JOHN RIELLO v. BUHLER DODGE,

NOT FOR PUBLICATION WITHOUT THE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.
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                                     2
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).

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                           3
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.
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                                       5
      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


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                                        6
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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                                        7
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
                                         8
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)
                                                                           A-2069-18T3
                                        9
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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                                       10
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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                                       11
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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                                        12
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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