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

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).

PER CURIAM 

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. 

NOT FOR PUBLICATION WITHOUT THE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.

July 3, 2017
2 A-4027-14T1

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. 
3 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.
4 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).
5 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
6 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).
7 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.
8 A-4027-14T1

In Romano, supra, we determined there was no ascertainable 

loss where the plaintiff failed to present evidence that the "rollback" 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 
9 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
10 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. 
11 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.