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,

NOT FOR PUBLICATION WITHOUT THE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-2069-18T3

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 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.

December 3, 2019
3

A-2069-18T3

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).
4

A-2069-18T3

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: 
5

A-2069-18T3

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.
6

A-2069-18T3

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 
7

A-2069-18T3

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 
8

A-2069-18T3

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 are 

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 
9

A-2069-18T3

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 defendant 

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)
10 A-2069-18T3

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. 
11 A-2069-18T3

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
12 A-2069-18T3

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 
13 A-2069-18T3

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.