47 P.3d 1222 (2002) 98 Hawai`i 309

Mary ZANAKIS-PICO and Thomas M. Pico, Jr., Plaintiffs-Appellants/Cross-Appellees,
v.
CUTTER DODGE, INC. d/b/a Cutter Dodge Chrysler Plymouth Jeep Eagle, Defendant-Appellee/Cross-Appellant, and
Doe Entities 1-10, Defendants.

No. 22987.

Supreme Court of Hawaii.

June 14, 2002. As Amended July 26, 2002.

*1224 Thomas M. Pico, Jr., Honolulu, on the briefs, for Plaintiffs-Appellants/Cross-Appellees Mary Zanakis-Pico and Thomas M. Pico, Jr.

Roy F. Hughes & James Shin (of Hughes & Taosaka), Honolulu, on the briefs, for Defendant-Appellee/Cross-Appellant Cutter Dodge, Inc., d/b/a Cutter Dodge Chrysler Plymouth Jeep Eagle.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.; with ACOBA, J., also concurring separately.

Opinion of the Court By LEVINSON, J.

The plaintiffs-appellants/cross-appellees, Mary Zanakis-Pico and Thomas M. Pico (the Picos) appeal from the amended judgment of the first circuit court, the Honorable Gary W.B. Chang presiding, filed on November 4, 1999. The Picos argue that the circuit court erred in: (1) partially granting the motion of the defendant-appellee/cross-appellant Cutter Dodge, Inc., d/b/a Cutter Dodge Chrysler Plymouth Jeep Eagle (Cutter), for partial summary judgment as to damages, based on its conclusion that the Picos were not entitled to "benefit-of-the-bargain" damages in connection with their claim pursuant to Hawai`i Revised Statutes (HRS) chapter 480 (1993 & Supp.2000);^[1] (2) partially granting Cutter's *1225 motion for dismissal, or, in the alternative, for summary judgment, based on its conclusion that the Picos had failed to establish cognizable damages under HRS chapter 480;^[2] and (3) granting Cutter's motion in limine for dismissal or, in the alternative, for directed verdict, concluding that Cutter was entitled to judgment as a matter of law regarding all of the Picos' remaining claims as set forth in their third amended complaint and subsequent more definite statement of claims—specifically, their contract and, liberally construing their opening brief on appeal, their common law claims grounded in either negligence or negligent misrepresentation, false advertising, and fraud.^[3]

Cutter cross-appeals, urging that the circuit court erred in: (1) partially denying its motion for partial summary judgment as to damages by failing to dismiss the Picos' claim for punitive damages; (2) partially denying Cutter's motion to dismiss the Picos' third amended complaint or, in the alternative, for summary judgment, by failing to dismiss the Picos' third amended complaint in its entirety; and (3) partially denying Cutter's request for attorneys' fees, costs, and sanctions, by failing to enter an award pursuant to HRS §§ 481A-4 (1993)^[4] and 607-14.5 (1993)^[5] and Hawai`i Rules of Civil Procedure (HRCP) Rule 11 (1990).^[6]

We hold that the circuit court erred in concluding that the Picos failed to allege cognizable damages with respect to their statutory claim under HRS chapter 480, their common law claim for relief grounded in fraud, and any other cognizable common law tort claims that the Picos sufficiently pled. We further hold that the circuit court correctly ruled that Cutter was entitled to judgment as a matter of law with respect to the Picos' contract claim. Finally, on the record before us, we hold that the circuit court did not err in denying Cutter's motion for attorneys' fees, costs, and sanctions. Accordingly, we vacate the circuit court's amended judgment and remand this case for further proceedings consistent with this opinion.

I. BACKGROUND

This dispute involves an advertisement by Cutter appearing in the September 12, 1997 editions of both of the Honolulu daily newspapers of general circulation—the Advertiser and the Star-Bulletin. In large print at the top, the advertisement announced a "$13,000,000 INVENTORY REDUCTION" and claimed, "We're # 1 For a Reason! Volume = Low Prices[.] Come on Down *1226 and find out why!! $0 Cash Down!*" (outline and bold print in original). At the bottom were five lines of text, including two asterisks, in a much smaller type-face. The first asterisk was followed by the qualification: "$0 Cash Down on all Gold Key Plus pymnt. vehicles."

The main body of the advertisement, between the introductory text and the fine print, included pictorial depictions of and specific terms for fourteen different model vehicles. In each instance, the advertisement stated the number of vehicles of the particular model available at the stated terms or price and listed what appear to be their inventory identification numbers. Five of the models were listed with a cash price, while nine were simply advertised for "$0 Cash Down," subject to varying monthly payments over various periods of time.^[7]

The first and most prominently displayed vehicle was a "NEW '97 GRAND CHEROKEE LAREDO," priced at "$229 Month* 24 Mos. $0 Cash Down or $20,988." A second asterisk in the fine print at the bottom of the advertisement read: "Rebate and APR on select models, not combinable, prices incl. $400 Recent College Grad, $750 $1000 Loyalty Rebate on Grand Cherokees & Loyalty Rebate on Caravans & Grand Caravans on pymnts & prices & all other applicable rebates. On approved credit. All pymnts/prices plus tax, lic. & $195 doc fee."

On October 16, 1997, the Picos filed a complaint in the first circuit court, based on the advertisement, and amended it several times thereafter. In their third amended complaint, the Picos alleged that they had traveled to Cutter's Pearl City lot in response to the advertisement. One of the advertised Jeep Grand Cherokee Laredos was still available, and the Picos test drove the vehicle. Finding it to their liking, the Picos advised Cutter's sales agent that they were ready, willing, and able to purchase the vehicle, whereupon the sales agent informed them that they would have to make a down payment of $1,400.00. The Picos protested, pointing out that, according to Cutter's advertisement, the vehicle could be purchased for no cash down and two hundred twenty-nine dollars per month, but the sales agent explained that the "$0 cash down/$229 per month" offer was only available to recent college graduates who were entitled to a "loyalty rebate." The Picos left the premises shortly thereafter without purchasing the vehicle.

The Picos' third amended complaint alleged that Cutter had violated numerous statutory provisions, including: (1) HRS § 708-871 (1993) ("false advertising");^[8] (2) HRS § 480-2(a) (1993) ("unfair or deceptive acts or practices");^[9] (3) HRS § 481A-3(a)(9), (11), and (12) (1993) ("Deceptive trade practices");^[10] and (4) HRS § 437-4(b) (Supp. 1996) ("False, deceptive, or misleading advertising").^[11] In addition, the Picos claimed *1227 generally that the advertisement was "misleading, deceptive[,] and false[,] in that a consumer reading this advertisement would be led to believe, as PLAINTIFFS were, ... that a new 1997 Jeep Grand Cherokee Laredo could be purchased for $229 per month, for 24 months with $0 Cash Down or, alternatively, for a total sum of $20,988." The Picos prayed for general, special, and punitive damages, as well as for specific performance (i.e., the sale of the vehicle to them as advertised) and injunctive relief prohibiting Cutter from further false, deceptive, or misleading advertising. Finally, the Picos prayed that the circuit court order the Motor Vehicle Industry Licensing Board to suspend or revoke Cutter's motor vehicle dealer license and levy a fine as authorized by statute.

Cutter answered the Picos' complaint by denying, inter alia, that the advertisement was false or misleading. After approximately eight months of discovery, Cutter filed a motion for partial summary judgment as to damages. On November 18, 1998, the circuit court, the Honorable Kevin S.C. Chang presiding, granted Cutter's motion in part and denied it in part. The circuit court ruled as a matter of law that the Picos were not entitled to damages for emotional distress or "benefit-of-the-bargain" in connection with their HRS § 480-2 claim, but denied Cutter's motion without prejudice with respect to other damages.

Subsequently, Cutter filed a motion to dismiss the Picos' third amended complaint or, in the alternative, for summary judgment. On February 12, 1999, the circuit court, the Honorable Gail C. Nakatani presiding, granted Cutter's motion with respect to the Picos' statutory claims, based on the following: (1) the Picos, as a matter of law, had failed to establish damages cognizable under HRS chapter 480; (2) the Picos' third amended complaint set forth no allegations supporting any claim for future damages, as required by HRS § 481A-4; and (3) as a matter of law, private citizens lack standing to assert claims pursuant to HRS §§ 437-4(b) or 708-871. The circuit court elaborated as follows on its reasons for dismissing the HRS chapter 480 claim during the hearing on Cutter's motion: "[A]s a matter of law ... the cost of travel is not an item of damages contemplated under Chapter 480, and ... the kind of damages really contemplated under Chapter 480 is ... to prevent unjust enrichment, and the cost of travel is not that kind of damages." The circuit court denied Cutter's motion, however, to the extent that it sought a complete dismissal of the Picos' third amended complaint. Instead, the circuit court ordered the Picos to file a more definite statement regarding such claims for relief as remained in their third amended complaint.^[12]

The Picos filed their more definite statement of claims on January 26, 1999. They realleged their HRS chapter 480 claim and asserted that their third amended complaint also set forth: (1) the common law torts of false advertising, fraud, deceit, concealment, misrepresentation, negligence, gross negligence, and outrage, which allegedly gave rise to general, special, and punitive damages; and (2) a claim of breach of contract. They clarified that they were seeking nominal general damages, punitive damages, specific performance, and injunctive relief. In response, Cutter filed a motion to dismiss the Picos' third amended complaint or, in the alternative, for a directed verdict. On April 1, 1999, the circuit court, the Honorable Steven M. Nakashima presiding, treated Cutter's motion as a motion for summary judgment and granted it, ruling that there were no genuine issues of material fact and that Cutter was entitled to judgment as a matter of law on all of the Picos' claims.^[13]

Finally, on May 19, 1999, the circuit court, the Honorable Gail C. Nakatani presiding, granted Cutter's request for costs, pursuant to HRS § 607-9 (1993),^[14] in the amount of *1228 $3,781.25, but denied Cutter's request for attorney's fees and costs, pursuant to HRS § 607-14.5, see supra note 5, and sanctions, pursuant to HRCP Rule 11, see supra note 6.

II. STANDARDS OF REVIEW

A. Motion for Summary Judgment

We review the circuit court's grant or denial of summary judgment de novo. Hawai`i Community Federal Credit Union v. Keka, 94 Hawai`i 213, 221, 11 P.3d 1, 9 (2000). The standard for granting a motion for summary judgment is well settled:

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id. (citations and internal quotation marks omitted).

B. Statutory Interpretation

We review the circuit court's interpretation of a statute de novo. State v. Pacheco, 96 Hawai`i 83, 94, 26 P.3d 572, 583 (2001). Our statutory construction is guided by established rules:

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....

In construing an ambiguous statute, "[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.

... This court may also consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it... to discover its true meaning." HRS § 1 15(2) (1993).

Id. at 94-95, 26 P.3d at 583-84 (some citations and internal quotation marks added and some in original) (brackets in original).

C. Attorneys' Fees And Costs

We review the circuit court's denial of attorneys' fees and costs for abuse of discretion. Fujimoto v. Au, 95 Hawai`i 116, 137, 19 P.3d 699, 720 (2001) (citing Eastman v. McGowan, 86 Hawai`i 21, 27, 946 P.2d 1317, 1323 (1997) (quoting Weinberg v. Mauch, 78 Hawai`i 40, 52-53, 890 P.2d 277, 289-90, reconsideration denied, 78 Hawai`i 421, 895 P.2d 172 (1995))). "`An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant.'" Fujimoto, 95 Hawai`i at 137, 19 P.3d at 720 (quoting State v. Davia, 87 Hawai`i 249, 253, 953 P.2d 1347, 1351 (1998) (citations and internal quotation signals omitted)).

III. DISCUSSION

A. Pursuant to HRS Chapter 480, Consumers Who Do Not Actually Purchase Goods Or Services May Recover Statutorily Prescribed Damages.

The circuit court concluded, as a matter of law, that the Picos had failed to "establish *1229 damages required under [HRS c]hapter 480" and, thus, had failed to state a claim under the statute for which relief could be granted. The court's conclusion was premised on the fact that the Picos had not actually purchased the advertised vehicle or otherwise given any value to Cutter. Thus, the circuit court concluded that the kind of damages contemplated by HRS chapter 480 were "to prevent unjust enrichment, and the cost of travel is not that kind of damages." In that regard, the circuit court erred.

It appears that this court has never specifically addressed the parameters of cognizable damages under HRS chapter 480; in particular the Hawai`i appellate courts have not considered whether damages are recoverable under the statute absent an actual purchase of goods or services. But see Wiginton v. Pacific Credit Corp., 2 Haw.App. 435, 444, 634 P.2d 111, 118 (1981) (holding that, under HRS chapter 480, a plaintiff wrongfully induced to make a payment could recover associated costs—including a money order fee, gasoline, parking, and general wear and tear on his automobile—in addition to the payment itself). Following our well—settled approach to statutory interpretation, we look first to the plain language of the statute.

HRS § 480-13(b) (1993)^[15] provided in relevant part:

Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys fees together with the costs of suit; and

(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys' fees together with the cost of suit.

HRS chapter 480 defines neither "injury" nor "damages," but it does define the term "consumer" in relevant part to mean "a natural person who, primarily for personal, family, or household purposes, purchases, attempts to purchase, or is solicited to purchase goods or services[.]" HRS § 480-1 (1993) (emphasis added).

Thus, the plain language of the statute reflects that the legislature intended not only to protect persons who actually purchased goods or services as a result of unfair or deceptive acts and practices, but also those who attempted or were solicited to do so. It would be most strange if the legislature had sought to protect such persons but failed to provide them with any remedy. Indeed, HRS § 480-13(b) does not qualify or limit the term "consumer" in any way. We therefore construe the term "consumer" as it appears in HRS § 480-13(b) consistently with its definition in HRS § 480-1. Reading HRS § 480-13 only to permit recovery of damages for injuries sustained by means of actual purchases would generate an absurd result.^[16] "[T]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality." Beneficial Hawai`i, Inc. v. Kida, 96 Hawai`i 289, 309, 30 P.3d 895, 914-15 (2001) (citations and internal quotation marks omitted). See also HRS § 1-15(3) (1993) ("Every construction which leads to an absurdity shall be rejected."). Accordingly, by the plain language of the entire statute, no actual purchase is necessary as a prerequisite to a consumer recovering damages under HRS § 480-13, based on injuries stemming from violations of HRS § 480-2.

But even assuming statutory ambiguity, the legislative history underlying HRS chapter *1230 480 is in accord with the foregoing interpretation. Cutter argued below, based on legislative committee reports addressing the 1969 amendment to HRS § 480-13 that insured persons injured by violations of the chapter a recovery of not less than $1,000.00, that the legislature intended that only consumers who actually purchased goods or services would be entitled to recover under the statute. Specifically, Cutter cites the legislature's expressed concern that consumers who purchase low-priced items would be unlikely to pursue relief absent the $1,000.00 assured minimum recovery. See Sen. Stand. Comm. Rep. No. 600, in 1969 Senate Journal, at 1111.

Cutter reads the legislative history too narrowly. The $1,000.00 assured minimum recovery manifests a legislative intent to do more than simply prevent unjust enrichment at the expense of consumers who purchased relatively inexpensive goods. As both the legislative houses declared at the time the $1,000.00 assured minimum recovery was added to HRS § 480-13, HRS chapter 480's paramount purpose was to "encourage those who have been victimized by persons engaging in unfair or deceptive acts or practices to prosecute their claim," thereby affording "an additional deterrent to those who would practice unfair and deceptive business acts." Sen. Stand. Comm. Rep. No. 600, in 1969 Senate Journal, at 1111; Hse. Stand. Comm. Rep. No. 661, in 1969 House Journal, at 882-883. Thus, the legislature sought to protect all "consumers" adversely affected by unfair or deceptive acts or practices; it therefore follows that the $1,000.00 assured minimum recovery was intended to be available to all consumers who could demonstrate damages. Nothing in the history suggests that the legislature intended the anomalous result that a consumer who spent ninety-nine cents on an overpriced soda could potentially recover $1,000.00, but a consumer who expended far more time and money pursuing an illusory bargain could recover nothing.

The foregoing statutory construction is consistent with HRS chapter 480's function as a mechanism for abating practices that potentially injure consumers in general. See Ai v. Frank Huff Agency, Ltd., 61 Haw. 607, 616, 607 P.2d 1304, 1311 (1980) (noting that HRS § 480-2 "was constructed in broad language in order to constitute a flexible tool to stop and prevent fraudulent, unfair or deceptive business practices for the protection of both consumers and honest businessmen"), overruled on other grounds by Robert's Hawai`i School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai`i 224, 982 P.2d 853 (1999); Kukui Nuts of Hawai`i v. R. Baird & Co., Inc., 7 Haw.App. 598, 610, 789 P.2d 501, 510 (1990); Beerman v. Toro Manufacturing Corp., 1 Haw.App. 111, 117, 615 P.2d 749, 754 (1980). False or misleading advertisements do their damage when they induce action that a consumer would not otherwise have undertaken. If a consumer can establish a resulting injury, HRS § 480-13(b)(1) entitles him or her to the greater of $1,000.00 or treble damages.^[17] The statute's *1231 damages scheme is consistent with both its plain language and its legislative purpose.

The foregoing statutory construction is likewise consistent with relevant federal and state case law. A false or misleading advertisement has been held to violate the Federal Trade Commission Act regardless of whether a consumer actually purchases any goods or services as a result of the deception.^[18]See Federal Trade Comm'n v. Figgie Int'l, Inc., 994 F.2d 595, 604 (9th Cir.1993) (predicating defendant's liability not on the fact that defendant sold heat detectors, but on the dishonest or fraudulent practices it employed to sell them); Resort Car Rental Sys., Inc. v. Federal Trade Comm'n, 518 F.2d 962, 964 (9th Cir.1975) (holding that the Federal Trade Comm'n Act is violated if "it induces the first contact through deception, even if the buyer later becomes fully informed before entering the contract"); Spiegel, Inc. v. Federal Trade Comm'n, 494 F.2d 59, 62 (7th Cir.1974) (holding that, while "[p]rotection of the public is essential to justify filing a Section 5 complaint[,] ... proof of actual injury is unnecessary to support a Commission cease and desist order"). Most of the state jurisdictions that have addressed the question whether an actual purchase is required, within the context of similar consumer fraud statutes, in order to state a claim upon which relief can be granted, seem to be in agreement with the federal approach. See, e.g., McCormick Piano & Organ Co. v. Geiger, 412 N.E.2d 842 (Ind.Ct. App.1980) ("to say that a sale must actually take place would circumvent the intent of the Legislature which took great pains to include acts of deceptive solicitation as prohibited conduct"); Truex v. Ocean Dodge, Inc., 219 N.J.Super. 44, 529 A.2d 1017, 1020 (1987) (holding that plaintiff could recover damages for any "`ascertainable loss of moneys or property,' together with counsel fees, filing fees and reasonable costs, even if no contract was executed between the parties," under circumstances in which consumer-plaintiff had made no purchase but had given defendant a thirty dollar deposit (citations omitted)); Beslity v. Manhattan Honda, 120 Misc.2d 848, 467 N.Y.S.2d 471 (N.Y.App. Term.1983) (holding that plaintiff was entitled to the fifty dollar statutory minimum damages for traveling to car dealer's showroom based on false advertisement, but denying him extra $250.00 paid after being apprised of the "real deal"); Weaver v. J.C. Penney Co., 53 Ohio App.2d 165, 372 N.E.2d 633, 635-36 (1977) (holding that no sale need actually take place in order for a plaintiff to recover the one hundred dollar statutory minimum); Brashears v. Sight `N Sound Appliance Centers, Inc., 981 P.2d 1270 (Okla.Ct. App.1999) (holding that plaintiffs' loss of time, inconvenience, travel and telephone expenses were legally cognizable damages under the Oklahoma Consumer Protection Act, despite the fact that plaintiff never actually purchased anything from defendants); but see Ceshker v. Bankers Commercial Life Insurance Company, 558 S.W.2d 102 (Tex.Civ. App.1977) (holding that "[a] consumer may not bring an action based on an alleged misrepresentation of an insurance policy which he never bought" under the Tex. Bus. & Comm.Code).

Deception being the evil that consumer fraud statutes seek to rectify, regardless of whether actual purchases have resulted, *1232 there is no discernible reason why a consumer should be required to actually purchase any goods or services as a precondition to bringing an action, inter alia, for damages that result from injuries caused by false or misleading advertisements. We therefore hold that a consumer who is injured as a result of attempting to purchase goods or services by virtue of an act or practice prohibited by HRS § 480-2 may recover damages under HRS § 480-13. No actual purchase is necessary. Accordingly, if Cutter's advertisement violated HRS § 480-2,^[19] the Picos have stated a claim for damages for which relief can be granted pursuant to HRS § 480-13(b)(1). Cf. Wiginton, 2 Haw.App. at 444, 634 P.2d at 118 (holding that consumer-plaintiff's damages included out-of-pocket expenses for a money order, gasoline, parking, and wear and tear on automobile that resulted from unfair business practice). In addition, by the plain language of HRS § 480-13(b)(2), the Picos may seek to enjoin the future use of such advertisements.

The Picos may not, however, recover "benefit-of-the-bargain" damages, which are preconditioned on the breach of a contract. See Hawaiian Holiday Macadamia Nut Co., Inc. v. Industrial Indem. Co., 76 Hawai`i 166, 171, 872 P.2d 230, 235 (1994); Burgess v. Arita, 5 Haw.App. 581, 591, 704 P.2d 930, 938 (1985). Such contract damages, generally speaking, are available under HRS chapter 480. See Leibert v. Finance Factors, Ltd., 71 Haw. 285, 788 P.2d 833 (1990). But, for the reasons discussed infra in section III.D, we hold that the circuit court correctly concluded that there was no contract in the present matter. Similarly, assuming arguendo that specific performance is a remedy available under HRS chapter 480, the circuit court did not err in denying the Picos' request for specific performance. See Schrader v. Benton, 2 Haw.App. 564, 566, 635 P.2d 562, 564 (1981) (failure to prove the existence of a contract precludes specific performance).

Moreover, the Picos may not recover damages for emotional distress. See Ailetcher v. Beneficial Fin. Co. of Hawai`i, 2 Haw. App. 301, 307, 632 P.2d 1071, 1076 (1981) ("under [HRS] §§ 480-2 and 480-13, . . . there is no room for damages for personal injury and hence[ ] there can be no recovery. . . for mental pain and suffering"); Beerman v. Toro Mfg. Corp., 1 Haw.App. 111, 117, 615 P.2d 749, 754 (1980) (barring recovery of damages for personal injury under HRS chapter 480). HRS chapter 480 was not designed as a vehicle for personal injury actions, with respect to which the law already provides adequate remedies. Rather, the legislature has sought to regulate the conduct of trade and commerce by preventing unfair and deceptive acts and practices that are injurious to other businesses and consumer-participants in the marketplace. See Beerman, 1 Haw.App. at 118, 615 P.2d at 754.

Finally, the Picos are precluded from seeking punitive damages under HRS chapter 480. HRS § 480-13(b) enumerates the specific damages that a consumer may recover under the chapter—the greater of $1,000.00 or treble damages—and makes no provision for punitive damages. See also Leibert, 71 Haw. 285, 788 P.2d 833 (holding that the maximum damage award under HRS chapter 480 is treble compensatory damages); Han v. Yang, 84 Hawai`i 162, 931 P.2d 604 (App.1997) (citing Leibert).

B. The Circuit Court Erred In Concluding That Cutter Was Entitled To Judgment As A Matter Of Law With Respect To The Picos' Tort Claims On The Basis That The Picos Failed To Allege "Substantial Pecuniary Loss."

The Picos assert that the circuit court erred in ruling that Cutter was entitled to judgment as a matter of law with respect to their tort claims, in which they alleged that Cutter breached "its duty to advertise truthfully." Specifically, liberally construing their opening brief, the Picos seem to argue that the circuit court erred in entering judgment in favor of Cutter with respect to their *1233 claims for relief sounding in negligence or negligent misrepresentation, fraud, and false advertising. It appears that the circuit court construed the Picos' negligence claim as a claim of negligent misrepresentation^[20] and concluded that a claim for relief premised on either negligent misrepresentation or fraud required a showing of "substantial pecuniary loss." The circuit court therefore granted summary judgment in Cutter's favor and against the Picos with respect to the Picos' negligent misrepresentation and fraud claims on the basis that three to five dollars, which the Picos allegedly spent on gasoline in reliance on Cutter's advertisement, was not "substantial" enough to constitute "substantial pecuniary loss." The circuit court does not appear to have specifically addressed any claim for relief based on "false advertising."^[21]

This court has held that in order to maintain a claim for relief grounded in fraud or deceit,

the plaintiff must have suffered substantial actual damage, not nominal or speculative. Prosser, Law of Torts at 648 (3d ed. 1964). The courts have often expressed this requirement in terms of pecuniary damage, ... as does the Restatement of Torts § 519 (1938). The aim of compensation in deceit cases is to put the plaintiff in the position he [or she] would have been had he [or she] not been defrauded.... There may be no recovery for mental anguish and humiliation not intentionally inflicted....

Pecuniary damages, being narrow in scope, are those damages (either general or special) which can be accurately calculated in monetary terms such as loss of wages and cost of medical expenses. In fraud or deceit cases, the measure of pecuniary damages is usually confined to either the `out-of-pocket' loss ... or the `benefit of the bargain'. ...

Ellis v. Crockett, 51 Haw. 45, 52-53, 451 P.2d 814, 820 (1969) (some citations and footnote omitted) (emphases added); see also Hawai`i's Thousand Friends v. Anderson, 70 Haw. 276, 286, 768 P.2d 1293, 1301 (1989) ("plaintiff must show that he [or she] suffered substantial pecuniary damage"). Thus, as the juxtaposition of "substantial actual damage" with "nominal" or "speculative" damages indicates, plaintiffs suing in fraud are required to show both that they suffered actual pecuniary loss and that such damages are definite and ascertainable, rather than speculative. There is no threshold amount *1234 required in order for the pecuniary loss to be deemed "substantial." Cf. Turner v. General Adjustment Bureau, Inc., 832 P.2d 62, 63 n. 1 (Utah Ct.App.1992) (rejecting argument that damages must be "substantial" in order to be recoverable for fraud), overruled on other grounds by Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, ___ P.3d ___, 2001 WL 1246676 (2001) (holding that damages for emotional distress are recoverable for fraud).

Cutter urges us, nevertheless, to affirm the circuit court because "[t]he only damages recoverable under a fraud claim are confined to either `out of pocket' or `benefit of the bargain' damages." This court has never specifically addressed whether the kind of damages alleged by the Picos constitute "out-of-pocket" losses and are sufficient to support a claim for relief grounded in fraud, but we have no doubt that they do. The loss alleged by the Picos is the money that they spent as a consequence of their reliance on Cutter's advertisement. Such consequential damages, if proven, constitute "out of pocket" losses. See Ostano Commerzanstalt v. Telewide Systems, Inc., 880 F.2d 642, 648 (2d Cir.1989) ("Damages for fraud include the costs incurred in preparing for, performing, or passing up other business opportunity, ... as well as costs incurred in making reasonable efforts to mitigate damages[.]") (citing Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 793 n. 6 (2d Cir.1986), and Lanite Sales Co. v. Klevens Corp., 205 Misc. 303, 128 N.Y.S.2d 182, 188 (Sup.Ct. 1954)); Walker v. Signal Companies, Inc., 84 Cal.App.3d 982, 149 Cal.Rptr. 119, 125 (1978) ("A party may recover consequential damages resulting from his acts in reliance on the other party's misrepresentations."); Castle & Cooke, Inc. v. Lincoln Merchandise Corp., 103 A.D.2d 763, 477 N.Y.S.2d 390, 390 (N.Y.App.Div.1984) ("[T]he prime standard for measuring the actual pecuniary loss sustained as a direct result of fraud is the `out of pocket rule' . . . . Recovery of profits which would have been realized in the absence of fraud is not possible under the `out of pocket' theory ... because the defrauded party is entitled solely to [the] recovery of the sum necessary for restoration to the position occupied before the commission of the fraud.... `Out of Pocket' considerations do not, however, prevent recovery of other consequential damages proximately caused by reliance upon the misrepresentation[.]" (citations omitted) (some emphases added and some in the original)).

Accordingly, we hold that the money that the Picos expended in responding to Cutter's advertisement, if proved, satisfies the requirement of "substantial pecuniary loss" necessary to support a claim for relief grounded in fraud.

Furthermore, assuming that it was not abandoned, see supra note 20, we hold that the Picos' damages were also adequate to maintain a negligent misrepresentation claim. This court has held that a plaintiff claiming negligent misrepresentation must show that: "(1) false information [is] supplied as a result of the failure to exercise reasonable care or competence in communicating the information; (2) the person for whose benefit the information is supplied suffered the loss; and (3) the recipient relies upon the misrepresentation." Blair v. Ing, 95 Hawai`i 247, 269, 21 P.3d 452, 474 (2001) (citing Kohala Agriculture v. Deloitte & Touche, 86 Hawai`i 301, 323, 949 P.2d 141, 163 (App. 1997), and Restatement (Second) of Torts § 552 (1977)). Plaintiffs may recover the pecuniary losses caused by their justifiable reliance on a negligent misrepresentation. See State ex rel. Bronster v. United States Steel Corp., 82 Hawai`i 32, 919 P.2d 294 (1996) (recognizing that "pecuniary losses are recoverable in a claim for negligent misrepresentation"); Chun v. Park,