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March 20, 2026 Get Citation Alerts Download PDF Add Note

Joseph J. Emmons, III, Etc. v. Elmwood Hills Healthcare Center, LLC

New Jersey Superior Court Appellate Division

• Citations: None known

• Docket Number: A-0089-24

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (49.1K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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
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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
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[(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.

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