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Robert Kilburn v. Mt. Ephraim Chrysler Dodge

January 10, 2012

ROBERT KILBURN, PLAINTIFF-APPELLANT,
v.
MT. EPHRAIM CHRYSLER DODGE, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 ...


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