JAMES W. YOUNG v. FOULKE MANAGEMENT CORP.

NOT FOR PUBLICATION WITHOUT THE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-0

JAMES W. YOUNG,

Plaintiff-Appellant,

v.

FOULKE MANAGEMENT CORP., t/a CHERRY

HILL DODGE, ANTONIO SMITH, and CHRYSLER

GROUP, LLC, t/a CHRYSLER CAPITAL,

Defendants-Respondents,

and

MICHAEL DOE,

Defendant.

____________________________________

December 21, 2016

Submitted August 16, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3928-13.

Weisberg Law, attorneys for appellant (Matthew B. Weisberg, on the brief).

Capehart & Scatchard, PA, attorneys for respondents (Laura D. Ruccolo, on the brief).

PER CURIAM

Plaintiff James W. Young appeals from the entry of summary judgment dismissing his Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -204, complaint. He contends the trial court erred in finding he failed to produce evidence of an ascertainable loss. We affirm.

These are the essential facts viewed most favorably to plaintiff. See Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 240 (2005). Plaintiff went to defendant Foulke Management Corp., t/a Cherry Hill Dodge, to purchase a car. A salesman showed him a used 2006 Ford Focus. Plaintiff and his wife liked the car, but when they test drove it, they heard "a lot of squeaky noise going on in the back." Plaintiff discussed the noise with the salesman, who told him not to worry about it, because "[w]e will take care of it when we prep it." Based on the salesman's representation, plaintiff signed a contract to purchase the car. He paid $500 down and financed the remainder of the $9888 purchase price.

Defendant did not fix the squeaky noise and refused to do so unless plaintiff paid $300 to $500. At the time of his deposition, plaintiff had owned the car for approximately sixteen months and had put 12,000 miles on it without experiencing any mechanical problems. He claimed it was still making the squeaky noise, and although he had obtained estimates for repairing it, he had not done so.1

Defendant moved for summary judgment, contending plaintiff could not "show any damages causally related to the alleged 'squeak.'" In response, plaintiff argued he had sustained an ascertainable loss in the form of "improperly incurred debt." Plaintiff argued he only agreed to buy the car on the condition that defendant fix the squeak. Plaintiff reasoned that because defendant did not fix the squeak, "the entire car is the damage."

The judge rejected plaintiff's claim that the purchase price could qualify as an ascertainable loss. As an initial matter, the judge noted plaintiff had failed to produce any proof the car actually had a squeak, and certainly no expert report to support the claim the car required repair. As the judge explained

The plaintiff has to show that the vehicle has a diminished value, that it's valued at less than what he paid for it because of a condition in the vehicle. Even accepting that there was a squeak in the vehicle, again, based on the plaintiff's testimony alone, there's no proof as to how that diminished the value of the car. There's no proof of what it would have cost to fix it. And that's the only allegation of any defect in the vehicle. So the motion will be granted.

Plaintiff appeals, arguing that having incurred the debt for the car, regardless of his ongoing use and enjoyment of it, gives rise to ascertainable loss. We disagree.

The law is well settled that in order to survive a motion for summary judgment on a CFA claim, "a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss. At the time of summary judgment that evidence must be sufficient to present a genuine issue for the factfinder." Thiedemann, supra, 183 N.J. at 248. In cases alleging breach of contract or misrepresentation, as here, "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." Ibid.

Here, plaintiff produced no evidence of a squeak and, assuming one existed, no proof that it in any way diminished the value of the car or what it might cost to repair the problem. Plaintiff's failure to make that demonstration compelled entry of summary judgment dismissing his cause of action. Plaintiff's claim that defendant's failure to repair the car as promised renders his ascertainable loss the purchase price of the car has been rejected by this court. See Romano v. Galaxy Toyota, 399 N.J. Super. 470, 484 (App. Div.), certif. denied, 196 N.J 344 (2008) (holding in odometer rollback case that "the measure of plaintiff's ascertainable loss for CFA purposes cannot be the purchase price she paid for the automobile, but the difference between the vehicle she received and the vehicle as represented at purchase"). Accordingly, we affirm substantially for the reasons expressed by Judge Fratto in his opinion from the bench on March 6, 2015.

Affirmed.

1 Although the estimate was marked for identification at plaintiff's deposition, plaintiff did not rely upon it in opposition to the summary judgment motion and makes no mention of it in his brief to this court.