ESSA LEE VS. HUDSON TOYOTA(L-1559-14, HUDSON COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 5, 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).

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