                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4538-16T3


LARRY PITT,

        Plaintiff-Appellant,

v.

TYRUS CHI, LLC1,
and MICHAEL P. O'CONNELL,

     Defendants-Respondents.
_____________________________

              Argued July 31, 2018 - Decided August 16, 2018

              Before Judges Sabatino, Mayer, and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No.
              L-1974-15.

              Clark W. Pease argued the cause for appellant
              (Law Offices of Clark Pease, PC, attorneys;
              Clark W. Pease, of counsel and on the briefs;
              Paul N. De Petris, on the briefs).

              Elizabeth A. Weber argued the cause for
              respondents (Sweeney & Sheehan, PC, attorneys;
              Giacomo F. Gattuso, of counsel; Joseph M.
              Hauschildt, Jr., on the brief).


1
    Improperly designated as Michael P. O'Connell, trading as
Trixie's Café.
PER CURIAM

       Plaintiff Larry Pitt appeals from a May 26, 2017                     order

granting summary judgment in favor of defendants Tyrus Chi, LLC

and Michael P. O'Connell.           We affirm.

       Plaintiff is the owner of a residential unit at a condominium

complex located in Longport.          The condominium complex had a café,

known as Trixie's Café, serving breakfast and lunch during the

summer season.          O'Connell owned the café.            As a unit owner,

plaintiff received a $300 debit card limited to dining at the

café.    The condominium association, which managed the condominium

complex, issued plaintiff's debit card.

       Plaintiff dined at the café many times. Prior to the incident

that    is   the    subject   of   plaintiff's      complaint,   plaintiff   and

O'Connell discussed the sufficiency of gratuity amounts left by

plaintiff for the café's waitstaff.                While the parties admit to

discussing         gratuities,     their       respective   memories   of    that

discussion differ. The parties' conflicting recollections related

to their discussion regarding gratuities has no bearing on our

determination of the dispositive issues in this case.




                                           2                            A-4538-16T3
     The dispute here stemmed from an incident on July 25, 2015,

while plaintiff dined with a female companion.2      At the end of the

meal, the server presented a bill to plaintiff and advised him

that a twenty percent gratuity, amounting to $4.20, had been added

to the check.    Plaintiff was not told of the added gratuity prior

to consuming his meal.     Consequently, he refused to pay the added

gratuity.    A   dispute   ensued   between   plaintiff   and   O'Connell

regarding the payment of the added gratuity.      O'Connell instructed

plaintiff to leave the café.        Plaintiff declined to leave the

café, and O'Connell telephoned the Longport police department.

     In O'Connell's call to the police department, he reported a

customer in the café causing problems and refusing to leave.3

O'Connell told the police dispatcher that plaintiff was hitting

the table, was "about to blow his top," and was "pushing" his

"wife."   O'Connell requested the police remove plaintiff from the

café.   The police responded and plaintiff eventually left the café

after paying his bill, without the disputed gratuity.           No charges



2
    The female companion was misidentified as plaintiff's wife
during a telephone call to police dispatch.
3
   An audiotape of O'Connell's 911 call to the Longport police
department and a surveillance videotape of the incident were
provided to the motion judge, but were not included in the parties'
appellate submissions.



                                    3                              A-4538-16T3
were filed against plaintiff; however, the café banned plaintiff

as   a    result   of   the   incident.4    Several    months    later,     the

condominium association refunded the unused balance on plaintiff's

café debit card, amounting to $103.5          Plaintiff did not cash the

refund check.

         Plaintiff filed suit against defendants, alleging violations

of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, common

law fraud, and defamation per se.           After completing discovery,

defendants     moved    for   summary   judgment,   seeking     dismissal    of

plaintiff's complaint in its entirety.

         The motion judge reviewed the written submissions and heard

the arguments of counsel on May 26, 2017.             In an oral decision,

the judge granted defendants' motion and dismissed plaintiff's

complaint.      Among other things, the judge found plaintiff failed

to demonstrate defendants committed any unlawful practice within

the CFA.      The judge noted that a $4.20 tip was added to the café

bill, but found no evidence the gratuity was mandatory because

plaintiff never paid the tip and no charges were filed against



4
  A written license agreement between the condominium association
and the café allowed the café to refuse service to patrons for
rude, abusive, and discourteous behavior.
5
  Defendants did not issue the debit card to plaintiff and
therefore had no control regarding the issuance of a refund for
any balance on the card or the timing of a refund.

                                        4                             A-4538-16T3
plaintiff.        The   judge     also    determined         plaintiff    "failed    to

establish    an   ascertainable          loss   as    a     result   of   defendants'

including a $4.20 gratuity on his bill."                        The judge further

explained "[p]laintiff has not produced any expert testimony to

quantify the damages he suffered by not being able to access the

café" from July 25, 2015, through Labor Day 2015.

      Based on her review of the 911 call and the videotape, the

motion judge deemed the exchange between plaintiff and O'Connell

"a heated incident."        Because plaintiff was unable to demonstrate

O'Connell's statement to the 911 police dispatcher denigrated his

reputation, other than offering speculation and conjecture that

the   condominium       complex    residents         were    gossiping     about    the

incident, the judge dismissed the defamation claim.

      The motion judge also held truth was an absolute defense to

plaintiff's defamation action.             Having heard the audiotape of the

911 call and viewed the videotape of the incident, the judge

determined that plaintiff had pushed his female companion's hand

away while the companion attempted to persuade plaintiff to leave

the café.    The judge also determined O'Connell told the police

that plaintiff pushed his companion.                 Since O'Connell accurately

reported plaintiff was "pushing" his "wife," the judge found

plaintiff's defamation per se claim failed as a matter of law.



                                           5                                  A-4538-16T3
     Lastly, in dismissing plaintiff's common law fraud claim, the

motion    judge     held      defendants    did     not      make    a     material

misrepresentation because plaintiff was told by the café's staff

that a gratuity had been added to his check.                 Nor did plaintiff

proffer sufficient evidence of damages, because he never paid the

gratuity.     Plaintiff also received a reimbursement check for the

unused balance on his condominium debit card.                However, plaintiff

elected not to cash the check.              Regarding plaintiff's alleged

damages   based   on    his   inability    to    dine   at   the    café    because

O'Connell banned him, the judge concluded plaintiff failed to

quantify such damages.         We disagree.

     On   appeal,      plaintiff   argues     the   motion     judge     erred     in

dismissing his complaint as a matter of law because there were

genuine issues of material fact precluding summary judgment for

defendants.

     We review a ruling on summary judgment de novo, applying the

same standard governing the trial court.                     Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 405 (2014).              We 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."              Id. at 406 (quoting Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).                          We

                                       6                                    A-4538-16T3
analyze issues of law de novo and accord no deference to the trial

judge's conclusions of law.     Nicholas v. Mynster, 213 N.J. 463,

478 (2013).

      To prevail on a CFA claim, a plaintiff must show: (1) the

merchant engaged in an unlawful practice contrary to N.J.S.A.

56:8-2; (2) plaintiff suffered an "ascertainable loss"; and (3)

the loss was caused by the merchant's unlawful practice.         Lee v.

Carter-Reed Co., LLC, 203 N.J. 496, 521 (2010); see also N.J.S.A.

56:8-2.

      Having reviewed the record, even in a light most favorable

to plaintiff, we agree with the motion judge that plaintiff failed

to demonstrate an ascertainable loss to prevail on his CFA claim.6

A plaintiff is required to provide specific proofs in support of

an ascertainable loss, and subjective assertions of a loss are

insufficient to sustain a CFA claim.      Thiedemann v. Mercedes-Benz

USA, LLC, 183 N.J. 234, 252 (2005).        Plaintiff bears the burden

of   establishing   he   suffered   an   ascertainable   loss   that    is

quantifiable.   Id. at 248.     A plaintiff cannot recover damages

under the CFA where he or she is unable to show actual harm.           See


6
   We recognize the parties disagree whether there was unlawful
conduct on the part of defendants under the CFA. However, it is
unnecessary to address that issue because even if plaintiff could
prove unlawful conduct by particular defendants consistent with
the CFA, plaintiff cannot establish he suffered an ascertainable
loss.

                                    7                            A-4538-16T3
Dabush v. Mercedez-Benz USA, LLC, 378 N.J. Super. 105, 116 (App.

Div. 2005).     Moreover, a plaintiff must be able to demonstrate the

amount    of   the   ascertainable   loss   to   a   reasonable   degree    of

certainty.     Ibid.

     Here, plaintiff never paid the $4.20 gratuity added to his

July 25, 2015 café check and thus suffered no loss in that regard.

Plaintiff's contention that the delay in refunding the unused

amount    on   his   condominium-issued     debit    card   constitutes     an

ascertainable loss fails to support a claim under the CFA.                 The

condominium association, not defendants, issued the debit card and

it decided whether and when to issue a refund to plaintiff.

Defendants had no control as to the amount or timing of the issued

refund.    Moreover, plaintiff elected not to cash the refund check

for the unused amount on his debit card.

     Plaintiff's claim that he was unable to dine at the café

after July 25, 2015, because he was banned by O'Connell, causing

him to suffer an ascertainable loss, is similarly without basis.

The café had the absolute right under its license agreement with

the condominium association to refuse to service patrons who were

abusive, disruptive, or discourteous to café staff.           Plaintiff was

banned from the café as a result of the incident on July 25, 2015.

Plaintiff failed to present any competent evidence in support of

his claimed loss attributable to being banned from the café.

                                     8                               A-4538-16T3
       We next review plaintiff's common law fraud claim. To prevail

on a claim for common law fraud, a plaintiff must prove: "(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."                   Gennari

v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).

       In this case, the café check expressly included a $4.20

gratuity on plaintiff's bill.         The server informed plaintiff that

a gratuity had been added to the bill.               Thus, defendants made no

misrepresentation concerning the gratuity.

       Even if the inclusion of the gratuity on plaintiff's café

bill could be deemed a misrepresentation, plaintiff is unable to

prove the other elements required to sustain his common law fraud

claim.    Plaintiff never paid the $4.20 gratuity, or any gratuity,

that     day,    and   therefore   did       not   "rely"   on    the    purported

misrepresentation.          Because   plaintiff       never      paid   the     added

gratuity on the July 25, 2015 bill, he suffered no damages.                     Since

plaintiff failed to satisfy the elements to prove common law fraud,

summary judgment on that claim was proper.

       We next examine plaintiff's defamation per se claim.                          To

prevail on a defamation claim, a plaintiff must prove damages and

that   the      allegedly   defamatory   statement      was:     (1)    false;     (2)

                                         9                                    A-4538-16T3
communicated        to   a   third    party;      and    (3)    tends   to    lower     the

plaintiff's reputation in the community or deter others from

associating with plaintiff.              W.J.A. v. D.A., 210 N.J. 229, 238

(2012).      Defamation per se requires a finding that the statement

clearly denigrates a person's reputation such that the court alone

may determine the statement is defamatory without the need to

submit the issue to a jury.             Biondi v. Nassimos, 300 N.J. Super.

148, 152-53 (App. Div. 1997).                Truth is an absolute defense to a

defamation action and defeats such an action "even when a statement

is not perfectly accurate."                  G.D. v. Kenny, 205 N.J. 275, 293

(2011).

      Here, plaintiff admitted he had pushed his companion's hand

when she attempted to persuade him to leave the café.                         The motion

judge, who viewed the videotape of the incident, observed plaintiff

pushing his companion's hand. At no time during the call to police

dispatch     did    O'Connell        claim    plaintiff        assaulted     his    female

companion or anyone else in the café.                   O'Connell truthfully stated

plaintiff was "pushing" his companion.

      Nor does the record reflect that O'Connell's statement in the

911   call     to    the     police     denigrated        plaintiff's        reputation.

Plaintiff offered no competent evidence in support of his claim

that residents of the condominium complex considered his status



                                             10                                    A-4538-16T3
in the community diminished or declined to associate with him as

a result of the incident in the café.

      Based on the summary judgment record, there were no material

disputed facts that precluded the entry of summary judgment in

favor of defendants as to plaintiff's claims.        We discern no basis

to   reject   the   judge's   sound   application   of   the   law   to   the

undisputed facts in dismissing plaintiff's complaint.

      Affirmed.




                                      11                             A-4538-16T3
