NOT FOR PUBLICATION WITHOUT THE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-4027-14T1
ESSA LEE,
Plaintiff-Appellant,
v.
HUDSON TOYOTA,
Defendant-Respondent.
________________________________
Submitted March 14, 2017 – Decided July 3, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-1559-14.
Essa Lee, appellant pro se.
Traflet & Fabian, attorneys for respondent
(Stephen G. Traflet and Debra M. Albanese, on
the brief).
PER CURIAM
Plaintiff Essa Lee appeals from a March 20, 2015 order
granting summary judgment to defendant Hudson Toyota. Based on our
review of the record under the applicable law, we affirm.
I.
Viewing the facts and all reasonable inferences therefrom in
the light most favorable to plaintiff as the non-moving party,
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995),
the following facts were presented to the motion court.
In or about March 2010, defendant acquired a 2006 Toyota
Highlander (the vehicle) for resale. In April 2010, plaintiff
bought the vehicle, which had 40,815 miles on it, from defendant
for a total amount of $21,641.80. Plaintiff paid a deposit and
financed the balance. Following the purchase, plaintiff obtained
a certificate of title from the New York State Department of Motor
Vehicles (NYSDMV) in June 2010, showing a "clean" title.
In May 2012, plaintiff was advised by NYSDMV that it could
not renew the vehicle's registration and instructed plaintiff to
contact NYSDMV's salvage department. The salvage department
advised plaintiff the vehicle showed a salvage notation in its
title history and, as a result, a new "salvage" title1 was issued.
Plaintiff informed defendant about the salvage title issue
and negotiated a trade-in of the vehicle to defendant as part of
a purchase of a 2012 Toyota Highlander. Defendant assessed the
1
Plaintiff did not offer any evidence of the meaning of a salvage
title, or the effect, if any, of a salvage title on a vehicle's
value.
2 A-4027-14T1
vehicle's trade-in value, which then had 84,094 miles, at $14,700.
After deducting the balance plaintiff still owed to the lender,
plaintiff agreed to a net trade-in value of $4062 against the
purchase of the 2012 vehicle.
On April 4, 2014, plaintiff filed a pro se complaint alleging
defendant concealed the fact that the vehicle was a salvage car.
Plaintiff averred that he sustained $18,355.72 in damages
consisting of what he paid defendant for the vehicle. Following
the completion of discovery, defendant filed a motion for summary
judgment.
The court broadly construed plaintiff's complaint to allege
causes of action for breach of contract, common law fraud, and
violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -
204. The court determined there was no evidence showing defendant
was aware the vehicle had a salvage title issue when it was sold
to plaintiff. Instead, the evidence showed that prior to
defendant's sale of the vehicle to plaintiff, it received a Carfax
report which did not reveal any salvage title issues, and that
when NYSDMV issued the title in June 2010 its records did not
reflect a salvage title issue. The record does not include any
evidence showing defendant was aware of a salvage title issue
prior to its sale of the vehicle to plaintiff.
3 A-4027-14T1
The court further found plaintiff failed to present any
competent evidence he sustained damages as a result of purchasing
the vehicle from defendant. The court entered an order granting
defendant's motion for summary judgement. This appeal followed.
II.
As best we can discern the arguments in plaintiff's pro se
briefs on appeal,2 he argues the court erred because he presented
evidence showing defendant violated the CFA by selling him a
salvage title vehicle and establishing he sustained damages equal
to a "full refund" for the vehicle. We disagree.
We review a trial court's grant of summary judgment de novo.
Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403,
414 (2016). Summary judgment is appropriate where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. R. 4:46-2(c). We must "consider
2
Plaintiff's failure to include point headings as required under
Rule 2:6-2(a)(6) complicates our task of ascertaining the
arguments asserted. See Almog v. Israel Travel Advisory Serv.,
Inc., 298 N.J. Super. 145, 155 (App. Div.) (declining to consider
on appeal legal issues not made under appropriate point headings),
certif. granted, 151 N.J. 463 (1997), appeal dismissed, 152 N.J.
361 (1998). We read the text of the briefs broadly to assert that
the court erred by granting summary judgment for the reasons stated
in its oral opinion. To the extent plaintiff's briefs may be read
to raise arguments not presented to the motion court, the arguments
do not concern jurisdictional or public policy issues warranting
our consideration for the first time on appeal. Zaman v. Felton,
219 N.J. 199, 226-27 (2014).
4 A-4027-14T1
whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in
consideration of the applicable evidentiary standard, are
sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Brill, supra,
142 N.J. at 523.
We first consider plaintiff's claim the court erred in
dismissing his CFA claim based on its finding he did not present
competent evidence supporting his damages claim. "A CFA claim
requires proof of 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.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 121
(2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557
(2009)).
The CFA "authorizes a statutory remedy for '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 [the]
[A]ct.'" D'Agostino v. Maldonado, 216 N.J. 168, 184-85 (2013)
(quoting Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002)). "An
ascertainable loss under the CFA is one that is 'quantifiable or
5 A-4027-14T1
measurable,' not 'hypothetical or illusory.'" Id. at 185 (quoting
Thiedemann v. Mercedes-Benz USA, L.L.C., 183 N.J. 234, 248 (2005)).
"In cases involving breach of contract or misrepresentation,
either out-of-pocket loss or a demonstration of loss in value will
suffice to meet the ascertainable loss hurdle and will set the
stage for establishing the measure of damages." Thiedemann, supra,
183 N.J. at 248. "That said, a claim of loss in value must be
supported by sufficient evidence to get to the factfinder." Ibid.
"To raise a genuine dispute about such a fact, the plaintiff must
proffer evidence of loss . . . presented with some certainty
demonstrating that it is capable of calculation, although it need
not be demonstrated in all its particularity to avoid summary
judgment." Ibid.
The determination of whether a plaintiff has suffered an
ascertainable loss "focus[es] on the plaintiff's economic position
resulting from the defendant's consumer fraud." D'Agostino, supra,
216 N.J. at 194. Compensatory damages in fraud cases are intended
"to make 'an injured party whole' [in order] to fairly and
reasonably compensate that injured party for the damages or losses
proximately caused by the alleged consumer fraud." Romano v. Galaxy
Toyota, 399 N.J. Super. 470, 483 (App. Div.) (quoting Furst v.
Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)), certif. denied, 196
N.J. 344 (2008).
6 A-4027-14T1
In addition, "[i]n some circumstances, if the defendant or a
non-party takes action to ensure that the plaintiff sustains no
out-of-pocket loss or loss of value prior to litigation, then
plaintiff's CFA claim may fail." D'Agostino, supra, 216 N.J. at
194; see also Thiedemann, supra, 183 N.J. at 251-52 (finding no
ascertainable loss where plaintiffs failed to "present any expert
evidence to support an inference of loss" in the vehicle's value
and defendant repaired a defect at no cost); Meshinsky v. Nichols
Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (finding no
ascertainable loss where defendant repaid plaintiff's bank loan).
But see Cox v. Sears Roebuck & Co., 138 N.J. 2, 22 (1994) (holding
that a consumer is not required to actually spend money on repairs
prior to litigation).
Thus, "[a]n 'estimate of damages, calculated within a
reasonable degree of certainty' will suffice to demonstrate an
ascertainable loss." Thiedemann, supra, 183 N.J. at 249 (quoting
Cox, supra, 138 N.J. at 22). "[A]n expert may be able to speak to
a loss in value of real or personal property due to market
conditions, with sufficient precision to withstand a motion for
summary judgment." Ibid. "However, by the time of a summary
judgment motion, it is the plaintiff's obligation to be able to
make such a demonstration or risk dismissal of the cause." Ibid.
7 A-4027-14T1
In Romano, supra, we determined there was no ascertainable
loss where the plaintiff failed to present evidence that the "roll-
back" of a vehicle's odometer caused plaintiff to incur any loss
of money or value. 399 N.J. Super. at 475, 483. We explained that
the award of damages required to compensate the plaintiff for
defendant's misrepresentation of the car's mileage was not the
purchase price of the car, but the difference between the price
paid and its actual value in its altered condition. Id. at 484.
However, the plaintiff did not experience any mechanical problems
or expend any funds to obtain necessary repairs of the vehicle,
and did not provide an expert opinion or other evidence to
"quantify the consequential loss suffered due to the altered
odometer." Id. at 483.
Here, plaintiff's complaint alleges that he sought damages
for a refund of the purchase price of the car. In response to
defendant's interrogatory asking that plaintiff specify his
damages, plaintiff stated, "See CarFax report. [A] total loss of
the car and to be put in position to buy a new car [illegible]
hurt me financially." In plaintiff's brief on appeal, he states,
"[defendant] did not give [him] a full refund" and only paid "the
$10,638 balance [he] owe[d] to the lender."
Plaintiff appears to claim defendant misrepresented the
condition of the vehicle and thus incorrectly valued the vehicle
8 A-4027-14T1
when it was sold to plaintiff and when plaintiff traded it in.
However, plaintiff failed to provide any evidence supporting his
argument that the car was incorrectly valued on either occasion.
The record is devoid of evidence the value of the vehicle would
have been less than the price he paid for it in 2010 had the
salvage title issue been known at that time. The record is also
bereft of evidence that the trade-in value of the vehicle in 2012
was incorrect. His damage claim is unsupported by the testimony
of any expert "able to speak to a loss in value of [the property],"
Thiedemann, supra, 183 N.J. at 249, or any other evidence
"quantify[ing] the consequential loss suffered due to the
[condition of the vehicle]," Romano, supra, 399 N.J. Super. at
483.
In addition, plaintiff failed to establish an ascertainable
loss by demonstrating that defendant's actions, in accepting the
vehicle and applying a trade-in credit towards a new vehicle, were
insufficient to address any purported loss of value due to the
salvage title issue, see, e.g., Meshinsky, supra, 110 N.J. at
475, particularly in light of the fact that plaintiff used the
vehicle to drive approximately 43,000 miles over a two-year period
prior to trading it in. In sum, plaintiff failed to provide "an
estimate of damages, calculated within a reasonable degree of
9 A-4027-14T1
certainty," sufficient to withstand a summary judgment motion.
Thiedemann, supra, 183 N.J. at 249.
Although plaintiff's brief does not directly address the
court's dismissal of his breach of contract and common law fraud
claims, his failure to present sufficient evidence supporting his
damages claims is fatal to those claims as well. See Gennari v.
Weichert Co. Realtors, 148 N.J. 582, 610 (1997) ("The five
elements of common-law fraud are: (1) a material misrepresentation
of a presently existing or past fact; (2) knowledge or belief by
the defendant of its falsity; (3) an intention that the other
person rely on it; (4) reasonable reliance thereon by the other
person; and (5) resulting damages."); EnviroFinance Grp., LLC v.
Envtl. Barrier Co., LLC, 440 N.J. Super. 325, 345 (App. Div. 2015)
("To prevail on a breach of contract claim, a party must prove a
valid contract between the parties, the opposing party's
failure to perform a defined obligation under the contract, and
the breach caused the claimant to sustain[] damages.")
Accordingly, we are satisfied summary judgment was properly
granted.3
3
Because plaintiff failed to present sufficient evidence he
sustained compensable damages, it is unnecessary to address the
court's determination that defendant was entitled to summary
judgment because the evidence showed defendant was unaware of a
salvage title issue when it sold the vehicle to plaintiff in 2010.
10 A-4027-14T1
Plaintiff's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
11 A-4027-14T1