[brief] **Plaintiff’s “Collateral Contract” Argument is a New Issue Raised for the First Time Because it is a Distinct Legal Theory the Trial Court Did Not Address Since Plaintiff Did Not Raise it Below (*not raised below*).**  In briefs and oral arguments to the trial court, Plaintiff’s only theory of the case was that [...] was obligated to pay Plaintiff the benefits of his bargain with [...].  However, once the trial court dismissed Plaintiff’s case based on the illegality of the real estate transaction, Plaintiff changed positions entirely to advance the new legal theory that the title commitment was a “collateral contract” to the real estate sales contract.  Contrary to Plaintiff’s issued raised with the case law cited by [...] in its original brief, these cases stand for the proposition that a new legal theory cannot not be considered on appeal if it was not raised below.  Specifically, *Docteroff v. Barra Corp. of America*, did not consider the argument that a different statute of limitations applied as a “new issued raised on appeal” since the arguments before the trial court concerned whether the case was timely filed.  282 N.J. Super. 230, 237 (App. Div. 1995).  Conversely, in *Nieder v. Royal Indem. Ins. Co.*, as Plaintiff correctly cites, the Supreme Court would not consider a new issue raised on appeal because it required the court to consider “factual data now before [them which] was not presented to the trial court.  . . .”  62 N.J. 229, 234–35 (1973).  Here, Plaintiff’s legal theory before the trial court was that [...] was obligated to pay benefits to Plaintiff because [...] failed to advise Plaintiff that it was required to intervene in the foreclosure action that the property was subject to in order to create a valid real estate sales contract.  However, now on appeal, Plaintiff argues that the existence of a valid real estate sales contract is irrelevant because the title commitment was a “collateral contract” and therefore enforceable in its own right.  This new “collateral contract” legal theory constitutes a material shift in the issues being litigated, raising a new argument that was not properly preserved or argued below.  As Docteroff and Nieder establish, any new factual data or issue that the appellate court must consider in reaching its determination is not properly raised on appeal and should not be considered.  See, 282 N.J. Super. at 237; but see, 62 N.J. at 234–35.  While ignoring and omitting any terms of the title commitment upon which Plaintiff asserts as a basis of liability against [...], Plaintiff nonetheless implores this court to embark on an extensive fact-finding mission to decide whether the title commitment was merely a “collateral contract” to the real estate sales contract and transaction.  Under this theory, the Plaintiff would have this court reverse the trial court’s holding by wholly contradicting the trial court’s reasoning that the conditions precedent in the title commitment were not and could not be satisfied, preventing any existing of a valid contract between Plaintiff and [...], because the underlying real estate transaction was illegal under the Tax Sale Law.  Therefore, the trial court properly analyzed the facts of this case and found that [...] could not be liable since no contract existed with Plaintiff.  To permit Plaintiff’s new legal theory to move forward would violate the principles of procedural fairness and should not be permitted.  Accordingly, [...] respectfully urges this honorable court to uphold the trial court’s proper dismissal of Plaintiff’s claims.