JOHN RIELLO VS. BUHLER DODGE (L-1505-18, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2069-18T3
JOHN RIELLO,
Plaintiff-Appellant,
v.
BUHLER DODGE, HUDSON
CHRYSLER JEEP DODGE RAM,
FLEMINGTON CHRYSLER JEEP
DODGE, MT. EPHRAM
CHRYSLER DODGE RAM,
ROUTE 18 CHRYSLER JEEP
DODGE RAM, FREEHOLD DODGE,
JOHNSON DODGE CHRYSLER JEEP
RAM, BOB NOVICK CHRYSLER JEEP
RAM, CHERRY HILL DODGE
CHRYSLER JEEP RAM, RAMSEY
CHRYSLER JEEP DODGE RAM, COX
AUTOMOTIVE, AUTO TRADER as an
indispensable party, FCA USA LLC,
SEA VIEW JEEP CHRYSLER DODGE
RAM, CITY AUTO PARK, and
SPORT HYUNDAI DODGE RAM,
Defendants-Respondents.1
____________________________________
Argued October 10, 2019 – Decided December 3, 2019
Before Judges Koblitz, Whipple, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1505-18.
Jonathan S. Rudnick argued the cause for appellant.
Jay Bently Bohn argued the cause for respondents
Buhler Chrysler Jeep Dodge Ram and Ramsey Chrysler
Jeep Dodge Ram (Schiller, Pittenger & Galvin, PC,
attorneys; Perry A. Pittenger, of counsel; Jay Bently
Bohn, on the brief).
John Scott Fetten argued the cause for respondent UAG
Hudson CJD, LLC, d/b/a Hudson Chrysler Jeep Dodge
Ram (Montgomery Fetten, PA, attorneys; John Scott
Fetten, of counsel and on the brief).
Bradley L. Rice argued the cause for respondents
Flemington Chrysler Jeep Dodge and Route 18
Chrysler Jeep Dodge Ram (Nagel Rice, LLP, attorneys;
Bradley L. Rice, of counsel and on the joint brief).
Christopher John Conover argued the cause for
respondents Sea View Jeep Chrysler Dodge Ram and
1
The following respondents were all improperly pled. They are correctly
known as: Buhler Chrysler Jeep Dodge Ram; UAG Hudson CJD, LLC, d/b/a
Hudson Chrysler Jeep Dodge; Johnson Dodge Chrysler, Inc.; Sea View Auto
Corporation; Freehold Dodge Subaru; Foulke Management Corporation, t/a Mt.
Ephraim Chrysler Dodge Ram; Cox Automotive, Inc.; Autotrader.com, Inc.;
Dodge City, Inc., d/b/a City Auto Park; and Millennium, Inc., d/b/a Sport
Hyundai Dodge.
A-2069-18T3
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Johnson Dodge Chrysler Jeep Ram (Ahmuty, Demers
& McManus, attorneys; Taimour Chaudhri, on the joint
brief).
Matthew Warren Ritter argued the cause for respondent
Bob Novick Chrysler Jeep Ram (Ritter Law Office,
LLC, attorneys; Matthew Warren Ritter, on the joint
brief).
Risa M. Chalfin argued the cause for respondent
Freehold Dodge (Wilentz, Goldman & Spitzer, PA,
attorneys; Marvin J. Brauth, of counsel and on the brief;
Risa M. Chalfin, on the brief).
Laura D. Ruccolo argued the cause for respondents Mt.
Ephraim Chrysler Dodge Ram and Cherry Hill Dodge
Chrysler Jeep Ram (Capehart & Scatchard, PA,
attorneys; Laura D. Ruccolo, of counsel and on the
brief).
Jonathan E. Ginsberg argued the cause for respondents
Cox Automotive and Auto Trader (Bryan Cave
Leighton Paisner, LLP, attorneys; Jonathan E.
Ginsberg, on the brief).
Nolan J. Mitchell (Nelson Mullins Riley &
Scarborough LLP) of the Massachusetts bar, admitted
pro hac vice, argued the cause for respondent FCA US
LLC (Davison, Eastman, Munoz, Lederman & Paone,
PA, and Nolan J. Mitchell, attorneys; James M.
McGovern, Jr. and Nolan J. Mitchell, of counsel and on
the brief).
Frank J. Kontely, III argued the cause for respondents
City Auto Park and Sport Hyundai Dodge Ram
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Frank J. Kontely, III, of counsel and on the
brief).
A-2069-18T3
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PER CURIAM
Plaintiff appeals from December 4 and 7, 2018 orders dismissing his third
and fourth amended complaints with prejudice. We affirm.
Our review of the pleadings reveals this case arose from plaintiff's
unsuccessful attempts to purchase a 2018 Dodge Challenger SRT Demon
(Demon), a limited-production high-end performance vehicle. In plaintiff's
fourth amended complaint he alleges that defendant FCA US LLC (FCA)
announced a limited production of 3,300 Demons at the April 2017 New York
Auto Show. Plaintiff asserts FCA represented that Demons would only be
offered through an allocation process, which required that the vehicle be
purchased before it would be built and delivered to the dealer. According to
plaintiff's complaint, dealers had to meet certain sales requirements before they
were eligible to order a Demon for their customers. FCA established a Demon
pre-order window of ninety days – June 21 through September 21, 2017. The
first Demons were delivered on or about November 11, 2017, and the last Demon
was built on May 31, 2018.
Plaintiff alleges that in 2018, after seeing several Demons advertised
online by various dealers through defendant Autotrader.com, Inc. (Autotrader),
he attempted to purchase a Demon from the following defendant dealers:
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Ramsey Chrysler, Buhler Chrysler, Route 18 Chrysler, Mount Ephraim
Chrysler, Flemington Dodge, Hudson Chrysler, Freehold Chrysler Jeep,2 Novick
Chrysler, Cherry Hill Dodge, Johnson Chrysler, Sport Dodge, Sea View
Chrysler, and City Auto Park. Plaintiff does not provide information as to how
he initiated contact with each dealer, but alleges salespersons from each dealer,
except for Sport Dodge, responded via email that the Demons were either
unavailable or already sold. Sport Dodge informed plaintiff a Demon was
available, but for the sale price of approximately $125,000, not the $85,000
plaintiff asserts was advertised.
On April 25, 2018, plaintiff filed a complaint alleging violations of the
Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, (CFA) against various Dodge
Chrysler Jeep dealers (the dealers) and other non-dealer defendants, Cox
Automotive, Inc., Autotrader, and FCA. Plaintiff then filed three additional
amended complaints. The trial court dismissed the second amended complaint,
which named additional dealers, without prejudice based on plaintiff’s failure to
state a claim under the CFA with particularity. However, the trial court twice
more allowed plaintiff to file amended complaints.
2
A stipulation of dismissal with prejudice was entered as to Freehold Chrysler
Jeep.
A-2069-18T3
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The fourth and most recent amended complaint alleges the Demon was
not actually intended for mass market sale, but was instead meant to entice
buyers into purchasing less expensive Dodge vehicles. Count One alleges that
the dealers "engaged in a deceptive practice in violation of the [CFA] when they
advertised a car with no intention of selling the car and as part of a scheme not
to sell a car at an advertise[d] price." Plaintiff alleges FCA and the dealers
"acted in concert and in agreement about implementing a deceptive pattern of
practice, including but not limited to affirmative misrepresentations of fact with
the intention that the plaintiff rely thereon to his detriment." Plaintiff further
alleges that the dealers intentionally engaged in a deceptive scheme to advertise
the Demon, without selling the vehicle at the advertised price. Plaintiff alleges
in part, that FCA "participated in, ratifying the conduct of and is responsible for
the advertising for the vehicles which the plaintiff attempted to purchase . . .
[and] the placement of the advertising into the stream of commerce was
managed, controlled and/or under the auspices of the manufacturer."
Between October 19 and November 15, 2018, all of defendants moved
under Rule 4:6-2(e) to dismiss for failure to state a claim for relief under the
CFA. The trial court heard oral argument on all of the motions and on December
4, and 7, 2018, issued orders dismissing all plaintiff's claims against all
A-2069-18T3
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defendants. Accompanying the orders was a thorough and well-reasoned written
decision, explaining:
This matter arises out of an alleged [CFA] violation on
the part of approximately thirteen (13) different
automobile dealerships. Plaintiff reviewed the various
prices and availability of a [Demon] on [Autotrader]
and allegedly verified availability and price on
numerous dealerships' websites. Plaintiff alleges that
the dealerships' failure or inability to sell plaintiff the
subject vehicle at the advertised price constitutes a
deceptive practice, bait and switch, deceptive
advertising, and deceptive business practice.
Here, it appears that [p]laintiff has failed to set
forth an ascertainable loss on the face of his amended
complaint. Under the CFA "to have standing under the
[CFA] a private party must plead a claim of
ascertainable loss that is capable of surviving a motion
for summary judgment." Weinberg v. Sprint Corp., 173
N.J. 233, 237 (2002). Plaintiff’s complaint alleges he
"lost an asset that he should have been permitted to
purchase at the advertised price which constitutes the
ascertainable loss." See [p]laintiff’s [t]hird [a]mended
complaint [paragraph] 68. This assertion does not show
actual damages. Again, [p]laintiff had the opportunity
to purchase at least one Demon. It appears to the
[c]ourt that any losses in this matter are hypothetical, at
best. The [c]ourt finds that [p]laintiff’s third and fourth
amended complaints have failed to meet the standard
set forth under [Rule] 4:5-8(a), regarding the specificity
of which [CFA] claims and [c]ommon [l]aw fraud
claims must be pled.
This appeal followed. On appeal, plaintiff argues the trial court's findings
and conclusions were inadequate to support dismissal, and that the trial court
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should have treated defendant FCA's motion under a summary judgment
standard. Plaintiff further argues he sustained an ascertainable loss as a result
of defendants' deceptive advertising, notwithstanding the lack of a completed
transaction. We disagree.
Motions to dismiss for failure to state a claim upon which relief can be
granted are decided under Rule 4:6-2(e). The trial court is to search the
complaint in depth and accord every reasonable inference to plaintiff. Printing
Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989). However, a
plaintiff must allege sufficient facts rather than conclusory allegations to support
a cause of action. Scheidt v. DRS Tech., Inc., 424 N.J. Super. 188, 193 (App.
Div. 2012). If the complaint states no basis for relief, and discovery would not
provide one, then dismissal of the complaint is appropriate. Camden Cty.
Energy Rec. Assocs. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64-65
(App. Div. 1999). "[D]ismissal is mandated where the factual allegations a re
palpably insufficient to support a claim upon which relief can be granted."
Rieder v. State, Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987).
Here, plaintiff argues he presented evidence of an ascertainable loss
sufficient to survive dismissal. Plaintiff asserts his ascertainable loss arose from
defendants' "refus[al] to . . . sell or even make available the [Demon] at the
A-2069-18T3
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advertised price." Essential to his argument is the assumption the Demon was
worth more than its advertised price, or that it would increase in value. Plaintiff
asserts defendants never intended to sell the vehicle at the advertised price, and
an "ascertainable loss was created and rendered measurable when the defen dant
refused to honor their advertisements for the highly valued [Demon]."
"To prevail on a CFA claim, a plaintiff must establish three elements: '1)
unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a
causal relationship between the unlawful conduct and the ascertainable loss.'"
Zaman v. Felton, 219 N.J. 199, 222 (2014) (citation omitted). Under N.J.S.A.
56:8-19, private plaintiffs must show they suffered an "ascertainable loss of
moneys or property." 3 Thus, "a private plaintiff must produce evidence from
3
The Legislature enacted the CFA in 1960 to address rampant consumer
complaints about fraudulent practices in the marketplace and to deter such
conduct by merchants. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)
(citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 21 (1994)). The CFA initially
conferred enforcement power exclusively on the Attorney General. See
Weinberg, 173 N.J. at 247-48.
A private citizen cause of action was added under the CFA, however
additional proofs are required for a private cause of action above those imposed
on the Attorney General. Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464,
473 (1988). As a prerequisite to the right to bring a private action, a plaintiff
must be able to demonstrate that "he or she suffered an ascertainable loss . . . as
a result of the unlawful conduct." Weinberg, 173 N.J. at 237.
Our Supreme Court has held strong to the distinction. "When last we were
asked to ignore the statutory distinction between CFA actions brought by the
(continued)
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which a factfinder could find or infer that the plaintiff suffered an actual loss."
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005). The loss
may not be "hypothetical or illusory," but must be "quantifiable or measurable."
Ibid. A "plaintiff must suffer a definite, certain and measurable loss, rather than
one that is merely theoretical." Bosland v. Warnock Dodge, Inc., 197 N.J. 543,
558 (2009).
Even where a plaintiff is able to establish unlawful conduct by a
defendant, proof of an ascertainable loss is mandatory. Weinberg, 173 N.J. at
236-37, 249-50. "[T]o have standing under the [CFA] a private party must plead
a claim of ascertainable loss that is capable of surviving a motion for summary
judgment." Id. at 237. An ascertainable loss is shown either through proof of
an out-of-pocket loss, or through a loss in value or benefit of the bargain.
Thiedemann, 183 N.J. at 248, 252, n.8. "The 'benefit of the bargain' rule allows
recovery for the difference between the price paid and the value of the property
had the representations made been true; the 'out of pocket' approach provides
recovery for the difference between the price paid and the actual value of the
Attorney General and the actions a private plaintiff may bring, and to abrogate
the requirement of an ascertainable loss for a private suit, we declined."
Thiedemann, 183 N.J. at 247.
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property acquired." Romano v. Galaxy Toyota, 399 N.J. Super. 470, 483 (App.
Div. 2008) (citations omitted). But here, there was no transaction, no property
acquired, and therefore no out of pocket loss and no loss of value.
In Thiedemann, our Supreme Court declined to find an ascertainable loss
regarding a malfunctioning fuel gauge that was later fixed. 183 N.J. at 252.
[F]uture hypothetical diminution in value in the
[vehicle] due to a fuel gauge that at one time did not
read properly a full tank of gasoline, is too speculative
to satisfy the CFA requirement of a demonstration of a
quantifiable or otherwise measurable loss as a condition
of bringing a CFA suit. [Plaintiffs] made no attempt to
sell their vehicle. Nor did they present any expert
evidence to support an inference of loss in value
notwithstanding the lack of any attempt to sell the
vehicle, i.e., that the resale market for the specific
vehicle had been skewed by the "defect." The absence
of any such evidence, presented with a sufficient degree
of reliability to permit the trial court, acting as
gatekeeper, to allow the disputed fact to proceed before
a jury, was fatal to plaintiffs' claim.
[Ibid. (emphasis in original).]
Plaintiff contends he "lost an asset that he should have been permitted to
purchase at the advertised price," that "the market value was more than the
advertised price which constitutes the ascertainable loss," and that his inability
to procure a Demon has deprived him of future profits from the potential sale of
the vehicle. However, plaintiff has proffered no allegations he knew of buyers
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to whom he could have resold a Demon at a higher price, nor does his complaint
explain the alleged potential unrealized appreciation on any Demon he would
have obtained. Like the plaintiff in Thiedemann, plaintiff here presented
nothing to suggest he has lost money on the future resale of a vehicle, nor has
he presented any evidence that would allow a court to determine there was an
ascertainable loss. Plaintiff asserts the Demon would sell for more than its
initial list price, but provides nothing to support this proposition.
Moreover, we reject the assertion defendants refused to sell plaintiff a
vehicle. Plaintiff's complaint alleges he contacted each dealership asking for
more information, at which point he was informed the vehicles were unavailable,
or, in the case of Sport Dodge, available for a higher price than previously
advertised. Even if we were to assume the allocation process designed for
distribution of Demons was a deceptive practice, without a concomitant
ascertainable loss, a private plaintiff cannot seek recovery.
Plaintiff also argues that FCA’s motion to dismiss was a disguised
summary judgment motion that should have been denied. Plaintiff complains
FCA included certain terms of service as an exhibit that were neither contained
nor referenced in any of the pleadings. While FCA did submit information not
contained in the pleadings, a thorough review of the trial court's statement of
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reasons reveals no reference to FCA's submission. Because the trial court
resolved the motions without considering the additional submissions, it properly
resolved the issue on the pleadings.
Plaintiff additionally asserts the trial court's "December 4, 2018 and
December 7, 2018 decision[s] did not contain findings of fact or conclusions
supporting a dismissal." However, plaintiff's claim the trial court did not make
adequate findings of law and fact in accordance with Rule 1:7-4 is without merit.
The trial court's written opinion lays out the facts necessary for its determination
and then applies the applicable law to those facts.
We do not need to address the December 7, 2018 order granting defendant
Cox's motion to dismiss with prejudice, because plaintiff's brief contains no
argument of any kind regarding the order or why the trial court’s ruling should
be reversed. Issues not briefed on appeal are deemed waived and abandoned.
Midland Funding LLC v. Thiel, 446 N.J. Super. 537, 542, n. 1 (App. Div. 2016);
New Jersey Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505, n.
2 (App. Div. 2015) (stating "[a]n issue that is not briefed is deemed waived upon
appeal"). Plaintiff's other arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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