MARCO BIANCHI v. BORIS LADJEN
Annotate this CaseNOT 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-3310-15T4
MARCO BIANCHI,
Plaintiff-Appellant,
v.
BORIS LADJEN, NADIA LADJEN,
MAIN STREET TITLE & SETTLEMENT
SERVICES, LLC, and ANDREW
G. FREDA, ESQ.,
Defendants-Respondents.
________________________________
Argued March 5, 2018 – Decided April 23, 2018
Before Judges Sabatino, Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
3010-14.
Adam S. Tuttle argued the cause for appellant.
John Burke argued the cause for respondents
Boris and Nadia Ladjen (Burke & Potenza, PA,
attorneys; John Burke, of counsel and on the
brief).
Robert G. Ricco argued the cause for
respondent Main Street Title & Settlement
Services, LLC (Nazor Cengarle & DeCarlo, LLC,
attorneys; Robert G. Ricco, on the brief).
Andrew G. Freda, respondent, argued the cause
pro se.
Robert H. Solomon argued the cause for amicus
curiae New Jersey Association for Justice
(Nagel Rice, LLP, attorneys; Bruce H. Nagel,
Robert H. Solomon, and Michael J. Paragno, on
the brief).
Diana C. Manning argued the cause for amicus
curiae New Jersey State Bar Association (New
Jersey State Bar Association, attorneys;
Robert B. Hille, of counsel and on the brief;
John W. Kaveney, Diana C. Manning, and Evelyn
R. Storch, on the brief).
Michael J. Fasano argued the cause for amicus
curiae New Jersey Land Title Association
(Davison, Eastman, Muñoz, Lederman & Paone,
PA, attorneys; Michael J. Fasano, on the
brief).
PER CURIAM
This property damage case arises from a situation in which
pipes froze in a residence during a period of cold weather and
damaged the premises. The damage occurred at some undetermined
time between the plaintiff homebuyer's "walk through" the morning
of the scheduled closing and his post-closing entry into the house
seven days later.
The closing was not completed on its scheduled date, due to
the buyer's failure to wire the purchase funds in advance.
Consequently, the parties signed an escrow agreement drafted by
the title agent, delaying the buyer's possession of the house keys
and the deed until his payment checks cleared.
2 A-3310-15T4
Plaintiff sued the sellers, his real estate attorney, and the
title agent, asserting various theories of breach of contract,
negligence, and professional malpractice. The trial court granted
all defendants summary judgment, a decision which we now affirm.
I.
Many of the pertinent facts are undisputed. Plaintiff Marco
Bianchi, an electrician by trade, was living with his parents in
2013. In the fall of 2013, plaintiff entered into a contract to
purchase a single-family residence in Glen Rock from defendants
Boris and Nadia Ladjen. The sales contract, which was dated
October 24, 2013, specified a cash purchase price of $360,000. No
mortgage loan by the buyer was involved.
Plaintiff and the Ladjens utilized the services of a dual
real estate agent, Elizabeth Fernandez, in connection with the
transaction. Plaintiff retained a real estate attorney, defendant
Andrew G. Freda, to represent him in the sale. The Ladjens
retained their own counsel, Albert Ferro. Defendant Main Street
Title & Settlement Services, LLC ("Main Street Title"), served as
the title company for the transaction.
Among other things, the sales contract stated that the balance
of the purchase price, less the initial deposit and an interim
payment, "shall be paid by cash, certified check or Attorney's
Trust Account check on delivery of a bargain & sale [deed] . . .
3 A-3310-15T4
Payment of the balance of the purchase price by the Buyer and
delivery of the deed and affidavit of title by Seller occur at the
'Closing'." (Emphasis added). As we will discuss, infra, the
contract also specified that the Ladjens as sellers bore the risk
of loss at the premises up through the time of closing. However,
they did not contractually guarantee the premises' condition after
the closing, and the deed and affidavit of title had been delivered
to the buyer.
After an initial closing date was postponed, the closing was
rescheduled to Tuesday December 31, 2013, at the offices of Main
Street Title. That morning, plaintiff did a "walk-through" of the
house and reported no damages or problems. At his later
deposition, plaintiff specifically recalled the heat was working
that morning within the house. The house had a steam heat system
requiring water be supplied to the furnace in order for it to
function. During periods of cold weather, the water supply to the
furnace needed to be manually replenished periodically. As
described in this record, the furnace had two on/off switches: one
on the furnace itself and another on a stairwell wall.
On December 31, plaintiff brought to the scheduled closing
one or more certified checks1 made payable to Main Street Title,
1
The record is inconsistent as to whether plaintiff presented a
single check or multiple checks.
4 A-3310-15T4
despite alleged instructions by Freda to wire the money before
closing. The closing was attended by plaintiff; the Ladjens; a
representative of Main Street Title; Freda; the Ladjens'
attorney's assistant; and a colleague of Fernandez from the
realtor's office.
Plaintiff had not, as instructed, wired the payment funds to
Main Street Title's account in advance of the closing session.
Consequently, the parties decided to enter into an escrow agreement
to cover the interim period of time for the funds to clear. The
simple escrow agreement, which was typed on Main Street Title's
letterhead, read as follows:
All closing proceeds to be held in escrow by
Main Street Title until the funds clear. All
under signed [sic] parties hereby agree to
this.
/s/ Marci Bianchi
/s/ Boris Ladjen
/s/ Nadia Ladjen
In a handwritten insert placed after the words "closing proceeds,"
the parties added and initialed these words: "Deed & Keys."
The escrow agreement was signed by plaintiff and the Ladjens.
It was not signed by Main Street Title, the realtor, or either of
the parties' attorneys.
Despite the language of the written escrow agreement, the
Sellers handed the keys to Freda, who held them pending the
5 A-3310-15T4
clearance of the checks. The parties separated that afternoon.
The following day was a holiday, New Year's Day.
The witnesses' accounts of what occurred thereafter varied
to some extent. Plaintiff testified at his deposition that, when
he left Main Street's office on December 31, there was a "verbal
discussion" that, once the checks cleared, Freda "was supposed to
receive a phone call saying that everything had cleared, and that
the keys could be handed over, and everyone could be paid."
Plaintiff testified that, on Thursday January 2, 2014, his
father called Freda, who, in turn, called Main Street Title to ask
if the checks had cleared. Although plaintiff's testimony on this
subject is unclear, it appears that Freda called Main Street Title
at some point between January 2 and January 6. A representative
of Main Street Title thereafter returned Freda's call, and told
him the checks had cleared.
Plaintiff testified that he obtained the keys from Freda on
January 7, and went that day to the house. At that point, plaintiff
saw ice outside of and throughout the dwelling. According to
plaintiff, he went to the basement to turn the water off, at which
point he realized "[t]he lid to the furnace was off, and the
switch, the electrical main shutoff switch, was off."
Fernandez, the dual real estate agent, testified at her
deposition about a text exchange she had with plaintiff on January
6 A-3310-15T4
2 and January 4. The text messages were made part of the summary
judgment record. On January 2, Fernandez sent plaintiff a text
at 9:13 a.m. inquiring, "Did you get the keys yet? Do you want
me to pick the[m] up for you if not?" Plaintiff did not respond
immediately. He did so at 5:37 p.m. on January 4, replying in a
text to Fernandez, "Hi Beth. That shouldn't be necessary. Thank
you anyway[.]"
Fernandez further testified that Boris Ladjen asked her, on
January 5, 2014, to contact plaintiff and remind him to put water
in the furnace. Fernandez then sent plaintiff a text message that
read: "The previous owners of your home called. Boris is
concerned that the boiler needs water. He doesn't want it to stop
working for you. Just passing along the m[e]ssage. Hope he
doesn't stalk the house. LOL." There is no evidence that
plaintiff responded to that January 5 text message.
According to Fernandez, plaintiff called her on January 7,
after seeing the water damage to the property, to find out if the
Ladjens had turned off the furnace. After confirming with the
Ladjens that they had not turned off the furnace, Fernandez sent
a text message to plaintiff that read:
I just spoke to Boris. On the contrary, he
said he left the furnace on and he would never
turn it off in the winter. I would be very
angry with my attorney if I were you because
he's lying to you if he told you we only closed
7 A-3310-15T4
today. Everything was closed and finalized
last Thursday [January 2, 2014]. You should
have had the keys and been checking on that
house. I would have been doing it for you if
I picked them up Thursday.
At his deposition, Freda described himself as a solo
practitioner with a "[g]eneral practice." Freda noted that he did
"[n]ot normally" handle real estate transactions, but had
"probably" handled "dozens" in the past five years. Freda stated
that he knew plaintiff's father, although he had never represented
plaintiff before.
Freda stated that plaintiff did not take title to and
possession of the property on December 31 at the scheduled closing.
According to Freda, both he and a representative from Main Street
Title had told plaintiff prior to the closing that he should "have
the funds [due at closing] wired to Main Street[ Title's] account
from his bank." Freda recalled that he was therefore "annoyed"
when plaintiff showed up at the closing with certified checks,
because Freda "had been very clear" in advance that plaintiff
should instead wire the funds.
According to Freda, because plaintiff brought checks to the
closing, the parties agreed that "all of the trappings of the
closing," including the signing of papers and exchanging of HUD-1
8 A-3310-15T4
statements, would occur at that time.2 However, as Freda
understood it, the "actual title" would not transfer until the
funds had cleared. According to Freda, Main Street Title was
supposed to notify him when the funds cleared. In the interim,
he kept the keys to the Property, while Main Street Title kept the
deed.
Freda testified that he spoke with someone from Main Street
Title on January 6, 2014, and was informed that "it was finished,
we could close the escrow." Although Freda acknowledged it was
his obligation to ensure that the deed was recorded, he had engaged
Main Street Title as the "settlement agent," which was then
responsible for doing so.
According to Freda, he reached out to plaintiff on January 6
to let him know the transaction was finished, although it is
unclear if he actually spoke to plaintiff that day. Freda
testified that he received a call from plaintiff the following
day, January 7, at which point he learned of the damage to the
property.
2
Freda referred to this as a "dry closing," in which all other
items were completed and the parties were "just waiting for one
box to be checked." According to Freda, "escrow agreements," by
contrast, typically require "additional tasks" that the parties
must complete.
9 A-3310-15T4
With respect to homeowner's insurance, Freda stated that he
"assume[d] at the time the property closed, [plaintiff] would be
able to go out and obtain [such] insurance." He explained that
in real estate transactions involving a mortgage, the lender will
typically require that the purchaser obtain insurance before the
lender will release the funds.
Freda testified that he had "no doubt" he discussed insurance
with plaintiff prior to closing, although he could not recall "a
specific meeting or conversation . . . ." Plaintiff did not,
however, provide Freda with proof of casualty insurance. Freda
testified that he "assumed" plaintiff had a policy.
Bryan Nazor, Esq., President of Main Street Title, was also
deposed. Nazor testified that his firm was hired to perform both
title and settlement services in this realty transaction. Nazor
explained that, because no mortgage lender was involved, Main
Street Title "followed [the] direction of buyer's counsel and
seller's counsel as to how the settlement should proceed." Nazor
testified that Main Street Title's responsibilities included
"tak[ing] the money in, disburs[ing] the money according to the
parties' agreement, prepar[ing] documents for the parties, and
post closing record[ing] documents." He acknowledged that his
office drafted the written escrow agreement in this case.
10 A-3310-15T4
According to Nazor, Main Street Title's "policy" is that it
"prefer[s]" a buyer wire funds prior to closing. He explained his
firm typically conveys to the buyer's attorney that the buyer must
wire those funds. He could not, however, confirm how that occurred
in the present case.
The Ladjens also were deposed. Boris Ladjen testified that
he and his wife did not keep keys to the Property after the
December 31 attempted closing. He further acknowledged that they
did not receive any of the proceeds from the sale at the December
31 session.
According to Boris Ladjen, he went "[e]very second day" to
check on the property before the scheduled closing, particularly
to check the heater. When asked who was going to "look after" the
property between the closing and when the funds cleared, Mr. Ladjen
responded, "No one."
Nadia Ladjen testified that, although her husband had learned
from Fernandez that the property had sustained water damage after
January 31, she was not aware of the problem until they received
notice of the present lawsuit.
Both Ladjens denied entering the house after December 31.
They also denied that they had provided an extra set of keys to
anyone else.
11 A-3310-15T4
Plaintiff obtained expert reports from a real estate attorney
to support his legal malpractice claims against Freda, and a title
expert to support his professional liability claims against Main
Street Title. After receiving those expert reports, defendants
moved for summary judgment and also to bar the experts' testimony
as improper net opinion.
Following oral argument, the trial court issued a written
opinion barring both of plaintiff's experts and granting summary
judgment to each of the defendants. This appeal by plaintiff
ensued.
During the course of the briefing on appeal, we invited and
received amicus briefs from the New Jersey Association for Justice
("NJAJ"), the New Jersey Land Title Association ("NJLTA"), and the
New Jersey State Bar Association ("NJSBA"). The amici also
helpfully participated in the oral argument on appeal.3
II.
In reviewing the many issues presented on appeal in this
case, we are mindful of our scope of review. As to the evidentiary
ruling to bar plaintiff's experts, we apply considerable deference
to the trial court. We generally do not disturb the trial court's
decision on such matters unless the ruling demonstrably comprises
3
The Attorney General's Office declined our invitation to
participate.
12 A-3310-15T4
an abuse of discretion. Hisenaj v. Kuehner,
194 N.J. 6, 16 (2008);
see also Townsend v. Pierre,
221 N.J. 36, 52-53 (2015) (noting
that the decision to admit or exclude expert testimony is
"committed to the sound discretion of the trial court") (citing
State v. Berry,
140 N.J. 280, 293 (1995)).
We afford less deference to the trial court's dispositive
rulings on defendants' respective summary judgment motions. We
review those determinations de novo on the same record as the
trial court, evaluating whether, under Rule 4:46-2(c), "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." Brill v. Guardian Life Ins. Co.
of Am.,
142 N.J. 520, 540 (1995); see also IE Test, LLC v. Carroll,
226 N.J. 166, 184 (2016) (applying on appeal the identical summary
judgment standards used by the trial court). We also review de
novo the trial court's determinations on pure questions of law.
Manalapan Realty, LP v. Manalapan Twp. Comm.,
140 N.J. 366, 378
(1995) (noting that no "special deference" applies to a trial
court's legal determinations).
A.
We first consider the trial court's dismissal of plaintiff's
claims against the Ladjens, the sellers of the house. In essence,
13 A-3310-15T4
those claims rest upon two distinct theories of liability: (1)
the sales contract's allocation of the risk of loss upon the
sellers until the "closing" of the transaction; and (2) plaintiff's
factual contention that someone must have manually switched off
the furnace between the December 31 morning walk-through and his
entry into the premises on January 7. Neither theory is viable
on this record, even affording plaintiff all reasonable
inferences.
Paragraph 15 of the sales contract, entitled "Risk of Loss,"
plainly states, "The risk of loss or damage to the Property by
fire or otherwise, except ordinary wear and tear, is on the Seller
until the Closing." This provision is a customary term within the
"Standard Form of Real Estate Contract" promulgated by the New
Jersey Association of Realtors. The parties did not strike or
modify this standard risk-of-loss provision. The escrow agreement
they agreed to on December 31, before the purchase funds cleared,
did not alter the sales contract's standard allocation of risk.
In paragraph 17 of the sales contract, the sellers agreed to
maintain the property in "good condition" through the closing,
subject to "ordinary wear and tear." They represented that "all
. . . heating . . . systems . . . now work and shall be in proper
working order at the time of Closing." The sellers further
represented, to the best of their knowledge, that "there are
14 A-3310-15T4
currently no leaks . . . in the . . . walls . . . ." However,
Section 17 specifies, in bold and capitalized print,4 that all of
the sellers' representations "shall not survive closing of title."
Additionally, the provision makes clear the sellers did not
guarantee the condition of the premises "after the deed and
affidavit of title have been delivered to the Buyer at the
'Closing.'" (Emphasis added).
Plaintiff contends that the pipes in the house must have
burst before "the closing" and, therefore, the risk of that damage
was contractually borne by the Ladjens in their capacity as
sellers. The trial court rejected that argument. So do we, albeit
based upon slightly different reasoning.
Although it repeatedly uses the term "the closing," the sales
contract does not define the concept or pinpoint when exactly that
event occurs. In common usage, the term has long been used to
refer to the time when title to real estate passes from a seller
to a buyer. See, e.g., Pyle v. Altshul,
125 N.J. Eq. 143, 144 (E.
& A. 1939) (referring synonymously to "the time of passing title"
and "the time of closing title"); Samuel A. Laden, Inc. v.
Lidgerwood Estates, Inc.,
15 N.J. Misc. 498 (Sup. Ct. 1937)
(construing the contract phrase "at the time of the delivery of
4
We have omitted displaying the bold face type and capitalization
for ease of the reader.
15 A-3310-15T4
the deed and the closing of title" to signify a definitive
"designation of time"). The closing, sometimes referred to as the
"settlement," represents "the end of the transaction" in a real
estate sale. In re Opinion No. 26 of the Comm. on the Unauthorized
Practice of Law ("Opinion No. 26"),
139 N.J. 323, 327 (1995).
As described by the Supreme Court, "[t]the day for closing"
entails a meeting of the buyer and seller, their attorneys (if
any),5 and a title officer. Id. at 338. "The funds are there.
And the critical legal documents are also on hand . . . ." Ibid.
In cash transactions where, as here, the buyer is not obtaining a
mortgage loan, those "critical legal documents" include a deed,
an affidavit of title, a settlement statement reflecting "how much
is owed, what deductions should be made for taxes and other costs
and what credits are due[,]" and a final title binder. Ibid. At
the closing, "all" of these documents are "executed and delivered,
along with other documents, and the [purchase] funds are delivered
or held in escrow until the title company arranges to pay off
prior mortgages and liens." Ibid.
In the present case, nearly all of these steps were
accomplished when the parties and the title agent convened on
5
In the so-called "South Jersey practice," the buyer and seller
are ordinarily not represented by counsel, in contrast to the so-
called "North Jersey practice," in which most buyers and sellers
have an attorney. Id. at 333.
16 A-3310-15T
4 December 31. However, as we have already described, the checks
for the purchase funds had not yet cleared. Consequently, a terse
escrow agreement was prepared on the spot by the title agent and
executed by the parties. As we have noted, the escrow agreement
specified that "[a]ll closing proceeds," plus the deed and the
keys to the house, were "to be held in escrow by Main Street Title
until the funds clear."
The trial court found that, even though plaintiff was not
given physical possession of the deed on December 31, "title had
passed with the [sellers'] execution of the deed." We respectfully
differ with the court on this discrete point. If, for some reason,
the plaintiff's checks did not clear through the banking system
and the purchase funds were not duly transferred, the transaction
would not have been consummated and title would have remained with
the sellers. The closing therefore was not complete on December
31. Instead, it was subject to the conditions of the escrow.
We do agree with the trial court's observation, however, that
the Ladjens had "satisfied their obligation as sellers of the
Property by providing the keys and signing over the deed" on
December 31. Even so, the risk of loss on the premises continued
with the Ladjens through the point in time when the checks for the
purchase cleared.
17 A-3310-15T4
The record does not disclose with certainty when the checks
cleared. There is no evidence the funds cleared later in the day
on December 31 or the following day, January 1 (New Year's Day),
which is a bank holiday. We do know from the record, however,
that the dual real estate agent, Fernandez, went to pick up and
received her commission check on January 2. The sales contract
specified in Section 27 that her commission was "due and payable
at the time of the actual closing of title and payment by Buyer
of the purchase consideration for the Property." In that same
contract provision, the sellers authorized the "disbursing agent,"
here Main Street Title, to pay the full commission "out of the
proceeds of the sale prior to the payment of any such funds to the
Seller." (Emphasis added).
Thus, the real estate agent would not have been entitled on
January 2 to receive her commission unless the checks for the
proceeds had already cleared. Moreover, Mrs. Ladjen recalled
receiving the sellers' check in the mail on January 3 or 4, which
are dates consistent with the funds having cleared at least a day
before then. We recognize that Main Street Title has no record
of the exact date and time the funds cleared. However, there is
no evidence that it disbursed the agent's commission or the
sellers' net receipts prematurely.
18 A-3310-15T4
Even viewing the record in a light most favorable to
plaintiff, we conclude that the sale closed sometime on January
2. We reject plaintiff's contention that the closing did not
occur until January 6 when his lawyer notified him of the
availability of the keys, or January 7, when he entered the
premises for the first time after the checks cleared.
The sellers had no control of plaintiff's timing. As the
trial court aptly noted, they had completed all the tasks they
were obligated to perform. It would be inequitable and illogical
to hold that the risk of loss remained the sellers' burden after
the funds had cleared. Instead, the risk of loss transferred to
plaintiff by that point.
Given our premise that the risk of loss shifted to plaintiff
on January 2, we next consider whether plaintiff has provided
sufficient proof for a jury to reasonably conclude that the pipes
froze and the water damage occurred before that critical point in
time. We agree with the trial court that plaintiff has failed to
do so with sufficient competent evidence.
Plaintiff did not retain an expert with an appropriate opinion
showing that recorded outdoor temperatures on and after December
31 establish the pipes must have frozen on or before January 2.
According to a printout of the United States Weather Report for
Teterboro, New Jersey contained in the motion record, the
19 A-3310-15T4
respective low outdoor temperatures on December 31, January 1, and
January 2 were 27, 21, and 15 degrees Fahrenheit. The recorded
low temperatures after January 2 were also subfreezing,
specifically 8 degrees on January 3, 3 degrees on January 4, 13
degrees on January 5, 20 degrees on January 6, and 22 degrees on
January 7.
Absent expert support, it is sheer speculation as to whether
the pipes froze before the risk of loss transferred from the
sellers, or afterwards. Claims must not go to a jury based on
pure speculation. Merchants Express Money Order Co. v. Sun Nat'l
Bank,
374 N.J. Super. 556, 563 (App. Div. 2005) (noting that mere
speculation will not bar summary judgment); see also Hoffman v.
Asseenontv.Com, Inc.,
404 N.J. Super. 415, 426 (App. Div. 2009)
(similarly applying this principle). We therefore agree with the
trial court that plaintiff has not presented a viable evidential
basis to show proximate causation.
Plaintiff's alternative theory of the Ladjens' liability is
his contention that, when he arrived at the house on January 7,
he observed the heater had been shut off and its front panel had
been removed. This claim is not corroborated by any other
evidence. To the contrary, the Ladjens insisted at their
deposition that they turned over their keys to the house on
December 31 and did not retain any duplicate keys. They deny
20 A-3310-15T4
entering the premises or touching the heater at any time after
December 31, when plaintiff walked through the house and detected
no problems with the heater.
Plaintiff conjectures that one or both sellers, or perhaps
someone on their behalf, entered the premises after the December
31 walk-through and shut off the heat. But there simply is no
direct evidence they did so, nor any competent circumstantial
evidence supporting such a nefarious inference of tampering. No
witness saw either Mr. Ladjen or Mrs. Ladjen enter the house after
December 31. Nor is there any document or statement by either of
them substantiating they did so.
In fact, the record shows the Ladjens urged plaintiff through
the real estate agent Fernandez to make sure that adequate water
was maintained in the heater to keep it running. This is
corroborated by Fernandez's January 5 text message exchange with
plaintiff. It is unrealistic to believe that the Ladjens would
have deliberately shut off the heater in the midst of very cold
weather, knowing from their experience as owners that doing so
could cause damage. The marginal savings on the utility bill6 for
6
Indeed, there is no indication in the appendices that the Ladjens
were charged or agreed to pay for continued fuel costs after
December 31.
21 A-3310-15T4
a few days would hardly have been worth the risk of causing such
damage.
Although we are mindful of the court's responsibility in
summary judgment to afford the non-moving party all reasonable
inferences of fact, Brill,
142 N.J. at 540, there are no reasonable
inferences in the present record to create liability for these
sellers.
We may never know exactly how or why the heater ceased
operating in this house between December 31 and January 7. But
that unknown cause cannot justify imposing liability upon these
sellers. Summary judgment was appropriately entered in their
favor.
B.
Plaintiff also seeks reversal of the trial court's grant of
summary judgment to his former attorney, Freda, and its dismissal
of his claims against Freda for legal malpractice. We reject his
arguments, although not for all of the reasons stated in the trial
court's decision.
Fundamentally, plaintiff's theories of legal malpractice
allege that Freda failed to discharge the duties of care owed by
a lawyer to a purchaser of residential real estate in New Jersey.
As we have noted, plaintiff obtained a supporting expert report
from an attorney who had represented "several thousand" buyers and
22 A-3310-15T4
sellers of real estate in this State, and who had conducted
"several thousand" title and purchase closings.
The expert asserted that an attorney representing a buyer in
a real estate transaction in New Jersey has the "duty to advise,
guide and protect the interest of his client throughout the
purchase transaction." According to the expert, this
responsibility "includes the duty of the attorney inter alia to
advise and counsel the buyer to obtain appropriate casualty and
liability insurance on the real property premises being purchased
and the potential risks of not obtaining suitable casualty
insurance coverage." The expert opined that Freda's alleged
failure to do so in this transaction thus "deviated and failed to
conform to acceptable professional standards for an attorney at
law in New Jersey . . . ."
In its written decision granting summary judgment, the trial
court acknowledged plaintiff's legal malpractice expert had
reviewed numerous documents before rendering his opinions.
However, the court found those opinions were "devoid of any
objective standard of care in which to measure Mr. Freda's conduct
to determine whether he deviated from said standard of care." The
court therefore found that the report amounted to an inadmissible
net opinion, and thus could not sustain plaintiff's legal
malpractice claims.
23 A-3310-15T4
Additionally, the trial court more broadly concluded that it
was "not satisfied that any expert report could impose such
liability upon an attorney who represents a buyer in a residential
closing." According to the trial court, "[t]he obligation which
Plaintiff seeks to impose upon his counsel [is] beyond the scope
of representation for contracting and closing title on property."
To prevail on a legal malpractice claim, a plaintiff must
prove: "'(1) the existence of an attorney-client relationship
creating a duty of care upon the attorney; (2) the breach of that
duty; and (3) proximate causation.'" Conklin v. Hannoch Weisman,
145 N.J. 395, 416 (1996) (quoting Lovett v. Estate of Lovett,
250 N.J. Super. 79, 87 (Ch. Div. 1991)). As part of that burden, the
plaintiff must show the attorney charged with malpractice owed and
in fact breached a specific duty to his client.
As a threshold question, we must consider whether the scope
of an attorney's duties in representing a buyer in a residential
real estate purchase is a question of law for the Judiciary or,
instead, a question that is a proper subject of competing expert
opinions to be presented to a trier of fact. This predicate
institutional question arises because of the unique role the
Judiciary performs in our State in regulating the practice of law.
Article VI of the New Jersey Constitution declares that "[t]he
Supreme Court shall have jurisdiction over the admission to the
24 A-3310-15T4
practice of law and the discipline of persons admitted." N.J.
Const., art. VI, § 2, ¶ 3. The Rules of Professional Conduct
promulgated by the Court govern attorney conduct. Those Rules in
particular require that an attorney act with competence, RPC 1.1,
and diligence, RPC 1.3. However, an attorney's violation of an
RPC does not per se create a viable claim for legal malpractice.
Baxt v. Liloia,
155 N.J. 190, 200 (1998) (citing Albright v. Burns,
206 N.J. Super. 625, 634 (App. Div. 1986)).
The RPCs instead establish "'the minimum level of competency
which must be displayed by all attorneys.'" Ibid. (quoting
Albright,
206 N.J. Super. at 634). The presence or absence of a
duty, based on that minimum level of competence, is "generally a
question of law for the court." Estate of Spencer v. Gavin,
400 N.J. Super. 220, 240 (App. Div. 2008) (citations omitted). "The
court's role in defining the contours of a legal duty is
particularly important in the context of attorney conduct, as our
State judiciary, since 1947, has exercised exclusive
constitutional authority over the practice of law." Ibid.
(emphasis added) (citing N.J. Const., art. VI, § 2, ¶ 3).
The existence and contours of a lawyer's duty are matters of
fairness, involving "a weighing of the relationship of the parties,
the nature of the risk, and the public interest in the proposed
solution." Ibid. (quoting Goldberg v. Housing Auth. of Newark,
25 A-3310-15T4
38 N.J. 578, 583 (1962)). "The scope of a lawyer's potential duty
essentially has two facets: (1) the persons or entities to whom
that duty is owed, and (2) the conduct required of the lawyer to
fulfill the duty." Id. at 241.
To some extent, the duties of attorneys who practice in this
State are prescribed by ethics rulings and judicial opinions. For
example, in the present setting of a residential real estate
purchase, the Supreme Court in Opinion No. 26,
139 N.J. at 323,
spelled out various common functions of a New Jersey real estate
attorney in evaluating whether title agents participating in
"South Jersey"-style real estate closings have been engaged in the
unauthorized practice of law. Those functions include, for
example, an attorney's opportunity to review the terms of the
signed real estate sales contract during the so-called three-day
"attorney review period," during which time the contract may be
cancelled. Id. at 349, 355-56 (discussing the attorney review
clause). The Court further instructed that "an attorney retained
by the [real estate] broker to draft a deed and/or affidavit of
title for the seller may do so but only if the attorney personally
consults with the seller . . . ." Id. at 359.
Although the Court in Opinion No. 26 allowed the South Jersey
practice to continue, it stressed that it did "not in any way cede
its power over the practice of law." Id. at 361. The Court also
26 A-3310-15T4
stressed in Appendix A of Opinion No. 26 that the form notice
utilized in such real estate transactions make explicit that the
real estate broker, the title company nor any of its officers "are
allowed to give the seller or buyer any legal advice." Id. at
362.
That said, the Judiciary's regulatory authority has not
preemptively "occupied the field" to dictate with precision, at a
"micro" level, each and every duty of a real estate attorney.
Instead, the Court has permitted the standards of care to be
shaped, to some extent, by the legal profession itself through the
development and continuation of prevailing customs and practices.
More generally, the Court has approved model jury charges to
be used in legal malpractice cases. Those model charges envision
that, at a legal malpractice trial, experts for plaintiffs and
defendants will express competing opinions about the standards of
care of attorneys and whether they were breached in a particular
case. As the model charges explain, "[t]he law . . . imposes upon
an attorney the duty or obligation to have and to use that degree
of knowledge and skill which attorneys of ordinary ability and
skill possess and exercise in the representation of a
client . . . ." Model Jury Charges (Civil), 5.51A, "Legal
Malpractice" (approved June 1979). In other words, the "attorney
is obliged to use his/her knowledge, skill and judgment in an
27 A-3310-15T4
effort to perform the work he/she undertakes according to standard
legal practice." Ibid. A jury "must determine what is the
standard legal practice from the testimony of the expert witnesses
who have been heard in this case." Ibid.
The trial court's decision in this case categorically
declared, among other things, that no qualified expert could
permissibly support plaintiff's legal malpractice theories of
liability in this case. As the trial court wrote:
Furthermore this [c]ourt is not satisfied that
any expert report could impose such liability
upon an attorney who represents a buyer in a
residential closing. The obligation which
Plaintiff seeks to impose upon his counsel
[is] beyond the scope of representation for
contracting and closing title on property.
[(Emphasis added).]
We decline to adopt these categorical declarations. Unlike
the trial court, we do not rule out the possibility of reasonable
disagreement among qualified legal experts about whether the
standards of care for a buyer's attorney include an obligation to
advise a client of the importance of obtaining homeowner's
insurance when the buyer takes title to the property. There is
also legitimate room for debate over whether the standards of care
at least entail a duty on the part of the buyer's attorney to
alert his or her client about the significance and meaning of the
contract documents and what legal responsibilities will flow to
28 A-3310-15T4
the buyer, including the risk of loss at the point in time when
the title passes.
No legal ethics opinion or published case law to date has
pronounced whether or not such duties exist, and we decline to
make such categorical pronouncements here. Instead, the precise
standards of care on this subject are within the zone of fair
dispute for a jury to evaluate, provided that the plaintiff
presents sufficient and competent expert opinion to support his
or her contentions.
Instead of resting upon categorical proclamations, we focus
on the trial court's separate dispositive basis for dismissing the
legal malpractice claims: specifically that plaintiff's legal
malpractice expert's report violates the "net opinion" doctrine
and thus is inadequate to support plaintiff's cause of action
against Freda. His claim is not one of "common knowledge" in
which "the questioned conduct presents such an obvious breach of
an equally obvious professional norm that the fact-finder could
resolve the dispute based on its own ordinary knowledge and
experience and without resort to technical or esoteric information
. . . ." Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer &
Gladstone, PC v. Ezekwo,
345 N.J. Super. 1, 12 (App. Div. 2001)
(citations omitted).
29 A-3310-15T4
The doctrine barring the admission at trial of net opinions
is a "corollary of [N.J.R.E. 703] . . . which forbids the admission
into evidence of an expert's conclusions that are not supported
by factual evidence or other data." Townsend,
221 N.J. at 53-54
(alterations in original) (quoting Polzo v. Cnty. of Essex,
196 N.J. 569, 583 (2008)). The net opinion principle mandates that
experts "give the why and wherefore" supporting their opinions,
"rather than . . . mere conclusion[s]." Id. at 54 (quoting Borough
of Saddle River v. 66 E. Allendale, LLC,
216 N.J. 115, 144 (2013)).
The Supreme Court recognizes that "[t]he net opinion rule is
not a standard of perfection." Ibid. It does not require that
experts organize or support their opinions in a specific manner
"that opposing counsel deems preferable." Ibid. Consequently,
"[a]n expert's proposed testimony should not be excluded merely
'because it fails to account for some particular condition or fact
which the adversary considers relevant.'" Ibid. (quoting Creanga
v. Jardal,
185 N.J. 345, 360 (2005)). An expert's failure "to
give weight to a factor thought important by an adverse party does
not reduce his testimony to an inadmissible net opinion if he
otherwise offers sufficient reasons which logically support his
opinion." Ibid. (quoting Rosenberg v. Tavorath,
352 N.J. Super.
385, 402 (App. Div. 2002)). "Such omissions may be 'a proper
30 A-3310-15T4
"subject of exploration and cross-examination at a trial."'" Id.
at 54-55 (quoting Rosenberg,
352 N.J. Super. at 402).
Even so, the net opinion doctrine does require experts to "be
able to identify the factual bases for their conclusions, explain
their methodology, and demonstrate that both the factual bases and
the methodology are reliable." Id. at 55 (quoting Landrigan v.
Celotex Corp.,
127 N.J. 404, 417 (1992)). An expert's conclusion
should be excluded "if it is 'based merely on unfounded speculation
and unquantified possibilities.'" Ibid. (quoting Grzanka v.
Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997)).
Given "the weight that a jury may accord to expert testimony,
a trial court must ensure that an expert is not permitted to
express speculative opinions or personal views that are unfounded
in the record." Ibid. (emphasis added); see also Davis v. Brickman
Landscaping, Ltd.,
219 N.J. 395, 401 (2014) ("[T]he standard of
care [the expert] set forth represented only his personal view and
was not founded upon any objective support. His opinion as to the
applicable standard of care thus constituted an inadmissible net
opinion.") (emphasis added); Pomerantz Paper Corp. v. New Cmty.
Corp.,
207 N.J. 344, 373 (2011) ("[I]f an expert cannot offer
objective support for his or her opinions, but testifies only to
a view about a standard that is 'personal,' it fails because it
is a mere net opinion.").
31 A-3310-15T4
To be sure, experts may base their opinions upon unwritten
industry standards without violating the net opinion doctrine.
See, e.g., Satec, Inc. v. Hanover Ins. Grp.,
450 N.J. Super. 319,
333 (App. Div.) (noting that an expert's opinion may be based on
unwritten "generally accepted standards, practices, or customs of
the . . . industry.") (citing N.J.R.E. 702), certif. denied,
230 N.J. 595 (2017); Davis,
219 N.J. at 413 (quoting Kaplan v. Skoloff
& Wolfe, PC,
339 N.J. Super. 97, 103 (App. Div. 2001)) (recognizing
that the expert's conclusions might not have been inadmissible net
opinion if he had referenced an "unwritten custom" of the
industry).
Here, the report of plaintiff's legal malpractice expert,
while detailed in certain respects, fails to point to any written
or unwritten widely-accepted objective professional standards that
impose a duty upon a home buyer's attorney to specifically urge
the client to obtain insurance that becomes effective when title
passes. The report essentially reflects that is the personal
practice of the expert himself, whose experience in thousands of
sales is no doubt considerable. What is missing is the extra
ingredient required by Townsend, Davis, and the other series of
net opinion cases, i.e., a demonstration that the alleged standard
of care is a widely-accepted baseline requirement within the
32 A-3310-15T4
profession at large. This critical gap in the report justifies
the trial court's rejection of the expert's opinion.
The report's conclusory and generic assertion that the
expert's "fully cognizant of acceptable and previously [sic]
professional legal standards applicable to the representation of
real estate clients" is inadequate. The precise deviations
identified by the expert were never tied to any specific
professional standards. The absence of such an express linkage
renders the report a mere net opinion. We agree with Freda and
the State Bar Association that the report cannot sustain
plaintiff's claims of legal malpractice in this case.
We recognize that, in the briefing on this appeal, amicus
NJLTA has cited to a portion of a treatise on New Jersey real
estate transactions, which states that "[i]f there is no mortgage,
the purchasers' attorney should advise their [sic] client to obtain
adequate fire and casualty insurance coverage." 2 Arthur S. Horn
& Edward C. Eastman, Jr., Residential Real Estate Law and Practice
in New Jersey, § 9.4(f) (6th ed. 2008) (emphasis added). The
treatise implies that if the mortgage lender does not require
homeowner's insurance because there is no mortgage, then the
buyer's attorney has an obligation to inform the buyer about the
importance of such insurance. Ibid. But this source is not cited
in plaintiff's expert's report. Moreover, the term "should" within
33 A-3310-15T4
the treatise is, at best, ambiguous in establishing a mandatory
duty.
We further recognize that, although there is no case law
precisely on point, in Stoeckel v. Township of Knowlton,
387 N.J.
Super. 1, 14-15 (App. Div. 2006), we reversed summary judgment
dismissing a legal malpractice claim in a case where the
plaintiff's expert had opined the purchaser's attorney breached
duties to "advise him of the risks of closing title to the lot
under the circumstances as existed at the time of the closing[,]"
"to determine the full extent of the risk," and to "advise or
inform his client of what had to be done to protect his interest
. . . ." Plaintiff's expert does not refer to Stoeckel in his
discussion of the standards of care. In any event, Stoeckel is
not squarely on point because it does not specifically concern a
buyer's attorney's failure to advise a client to obtain homeowner's
insurance.
Amicus NJAJ argues that the trial court was obligated to
conduct a Rule 104 hearing, with testimony by plaintiff's expert,
before rejecting his conclusions as inadmissible net opinion. We
decline to adopt that per se position. Although the Supreme Court
has advised that it may be the "sounder practice" to conduct such
Rule 104 hearings with testimony, see Kemp v. State,
174 N.J. 412,
432-33 (2002), the Court has yet to mandate such proceedings as
34 A-3310-15T4
an absolute requirement. Moreover, because this point is advanced
by only an amicus, we decline to pass upon it and defer instead
to the Court's ultimate guidance on the subject. See, e.g.,
Townsend,
221 N.J. at 54 n.5 (in which a similar Rule 104 per se
argument had been made by NJAJ as amicus, and the Court declined
to address it).
Beyond these considerations, we have grave doubts about
whether plaintiff reasonably could establish causation, even if
his legal malpractice expert's views were admissible. The sales
contract specifically contained a notice urging that the buyer
"should obtain appropriate casualty and liability insurance for
the Property[,]" and "urged [the buyer] to contact a licensed
insurance agent or broker to assist [him] in satisfying [his]
insurance requirements." Given that plain language, the buyer
already was on notice of the importance of arranging to have the
premises insured once he took ownership. The additive impact of
an attorney echoing the contract's admonition is unclear at best.
Moreover, there are formidable problems of proximate cause
here with respect to the unproven timing of the pipes freezing.
We agree with the trial court the lack of expert opinion to
delineate the likely timing of the rupture is yet another reason
to uphold summary judgment. Even giving plaintiff all reasonable
inferences from the record, it is highly speculative that events
35 A-3310-15T4
would have unfolded any differently, if the buyer's attorney had
provided more advice about insurance.
For these many reasons, we conclude the trial court did not
misapply its discretion in excluding the net opinions of
plaintiff's legal malpractice expert and likewise did not err
under the Brill standard, in granting Freda summary judgment.
C.
Lastly, we turn to the trial court's grant of summary judgment
to Main Street Title.
Plaintiff's claims of liability against Main Street Title are
predicated on a theory that, as title agent to the transaction,
the firm owed him as buyer of the realty certain legal duties and
breached those duties. More specifically, plaintiff contends that
Main Street Title violated standards of care for title agents by:
(1) drafting an inadequate escrow agreement at the December 31
closing session, and (2) failing to notify him or his attorney
sooner when the purchase funds had cleared. We agree with the
trial court that these claims should not go to a jury in this
case.
To proceed against Main Street Title, plaintiff obtained an
expert report from a licensed title producer. The expert stated
he has served as a settlement agent in over two thousand
residential purchase and refinance transaction. For purposes of
36 A-3310-15T4
our analysis, we accept that the expert has sufficient knowledge,
training, education, skill, and experience to be qualified to
render expert opinions in this field under N.J.R.E. 702.
Plaintiff's title expert generally explained in his report
that, at a residential closing, the settlement agent "controls the
purchase transaction and the disbursement of closing
funds . . . ." According to the expert, when there is a delay in
the purchaser obtaining possession of the property, the settlement
agent "routinely and normally" prepares a written escrow agreement
that "set[s] forth the responsibilities and duties of the Buyer
and Seller until possession is given to the Buyer."
Plaintiff's title expert opined that the escrow agreement
prepared by Main Street Title, in this case, was "deficient in
many significant and material respects." As to those alleged
deficiencies, his expert stated:
The length and duration of the escrow period
was not set forth nor was the risk of casualty
loss allocated between the Buyer and Seller
during this escrow period set forth. There
was no provision for limited access to the
property for the Buyer or Seller or their real
estate agent to check on the premises until
the buyer received possession. The
individuals to be noticed and the manner of
notification was not provided for and []
considering that the closing occurred during
a period of extended below freezing weather
some form of limited access to check on the
heat and the structure should have been
provided for.
37 A-3310-15T4
[(Emphasis added).]
The expert factually noted that, although the funds cleared
earlier, Main Street Title did not notify Freda that plaintiff
could take possession of the property until January 6, when Freda
called to check on the status of the transaction.
The expert concluded that Main Street Title "deviated from
the standard of care for settlement agents in New Jersey" by: (1)
not "timely notifying" Freda that he would release the keys to
plaintiff, and; (2) failing to provide in the escrow agreement for
"performance events" and "potential contingencies[.]"
The trial court ruled that plaintiff's title expert's
criticisms were insufficient to support a viable cause of action
against Main Street Title. In particular, the trial court found
that his report "fails to establish or rely upon a bona-fide
standard of care[,]" but instead "merely recites the alleged facts
of the case and includes a conclusion that Main Street[ Title]'s
conduct was the cause of the loss."
The court found that the expert's report does not establish
"any duty or breach of such duty on behalf of Main Street [Title]
as a matter of law." As the court reasoned, "Main Street [Title]
owed no duty to the Plaintiff with regards to notifying the
Plaintiff as Main Street [Title] was not contractually obligated
to do so." The court further concluded that "[t]he duty to
38 A-3310-15T4
allocate risk of loss for damage to the Property was [instead]
determined by the real estate Contract[,]" which both parties
signed.
We generally agree with the trial court's reasoning on these
points, even affording plaintiff all reasonable inferences from
the summary judgment record.
The presence or absence of an enforceable duty is generally
a question of law for the court. Clohesy v. Food Circus
Supermarkets, Inc.,
149 N.J. 496, 502 (1997); see also Doe v. XYC
Corp.,
382 N.J. Super. 122, 140 (App. Div. 2005). "Whether a duty
exists is ultimately a question of fairness." Goldberg,
38 N.J.
at 583 (emphasis omitted). "The inquiry involves a weighing of
the relationship of the parties, the nature of the risk, and the
public interest in the proposed solution." Ibid.; see also Peguero
v. Tau Kappa Epsilon Local Chapter,
439 N.J. Super. 77, 89 (App.
Div. 2015).
We concur with the trial court that plaintiff and his title
expert failed to establish such legally enforceable duties
breached by Main Street Title in this case. As the court rightly
underscored, the risk of loss until the closing was completed was
expressly allocated by the sales contract to the Ladjens as
sellers. Once the funds cleared, the risk passed to plaintiff as
the buyer. The title agent had no authority to alter that
39 A-3310-15T4
allocation through an escrow agreement. Nor did the title agent,
in his dual and neutral role, have the prerogative to draft an
escrow agreement that would favor the interests of one party to
the transaction over the other party. See generally Opinion No.
26,
139 N.J. at 337 (describing the title agent's role). At most
the title agent might have suggested to the parties' counsel that
they consider themselves negotiating specific terms to cover
aspects of the escrow period. But there is no established legal
obligation for the title agent to do so.
Although it is not vital to our analysis, we further agree
with the trial court that the plaintiff's title expert's report
essentially amounted to inadmissible net opinion. Townsend,
221 N.J. at 54. The expert pointed to no written industry standards.
Nor did he expressly show that the various specific duties of a
title agent he described have been widely adopted by others in
this field. We recognize that one passage in the expert's report
alludes to what other title agents "routinely and normally" do,
but that sweeping reference is not amplified or substantiated.
Although this is a closer issue of net opinion than as to
plaintiff's legal expert, we are not persuaded the trial court
abused its discretion by excluding the title expert's opinions,
particularly because those views go beyond the contractual
allocation of risk and the title agent's designated neutral role.
40 A-3310-15T4
We also are disinclined to endorse a novel theory of liability for
title agents that could have a significant public policy impact,
in the absence of the recognition of such proposed duties by the
Supreme Court or regulatory authorities.
D.
The remaining arguments presented by plaintiff on appeal, to
the extent we have not yet already addressed them, lack sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
41 A-3310-15T4
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