Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2084-24 KATHLEEN MARKUS, Plaintiff-Respondent/ Cross-Appellant, v. REO DINER and CHRISTINA KONTOS, Defendants-Appellants/ Cross-Respondents. _____________________________ Argued September 23, 2026 – Decided October 22, 2026 Before Judges Mayer, Vinci, and Zazzali-Hogan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0575-17. Emery Z. Toth argued the cause for appellants/cross- respondents. Taylor Ruggieri argued the cause for respondent/cross- appellant (Mark Lavigne, LLC, attorneys; Jamison M. Mark, of counsel; Taylor Ruggieri, on the briefs). PER CURIAM Defendants Reo Diner and Christina Kontos appeal from a February 3, 2025 amended final judgment entered in favor of plaintiff Kathleen Markus after a jury determined defendants failed to accommodate her disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. Plaintiff cross-appeals from the same judgment awarding her attorneys' fees in the amount of $203,989.44. We affirm. I. Plaintiff was employed by Reo Diner in Woodbridge as a waitress from July 4, 2015, until August 4, 2016, when she was terminated. On January 23, 2017, plaintiff filed a complaint against defendants alleging she suffered from a disability, hyperthyroidism, and was "terminated due to her disability." Plaintiff alleged causes of action against Reo Diner based on violations of the LAD for: (1) disability discrimination; (2) failure to accommodate; (3) discrimination based on a perceived disability; (4) hostile work environment; and (5) retaliation. She also alleged Reo Diner violated the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a41. Plaintiff alleged Kontos, her A-2084-24 2 "supervisor and upper management with . . . Reo Diner," was individually liable for aiding and abetting the LAD violations. 1 The case was tried before a jury for the first time in June 2023. On June 23, 2023, the jury returned a defense verdict on all counts. On June 28, 2024, the court granted plaintiff's motion for a new trial. A second trial was conducted on four days from December 2, through December 9, 2024. Four claims were ultimately presented to the jury. They were: (1) discrimination in violation of the LAD against Reo Diner; (2) failure to accommodate in violation of the LAD against Reo Diner; and (3) two counts of aiding and abetting the alleged LAD violations against Kontos. On December 9, the court conducted a conference and reviewed the proposed jury instructions and verdict sheet with counsel. The verdict sheet stated: 1. Has the [p]laintiff . . . proven, by a preponderance of the evidence that [d]efendant Reo Diner discriminated against her due to her disability of a thyroid disorder? .... Please proceed to question [number two]. 1 Plaintiff initially named the owner of Reo Diner, Manny Kontos, as a defendant. Those claims were dismissed prior to trial. A-2084-24 3 2. Has the [p]laintiff . . . proven, by a preponderance of the evidence that [d]efendant Reo Diner failed to reasonably accommodate her disability by denying her a requested medical leave of absence? .... If the answer to either [q]uestion [number one] or [number two] [is] "[y]es," please proceed to question [number three]. If the answer to both [q]uestions . . . is "[n]o," please return your verdict. 3. Has the [p]laintiff . . . proven, by a preponderance of the evidence that [d]efendant Christina Kontos discriminated against her due to her disability of a thyroid disorder? .... Please proceed to question [number four]. 4. Has the [p]laintiff . . . proven, by a preponderance of the evidence that [d]efendant Christina Kontos failed to reasonably accommodate her disability by denying her a requested medical leave of absence? .... If the answer to either [q]uestion [number one], [number two], [number three] or [number four] is "[y]es," please proceed to question [number five]. If the answer to all [q]uestions [one through four] is "[n]o," please return your verdict. Question five asked the jury "[w]hat amount of money, if any, [would] fairly and reasonably compensate [p]laintiff" for "[e]motional distress" and A-2084-24 4 "[p]ast [l]ost [e]arnings[?]" Defendants did not object to the final versions of the verdict sheet or the proposed jury instructions. The court instructed the jury consistent with Model Jury Charge (Civil), 2.21 "[LAD]" (rev. Jan. 2025), with respect to plaintiff's discrimination claim and Model Jury Charge (Civil), 2.26 "Failure to Accommodate Employee with Disability Under the [LAD]" (rev. Jan. 2025). As to the failure-to-accommodate claim, the court instructed the jury: Our law requires an employer must make a reasonable accommodation to the limitations of an employee with a disability . . . . [P]laintiff argues [defendants] should have allowed her to take four days of leave due to her thyroid disorder. Defendants argue . . . plaintiff did not have a disability and that she did not request an accommodation. To win the case, plaintiff must prove each of the following elements by preponderance of the evidence: First, plaintiff must prove she had a disability; second, plaintiff must prove that . . . she was able to perform all the essential functions of the job either with or without a reasonable accommodation; third, plaintiff must prove that defendant was aware of the plaintiff's need for a reasonable accommodation; fourth, plaintiff must prove there was an accommodation that would have allowed plaintiff to perform the essential functions of her job; fifth, plaintiff must prove the defendant denied plaintiff an accommodation. Plaintiff does not have to prove an adverse employment action separate and apart from the . . . failure to accommodate claim. A-2084-24 5 The court thereafter instructed the jury as to each of the elements of the failure-to-accommodate claim consistent with Model Jury Charge (Civil), 2.26. Defendants did not object to the court's jury instructions. Later that afternoon, the jury returned their unanimous verdict. They answered "no" to questions one and three, finding defendants did not discriminate against plaintiff in violation of the LAD. The jury answered "yes" to questions two and four, finding defendants failed to accommodate plaintiff's disability. They awarded plaintiff $9,500 for emotional distress and $9,500 for past lost earnings, for a total award of $19,000. 2 Defendants did not file any post-trial motions. On December 27, 2024, plaintiff filed an application for an award of attorneys' fees and costs, supported by certifications of Jamison M. Mark, Esq. of Mark Levigne, LLC (the firm). Mark certified that plaintiff retained the firm in August 2016 on a contingency basis. Mark was lead trial counsel in the first trial, but as a result of a scheduling conflict, he "transitioned the case" to his colleagues Taylor M. Ruggieri, Esq. and Edward C. Monaghan, Esq. to represent plaintiff at the second trial. As a result of a later adjournment, Mark was able to attend and participate in the second trial with Ruggieri and Monaghan. 2 Plaintiff sought lost wages in the total amount of $9,800. A-2084-24 6 Mark certified that firm attorneys devoted 674.45 hours to both trials and the fee application. This included 321.75 hours of his time, 120.2 hours of Ruggieri's time, 132 hours of Monaghan's time, and approximately ninety hours devoted by three other firm attorneys: Sean Govlick, Esq, Kristofer Guldner, Esq., and Jennifer Casazza-Carter, Esq. Mark certified that his hourly billing rate was $600 per hour, Ruggieri's was $425 per hour, Monaghan's was $395 per hour, Casazza-Carter's was $475, and Govlick's and Guldner's were $350. As a result, plaintiff sought a "lodestar" award of $350,737.50 for attorneys' fees. Plaintiff also requested a fifty percent "lodestar enhancement" of the fee award in the amount of $175,368.75, for a total fee award of $526,106.25. Plaintiff additionally sought an award of costs in the amount of $14,288.27, for a total award of $540,394.52. The court heard oral argument on January 31, 2025, and granted plaintiff's application in part supported by a comprehensive fifty-four-page oral decision. The court found "plaintiff [was], in fact the prevailing party." It rejected defendants' argument that any fees "associated [with the first trial] should not be awarded." The court reasoned that "although there was a verdict in the first [trial], that verdict was set aside, essentially meaning the case was not disposed of" and "[t]he work . . . leading up to the first trial certainly [was] part and parcel A-2084-24 7 of what went into the second trial." In addition, the work done in connection with the first trial was "part of the reason [the] case was streamlined the second time." The court "agree[d] . . . that if there was [any] duplication of efforts or fees or costs" reductions would be appropriate. The court also found plaintiff's "complaint initially had various claims, but all relating to the same underlying issues and considerations, and they were interrelated. The discovery was interrelated." It determined "[p]laintiff alleged she had a disability . . . [and] requested reasonable accommodations . . . thereto" and "[a]dditionally, [that] she was discriminated against due to her [disability], and suffered a hostile work environment [,] and had wage losses related thereto." The court found "all of [plaintiff's] claims [were] intertwined and [could ]not be separated or parsed out, and . . . the discovery [was] pertinent to even the claims" that were not successful. The court "acknowledge[d] that [the] verdict . . . was for $19,000 and . . . consistent with the case law . . . that is a consideration . . . in calculating the lodestar." It also found plaintiff was entitled to attorneys' fees and costs incurred in connection with the fee application. The court concluded it would not be "reasonable to award a lodestar enhancement." It "acknowledge[d]" defense counsel faced "some risk of non- A-2084-24 8 payment, especially after a no-cause verdict" in the first trial. The court, however, "weigh[ed] that [risk] against the amount that was awarded" and determined a lodestar enhancement was not warranted. After disallowing certain duplicative costs, the court awarded plaintiff costs in the amount of $13,805.27.3 The court then carefully reviewed every invoice and "made reductions" to the fees billed based on the "balance of [the court's] experience and having reviewed other attorneys' fees applications." The court found it would not be "fair and reasonable . . . to require defendants to pay for three attorneys" at the second trial because "where there [are] redundancies . . . those can be eliminated." The court made dozens of reductions in the amounts billed on every invoice to comport with what it believed to be a reasonable amount of time for each specific task. The court also "reduced redundancies" in other areas and "made reductions to account" for any duplication of effort. The court made reductions to the invoices to assure the same tasks were not billed by more than one attorney. It also made reductions to account for any duplication of work in the second trial that was also included in the first trial. For example, it deducted 3 The court's award of costs is not challenged on appeal. A-2084-24 9 "invoices for drafting in limine motions [for the second trial] that appear[ed] to be duplicates of previous trial motions." The court deducted all entries for travel time because it did not "think [it was] reasonable and fair to pass [that] on to . . . defendant[s]," particularly because Ruggieri "live[d] some distance away" from the courthouse. It also deducted billings for "internal emails," "communications," and "internal meetings" because it was not "reasonable and fair to pass those on to . . . defendant[s]." Finally, the court determined the appropriate hourly billing rates to calculate the lodestar. It accepted Mark's requested rate of $600 per hour finding it was "absolutely more than reasonable given his training and experience." The court reduced Monaghan's rate to $300, and Ruggieri's to $350. The court had questions about the other attorneys and asked for supplemental information regarding their billing rates. On February 3, 2025, after receiving a supplemental certification in response to the court's questions during the January 31 argument, the court entered an amended judgment awarding attorneys' fees, costs, and interest, supported by a supplemental written decision. The court set Casazza-Carter's reasonable billing rate at $450 and Guldner's at $325 and made reductions to A-2084-24 10 their time entries consistent with the reductions it previously made to the other invoices. Based on the amount of time it determined was reasonable for the work performed and the reasonable hourly rates, the court awarded plaintiff $203,989.44 in attorneys' fees and $13,805.27 in costs. II. On appeal, defendants argue "the jury . . . sheet should have directed the jury to stop deliberations after they found there was no discrimination." They claim that "[i]f there is no discrimination there can be no failure to accommodate because 'failure to accommodate' is a form of discrimination under the" LAD and "[i]t is impossible to find that [d]efendants did not discriminate against [p]laintiff, but that they failed to accommodate [p]laintiff's disability." Defendants also argue the court "erred by awarding [attorneys'] fees for the first action which plaintiff did not prevail in." Defendants further contend plaintiff was not a prevailing party in the second trial because she "only prevailed on one count of her complaint" and the court erred by awarding her "attorney[s'] fees for all the trials and all the counts, even the ones she did not prevail on." Defendants assert the "amount of the attorney[s'] fees awarded [is] simply not justified given [p]laintiff's limited success in only the second trial" and "interests of fairness and justice demand" the award be vacated. A-2084-24 11 In support of her cross-appeal, plaintiff argues the court "erred and improperly reduced . . . counsels' hours spent by attorneys." Specifically, the court "declined to award any travel-related fees without reference to any law or case in New Jersey" or providing a "detailed explanation or specific reasons" for its decision. Plaintiff also contends the court did not provide an adequate explanation for the reductions. Finally, plaintiff claims the court "improperly denied" a lodestar fee enhancement. III. We are unpersuaded by defendants' argument that the jury should not have been permitted to consider plaintiff's failure-to-accommodate claim because they returned a defense verdict on her disability discrimination claim. Defendants raise this argument for the first time on appeal. Generally, we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Because defendants failed to raise this argument in the trial court, it is waived. A-2084-24 12 Even if we considered defendants' argument, we are convinced it is without merit. "Although the LAD does not explicitly address a reasonable accommodation requirement or claim, 'our courts have uniformly held that the [LAD] nevertheless requires an employer to reasonably accommodate an employee's' disability." Richter v. Oakland Bd. of Educ., 246 N.J. 507, 524 (2021) (alteration in original) (quoting Royster v. N.J. State Police, 227 N.J. 482, 499 (2017)). To establish a failure-to-accommodate claim under the LAD, an employee must prove they (1) qualif[y] as an individual with a disability, or [are] perceived as having a disability, as that has been defined by statute; (2) [are] qualified to perform the essential functions of the job, or [were] performing those essential functions, either with or without reasonable accommodations; and (3) that [the employer] failed to reasonably accommodate [their] disabilities. [Richter, 246 N.J. at 526 (internal quotation marks omitted).] Importantly, the employee need not prove an adverse employment action or other discriminatory conduct by the employer as an element of a failure-to- accommodate claim. Id. at 529. This is so because the mandate to accommodate, A-2084-24 13 focuses on "compelling behavior" rather than "policing an employer's actions," it would make little sense to require the showing of an adverse employment action as part of a failure-to-accommodate claim. In other words, it would verge on the illogical to require failure- to-accommodate plaintiffs to establish that their employer acted adversely toward them – when the fundamental nature of the claim is that the employer failed to act. [Ibid. (quoting Exby-Stolley v. Bd. of Cnty. Comm'rs, 979 F.3d 784, 797 (10th Cir. 2020)).] Defendants' contention, therefore, that the jury should not have been permitted to consider plaintiff's failure-to-accommodate claim because they did not find that defendants otherwise discriminated against her based on her disability is incorrect. Failure to accommodate is a separate, independent claim from disability discrimination. The court properly instructed the jury on the elements of plaintiff's failure-to-accommodate claim and permitted them to consider that claim separately from plaintiff's claim that defendants otherwise discriminated against her based on her disability. IV. We are unconvinced by the parties' competing claims that the court's award of attorneys' fees was improper. "We review [a] trial court's award of [attorneys'] fees and costs in accordance with a deferential standard. Such an award 'will be disturbed only on the rarest occasions, and then only because of A-2084-24 14 a clear abuse of discretion.'" Hansen v. Rite Aid Corp., 253 N.J. 191, 211-12 (2023) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "An appellate court may reverse a trial court's award of fees and costs for abuse of discretion when the court's decision 'was based on irrelevant or inappropriate factors, or amounts to a clear error in judgment.'" Id. at 212 (quoting Garmeaux v. DNV Concepts, Inc., 448 N.J. Super. 148, 155-56 (App. Div. 2016)). Rule 4:42-9(b) provides that "all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a)." A party seeking counsel fees must establish reasonableness under these factors. Seigelstein v. Shrewsbury Motors, Inc., 464 N.J. Super. 393, 405 (App. Div. 2020). RPC 1.5(a) mandates, "A lawyer's fee shall be reasonable" and provides, "[t]he factors to be considered in determining the reasonableness of a fee include the following": 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3) the fee customarily charged in the locality for similar legal services; A-2084-24 15 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and] 8) whether the fee is fixed or contingent. Under the LAD, counsel fees may be granted to the prevailing party. N.J.S.A. 10:5-27.1. Our Supreme Court has held that "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 is a prevailing party under . . . the LAD." Tarr v. Ciasulli, 181 N.J. 70, 86-87 (2004) (citing N.J.S.A. 10:5-27.1). We have recognized that "a prevailing party need only be nominally successful." Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 421 (App. Div. 2000). The first step "in [the] fee award [process] 'is to determine the lodestar: the number of hours reasonably expended multiplied by a reasonable hourly rate.'" Hansen, 253 N.J. at 215 (quoting Rendine, 141 N.J. at 334-35). Courts should not "accept passively the submissions of counsel to support the lodestar A-2084-24 16 amount," but rather evaluate them "carefully and critically." Ibid. (quoting Rendine, 141 N.J. at 335). "'It does not follow that the amount of time actually expended is the amount of time reasonably expended,'" and "'no compensation is due for nonproductive time.'" Rendine, 141 N.J. at 335 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). "'For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time.'" Ibid. (quoting Copeland, 641 F.2d at 891). Moreover, a trial court has discretion to exclude excessive hours "if the specific circumstances incidental to a counsel-fee application demonstrate that the hours expended, taking into account the damages prospectively recoverable, the interests to be vindicated, and the underlying statutory objectives, exceed those that competent counsel reasonably would have expended to achieve a comparable result." Id. at 336. While proportionality between damages recovered and attorney fee awards is not required, "'[t]he trial court's responsibility to review carefully the lodestar fee request is heightened in cases in which the fee requested is disproportionate to the damages recovered.'" Hansen, 253 N.J. at 217 (quoting Szczepanski v. Newcomb Med. Ctr. Inc., 141 N.J. 346, 366 (1995)). In such A-2084-24 17 cases, "'the trial court should evaluate . . . the interest to be vindicated in the context of the statutory objectives, as well as any circumstances incidental to the litigation that directly or indirectly affected the amount of counsel's efforts,' and may accordingly exclude excessive hours." Ibid. (quoting Szczepanski, 141 N.J. at 366-67). After establishing the lodestar fee, courts "should consider whether to increase that fee to reflect the risk of nonpayment in all cases in which the attorney's compensation . . . is contingent on a successful outcome." Rendine, 141 N.J. at 337. This is because "as a matter of economic reality and simple fairness . . . a counsel fee awarded under a fee-shifting statute cannot be 'reasonable' unless the lodestar . . . is adjusted to reflect the actual risk that the attorney will not receive payment if the suit does not succeed." Id. at 338. In determining whether to award a lodestar enhancement a court must "'determine whether a case was taken on a contingent basis, whether the attorney was able to mitigate the risk of nonpayment in any way, and whether other economic risks were aggravated by the contingency of payment.'" Id. at 339 (quoting Pennsylvania. v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 747 (1987) (Blackmun, J., dissenting)). A-2084-24 18 Having carefully reviewed the record and the parties' arguments, we affirm the court's award of attorneys' fees and costs for the reasons set forth in its comprehensive oral and written decisions. We add the following brief comments. Defendants' claim that the court improperly awarded plaintiff fees and costs in connection with the first trial lacks merit. As the court recognized, a considerable amount of the work done prior to and during the first trial was used for the second trial and did not need to be duplicated. This included, for example, client and witness interviews, preparation of the complaint, pretrial discovery, preparation of trial exhibits, and in limine motions. There is no reason why plaintiff should not have been permitted to recover fees and costs incurred for that work. What is more, the court painstakingly reviewed all of the invoices and eliminated, as much as possible, any redundant or duplicative work. In other words, defendants were only charged once for the work necessary for the second trial, some of which was done prior to and during the first trial. Defendants' contention that the court awarded fees for claims on which plaintiff did not prevail is also unpersuasive. As the court determined, all of plaintiff's claims were premised on the same core contention – that defendants A-2084-24 19 discriminated against her and failed to accommodate her disability. They were, therefore, "intertwined and [could ]not be separated or parsed out." Because "plaintiff's unsuccessful claims [were] related to the successful claims, . . . by a 'common core of facts' or 'related legal theories'" it was not improper for the court to award fees based on all the work performed by counsel on all of the claims asserted in both the first and second trials. Singer v. State, 95 N.J. 487, 500 (1984). We likewise reject plaintiff's arguments in support of her cross-appeal. Contrary to plaintiff's claim, the court provided a thorough and detailed explanation of the reductions it made to the fees requested. The court was not required to "reference . . . any law or case in New Jersey" to support its decision. The court reviewed every billing entry, made reductions based on its substantial experience, and provided a detailed explanation for each of the reductions. We are satisfied the court did not abuse its substantial discretion in establishing the lodestar and denying plaintiff's request for a lodestar enhancement based on the facts and circumstances of this case. Any remaining claims lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-2084-24 20