NOT FOR PUBLICATION WITHOUT THE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-4538-16T3
LARRY PITT,
Plaintiff-Appellant,
v.
TYRUS CHI, LLC1,
and MICHAEL P. O'CONNELL,
Defendants-Respondents.
_____________________________
Argued July 31, 2018 - Decided August 16, 2018
Before Judges Sabatino, Mayer, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
L-1974-15.
Clark W. Pease argued the cause for appellant
(Law Offices of Clark Pease, PC, attorneys;
Clark W. Pease, of counsel and on the briefs;
Paul N. De Petris, on the briefs).
Elizabeth A. Weber argued the cause for
respondents (Sweeney & Sheehan, PC, attorneys;
Giacomo F. Gattuso, of counsel; Joseph M.
Hauschildt, Jr., on the brief).
1
Improperly designated as Michael P. O'Connell, trading as
Trixie's Café.
PER CURIAM
Plaintiff Larry Pitt appeals from a May 26, 2017 order
granting summary judgment in favor of defendants Tyrus Chi, LLC
and Michael P. O'Connell. We affirm.
Plaintiff is the owner of a residential unit at a condominium
complex located in Longport. The condominium complex had a café,
known as Trixie's Café, serving breakfast and lunch during the
summer season. O'Connell owned the café. As a unit owner,
plaintiff received a $300 debit card limited to dining at the
café. The condominium association, which managed the condominium
complex, issued plaintiff's debit card.
Plaintiff dined at the café many times. Prior to the incident
that is the subject of plaintiff's complaint, plaintiff and
O'Connell discussed the sufficiency of gratuity amounts left by
plaintiff for the café's waitstaff. While the parties admit to
discussing gratuities, their respective memories of that
discussion differ. The parties' conflicting recollections related
to their discussion regarding gratuities has no bearing on our
determination of the dispositive issues in this case.
2 A-4538-16T3
The dispute here stemmed from an incident on July 25, 2015,
while plaintiff dined with a female companion.2 At the end of the
meal, the server presented a bill to plaintiff and advised him
that a twenty percent gratuity, amounting to $4.20, had been added
to the check. Plaintiff was not told of the added gratuity prior
to consuming his meal. Consequently, he refused to pay the added
gratuity. A dispute ensued between plaintiff and O'Connell
regarding the payment of the added gratuity. O'Connell instructed
plaintiff to leave the café. Plaintiff declined to leave the
café, and O'Connell telephoned the Longport police department.
In O'Connell's call to the police department, he reported a
customer in the café causing problems and refusing to leave.3
O'Connell told the police dispatcher that plaintiff was hitting
the table, was "about to blow his top," and was "pushing" his
"wife." O'Connell requested the police remove plaintiff from the
café. The police responded and plaintiff eventually left the café
after paying his bill, without the disputed gratuity. No charges
2
The female companion was misidentified as plaintiff's wife
during a telephone call to police dispatch.
3
An audiotape of O'Connell's 911 call to the Longport police
department and a surveillance videotape of the incident were
provided to the motion judge, but were not included in the parties'
appellate submissions.
3 A-4538-16T3
were filed against plaintiff; however, the café banned plaintiff
as a result of the incident.4 Several months later, the
condominium association refunded the unused balance on plaintiff's
café debit card, amounting to $103.5 Plaintiff did not cash the
refund check.
Plaintiff filed suit against defendants, alleging violations
of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, common
law fraud, and defamation per se. After completing discovery,
defendants moved for summary judgment, seeking dismissal of
plaintiff's complaint in its entirety.
The motion judge reviewed the written submissions and heard
the arguments of counsel on May 26, 2017. In an oral decision,
the judge granted defendants' motion and dismissed plaintiff's
complaint. Among other things, the judge found plaintiff failed
to demonstrate defendants committed any unlawful practice within
the CFA. The judge noted that a $4.20 tip was added to the café
bill, but found no evidence the gratuity was mandatory because
plaintiff never paid the tip and no charges were filed against
4
A written license agreement between the condominium association
and the café allowed the café to refuse service to patrons for
rude, abusive, and discourteous behavior.
5
Defendants did not issue the debit card to plaintiff and
therefore had no control regarding the issuance of a refund for
any balance on the card or the timing of a refund.
4 A-4538-16T3
plaintiff. The judge also determined plaintiff "failed to
establish an ascertainable loss as a result of defendants'
including a $4.20 gratuity on his bill." The judge further
explained "[p]laintiff has not produced any expert testimony to
quantify the damages he suffered by not being able to access the
café" from July 25, 2015, through Labor Day 2015.
Based on her review of the 911 call and the videotape, the
motion judge deemed the exchange between plaintiff and O'Connell
"a heated incident." Because plaintiff was unable to demonstrate
O'Connell's statement to the 911 police dispatcher denigrated his
reputation, other than offering speculation and conjecture that
the condominium complex residents were gossiping about the
incident, the judge dismissed the defamation claim.
The motion judge also held truth was an absolute defense to
plaintiff's defamation action. Having heard the audiotape of the
911 call and viewed the videotape of the incident, the judge
determined that plaintiff had pushed his female companion's hand
away while the companion attempted to persuade plaintiff to leave
the café. The judge also determined O'Connell told the police
that plaintiff pushed his companion. Since O'Connell accurately
reported plaintiff was "pushing" his "wife," the judge found
plaintiff's defamation per se claim failed as a matter of law.
5 A-4538-16T3
Lastly, in dismissing plaintiff's common law fraud claim, the
motion judge held defendants did not make a material
misrepresentation because plaintiff was told by the café's staff
that a gratuity had been added to his check. Nor did plaintiff
proffer sufficient evidence of damages, because he never paid the
gratuity. Plaintiff also received a reimbursement check for the
unused balance on his condominium debit card. However, plaintiff
elected not to cash the check. Regarding plaintiff's alleged
damages based on his inability to dine at the café because
O'Connell banned him, the judge concluded plaintiff failed to
quantify such damages. We disagree.
On appeal, plaintiff argues the motion judge erred in
dismissing his complaint as a matter of law because there were
genuine issues of material fact precluding summary judgment for
defendants.
We review a ruling on summary judgment de novo, applying the
same standard governing the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). We consider "whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue
in favor of the non-moving party." Id. at 406 (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We
6 A-4538-16T3
analyze issues of law de novo and accord no deference to the trial
judge's conclusions of law. Nicholas v. Mynster, 213 N.J. 463,
478 (2013).
To prevail on a CFA claim, a plaintiff must show: (1) the
merchant engaged in an unlawful practice contrary to N.J.S.A.
56:8-2; (2) plaintiff suffered an "ascertainable loss"; and (3)
the loss was caused by the merchant's unlawful practice. Lee v.
Carter-Reed Co., LLC, 203 N.J. 496, 521 (2010); see also N.J.S.A.
56:8-2.
Having reviewed the record, even in a light most favorable
to plaintiff, we agree with the motion judge that plaintiff failed
to demonstrate an ascertainable loss to prevail on his CFA claim.6
A plaintiff is required to provide specific proofs in support of
an ascertainable loss, and subjective assertions of a loss are
insufficient to sustain a CFA claim. Thiedemann v. Mercedes-Benz
USA, LLC, 183 N.J. 234, 252 (2005). Plaintiff bears the burden
of establishing he suffered an ascertainable loss that is
quantifiable. Id. at 248. A plaintiff cannot recover damages
under the CFA where he or she is unable to show actual harm. See
6
We recognize the parties disagree whether there was unlawful
conduct on the part of defendants under the CFA. However, it is
unnecessary to address that issue because even if plaintiff could
prove unlawful conduct by particular defendants consistent with
the CFA, plaintiff cannot establish he suffered an ascertainable
loss.
7 A-4538-16T3
Dabush v. Mercedez-Benz USA, LLC, 378 N.J. Super. 105, 116 (App.
Div. 2005). Moreover, a plaintiff must be able to demonstrate the
amount of the ascertainable loss to a reasonable degree of
certainty. Ibid.
Here, plaintiff never paid the $4.20 gratuity added to his
July 25, 2015 café check and thus suffered no loss in that regard.
Plaintiff's contention that the delay in refunding the unused
amount on his condominium-issued debit card constitutes an
ascertainable loss fails to support a claim under the CFA. The
condominium association, not defendants, issued the debit card and
it decided whether and when to issue a refund to plaintiff.
Defendants had no control as to the amount or timing of the issued
refund. Moreover, plaintiff elected not to cash the refund check
for the unused amount on his debit card.
Plaintiff's claim that he was unable to dine at the café
after July 25, 2015, because he was banned by O'Connell, causing
him to suffer an ascertainable loss, is similarly without basis.
The café had the absolute right under its license agreement with
the condominium association to refuse to service patrons who were
abusive, disruptive, or discourteous to café staff. Plaintiff was
banned from the café as a result of the incident on July 25, 2015.
Plaintiff failed to present any competent evidence in support of
his claimed loss attributable to being banned from the café.
8 A-4538-16T3
We next review plaintiff's common law fraud claim. To prevail
on a claim for common law fraud, a plaintiff must prove: "(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." Gennari
v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).
In this case, the café check expressly included a $4.20
gratuity on plaintiff's bill. The server informed plaintiff that
a gratuity had been added to the bill. Thus, defendants made no
misrepresentation concerning the gratuity.
Even if the inclusion of the gratuity on plaintiff's café
bill could be deemed a misrepresentation, plaintiff is unable to
prove the other elements required to sustain his common law fraud
claim. Plaintiff never paid the $4.20 gratuity, or any gratuity,
that day, and therefore did not "rely" on the purported
misrepresentation. Because plaintiff never paid the added
gratuity on the July 25, 2015 bill, he suffered no damages. Since
plaintiff failed to satisfy the elements to prove common law fraud,
summary judgment on that claim was proper.
We next examine plaintiff's defamation per se claim. To
prevail on a defamation claim, a plaintiff must prove damages and
that the allegedly defamatory statement was: (1) false; (2)
9 A-4538-16T3
communicated to a third party; and (3) tends to lower the
plaintiff's reputation in the community or deter others from
associating with plaintiff. W.J.A. v. D.A., 210 N.J. 229, 238
(2012). Defamation per se requires a finding that the statement
clearly denigrates a person's reputation such that the court alone
may determine the statement is defamatory without the need to
submit the issue to a jury. Biondi v. Nassimos, 300 N.J. Super.
148, 152-53 (App. Div. 1997). Truth is an absolute defense to a
defamation action and defeats such an action "even when a statement
is not perfectly accurate." G.D. v. Kenny, 205 N.J. 275, 293
(2011).
Here, plaintiff admitted he had pushed his companion's hand
when she attempted to persuade him to leave the café. The motion
judge, who viewed the videotape of the incident, observed plaintiff
pushing his companion's hand. At no time during the call to police
dispatch did O'Connell claim plaintiff assaulted his female
companion or anyone else in the café. O'Connell truthfully stated
plaintiff was "pushing" his companion.
Nor does the record reflect that O'Connell's statement in the
911 call to the police denigrated plaintiff's reputation.
Plaintiff offered no competent evidence in support of his claim
that residents of the condominium complex considered his status
10 A-4538-16T3
in the community diminished or declined to associate with him as
a result of the incident in the café.
Based on the summary judgment record, there were no material
disputed facts that precluded the entry of summary judgment in
favor of defendants as to plaintiff's claims. We discern no basis
to reject the judge's sound application of the law to the
undisputed facts in dismissing plaintiff's complaint.
Affirmed.
11 A-4538-16T3