Opinion
Argued May 7, 1991 —
Decided June 12, 1991.
Appeal from The Superior Court, Law Division, Monmouth County.
Before Judges PRESSLER, BAIME and A.M. STEIN.
Judge Pressler did not participate in oral argument. She participated in the final decision by consent of the parties.
James D. Carton, III, argued the cause for appellants ( Carton, Witt, Arvanitis Bariscillo, attorneys; James D. Carton on the brief).
J. Peter Sokol, argued the cause for respondent ( McOmber McOmber, P.C., attorneys; J. Peter Sokol of counsel and on the brief).
Plaintiffs appeal the Law Division judgment limiting their recovery under N.J.S.A. 49:3-71(a)(2) under New Jersey's version of the Uniform Securities Act to actual damages, interest and taxed costs, and denying out-of-pocket expenses and counsel fees. We affirm.
N.J.S.A. 49:3-71(a)(2) provides that a securities buyer who suffers damages as a result of the seller's misrepresentation or omission of a material fact is entitled to recover
the consideration paid for the security, together with interest at 12% per year from the date of payment and costs, . . . .
The trial judge molded the jury's specific interrogatory answers into a damage award of $6,517.06, the amount of commissions withheld by defendant when plaintiffs redeemed their mutual fund shares. The judge also allowed 12% interest plus taxed costs and denied reimbursement of out-of-pocket expenses and counsel fees.
We conclude that the trial judge correctly ruled that the statute limits costs to those taxed costs allowable pursuant to N.J.S.A. 22A:2-8. "Costs" does not include out-of-pocket expenses or attorneys' fees. R. 4:42-9 provides
(a) No fee for legal services shall be allowed in the taxed costs or otherwise, except
. . . .
(8) In all cases where counsel fees are permitted by statute.
N.J.S.A. 49:3-71(a)(2) does not expressly provide for counsel fees. They cannot be awarded pursuant to that statute. Unlike our statute, the Uniform Law provides that in addition to damages a successful plaintiff may recover "interest . . . costs, and reasonable attorneys' fees, . . . ." Uniform Securities Act, § 410(a)(2), 7B U.L.A. (1985) (emphasis added).
We reject the holding allowing counsel fees pursuant to this statute in Cola v. Terzano, 129 N.J. Super. 47 , 60, 322 A.2d 195 (Law Div. 1974), affirmed sub nom., Cola v. Packer, 156 N.J. Super. 77 , 383 A.2d 460 (App.Div. 1978), and note that the Law Division's ruling on counsel fees was not discussed in the Appellate Division's opinion.
The failure to provide for counsel fees to a successful claimant proceeding under this statute may have been a legislative oversight. The Legislature has been willing to make counsel fee provisions for successful litigants pursuing remedies under other consumer-oriented laws such as the Consumer Fraud Act. See N.J.S.A. 56:8-19. A provision for attorneys' fees may be consistent with the statutory policy of the Uniform Securities Act, set forth in N.J.S.A. 49:3-75:
[T]o effectuate its general purpose to make uniform the law of those States which enact similar laws. . ..
It is nevertheless a matter of legislative prerogative.
Affirmed.