Connor, J.d.c., temporarily assigned.
This case was tried before the court and a jury. Recovery was sought for damages under the Consumer Fraud Act; N.J.S.A. 56:8-1 et seq. , and for the tort of malicious prosecution. The matter was submitted to the jury upon written interrogatories. The jury determined as a matter of fact that defendants were guilty of consumer fraud but that plaintiff suffered no ascertainable loss of money or property as a result thereof. Defendants were also found to have committed the tort of malicious prosecution. Compensatory damages of $1,500 and punitive damages of $8,000 were awarded for that aspect of the case.
Here presented is the issue of whether a plaintiff who is the victim of consumer fraud but who sustains no ascertainable loss of moneys or property as a result thereof may nonetheless be awarded reasonable attorneys' fees and reasonable costs of suit pursuant to N.J.S.A. 56:8-19. (Since recovery was had on another count of the complaint, filing fees have already been awarded and need not be dealt with.)
The court is satisfied that there can be no recovery for counsel fees and/or costs under the facts of this case.
R. 4:42-9 provides that no fee for legal services shall be allowed in the taxed costs or otherwise except in certain specified instances. Subsection (a)(8) thereof allows counsel fees in
all cases where permitted by statute. This rule embodies the traditional "American rule" that the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser. The narrowness of the specific exceptions is to be rigorously enforced, "lest they grow to consume the general rule itself." Van Horn v. Trenton , 80 N.J. 528, 538 (1979).
Conversely, if the Legislature, through the exercise of its constitutional powers, has mandated the award of counsel fees, its will should be given effect. N.J.S.A. 56:8-19 reads as follows:
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, act, or practice declared unlawful under this act or the act 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 the damages sustained by any person in interest. In all actions under this section the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.
There is no available legislative history to assist the court. There is an accompanying Governor's statement which understandably lauds in general this statutory endeavour to protect the public from the use of any unconscionable practice, deception or fraud in connection with the sale of merchandise or real estate.
Two maxims of statutory construction immediately come to mind. First, remedial legislation should be liberally construed so as to accomplish the result intended by the Legislature. See Service Armament Co. v. Hyland , 70 N.J. 550, 559 (1976). Second, in determining what the Legislature intended, the place to start is with an examination of the statute being interpreted, giving due regard to context and the statutory scheme as a whole. See Service Armament Co., supra; Singleton v. Consolidated Freightways Corp. , 64 N.J. 357, 362 (1974).
Applying these principles, the court is satisfied that in order to recover counsel fees and costs one must first suffer an "ascertainable loss of moneys or property." A logical interpretation to be given ...