SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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indispensable party, FCA US A LLC , SEA VIEW JEEP CHRYSLER DODGE RAM , CITY AUTO PARK , and SPORT HYUNDAI DODGE RAM , NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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Defendants

- Respondents. 1

____________________________________

Argued October 10, 2019

– Decided 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 B ently 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 B ently Bohn, on t he 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 S cott Fetten, of counsel and on the brief). Bradley L. Rice argued the cause for respondents Fl emington 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; Foulk e 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. Decemb er 3, 20193 A

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- 18T3 Johnson Do dge Chrysler Jeep Ram (Ahmut y , Demers & McManus, attorneys; Taimour Chaudhri, on the joint brief).
Matthew W arren Ritter argued the cause for respondent Bob Novick Chrysler Jeep Ram (Ritter Law Office , LLC, attorneys; Matthew W arren Ritter, on the joint b rief).
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 Pai sner, LLP, attorneys; Jonathan E. Ginsberg, on the brief). Nolan J. Mitchell (Nelson Mullins Riley & Scarborough LLP) of the Mass a chusetts 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 Hyund ai Dodge Ram (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Frank J. Kontely, III, of counsel and on the brief).4 A

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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 t his case ar os e from plaintiff 's unsuccessful attempts to purchase a 2018 Dodge Challenger SRT Demon (Demon) , a limited

- production high

- end performance vehicle

. In p laintiff 's
f ourth a mended c omplaint 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, dealer s 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

. T he
first Demons were delivered o n or about November 11, 2017 , and the last Demon
was built on May 31, 2018. Plaintiff alleges that i n 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 :5 A

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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. P laintiff does not provide information as to how
he ini tiated contact with each dealer , but alleges salespersons from each dealer , except for Sport Dodge , respond ed 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 $8 5,000 pla intiff asserts was advertised

. On April 25, 2018 , p laintiff filed a complaint alleging viola tions 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. , Auto t rader , and FCA. Plaintiff then filed three additional

a mended c omplaint s
. The trial court dismissed t he second amended complaint , which nam ed additional dealer s , without prejudice based on plaintiff’s fa ilure to
state a claim under the CFA with particularity. However, the trial court twice

more allowed plaintiff to file amended complaint s
.

2 A stipulation of dismissal with prejudice was entered as t o Freehold Chrysler Jeep.6 A

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The fourth and most recent amended complaint allege s 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 allege s that
the d ealers "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 allege s that the dealers intentionally engaged in a deceptive scheme to advertise
the Demon, without selling the vehicle at the advertised price. P laintiff allege s 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 an d/or under the auspices of the manufacturer."
Between October 19 and November 15, 2018 , all of defendants moved
under R ule 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 motio ns and on December
4 , and 7, 2018, issued orders dismiss ing all plaintiff's claims against all7 A

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defendants. Accompanying the orders was a th o rough 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 [Autot rader ] and allegedly verified availability a nd p rice on numerous dealership s ' 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 busi ness 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). Pla intiff’s complaint alleges he "lost an asset that he should have been permitted to purchase at the advertised price which constitutes the ascertainable lo ss." 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 t hird and f ourth 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 ] om mon [ 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 court8 A

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should have treated defendant FCA's motion under a summary ju dg ment
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 re lief 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 re lief , and discovery would not provide one, then dismissal of the complaint is appropriate. Camden Cty. Energy Rec. Assocs. v. N.J. Dep ' t of Env tl . 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."
R i e der v. State, Dep't of Transp. , 221 N.J. Super. 547, 552 (App. Div. 1987).
H ere, plaintiff argues he presented evidence of an ascertainable loss
sufficient to survive dismi ssal. Plaintiff asserts his ascertainable loss arose from
defendants ' "refus [al] to

. . . sell or even make available the [ Demon ] at the9 A

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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, p rivate 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 proo fs 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 action s brought by the (continued)10 A

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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 establ ish unlawful conduct by a defendant, p roof 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.
Thied e mann , 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 repre sentations made been true; the 'out of pocket' approach provides

reco very 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 247.11 A

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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] mad e 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). ]
P laintiff 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, p laintiff has proffered no allegations he knew of buyers12 A

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to whom he could have resold a Demon at a higher price, nor does his complaint

ex plain 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 t hat 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, w e reject the assertion defendants refused to sell plaintiff a vehicle. P laintiff '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 plain tiff cannot seek recovery.
Plaintiff also argues that FCA’s moti on 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 informati on not contained in the pleadings, a thorough review of the trial court's statement of13 A

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reasons reveals no reference to FCA's submission. Because t he 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, p laintiff'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 n ot need to address the December 7, 2018 o rder granting defendant
Cox's m otion to d ismiss 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, 54 2 , 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 br iefed 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.