SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4503-16T2

RANDALL FERMAN and DEBRA

FERMAN, Husband and Wife,

Plaintiffs-Appellants,

v.

BOGAARD & ASSOCIATES, LLC,

LAURIE BOGAARD, ESQ., JANIS

DOMITER, and WEICHERT REALTORS,

Defendants-Respondents.

_____________________________

Argued November 7, 2018 – Decided

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, 

Somerset County, Law Division, Docket No. L-0126-

16.

Peter A. Ouda argued the cause for appellants.

Patrick J. Cosgrove argued the cause for respondents

Bogaard & Associates, LLC and Laurie Bogaard 

(Pillinger Miller Tarallo LLP, attorneys; Patrick J. 

Cosgrove, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

December 20, 2018
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A-4503-16T2

Peter N. Laub, Jr., argued the cause for respondents 

Janis Domiter and Weichert Realtors (Peter N. Laub, Jr. 

& Associates, LLC, attorneys; Peter N. Laub, Jr., and 

M. Teresa Garcia, on the brief).

PER CURIAM

In November 2010, plaintiffs Randall Ferman and Debra Ferman 

purchased a newly constructed home in Chester, New Jersey for $850,000 (the 

Property). The Property is subject to a conservation easement affecting nearly 

four acres of the approximately five and one-half acre parcel. Plaintiffs allege

their closing attorney committed legal malpractice, and their realtors were 

negligent and committed consumer fraud, by failing to explain the scope of, and 

limitations imposed by, the conservation easement. Plaintiffs claim they would 

not have purchased the Property had they been properly advised about the 

easement. After owning the Property for four years, plaintiffs decided to list it 

for sale because it was too large for their needs. On September 23, 2016, 

plaintiffs sold the Property for $812,500. 

Plaintiffs filed this action against defendants Laurie Bogaard and Bogaard 

& Associates, LLC, their attorneys in the purchase of the Property, alleging legal 

malpractice, and defendants Janis Domiter and Weichert Realtors, the realtors 

who represented plaintiffs in the purchase of the Property, alleging negligence 

and consumer fraud. Plaintiffs do not claim the Property was worth less than 
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the $850,000 purchase price. Plaintiffs sought damages comprised of: (1) their 

down payment and the closing costs incurred when purchasing the Property; (2) 

the carrying costs for the Property during the period they owned it, comprised 

of mortgage payments, real estate tax payments, homeowner's insurance 

premiums, and maintenance costs; and (3) the real estate commissions, closing 

costs, and moving expenses incurred when they sold the Property.

Defendants moved for summary judgment, contending their respective 

alleged negligence did not proximately cause the damages claimed by plaintiffs. 

The trial court granted partial summary judgment dismissing the majority of 

plaintiffs' damage claims with prejudice. Plaintiffs voluntarily dismissed their 

remaining claims and appealed. We affirm. 

I.

We summarize the following facts from the summary judgment record, 

viewing "the facts in the light most favorable to [plaintiffs,] the non-moving 

part[ies]." Globe Motor Co.v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-

2(c)). Plaintiffs were looking for a four bedroom house in the Chester area and 

found the Property on a real estate website. Debra Ferman was "fond" of the 

Property because it was new construction and provided ample privacy. She 
4

A-4503-16T2

described it as "pretty" and "park-like." Plaintiffs wanted to live in a wooded 

environment.

After their first visit to the Property, plaintiffs contacted Domiter, a real 

estate agent with Weichert Realtors, and discussed making an offer on the 

Property. Domiter told them the offer better begin at $900,000. At this time, 

Domiter informed Debra Ferman there was a conservation easement on the 

property, gave her a copy of the survey of the Property, which disclosed the 

conservation easement, and went over the survey with her. Debra Ferman 

testified she "just thought" the easement "was part of Patriot[s'] Path."1 Randall 

Ferman was aware there was a conservation affecting the Property before 

plaintiffs submitted an offer to purchase it. He testified Domiter told him "there 

was Patriot[s'] Path and a conservation easement." Plaintiffs understood that 

people could walk through the Property on the Patriots' Path.

Randall Ferman did his own research and decided to offer $850,000 for 

the Property. The offer was accepted by the sellers in August 2010. After the 

offer was accepted, Randall Ferman visited the Property approximately six to 

 

1

 "Comprised of 73 miles of main trails and 35 miles of spur trails located on 

291.9 acres, Patriots' Path is a trail system of hiking, biking, and equestrian 

trails, as well as green open spaces[,]" linking several federal, state, county, and 

municipal parks. http://morrisparks.net/index.php/parks/patriots-path/ (last 

visited Dec. 11, 2018).
5

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eight times to monitor construction of the house. On one occasion, he met the 

builder, Donald Storm, and they walked around the Property. Storm pointed out 

the concrete monuments to verify the points of the conservation easement. The 

conservation easement was recorded, and presumably also disclosed by the title 

search.

Domiter referred plaintiffs to Bogaard, who initially met with Debra 

Ferman. Debra Ferman brought the survey to their initial meeting and discussed 

it with Bogaard. Debra Ferman thought the easement was part of Patriots' Path. 

Plaintiffs each visited the Property multiple times before the closing, with 

Debra Ferman visiting it approximately ten times. The closing took place on 

November 16, 2010, at Bogaard's office, with plaintiffs, Bogaard, Greg Storms, 

and Greg Storm's attorney present. Neither the survey nor the conservation 

easement were discussed at the closing. 

The conservation easement did not impact plaintiffs' use and enjoyment 

of the Property. Plaintiffs, especially Debra Ferman, lived at the Property for 

several years without any problems. Randall Ferman moved to Iowa in or about 

2012 primarily for business purposes, and returned periodically to stay at the 

Property about thirty days per year. In 2014, plaintiffs decided to sell the 

Property because the house was too large for their needs and they "were looking 
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A-4503-16T2

to downsize." Plaintiffs allege this is when they discovered the true nature of 

the conservation easement. Plaintiffs planned on moving back to Debra 

Ferman's townhouse. In 2016, plaintiffs listed the Property for sale for 

$849,900, only $100 less than they paid for it six years earlier. Debra Ferman 

continued to live at the Property with her daughter until September 2016, when 

it was sold for $812,500. 

In their answers to interrogatories, plaintiffs allege they suffered the 

following damages: "The down payment and all closing costs. Every monthly 

payment, and every household expense. That number minus the difference 

between the purchase price and the sales price and all costs associated 

therewith." 

Plaintiffs retained attorney Barry E. Levine as their expert as to the 

standard of care, causation, and damages. Levine opined plaintiffs are entitled 

to damages for the fees and costs incidental to the purchase of the Property 

reflected on the HUD-1 settlement statement, the carrying charges for the 

Property for the duration of their ownership, and all fees and charges incidental 

to the sale of the Property, such as real estate commissions and moving costs. 

Plaintiffs claimed they incurred $609,538.16 in expenses related to the Property. 
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Levine recognized plaintiffs are not claiming the house is worth less than the 

amount they paid for it.2

Levine acknowledged the survey disclosed the conservation easement. 

The survey is dated September 10, 2010, some two and one-half months before 

the closing. The HUD-1 settlement statement set forth closing charges of 

$19,948 for plaintiffs.

Levine explained an attorney is obligated to exercise that degree of 

reasonable knowledge and skill that attorneys of ordinary ability and skill 

possess and exercise. Quoting from St. Pius X House of Retreats v. Camden 

Diocese, Levine opined Bogaard's duty of care as the attorney employed to 

investigate title to real estate is:

to make a painstaking examination of the records and 

to report all facts relating to the title. He is, therefore,

liable for any injury that may result to his client from 

negligence in the performance of his duties – that is,

from a failure to exercise ordinary care and skill in 

discovering in the records and reporting all the deeds, 

mortgages and judgments, etc., that affect the title in 

respect to which he is employed.

[88 N.J. 571, 588 (1982) (quoting Jacobsen v. Peterson, 

91 N.J.L. 404 (Sup. Ct.), aff'd, 92 N.J.L. 631 (E. & A. 

1918)).]

 

2

 Notably, plaintiffs did not provide an appraisal of the Property, or an expert 

opinion on any diminution in its value caused by the conservation easement, as 

of the date of purchase or sale.
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Levine further opined Bogaard was obligated to investigate and advise her 

clients regarding "all observable defects, deficiencies and imperfections of 

title." 

Levine opined "Bogaard deviated from accepted standard of practice." He 

found there were no discussions with plaintiffs regarding the title issue of the 

conservation easement, which "is significant enough that the standard of care 

would require a full explanation of what it was and what it wasn't." Levine 

stated the attorney "must advise a client of the risks of the transaction in terms 

sufficiently clear to enable the client to assess the client's risks." Levine 

concluded both plaintiffs needed detailed explanation regarding the easement, 

which Bogaard never provided.

Levine then addressed proximate causation and damages. Recognizing 

that in order to prevail, plaintiffs must prove Bogaard's deviation from the 

standard of care was a substantial factor in causing their damages, he opined:

the deviation from accepted standards of practice was a 

substantial factor in causing damages to the [p]laintiffs. 

The [p]laintiffs clearly had no real understanding of the 

property. When they decided to sell the property the 

prospective purchaser asked what could be done on the 

property. They had no idea what the restrictions were. 

This circumstantial evidence lends itself to the 

conclusion that they really had no idea and Ms. Bogaard 

had a duty to explain the conservation easement. The 
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record states that had they been so advised they would 

not have purchased this home and in fact would not 

have purchased any home. They are not claiming that 

the house is worth less than what they paid. They 

simply would not have purchased that home or any 

other home. The goal of the malpractice case is to place 

the client in the same position had the malpractice not 

occurred. See Lieberman v Employers Ins. of Wasau.

[3]

 

The damages therefore are all of the fees and costs 

incidental to the purchase which are set forth on the 

HUD. Such damages include all carry charges from the 

duration of the ownership. Such damages include all 

fees and charges incidental to the sale including [real] 

estate commission, moving costs etc. These would not 

have been incurred but for the purchase that they would 

not have made in 2010. Attached hereto is a schedule 

of fees that the [p]laintiffs have supplied in reference to 

the purchase, the ownership and the sale in 2016.[4] It 

is my opinion that these are items of recoverable 

damages in this case. Plaintiffs are also entitled to an 

award of attorney[']s fees in accordance with the 

Saffer[5] opinion.

 

3

 Lieberman v. Emp'rs Ins. of Wassau, 84 N.J. 325, 341 (1980).

4

 The record on appeal does not include the schedule of fees attached to Levine's 

report. The deposition exhibits include an email from Randy Ferman to counsel 

listing the following expenses for the Property for the seventy-one months 

plaintiffs owned it: mortgage payments $339,167; propane $42,000; electric 

$10,500; landscaping $16,800; and snow removal $6000. The email also listed 

the following upgrade expenses: patio installation $5500; and bathroom upgrade 

$5000. The email further stated plaintiffs incurred $3122 in moving expenses, 

an unexplained "[l]oss from sale of house" of $120,898.66, and rent at a town 

house in Chester for twelve months totaling $50,400.

5

 Saffer v. Willoughby, 143 N.J. 256 (1996).
10 A-4503-16T2

Upon completion of discovery, Bogaard and her law firm moved for 

summary judgment. Domiter and Weichert Realtors joined in the motion. 

Defendants did not seek summary judgment on the issue of whether they 

deviated from a standard of care or duty owed to plaintiffs. Instead, defendants 

sought summary judgment on the discrete issue of whether their alleged 

negligence proximately caused the damages claimed by plaintiffs.

Following oral argument, the trial court issued a March 31, 2017 order 

and written statement of reasons granting summary judgment dismissing 

plaintiffs' claims for damages for any diminution in value of the Property caused 

by the conservation easement, and for the "carrying costs" for the Property 

during the six years plaintiffs owned it. The trial court denied summary 

judgment as to plaintiffs' damage claim for the closing costs for the purchase 

and sale of the Property. 

In response to plaintiffs' claim that defendants were responsible for all 

housing expenses associated with the Property while living there, including 

mortgage payments, maintenance costs, and utilities, the motion judge reasoned: 

Plaintiffs would certainly have lived in another house 

and paid for the mortgage, maintenance costs, utilities, 

etc. There is no evidence that the [p]laintiffs would not 

have incurred any housing costs from the time that they 

purchased the property in 2010 until the time they sold 

the property in 2016. The carrying costs for the 
11 A-4503-16T2

property at issue are not actual sustained damages 

causally related to any alleged malpractice. There is no 

evidence [plaintiffs] would have lived in a less 

expensive house . . . . Plaintiffs have not provided any 

(expert) evidence to indicate how or even whether the 

value that the [p]laintiffs received while living [in] the 

property can be evaluated to mitigate the costs that the 

[p]laintiffs claim that they incurred.

The judge also found plaintiffs' claim that defendants' conduct was a 

substantial factor in causing them to incur a down payment, closing costs, 

monthly payments, and all other expenses relating to the property was not 

supported by any evidence. The judge concluded plaintiffs presented no 

evidence they would not have purchased the property had they fully understood 

the nature and extent of the conservation easement, noting Debra Ferman 

testified that she enjoyed living in the house. The judge also concluded 

plaintiffs' expert also failed to demonstrate plaintiffs' alleged damages were 

proximately caused by defendants' conduct, stating:

Even though Mr. Levine indicates that damages 

"include carrying charges from the duration of the 

ownership", he offers no facts or law to support his 

opinion. Simply put, that portion of Mr. Levine's 

opinion is a "net opinion" to which this court gives no 

weight. The portion of Mr. Levine's opinion that relates 

to alleged damages is not supported by any legal 

precedent or reason. Mr. Levine's recitation of the 

damages is effectively what the "lay" [p]laintiffs 

personal[ly] believe they should be entitled to does not 

provide a basis to support [p]laintiff[s'] damage claim.
12 A-4503-16T2

Plaintiffs voluntarily dismissed their remaining claims prior to filing this 

appeal. On appeal of the trial court's grant of partial summary judgment, 

plaintiffs argue summary judgment should have been denied because there are 

disputed issues of material fact regarding proximate causation of their alleged 

damages on each of their claims. They further argue the trial court erred by 

using a breach of contract model for damages because this is not a breach of 

contract claim against the seller.

II.

We review the grant of summary judgment de novo. Manahawkin 

Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). We therefore "apply the same 

standard governing the trial court," Murray v. Plainfield Rescue Squad, 210 N.J. 581, 

584 (2012), and do not defer to the trial court's interpretation of "the meaning of a 

statute or the common law," Nicholas v. Mynster, 213 N.J. 463, 478 (2013). 

"Our court rules require summary judgment to be granted when the record 

demonstrates that 'there is no genuine issue as to any material fact challenged and 

that the moving party is entitled to a judgment or order as a matter of law.'" Davis 

v. Brickman Landscaping, 219 N.J. 395, 405-06 (2014) (quoting R. 4:46-2(c)). The 

court considers "whether the competent evidential materials presented, when viewed 

in the light most favorable to the non-moving party, are sufficient to permit a rational 
13 A-4503-16T2

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). "In applying that 

standard, a court properly grants summary judgment 'when the evidence is so onesided that one party must prevail as a matter of law.'" Davis, 219 N.J. at 406 (quoting 

Brill, 142 N.J. at 540). 

Having reviewed the record and applicable legal principles, we agree with the 

trial court that plaintiffs' expert issued a net opinion with respect to proximate 

causation of the damages claimed by plaintiffs other than closing costs and that 

plaintiffs cannot establish proximate causation of damages other than closing costs 

as a matter of law. For these reasons, we find that the trial court properly granted 

partial summary judgment to defendants. 

III.

"Legal-malpractice suits are grounded in the tort of negligence." McGrogan 

v. Till, 167 N.J. 414, 425 (2001). "[A] legal malpractice action has three essential 

elements: '(1) the existence of an attorney-client relationship creating a duty of care 

by the defendant attorney, (2) the breach of that duty by the defendant, and (3) 

proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray, 

185 N.J. 175, 190-91 (2005) (quoting McGrogan, 167 N.J. at 425). "The plaintiff 
14 A-4503-16T2

bears the burden of establishing those elements by some competent proof." Davis, 

219 N.J. at 406 (citations omitted).

Generally, a client only recovers losses proximately caused by the attorney's 

professional negligence. Lieberman, 84 N.J. at 341; Froom v. Perel, 377 N.J. Super. 

298, 313 (App. Div. 2005); 2175 Lemoine Ave. v. Finco, Inc., 272 N.J. Super. 478, 

487 (App Div. 1994). "Proximate cause consists of 'any cause which in the natural 

and continuous sequence, unbroken by an efficient intervening cause, produces the 

result complained of and without which the result would not have occurred.'" 

Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Conklin v. Hannoch Weisman, 

145 N.J. 395, 418 (1996)). "To establish the requisite causal connection between a 

defendant's negligence and plaintiff's harm, plaintiff must present evidence to 

support a finding that defendant's negligent conduct was a 'substantial factor' in 

bringing about plaintiff's injury, even though there may be other concurrent causes 

of harm." Froom, 377 N.J. Super. at 313 (citing Conklin, 145 N.J. at 419).

"The burden is on the client to show what injuries were suffered as a proximate 

consequence of the attorney's breach of duty. That burden must be sustained by a 

preponderance of the competent, credible evidence and is not satisfied by mere

'conjecture, surmise or suspicion.'" 2175 Lemoine Ave., 272 N.J. Super. at 487-88 
15 A-4503-16T2

(citations omitted) (quoting Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 

1982)). 

Applied here, the proximate cause element requires plaintiffs to prove by a 

preponderance of the competent, credible evidence that their alleged damages 

(their down payment and the closing costs incurred when purchasing the 

Property; the carrying costs for the Property during the period they owned it, 

comprised of the mortgage payments, real estate tax payments, homeowner's 

insurance premiums, and maintenance costs; and the real estate commissions, 

closing costs, and moving expenses incurred when they sold the Property), were 

proximately caused by defendants' negligence. 

In legal malpractice cases, damages are generally measured by the amount the

client "would have received but for the attorney's negligence." Froom, 377 N.J. 

Super. at 313 (quoting 2175 Lemoine Ave., 272 N.J. Super. at 488). The client must 

have sustained actual damage that is real, not merely speculative. Olds v. Donnelly, 

150 N.J. 424, 437 (1997). "[I]n cases involving transactional legal malpractice, there 

must be evidence to establish that the negligence was a substantial factor in bringing 

about the loss of a gain or benefit from the transaction." Froom, 377 N.J. Super. at 

315. "In addition, a negligent attorney is responsible for the reasonable legal 

expenses and attorney fees incurred by a former client in [successfully] prosecuting 
16 A-4503-16T2

the legal malpractice action. Those are consequential damages that are proximately 

related to the malpractice." Saffer, 143 N.J. at 272.

The motion judge determined plaintiffs' expert rendered a net opinion as to 

the damage claim for the carrying charges on the Property for the duration of 

plaintiffs' ownership, and gave that aspect of the opinion no weight. "The 

admission or exclusion of expert testimony is committed to the sound discretion 

of the trial court." Townsend, 221 N.J. at 52. A trial court's decision "to strike 

expert testimony is entitled to deference on appellate review." Ibid. When "a 

trial court is 'confronted with an evidence determination precedent to ruling on 

a summary judgment motion,' it 'squarely must address the evidence decision 

first.'" Id. at 53 (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 

369, 384-85 (2010)). "Appellate review of the trial court's decisions proceeds 

in the same sequence, with the evidentiary issue resolved first, followed by the 

summary judgment determination of the trial court." Ibid.

N.J.R.E. 703 "mandates that expert opinion be grounded in 'facts or data 

derived from (1) the expert's personal observations, or (2) evidence admitted at 

the trial, or (3) data relied upon by the expert which is not necessarily admissible 

in evidence but which is the type of data normally relied upon by experts.'" Ibid.

(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). "The net opinion 
17 A-4503-16T2

rule 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." Id. at 53-54 (alterations in original) (quoting Polzo, 196 N.J. at 

583); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103-04 

(App. Div. 2001) (holding that trial court properly excluded expert report in 

legal malpractice action where expert failed to reference any evidential support 

of duty of care).

The net opinion rule requires that an expert "'give the why and wherefore'

that supports the opinion, 'rather than a mere conclusion.'" Davis, 219 N.J. at 

410 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 

(2011)). The rule "mandates that experts '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.'" Townsend, 221 N.J. at 

55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). An expert's 

opinion "is 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)). "[A] trial court may not rely on expert testimony 

that lacks an appropriate factual foundation and fails to establish the existence 

of any standard about which the expert testified." Pomerantz, 207 N.J. at 373. 
18 A-4503-16T2

"Therefore, an expert offers an inadmissible net opinion if he or she 'cannot offer 

objective support for his or her opinions, but testifies only to a view about a 

standard that is personal.'" Davis, 219 N.J. at 410 (quoting Pomerantz, 207 N.J. 

at 373).

Applying these standards, we conclude plaintiffs' expert issued net 

opinions with respect to proximate causation and damages of certain aspects of 

plaintiffs' claims. Plaintiffs' expert opined that defendants' negligence 

proximately caused damages, which included all of the carrying charges for the 

Property for the duration plaintiffs owned it. With regard to these issues, Levine 

made bare conclusions. See Buckalew v. Grossbard, 87 N.J. 512, 524 (1981) 

("[A]n expert's bare conclusions, unsupported by factual evidence, is 

inadmissible."). Levine failed to provide a factual basis supporting his 

conclusion that plaintiffs' housing expenses would have been lower had they not 

purchased the Property, and if so, to what degree, much less no housing costs at 

all. Instead, he merely assumed all of plaintiffs' housing expenses constituted 

damages proximately caused by defendants' negligence. As recognized by the 

motion judge, plaintiffs would still have incurred housing expenses had they 

lived elsewhere rather than purchasing the Property. Levine failed to take that 
19 A-4503-16T2

into account. He offered no data or analysis demonstrating plaintiffs' would 

have incurred lower housing expenses if they had lived elsewhere. 

In addition, Levine did not cite any applicable legal precedent or standard 

for his conclusion the carrying charges or down payment were recoverable 

damages in this matter. Levine failed to establish the existence of any standard 

or objective support for his opinion. See Davis, 219 N.J. at 410; Pomerantz, 207 

N.J. at 372.

For these reasons, we discern no abuse of discretion by the trial court in 

determining the expert's conclusion constituted a net opinion with regard to 

plaintiffs' damage claims for the Property's carrying charges. The decision to 

give the expert's report no weight in that regard is amply supported by the record. 

We next turn to plaintiffs' argument the trial court improperly resolved 

issues of disputed fact. We disagree. Other than providing bank statements and 

other evidence of their housing costs, plaintiffs' discovery responses provided 

no additional factual basis for their damage claims for their down payment or 

carrying charges. Plaintiffs' answers to interrogatories and deposition exhibits 

merely listed their housing expenses at the Property and the amount of their 

down payment. They offered no evidence that they could live free or that their 
20 A-4503-16T2

housing costs for a comparable residence would have been lower had they not 

purchased the Property.

Even assuming the housing expenses asserted by plaintiffs accurately 

reflected those incurred during their ownership of the Property, the motion judge 

correctly determined plaintiffs did not offer any competent evidence 

establishing any actual damages they suffered for housing costs, other than 

closing expenses, as a result of defendants' negligence or consumer fraud. 

Plaintiffs' damage claims for housing costs were factually unsupported and 

entirely speculative. 

We conclude the trial court properly granted summary judgment 

dismissing that aspect of plaintiffs' damage claims. The competent evidential 

materials presented, when viewed in the light most favorable to plaintiffs, are not 

sufficient to permit a rational factfinder to resolve the claim for carrying charge 

damages in favor of plaintiffs. Although issues of proximate causation are typically 

for the jury to resolve, "a court may decide the issue as a matter of law where 'no 

reasonable jury could find that the plaintiff's [alleged] injuries were proximately 

caused' [by the defendant's conduct.]" Broach-Butts v. Therapeutic Alts., Inc., 456 

N.J. Super. 25, 40 (App. Div. 2018) (quoting Vega by Muniz v. Piedilato, 154 N.J.

496, 509 (1998)). Further, in legal malpractice cases, proximate causation must 
21 A-4503-16T2

ordinarily be established by expert testimony. Vort v. Hollander, 257 N.J. Super 56, 

61 (App. Div. 1992). As discussed above, plaintiffs' expert issued an inadmissible 

net opinion with respect to proximate causation.

Finally, plaintiffs claim the trial court erred by using a breach of contract 

model for damages. We conclude the proper measure of damages in a case 

involving a consummated residential real estate purchase, where the purchasers 

claim they would not have purchased property affected by a conservation 

easement had they known of the nature and extent of the easement, but did not 

because of the negligence of their attorney or the negligence or fraud of the 

realtors, is the diminution in value, or the difference between the price paid and 

the actual value of the property acquired, proximately caused by the existence 

of the conservation easement. See Correa v. Maggiore, 196 N.J. Super. 273, 

282, 286 (App. Div. 1984) (holding "the diminution in value caused by 

defendant's deceit better reflects plaintiff's actual loss and satisfies the 

reasonable expectations of the parties"). We contrast this matter to cases in 

which the inability to convey marketable title, in breach of the contract of sale, 

results in the property not being sold. In those instances, the damages are 

measured by the difference between the market price at the time of sale and the 

contract price, closing costs, and potentially loss of the benefit of the bargain 
22 A-4503-16T2

damages, including the difference in interest rates. Donovan v. Bachstadt, 91 

N.J. 434, 445-48 (1982).

Here, plaintiffs do not claim they paid more for the Property than it was 

worth. They offered no evidence that the value of the Property was diminished 

by the conservation easement. They do not claim their use or enjoyment of the 

Property was impaired by the easement. They did not decide to sell the Property 

because of the easement. They have no evidence the sale price was affected by 

the conservation easement. 

The judge denied summary judgment as to the closing costs incurred by 

plaintiffs during the purchase and sale of the Property. However, plaintiffs 

voluntarily dismissed those claims. 

Affirmed.