NHA.
Plaintiff contended Elmwood Hills: permitted abuse of decedent;
condoned acts of abuse by its employees; inadequately and falsely charted his
medical records; failed to notify decedent, the physician, and family in a
timely manner of action which affected decedent's safety and well-being; had
inadequate staffing, violated state statutes, administrative regulations, the
NHA, and OBRA; employed untrained/unlicensed individuals; failed to
provide proper assistance and monitoring; failed to prevent development or
worsening of decedent's injuries; and failed to properly move, roll, and/or
assist him in bed.
Elmwood Hills filed an answer denying the allegations in plaintiff's
complaint. It countered decedent's pressure injuries resulted from "adult
failure to thrive," a common geriatric syndrome that caused catastrophic
weight loss and exacerbated his skin breakdown and pressure injuries.
Prior to trial, Elmwood Hills moved for summary judgment dismissal of
the complaint. The judge partially granted the motion and dismissed a portion
A-0089-24 6 of plaintiff's claims. On February 21, 2024, the parties entered a consent order
whereby plaintiff agreed to dismiss his negligence claims based on the alleged
breaches of the standard of care or regulatory violations that occurred prior to
the COVID-19 lockdown in March 2020. However, the consent order
provided plaintiff's claims for NHA violations would be adjudicated without
time restrictions relating to the COVID-19 lockdown. On May 8, 2024,
Elmwood Hills filed an offer of judgment in the amount of $150,000 under
Rule 4:58-3,2 which plaintiff rejected.
2 Rule 4:58-3 states:
(a) If the offer of a party other than the claimant is not accepted, and the claimant obtains a judgment . . . that is favorable to the offeror as defined by this rule, the offeror shall be allowed, in addition to costs of suit, the allowances as prescribed by [Rule] 4:58-2.
(b) A favorable determination qualifying for allowances under this [Rule] is a judgment . . . in an amount, excluding allowable prejudgment interest and counsel fees, that is 80% of the offer or less.
(c) No allowances shall be granted if . . . (4) a fee allowance would conflict with the policies underlying a fee-shifting statue or rule of court.
The jury award was unfavorable under the Rule. The award was 66.67% of the original offer of judgment, as the jury award was $100,000, and the offer of judgment was $150,000. Plaintiff does not challenge the judge's decision to deny him counsel fees under Rule 4:58-3 on appeal.
A-0089-24 7 After considering the evidence, the jury determined Elmwood Hills
violated decedent's rights as a nursing home resident by a seven to one vote,
but the violation(s) were not a proximate cause of his injuries by a unanimous
vote. Thus, the jury did not award any damages under the NHA. The jury also
found Elmwood Hills or its staff was negligent under the common law and
such negligence was a proximate cause of decedent's injuries by a seven to one
vote. In charging the jury, the judge mentioned several times that they were to
consider plaintiff's negligence claims and NHA violations separately.
In particular, the judge reiterated in her jury instructions that , "damages
are not to be duplicated" and "[must] be separate" damages from the other.
The judge specified plaintiff's claims can lead to "two separate damage
awards." The jury unanimously awarded $100,000 to compensate plaintiff for
damages arising from Elmwood Hills's negligence. The jury verdict sheet
indicated: "You are not to duplicate damages awarded under another theory of
recovery." Plaintiff does not challenge the jury charges or verdict sheet on
appeal. The jury did not award any punitive damages.
After trial, plaintiff moved for entry of the $100,000 jury award as a
judgment, plus interest, attorney's fees, and costs under the NHA in the amount
of $55,926.19. On August 2, 2024, the judge entered judgment in favor of
plaintiff for $100,000 plus interest, but denied plaintiff's request for counsel
A-0089-24 8 fees under the NHA. The judge rejected plaintiff's argument he was a
prevailing party under the NHA because there was no "actual relief on the
merits." The judge reasoned that plaintiff's compensatory damages award for
the "regular tort claim" of negligence was not controlling because he sought
fee-shifting under his NHA cause of action. The judge explained she had
carefully instructed the jury to find damages for each claim individually and
reasoned, "it was very clear that there was different conduct" for each theory.
The judge stated "[the jury] knew exactly what they were doing and
made it clear that the damages were not due to a violation of the [NHA]. The[]
damages were due to negligence, which . . . is not a fee-shifting situation."
The judge noted nominal damages can warrant fee-shifting, "but if there[] [are]
no damages, the Supreme Court has been clear, no damages, [then] no
attorney[']s fees." The judge determined: "[the jury] did say there was a
violation of the [NHA], but it[ is] clear that you cannot get the fee -shifting . . .
unfortunately, because . . . the reality is the jury found there w[ere] no
damages." Further, the judge highlighted, "it was very clear that there was
different conduct," referring to the factual bases that constituted plaintiff's
claims of negligence and NHA violations. This appeal followed.
A-0089-24 9 II.
Plaintiff primarily argues that he prevailed under his NHA cause of
action because his two causes of action are "inextricably intertwined." He
contends the jury was instructed that there was only one set of damages, he
was awarded a judgment on the merits against Elmwood Hills, and he
established an NHA violation regardless of damages. Plaintiff maintains a
prevailing party is not required to prove damages because courts have held
nominal damages are sufficient, even "in the absence of actual loss," citing
Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 97 (Sup. Ct. 1936).
Plaintiff also argues he prevailed because he proved proximate cause and
damages for his separate common law negligence claim stemming from the
same factual basis as his NHA claim. To the extent these arguments entail
questions of law, we review those legal issues de novo. Musker v. Suuchi,
Inc., 260 N.J. 178, 185 (2025).
A court's "'paramount goal' is to discern the Legislature's intent."
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 587 (2021) (quoting DiProspero
v. Penn, 183 N.J. 477, 492 (2005)). In enacting the NHA in 1976, the
Legislature sought to protect residents of nursing homes from "inferior
treatment." S. Insts., Health & Welfare Comm. Statement to S. 944, at 1 (June
4, 1976). One right the Legislature included was the right "to a safe and
A-0089-24 10 decent living environment." N.J.S.A. 30:13-5(j). The NHA was enacted "to
declare 'a bill of rights' for nursing home residents and define the
'responsibilities' of nursing homes." Ptaszynski v. Atl. Health Sys., Inc., 440
N.J. Super. 24, 32 (App. Div. 2015). The NHA was promulgated in response
to growing concerns surrounding the vulnerable elderly population in this
State. See Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 116 (2014).
To enforce this right, the NHA expressly provides a cause of action for
any resident whose rights as enumerated in the Act are violated. The statute
allows for injunctive relief and recovery of "actual and punitive damages for
their violation." N.J.S.A. 30:13-8(a).
The NHA applies only to nursing homes, which it defines as:
any institution, whether operated for profit or not, which maintains and operates facilities for extended medical and nursing treatment or care for two or more nonrelated individuals with acute or chronic illness or injury, or a physical disability, or who are convalescing, or who are in need of assistance in bathing, dressing, or some other type of supervision, and are in need of such treatment or care on a continuing basis.
[N.J.S.A. 30:13-2(c).]
Elmwood Hills meets that definition. It is certified by the federal
government as a "skilled nursing facility," which federal regulations define as
a facility "primarily engaged in providing to residents (A) skilled nursing care
A-0089-24 11 and related services for residents who require medical or nursing care, or (B)
rehabilitation services for the rehabilitation of injured, disabled, or sick
persons . . . ." 42 U.S.C. § 1395i-3(a). These characteristics fall within the
scope of the NHA's definition of a nursing home facility.
A.
The core of plaintiff's dispute centers on whether the judge properly
interpreted the word "prevail" as defined in the NHA. Since this issue has not
yet been addressed by our courts, we focus our analyses on other fee -shifting
statutes.
Courts give "statutory words their ordinary meaning and significance,
. . . and read them in context with related provisions so as to give sense to the
legislation as a whole." DiProspero, 183 N.J. at 492 (citation omitted). Courts
cannot "rewrite a plainly written statute or . . . presume that the Legislature
meant something other than what it conveyed in its clearly expressed
language." Branch, 244 N.J. at 587 (quoting Shipyard Assocs., LP v. City of
Hoboken, 242 N.J. 23, 38-39 (2020)). Nor may courts "write in an additional
qualification which the Legislature pointedly omitted in drafting its own
enactment." DiProspero, 183 N.J. at 492 (quoting Craster v. Bd. of Comm'rs
of Newark, 9 N.J. 225, 230 (1952)).
A-0089-24 12 "Words in a statute should not be read in isolation." Shelton v.
Restaurant.com, Inc., 214 N.J. 419, 440 (2013). Courts "read the statutes in
their entirety and construe each part or section . . . in connection with every
other part or section to provide a harmonious whole." Keyworth v. CareOne at
Madison Ave., 258 N.J. 359, 380 (2024) (quoting C.A. ex rel. Applegrad v.
Bentolila, 219 N.J. 449, 459-60 (2014)). "In doing so, [courts] 'strive for an
interpretation that gives effect to all of the statutory provisions and does not
render any language inoperative, superfluous, void or insignificant.'" Fuster v.
Township of Chatham, 259 N.J. 533, 547 (2025) (quoting G.S. v. Dep't of
Hum. Servs., 157 N.J. 161, 172 (1999)).
While New Jersey courts have not interpreted "prevail" under N.J.S.A
30:13-8(a), they have interpreted several other similarly constructed attorney's
fee-shifting statutes. Gannett Satellite Info. Network, LLC v. Township of
Neptune, 254 N.J. 242, 258-59 (2023). See, e.g., N.J.S.A. 47:1A-6 of the
Open Public Records Act, N.J.S.A. 47:1A-1 to -13; N.J.S.A. 10:5-27.1 of the
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50; N.J.S.A. 10:6-2(f)
of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2; N.J.S.A.
34:19-5 to -6 of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1
to -16. These attorney's fee-shifting statutes are similarly constructed because
of the Legislature's common usage of the term "prevailing," "prevailing party,"
A-0089-24 13 or "prevailing plaintiff." These similarly constructed "prevailing party"
attorney's fee-shifting statutes provide guidance because, "[w]hen considering
the meaning of legislation, we assume the Legislature is 'thoroughly
conversant with its own legislation and the judicial construction of its
statutes.'" Burns, Est. of, by & through Burns v. Care One at Stanwick, LLC,
468 N.J. Super. 306, 319 (App. Div. 2021) (quoting Brewer v. Porch, 53 N.J.
167, 174 (1969)).
In Singer v. State, 95 N.J. 487 (1984), our Supreme Court explained the
"prevailing party" standard applicable to the Civil Rights Attorney's Fees
Awards Act, 42 U.S.C. § 1988, which permits an award of attorney's fees to
successful parties in certain action brought under certain civil right statutes.
Our Supreme Court held that "substantive end results of the litigation . . .
determine whether a plaintiff may be considered a 'prevailing party.'" Id. at
494 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The
Singer Court held that a party prevails if he or she "succeed[s] on any
significant issue in litigation which achieves some of the benefit the part[ies]
sought in bringing the suit." Ibid.
New Jersey courts have defined prevailing party language broadly, as
New Jersey statutes include the "catalyst theory," where a party can "prevail,"
even without a final judgment in his or her favor, such as by achieving a
A-0089-24 14 favorable settlement. See, e.g., Empower Our Neighborhoods v. Guadagno,
453 N.J. Super. 565, 579-85 (App. Div. 2018). In Empower Our
Neighborhoods, this court defined the prevailing party language in the context
of fee-shifting provisions under 42 U.S.C. §§ 1983, 1988, and N.J.S.A. 10:6 -
2(f) of the NJCRA, as: "[A] party can be considered 'prevailing' for [these]
purposes . . . even though the disposition of the case does not include a final
judgment entered in plaintiff's favor, provided plaintiff has won substantially
the relief originally sought." Id. at 579-80 (quoting Singer, 95 N.J. at 495).
In Szczepanski v. Newcomb Med. Center, our Supreme Court defined
"prevailing parties" in the context of the LAD, a prevailing party statute for the
shifting of attorney's fees as a party who succeeds "on any significant issue in
litigation [that] achieves some of the benefit the parties sought in bringing
suit." 141 N.J. 346, 355 (1995) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)); see also N.J.S.A. 10:5-27.1. Our Supreme Court required that
"the plaintiff must be able to point to a resolution of the dispute [that] changes
the legal relationship between itself and defendant." Ibid. (quoting Texas
State Tchrs. Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).
In Tarr v. Ciasulli, 181 N.J. 80, 86-87 (2004), our Supreme Court
clarified this definition in the context of the LAD, when it found that the trial
court had the discretion to award attorney's fees if a plaintiff was awarded
A-0089-24 15 nominal damages, as the Legislature's intent was to allow plaintiffs to recover
common law tort remedies similar to the Restatement (Second) of Torts § 46
cmt. j at 77 (1965). Our Supreme Court defined a prevailing party as a
plaintiff who is awarded "some affirmative relief by way of . . . an enforceable
judgment against defendant or other comparable relief through a settlement or
consent decree," which may include nominal damages.
In Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App.
Div. 2000), we applied a similar standard under a fee-shifting provision
pursuant to N.J.S.A. 10:5-27.1 of the LAD, and 42 U.S.C. § 12205 of the
Americans with Disabilities Act. We held that a party prevails "when actual
relief on the merits of [the] claim materially alters the relationship between the
parties by modifying the defendant's behavior in a way that directly benefits
plaintiff." Ibid. (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
When interpreting a statute, "[t]he object of statutory interpretation is to
effectuate the intent of the Legislature, as evidenced by the plain language of
the statute, its legislative history and underlying policy, and concepts of
reasonableness." State v. Courtney, 234 N.J. 77, 85 (2020). "[T]he best
indicator of that intent is the statutory language." DiProspero, 183 N.J. at 492.
Accordingly, a review of N.J.S.A. 30:13-8(a) begins with the plain language of
the statute.
A-0089-24 16 We "begin[] with the words of the statute and ascribe[] to them their
ordinary meaning." Ryan v. Renny, 203 N.J. 37, 54 (2010) (quoting
DiProspero, 183 N.J. 477 at 492). If the meaning derived from the statute is
clear and unambiguous, then it controls. Bergen Comm'l Bank v. Sisler, 157
N.J. 188, 202 (1999). If the text, however, is susceptible to different
interpretations, the court considers extrinsic factors, such as the statute's
purpose, legislative history, and statutory context to ascertain the legislature 's
intent. Wingate v. Est. of Ryan, 149 N.J. 227, 236 (1997); Lesniak v.
Budzash, 133 N.J. 1, 8 (1993).
Pursuant to the plain language of N.J.S.A. 30:13-8(a), to be a prevailing
party, a plaintiff must prove both a violation and damages: "[an] action may
be brought in any court of competent jurisdiction [(1)] to enforce such rights
[that are violated]" and "[(2)] to recover actual and punitive damages for their
violation." Then, the final sentence of the statute reads, "[a]ny plaintiff who
prevails in any such action shall be entitled to recover reasonable attorney's
fees and costs of the action." N.J.S.A. 30:13-8(a).
In sum, the plain language of the statute suggests that a plaintiff must
bring an action to enforce a violation of their rights and succeed in the action.
Then, a plaintiff must subsequently prove damages regarding such violation.
Therefore, we find the Legislature specifically intended to include the word
A-0089-24 17 "and" in the statute to require a plaintiff to prove both a violation and an award
of damages in the same cause of action. In other words, the plain language of
N.J.S.A. 30:13-8(a) requires a plaintiff to prove damages proximately caused
from an NHA violation to qualify as a prevailing party and be awarded
attorney's fees.
B.
In the matter under review, plaintiff contends he prevailed under the
NHA because: (1) he succeeded on a related claim of common law negligence,
or (2) in the alternative, he established Elmwood Hills violated the NHA,
which is sufficient to justify an award of counsel fees even absent a finding of
proximate cause or damages under the NHA. Under these circumstances,
plaintiff maintains he should be awarded counsel fees under the NHA because
he has "achieved affirmative relief" by way of a judgment against Elmwood
Hills and to do otherwise would "undermine" the statutory goal of the NHA.
Here, the jury's verdicts on the common law negligence and NHA counts
are not inconsistent. The common law right to recover damages for proven
nursing home negligence is not synonymous with the statutory right to a "safe
and decent living environment" and "considerate and respectful care that
recognizes [the resident's] dignity and individuality." Moreover, we are
satisfied plaintiff would not prefer statutory liability under the NHA to depend
A-0089-24 18 on proving common law negligence. Undoubtedly, for this reason, plaintiff's
complaint included a statutory count separate from the other counts.
We recognize evidence of common law negligence could also establish a
facility's disregard for a resident's "dignity" and "individuality" as defined by
the NHA, however, such concepts and nomenclature are not identical.
Therefore, we conclude the jury's verdict on the common law negligence and
NHA violations was not dispositive of the verdict on the issue of proximate
cause for the NHA count. Thus, plaintiff does not qualify as a prevailing party
under the NHA and is not entitled to statutory counsel fees.
C.
We reject plaintiff's argument that the NHA is analogous to the New
Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -233, in light of the fee
shifting provision. N.J.S.A. 56:8-19 provides:
Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, [A]ct, or practice declared unlawful under this [A]ct or the [A]ct hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees[,] and reasonable costs of suit.
A-0089-24 19 [(Emphasis added).]
Our Supreme Court has held fee-shifting under the CFA can be
appropriate when a plaintiff established ascertainable loss caused by unlawful
conduct but did not prove the loss was proximately caused by this violation
and therefore could not recover damages. Cox v. Sears Roebuck & Co., 138
N.J. 2, 24 (1994). Plaintiff contends this broad interpretation should be
applied to the NHA because both statutes are remedial legislation that "serve
as deterrents." Plaintiff's argument is unavailing.
We reiterate that plaintiff did not prevail under Tarr and Szczepanski
because the jury did not award relief for plaintiff's NHA claim. Indeed, the
record shows plaintiff's counsel conceded at trial that the Model Civil Jury
Charge should include an instruction on proximate cause for the NHA claim.
Again, the NHA requires damages to prevail on an NHA claim. The NHA
authorizes "actual and punitive damages for [its] violation." N.J.S.A. 30:13 -
8(a). The term "actual" conveys a requirement of harm that is real and not
speculative. However, the NHA does not specify that nominal or presumed
damages are available remedies.
In sum, we hold plaintiff's damages award based solely on his common
law negligence claim is irrelevant to his claim for counsel fees under the NHA
because the causes of action and factual bases are distinct. We reiterate a
A-0089-24 20 plaintiff must establish proximate cause as a result of an NHA violation and
his or her respective injuries to be eligible for mandatory counsel fees and
costs under the NHA. A common law negligence claim does not entitle a
plaintiff to fee shifting. Saliently, the CFA is distinguishable from the NHA
because the CFA is not a prevailing party statute. Instead, N.J.S.A. 56:8 -19
allows for fee shifting "[i]n all actions" for "[a]ny person who suffers an
ascertainable loss."
To the extent we have not addressed any remaining arguments, they are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-0089-24 21