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Robert Kilburn v. Mt. Ephraim Chrysler Dodge


January 10, 2012


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3127-09.

Per curiam.


Telephonically argued October 26, 2011

Before Judges Sabatino and Fasciale.

This case involves a car aficionado's unsuccessful attempt to purchase a custom 2008 Dodge Challenger. The disappointed customer, plaintiff Robert Kilburn, sued defendant Mt. Ephraim Chrysler Dodge, the dealership that failed to obtain the coveted vehicle for him. Plaintiff appeals the summary judgment order dismissing his lawsuit against the dealership.

For the reasons that follow, we affirm the dismissal of plaintiff's claim for breach of contract but reverse the entry of summary judgment as to plaintiff's claims of common law fraud and consumer fraud, which hinge upon triable factual issues.


Plaintiff enjoys restoring collectible vehicles and bringing them to car shows and cruises. Defendant is a car dealership located in Mt. Ephraim.

In December 2007, plaintiff learned that defendant was accepting orders for the new 2008 Dodge Challenger SRT8 ("the 2008 Challenger"), manufactured by Chrysler. The 2008 Challenger was a "numbered" car, which meant that Chrysler would produce a limited number of that model. Each numbered car would have the name of its original purchaser etched in it. Ultimately, Chrysler manufactured about 6400 of the 2008 Challengers.

On or about December 10, 2007, plaintiff went to the dealership intending to order a 2008 Challenger. He had a conversation on the premises with an unidentified salesman*fn1 about ordering such a car. Plaintiff agreed to pay $2000 down so that the dealership would hold the car for him. He made the $2000 deposit that day.

The salesman then printed a one-page document ("the document"), a computerized form with some details concerning the order.*fn2 In particular, the document contained a Vehicle Order Number ("VON"), 21253895. However, the document did not include a Vehicle Identification Number ("VIN").*fn3 At the bottom of the document was the following handwritten statement: "Customer to pay list price on car when it comes in." An arrow was drawn pointing from this statement to the number "41,985," apparently indicating the list price in dollars. The document also included the following statements: "This is not an invoice.

The prices shown are for information purposes only and are subject to change or correction without prior notice."

Plaintiff signed his name on the document next to an "x." No one from the dealership signed it. Plaintiff later confirmed with the manufacturer by telephone that the dealership had submitted his order.

Anticipating his purchase of the 2008 model, plaintiff listed another car he owned, a 1970 Dodge Challenger, for auction in January 2008. He also advertised the 1970 Challenger on eBay, where he sold it for $15,100 in mid-January. Plaintiff testified at his deposition that he had sold the 1970 Challenger because he needed funds to purchase the 2008 Challenger. However, he did not claim that he sold the 1970 model at less than its market value or that his recoverable damages include any losses arising out of that sale.

In early 2008, plaintiff read on the internet that Chrysler was manufacturing fewer 2008 Challengers than had been anticipated. In March 2008, plaintiff returned to the dealership to check on the status of the vehicle, and at that time he spoke with defendant's General Sales Manager, Michael McErlean. Plaintiff contends that McErlean said that the dealership had placed an order for a 2009 Challenger for him instead of a 2008 Challenger.*fn4 According to plaintiff, defendant had three non-personalized 2008 Challengers on its lot, but McErlean refused to sell any of those cars to him.

Plaintiff contends that he started looking for 2008 Challengers at other dealerships immediately after learning that defendant would not be selling him the vehicle. However, no other dealership was willing to sell him a 2008 Challenger for the same manufacturer's suggested retail price ("MSRP") noted in the December 2007 order form.

McErlean's certification presented a different version of events. McErlean stated that when he spoke with plaintiff, the dealership did not yet know whether Chrysler would manufacture plaintiff's car. He explained that the dealership could not compel Chrysler to fill orders. According to McErlean, plaintiff's order was one of several that the dealership had placed with Chrysler for a 2008 Challenger that Chrysler ultimately did not fill.

The dealership never received plaintiff's personalized 2008 Challenger from Chrysler. Chrysler apparently did manufacture a 2009 Challenger with plaintiff's VON.

Plaintiff did not purchase that 2009 Challenger, but instead bought a 2009 Challenger from another dealership in or about October 2008. Plaintiff paid about $10,000 less for the 2009 Challenger than he would have paid defendant for the 2008 Challenger.

In March 2009, plaintiff filed suit against the dealership in the Law Division. Later that same month, the dealership returned plaintiff's $2000 down payment. Plaintiff's complaint alleged fraudulent misrepresentation (count I), common law breach of contract (count II), and unconscionable business practices, in violation of the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20, specifically N.J.S.A. 56:8-2 (count III).

The dealership has denied plaintiff's contentions of liability. However, it acknowledges that plaintiff did place an order for a 2008 Challenger that ultimately was not supplied by Chrysler. It essentially contends that there was no enforceable contract to sell plaintiff the 2008 Challenger and that plaintiff's claims of fraud are unfounded.

Plaintiff retained an expert, Robert Ruch, who described himself as a "Certified Professional Estimator" and "Automotive Consultant." In his expert report, Ruch asserted that the dealership treated plaintiff improperly in various respects and that plaintiff has suffered an estimated $3500 in economic losses.

Ruch arrived at the $3500 loss figure in the following manner. First, Ruch identified the number of 2008 Challengers and the number of 2009 Challengers offered for sale on eBay Motors and Maheim Auto Auctions. Then Ruch compared the number of 2008 Challengers and 2009 Challengers actually sold on the same sites. Based upon that research, Ruch concluded that, on average, the 2008 Challengers were selling on the market for $3500 more than the 2009 Challengers.*fn5 The 2008 Challengers were apparently selling for more money because Chrysler manufactured fewer 2008 models, making that model more of collector's item.

Following discovery, the dealership moved for summary judgment. Plaintiff opposed the motion, arguing that there were genuine issues of material fact warranting a trial as to each of his claims.

Upon hearing oral argument, the motion judge granted defendant's application and dismissed plaintiff's complaint. In his bench ruling, the judge concluded that the parties never formed an enforceable contract for the sale of a car. The judge considered the document that the salesman had given to plaintiff as comprising only an offer by the dealership to place an order with the manufacturer. The judge observed that the document did not contain a clear price term, nor did it resemble a typical contract for the sale of a motor vehicle. The judge further noted that plaintiff had failed to adduce any evidence that defendant or any of its representatives had told him that the document was a binding contract. The judge identified no genuine issues of material fact and, consequently, rejected plaintiff's claims in their entirety.

On appeal, plaintiff contends that the trial judge erred in granting summary judgment to the dealership. He maintains that he has presented viable claims of contractual breach, common law fraud, and consumer fraud and that, at a minimum, there exist genuine issues of material fact that preclude summary judgment.


We evaluate plaintiff's arguments under customary principles governing summary judgment motions. The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). The court cannot resolve contested factual issues but instead must determine whether there are any genuine factual disputes. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). If there are any materially disputed facts, the motion for summary judgment should be denied. Brill, supra, 142 N.J. at 540; see also Parks v. Rogers, 176 N.J. 491, 502 (2003).

Our appellate review of an order granting summary judgment must observe the same standards, including the obligation to view the record in a light most favorable to the non-moving party, here plaintiff. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We give no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).


We first consider the dismissal of plaintiff's breach of contract claim. "A written contract is formed when there is a 'meeting of the minds' between the parties evidenced by a written offer and an unconditional, written acceptance." Morton v. 4 Orchard Land Trust, 180 N.J. 118, 129-30 (2004) (quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538-39 (1953)). To be enforceable, a contract must "agree on essential terms and manifest an intention to be bound by those terms[.]" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). "Where the parties do not agree to one or more essential terms [] courts generally hold that the agreement is unenforceable." Ibid.; see also Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 474 (App. Div. 1978) (noting that there is no contract where the agreement is "so deficient in the specification of its essential terms that the performance by each party cannot be ascertained with reasonable certainty"), certif. denied, 79 N.J. 488 (1979).

The trial court correctly applied these principles of contract law here. The court soundly concluded that the document signed by plaintiff in December 2007 was not an enforceable contract for the sale of an automobile. At most, the document was simply an order form, by which the dealership only agreed to place an order for plaintiff with Chrysler for a 2008 Challenger.

In his certification*fn6 filed in opposition to defendant's summary judgment motion, plaintiff asserted that "[he] believed [the December 2007 order form] was a binding contract for the purchase of a 2008 Dodge Challenger[.]" However, that assertion merely reflects plaintiff's own subjective beliefs and perceptions. In order to show that the parties formed an enforceable contract of sale, plaintiff would have needed to present, among other things, evidence that defendant manifested a commitment to sell him a 2008 Challenger irrespective of whether Chrysler would fill his order. No such competent proof is in the record. Thus, there was no genuine factual dispute regarding whether a contract existed, and the trial court properly dismissed plaintiff's breach of contract claim.

The trial court also correctly found that the December 2007 document lacked essential terms for the purchase and sale of an automobile. The document did not contain a VIN for the vehicle, which would be required for the title and the registration of its ownership with the State. The document also omitted any indication of an odometer reading, dealer preparation charges, warranties, sales taxes, and a variety of other important details integral to the sale of a motor vehicle. See N.J.A.C. 13:21-5.8(a); N.J.A.C. 13:21-5.9(a).*fn7

Plaintiff likewise cannot recover under an implied alternative theory of promissory estoppel.*fn8 Promissory estoppel requires: "(1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment." Toll Bros. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008). Again, plaintiff has introduced no evidence that defendant gave him a "clear and definite promise" to do more than place an order for the car. We further note that plaintiff has not argued that he sustained reliance-based damages from his sale of the 1970 Challenger. Even if he had, we have serious doubts about whether plaintiff acted reasonably in parting with his used car before it was confirmed that Chrysler would be filling his order for the 2008 model.

In sum, plaintiff failed to present a prima facie case of breach of contract, even affording him all reasonable inferences from the record.*fn9 Summary judgment dismissing count one of the complaint is therefore affirmed.


We reach a different conclusion with respect to the trial court's dismissal of counts two and three of the complaint, which allege common law fraud and violations of the CFA, respectively.

In order to prevail on a common law fraud claim, plaintiff must show: defendant (1) made a representation or omission of a material fact; (2) with knowledge of its falsity; (3) intending that the representation or omission be relied upon; (4) which resulted in reasonable reliance; and that (5) plaintiff suffered damages. Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981); Carroll v. Cellco P'ship., 313 N.J. Super. 488, 502 (App. Div. 1998); Byrne v. Weichart Realtors, 290 N.J. Super. 126, 137 (App. Div.), certif. denied, 147 N.J. 259 (1996). Plaintiff must prove each element by "clear and convincing evidence." Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). Common law fraud is an action in tort, and a plaintiff can prevail on a fraud claim even if there is no enforceable contract.*fn10 See Karo Mktg. Corp. v. Playdrome Am., 331 N.J. Super. 430, 441-42 (App. Div.), certif. denied, 165 N.J. 603 (2000).

Here, plaintiff asserts that the dealership made both a material misrepresentation -- because its salesman allegedly indicated that the parties were entering into a binding agreement -- and a material omission -- because it allegedly knew that Chrysler might not manufacture plaintiff's car and failed to disclose that risk to him.

For the reasons we have already discussed in Part II(A), supra, the trial court correctly rejected plaintiff's undocumented and unsubstantiated claim that the dealership misrepresented the nature of the December 2007 document. The document is patently no more than an order form, not a sales contract. It would have been unreasonable for plaintiff to regard it as anything beyond that. Even if, as plaintiff maintains, the salesman orally used the term "contract" in alluding to the document, such a loose use of terminology could not reasonably be deemed to connote anything more than a promise that the dealership would place an order for the car with the manufacturer. There is no viable claim for actionable misrepresentation on this record.

However, viewing the current record in a light most favorable to plaintiff, there is a genuine factual dispute as to whether the dealership made one or more material omissions, which might support a finding of common law fraud. In particular, plaintiff has a colorable claim that the dealership withheld from him material and timely information about whether Chrysler would indeed fill his order.

Defendant asserts that it did not know that Chrysler would not produce the vehicle until the summer of 2008. However, that assertion cannot be easily reconciled with plaintiff's sworn contention that McErlean told him in March 2008 that he would not be receiving a 2008 Challenger. The pivotal question then becomes whether defendant knew of Chrysler's plans even sooner than that but failed to tell plaintiff when it obtained that information.

In his certification, McErlean asserts that the dealership told plaintiff in December 2007 "it would enter into a contract with him when and if Chrysler, LLC fulfilled his order." (Emphasis added). In contrast to McErlean's certification, a handwritten note at the bottom of the December 2007 order form states, in unqualified terms, "customer to pay list price on car when it comes in." (Emphasis added).

If defendant, as McErlean asserts, represented that the parties would enter into a contract when and if the vehicle came in, then defendant did not make a material omission because such a qualified statement would have informed plaintiff that there was a chance the vehicle might not come in. On the other hand, if defendant only stated that plaintiff would pay for the car when it came in, and defendant knew at the time that the vehicle might not be manufactured, then defendant may have, in fact, made a material omission.

From the current record, it is unclear whether defendant told plaintiff when he placed his order that he might not receive his vehicle. Therefore, there is a genuine factual dispute regarding whether defendant made a material omission, as well as a factual dispute as to whether such a material omission was deliberate.

If the dealership did, in fact, knowingly fail to inform plaintiff that he might not receive his vehicle, the court must also consider whether the dealership intended him to rely on that omission and whether he actually did rely on it. This reliance issue also requires credibility assessments by a trier of fact.

As we have noted, plaintiff's expert Ruch asserted that the dealership's failure to sell plaintiff a 2008 Challenger resulted in him suffering $3500 in damages. In his expert report, Ruch also opined that, had plaintiff been "given the prompt knowledge from the dealer[ship] they were not going to be able to get the 2008 [Challenger] he [would have] had time to order or obtain one [elsewhere] in early 2008."

Defendant argues that plaintiff did not suffer damages because he could purchase a 2008 Challenger today for less than what he originally agreed to pay. However, this argument is unpersuasive because plaintiff never wished to purchase a used 2008 Challenger. Thus, it is irrelevant whether he could purchase a used vehicle for less than he originally agreed to pay for a new vehicle. The relevant inquiry would be whether plaintiff could purchase a new 2008 Challenger for the same amount or less than he originally agreed to pay. Defendant presents no counterproof on this issue. It is up to a trier of fact to determine if plaintiff's expert is credible and whether plaintiff sustains his ultimate burden of proving damages.*fn11 See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).

The trial court erred in granting summary judgment as to plaintiff's common law fraud claim because there are genuine factual disputes regarding, among other things, whether defendant knowingly made a material omission and whether the other elements of fraud exist. Viewing the record, as we must, in a light most favorable to plaintiff, it is conceivable that a factfinder could resolve the disputed issues in plaintiff's favor. Brill, supra, 142 N.J. at 540. In essence, plaintiff contends that he was not dealt with in a forthright manner, something we cannot conclusively evaluate on the paper record.

The same is true as to plaintiff's claims of consumer fraud under the CFA. The CFA makes the following acts unlawful, in connection with sale or advertisement of merchandise or real estate:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice[.] [N.J.S.A. 56:8-2.]

"The term 'merchandise' shall include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale[.]" N.J.S.A. 56:8-1(c). It clearly covers the sale of an automobile. See generally Delaney v. Garden State Auto Park, 318 N.J. Super. 15, 16 (App. Div.) (applying the CFA to a transaction involving the purchase of a motor vehicle), certif. denied, 160 N.J. 477 (1999).

The CFA limits private causes of action to instances where a plaintiff can "'allege each of three elements: (1) unlawful conduct by the defendant[]; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant's unlawful conduct and the plaintiff's ascertainable loss.'" Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105, 114 (App. Div.) (quoting New Jersey Citizen Action v. ScheringPlough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003)), certif. denied, 185 N.J. 265 (2005). If plaintiff proves these three elements, he may recover treble damages and reasonable attorneys' fees. N.J.S.A. 56:8-19.

Most significantly in the present context, a plaintiff can recover under the CFA even if he and defendant do not have an enforceable contract.*fn12 Katz v. Schacter, 251 N.J. Super. 467, 474 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992).

Under N.J.S.A. 56:8-2, there are two relevant types of unlawful conduct -- "affirmative acts" and "knowing omissions." Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 534 (App. Div. 1996), aff'd as modified, 148 N.J. 582 (1997). Affirmative acts have no intent requirement; however, knowing omissions require that the defendant have acted with knowledge in order for there to be a violation of the Act. Ibid.

Here, as we have already noted, there is inadequate proof that defendant made an affirmative material misrepresentation; however, defendant may have made one or more material omissions in dealing with plaintiff, who is plainly a consumer. Given the current record, it is not possible to determine whether defendant acted with the requisite knowledge. Plaintiff, however, has adduced sufficient evidence to raise a factual dispute as to whether defendant knowingly omitted material information regarding the availability of the vehicle.

We also perceive, again giving plaintiff and his expert Ruch all reasonable inferences from the record, that there are triable issues as to whether he sustained an ascertainable loss as a result of the dealership's allegedly wrongful conduct. See Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005) (noting that while the loss does not have to have been paid out of pocket by the consumer, it still must be "quantifiable or measurable"). The record contains sufficient evidence -- if Ruch's and plaintiff's testimony are to be believed -- that plaintiff sustained an ascertainable loss, estimated at $3500, because of defendant's alleged actions and inactions. Furthermore, plaintiff allegedly attempted to obtain the 2008 model from other dealerships at the same MSRP to no avail, which suggests an effort on his part to mitigate his damages. All of this must be sorted out at a trial with testimony from the relevant witnesses. Plaintiff has sufficiently presented, at least at the summary judgment stage, a viable claim that he was financially harmed by defendant because he was deprived of an earlier opportunity to procure a new 2008 Challenger from another dealership.

For these reasons, the trial court's order granting summary judgment is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

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