BARRY HIRSCHBERG v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE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-0832-15T2

BARRY HIRSCHBERG and
ELIZABETH HIRSCHBERG,

        Plaintiffs-Appellants,

v.

FIDELITY NATIONAL TITLE
INSURANCE COMPANY, THE
ESTATE OF SYDNEY STOLDT and
GOODMAN, STOLDT & HORAN,

        Defendants-Respondents,

and

JENSEN & MAROTTA ASSOCIATES,
INC., DAN JENSEN and J & M
TITLE SERVICES, INC.,

     Defendants.
__________________________________

              Argued January 17, 2018 – Decided February 9, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-4468-13.

              Barry Hirschberg, appellant, argued the cause
              pro se.
          Hugh A. Keffer argued the cause for respondent
          Fidelity National Title Insurance Company
          (Fidelity National Law Group, attorneys; Hugh
          A. Keffer, on the brief).

          Joanna Piorek argued the cause for respondents
          the Estate of Sydney Stoldt and Goodman,
          Stoldt & Horan (Wilson, Elser, Moskowitz,
          Edelman & Dicker, LLP, attorneys; Joanna
          Piorek, of counsel and on the brief; Michael
          McAndrew, on the brief).

PER CURIAM

     Plaintiffs Barry and Elizabeth Hirschberg (the Hirschbergs)

appeal from three orders of the Law Division, which resulted in

the dismissal of their claims against defendants Fidelity National

Title Insurance Company (Fidelity), the Estate of Sydney Stoldt,

and Goodman, Stoldt & Horan (collectively, the Stoldt defendants).

     On appeal, the Hirschbergs raise the following points:

                            POINT [I]

          THE COURTS BELOW ERRED IN GRANTING SUMMARY
          JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF
          MATERIAL FACT IN DISPUTE AND BECAUSE THE
          CRITERIA FOR GRANTING SUMMARY JUDGMENT HAVE
          NOT BEEN MET.

                           POINT [II]

          THE COURTS ERRED IN SUMMARY JUDGMENT WHICH WAS
          IMPROVIDENTLY GRANTED AGAINST THE WEIGHT OF
          THE EVIDENCE.

                           POINT [III]

          THE   LOWER   COURTS  ERRED   IN   DISMISSING
          PLAINTIFFS CONSUMER FRAUD CLAIM BECAUSE THEY
          MISINTERPRETED THE GENUINE ISSUES OF MATERIAL

                                2                          A-0832-15T2
FACTS AS TO WHETHER SECURITY VIOLATED BASIC
STATUTORY AND CONTRACTUAL OBLIGATIONS WHICH
CONSTITUTE   AN   UNCONSCIONABLE   COMMERCIAL
PRACTICE UNDER THE CONSUMER FRAUD ACT.

                 POINT [IV]

PLAINTIFFS' CLAIMS ARE NOT BARED [SIC] BY THE
DOCTRINE OF COLLATERAL ESTOPPEL BECAUSE THE
CASE AT HAND, AS IT RELATES TO THE SMOTHERGILL
MATTER, DOES NOT SATISFY THE COLLATERAL
ESTOPPEL REQUIREMENTS.

                  POINT [V]

THE ORDERS GRANTING SUMMARY JUDGMENT ARE
CONTRARY TO RULE 4:46-3 CASE NOT ADJUDICATED
ON MOTION, AND RULES 1:7-4(A) REQUIRED
FINDINGS AND 1:7-5 TRIAL ERRORS.

                 POINT [VI]

THE COURTS' ERRED BY IGNORING THE PLEADED
CLAIMS RESULTING IN THE UNWARRANTED GRANTING
OF SUMMARY JUDGMENT BECAUSE OF THE FALSE,
MISLEADING AND UNSUPPORTED STATEMENTS AND
MISREPRESENTATIONS OF FACTS MADE BY BOTH
DEFENDANTS.

                 POINT [VII]

ISSUES OF CREDIBILITY AND THE FACTS REQUIRE
THE DENIAL OF SUMMARY JUDGMENT.

                 POINT [VIII]

THE SMOTHERGILL LITIGATION RECORD SUPPORTS
PLAINTIFFS' ARGUMENT OF LEGAL MALPRACTICE,
NEGLIGENCE AND CONSUMER FRAUD BECAUSE THE
CLAIMS ASSERTED IN THAT MATTER EMINATED [SIC]
FROM THE MALFEASANCE IN 1978 OF STOLDT AND
FIDELITY DEFENDANTS.




                      3                          A-0832-15T2
                          POINT [IX]

          THE CONTINUING RELIANCE BY OTHERS ON THE
          EXISTENCE OF THE TERMINATED GERMAN [SIC] RIGHT
          OF WAY GRANTED BY DEED BOOK 776, PAGE 258[,]
          CONTINUE TO BE A SOURCE OF UNWARRANTED
          LITIGATION FOR THE PLAINTIFFS.

     In their reply brief, the Hirschbergs raise the following

additional points:

                            [POINT I]

          BUT   FOR    DEFENDANT'S    NEGLIGENCE,    THE
          SMOTHERGILLS COULD NOT HAVE FILED THEIR CLAIMS
          AGAINST THE PLAINTIFFS, BECAUSE THE REFERENCE
          OF DEED BOOK 776, PAGE 258[,] IS A "DEFECT"
          IN PLAINTIFFS' DEED.

                           [POINT II]

          FIDELITY'S LEGAL ARGUMENTS IN THEIR POINT III1
          SHOULD BE DISREGARDED BY THE COURT BECAUSE
          THEY ARE MISPLACED, MISREPRESENTED AND ARE NOT
          SUPPORTED BY THE FACTS.

                           [POINT III]

          BOTH DEFENDANTS REFERENCE JUDGE CONTILLO'S
          MARCH 3, 2009 OPINION IN THE SMOTHERGILL
          MATTER HOWEVER, THE APPELLATE COURT DID NOT
          AFFIRM THE OPINION, BUT RATHER AFFIRMED THE
          MAY 5, 2
009 FINAL.J.DGMENT.      THE FORM OF
          JUDGMENT WAS ARGUED ON MAY 4, 2009[,] WHEREIN
          JUDGE CONTILLO LIMITED HIS FINDINGS TO HIS
          SELF-AUTHORED MAY 5, 2009[,] THREE (3) PAGE
          FINAL JUDGMENT.




1
  In Point III of its brief, Fidelity argues that the trial court
properly found the statute of limitations bars claims arising out
of plaintiffs' 1978 purchase of their home.

                                4                          A-0832-15T2
                           [POINT IV]

          PLAINTIFFS MOVED TO DISMISS THE CLAIMS AGAINST
          THE JENSEN DEFENDANTS WITH PREJUDICE BECAUSE
          THIS COURT FOUND THE INITIAL APPEAL TO BE
          INTERLOCUTORY AND REQUIRED SAME TO PROCEED.
          FIDELITY NATIONAL TITLE NEVERTHELESS IS THE
          SUCCESSOR   TO   SECURITY    TITLE   INSURANCE
          COMPANY'S OBLIGATIONS.

                            [POINT V]

          THE TRIAL COURT ERRED BY DISMISSING THE
          CONSUMER FRAUD CLAIM BECAUSE THE RECORD SHOWS
          THAT THE AGENT WAS NOT ACTING IN THE CAPACITY
          OF A LICENSED PROFESSIONAL WHEN HE AGREED TO
          AND PERFORMED A SEARCH SPECIFICALLY FOR THE
          PLAINTIFFS OUTSDIDE [SIC] THE SCOPE OF HIS
          LEARNED PROFESSIONAL STATUS AND BECAUSE THE
          SEARCH WAS NOT MADE FOR THE WRITING OF AN
          INSURANCE POLICY.

     Having reviewed the record, we conclude that these arguments

are all without merit and, except as addressed below, they do not

warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).    We

affirm substantially for the reasons stated in Judge Robert C.

Wilson's written opinion dated August 18, 2015.    We also affirm

for the reasons stated in Judge Charles E. Powers, Jr.'s written

opinion attached as a rider to an order dated December 19, 2014.

Finally, we affirm for the reasons stated on the record by Judge

Kenneth J. Slomienski on January 31, 2014.




                                5                          A-0832-15T2
     Pursuant to the orders entered on the motions for summary

judgment, the Hirschbergs' second amended complaint was dismissed

as against Fidelity and the Stoldt defendants.2

     We review a grant or denial of summary judgment de novo,

observing the same standard as the trial court.         Townsend v.

Pierre, 
221 N.J. 36, 59 (2015). Summary judgment should be granted

only if the record demonstrates there is "no genuine issue as to

any material fact challenged and that the moving party is entitled

to a judgment or order as a matter of law."       R. 4:46-2(c).     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."      Davis

v. Brickman Landscaping, Ltd., 
219 N.J. 395, 406 (2014) (quoting

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

If no genuine issue of material fact exists, the inquiry then

turns to "whether the trial court correctly interpreted the law."

DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 
430 N.J. Super. 325, 333 (App. Div. 2013) (citations omitted).




2
  The Hirschbergs voluntarily dismissed the claims with prejudice
against Jensen and Marotta Associates, Inc., and Dan Jensen,
individually, prior to the appeal.

                                6                            A-0832-15T2
     The    Hirschbergs'     claims    against    Fidelity   were    dismissed

predicated upon collateral estoppel and statute of limitations

grounds.    After our de novo review of Judge Powers' decision, we

conclude his findings and application of controlling law were

supported in the factual and procedural record. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974).

     The Hirschbergs' claims against the Stoldt defendants were

dismissed   predicated      upon   collateral     estoppel   and    statute    of

limitations grounds.        After our de novo review of Judge Wilson's

decision, we conclude his findings and application of controlling

law were supported in the factual and procedural record.                    Rova

Farms, 
65 N.J. at 484.

     Similarly, after our de novo review of Judge Slomienski's

decision granting partial summary judgment on Count 5 of the second

amended    complaint   to   Fidelity,      we   conclude   his   findings     and

application of controlling law were supported in the factual and

procedural record.     Ibid.

                                      I.

     A court has broad discretion to determine whether application

of collateral estoppel is appropriate.             Parklane Hosiery Co. v.

Shore, 
439 U.S. 322, 331 (1979).                Although the doctrine "is

designed to protect litigants from relitigating identical issues

and to promote judicial economy," a court in exercising its

                                       7                               A-0832-15T2
discretion must "weigh economy against fairness."                Barker v.

Brinegar, 
346 N.J. Super. 558, 566 (App. Div. 2002).           "Fundamental

to the theory of collateral estoppel is the notion that the earlier

decision is reliable, an underlying confidence the result was

substantially correct.     The premise is that properly retried, the

outcome should be the same."       Kortenhaus v. Eli Lilly & Co., 
228 N.J. Super. 162, 166 (App. Div. 1988) (citing Restatement (Second)

of Judgments § 29 cmt. f (Am. Law Inst. 1982)).

     Collateral    estoppel,     also   known   as     issue   preclusion,

prohibits relitigation of issues if its five essential elements

are met.   Those elements are that:

           (1) the issue to be precluded is identical to
           the issue decided in the prior proceeding; (2)
           the issue was actually litigated in the prior
           proceeding; (3) the court in the prior
           proceeding issued a final judgment on the
           merits; (4) the determination of the issue was
           essential to the prior judgment; and (5) the
           party against whom the doctrine is asserted
           was a party to or in privity with a party to
           the earlier proceeding.

           [Allen v. V & A Bros., Inc., 
208 N.J. 114, 137
           (2011) (quoting Olivieri v. Y.M.F. Carpet,
           Inc., 
186 N.J. 511, 521 (2006)).]

     "'On the merits' means that the factual issues directly

involved   must   have   been   actually   litigated    and    determined."

Slowinski v. Valley Nat'l Bank, 
264 N.J. Super. 172, 183 (App.

Div. 1993).   "In the case of a judgment entered by confession,


                                    8                               A-0832-15T2
consent, or default, none of the issues is actually litigated."

Allesandra v. Gross, 
187 N.J. Super. 96, 106 (App. Div. 1982)

(quoting Restatement (Second) of Judgments, § 27 cmt. e).

     We agree that the Hirschbergs sought to re-litigate by their

second amended complaint issues relating to a right of way or

easement appurtenant to their property and its utilization by

others, including their neighbors, the Smothergills.   As a result

of a dispute that arose over access to that right of way, the

Smothergills instituted an action in the Superior Court of New

Jersey, Chancery Division.   After a bench trial over four days,

Judge Robert P. Contillo held that the Smothergills had the right

to utilize the right of way, as did the Hirschbergs.          Judge

Contillo also determined that the Hirschbergs' property was not

"land-locked" as they claimed.

     We affirmed the decision on appeal in an unpublished opinion.

Smothergill v. Hirschberg, No. A-5119-08 (App. Div. Apr. 26, 2010).

As such, we agree with the determinations of Judge Powers and

Judge Wilson that the Hirschbergs' instant claims against the

Stoldt defendants and Fidelity sought re-litigation of issues

previously adjudicated and are   thus prohibited from raising them

anew.




                                 9                          A-0832-15T2
                                II.

     The applicable statute of limitations for legal malpractice

is six years, 
N.J.S.A. 2A:14-1, and specifically requires that

actions for legal malpractice be brought within six years from the

date the cause of action occurred.    Grunwald v. Bronkesh, 
131 N.J.
 483, 494 (1993).   A cause of action for legal malpractice "accrues

when an attorney's breach of professional duty proximately causes

a plaintiff's damages."      Id. at 492.     Thus, the statute of

limitations starts to run once a plaintiff suffers damages and

discovers, or through the use of reasonable diligence should have

been discovered, the facts essential to his/her malpractice claim.

Lanziano v. Cocoziello, 
304 N.J. Super. 616, 621-22 (App. Div.

1997).

     A title insurance policy is a contract and, like other

contracts, claims under a title policy are governed by the six

year statute of limitation.     
N.J.S.A. 2A:14-1; Azze v. Hanover

Ins. Co., 
336 N.J. Super. 630, 636 (App. Div. 2001).     Generally,

causes of action for loss resulting from defects to or impairment

of title to real property accrue when the property owner knows or

has reason to know of the defect to title.      Vision Mortg. Corp.

v. Patricia J. Chiapperini, Inc., 
156 N.J. 580, 586 (1999).

     The Hirschbergs argue that they were unaware of the use of

the right of way for twenty-five years and, consequently, their

                                10                           A-0832-15T2
claim of attorney malpractice against the Stoldt defendants and

their contractual claims against Fidelity should not here been

barred.   However, this lack of knowledge claim was refuted by the

record.   Upon review of the record before them, Judge Powers and

Judge Wilson, each properly found that the Hirschbergs' claims

were barred as they had notice as early as 1994 or as late as

1997, of a potential defect in their deed that could have resulted

in a diminution of the value of their property.   Yet, they failed

to institute a malpractice claim against the Stoldt defendants and

a breach of contract claim against Fidelity under the title policy

within the applicable statute of limitations for each putative

cause of action.

     In sum, we hold that there is no need for this court to engage

in a detailed analysis of matters that have been considered and

rejected by the court at both the trial and the appellate level.

The Hirschbergs' contentions are not strengthened by repetition

and do not alter the undisputed facts and procedural history which

comprise the record of this case.

     Affirmed.




                                11                          A-0832-15T2