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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3310-15T4






              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-

              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

              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


      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.


     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,

  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

           /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


     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


  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


     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


     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

  The Attorney    General's   Office   declined   our    invitation    to

                                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).


       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


     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

 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

  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

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

 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


     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


     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



     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

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


       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.

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.

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


     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


     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


     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.,

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.


      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


      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


      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

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.

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.


     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).


                               41                          A-3310-15T4

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