01Oct 2018

Sweeney & Sheehan Associates Elizabeth Weber and Joseph Hauschildt recently prevailed in New Jersey’s Appellate Division in Larry Pitt v. Tyrus Chi, LLC and Michael P. O’Connell, a case involving allegations of violation of the Consumer Fraud Act (CFA), common law fraud, and defamation per se. Mr. Hauschildt, a former Appellate Division clerk, wrote the brief, and Ms. Weber argued the case.

Plaintiff was an owner at a condominium complex in which defendants operated a café. Plaintiff dined at the café on many occasions. On one specific occasion, plaintiff and defendant discussed plaintiff’s insufficient tipping. As a result of this conversation and at plaintiff’s recommendation, the next time that plaintiff dined at the café, defendant included a gratuity on plaintiff’s bill as a separate line item. Plaintiff was told of the gratuity before he paid and refused to pay the gratuity as listed. A dispute arose between plaintiff and defendant, and defendant asked plaintiff to leave the café. Plaintiff refused and defendant called police to remove the plaintiff. Defendant reported to the dispatcher that plaintiff was causing problems and refusing to leave the café. He also reported that plaintiff was pushing his dining companion. Police responded and plaintiff eventually left the café. He did not pay any gratuity. Defendant banned plaintiff from the café as a result of the incident.

The Appellate Division found that plaintiff was unable to prove that he suffered an ascertainable loss as a result of the incident as required to support a CFA claim. The Appellate Division also dismissed plaintiff’s common law fraud claim because no misrepresentation was made to the plaintiff concerning the gratuity. Finally, the Court dismissed plaintiff’s defamation per se claim because he was unable to prove that the statement made to the police by the defendant was false. Moreover, plaintiff provided no competent evidence to support his contention that the statement made to police denigrated his reputation.