SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3523

- 14T3 MARGARET BELL, Plaintiff

- Appellant,

v. RICHARD C. KLEIN, ESQUIRE, RICHARD C. KLEIN, P.C., and SPECTOR, GADON & ROSEN,
Defendants

- Respondents.

_________________________________

Argued December 13, 2016

– Decided Before Judges Messano, Suter and Guadagno. On appeal from New Jersey Superior Court, Law Division, Camden County, Docket No. L - 3121

- 12. Colleen Flynn Cyphers argued the cause for appellant ( Levin Cyphers, attorneys; M s. Cyphers, on the brief s ). Jason S. Feinstein argued the cause for respondents (Eckert, Seamans, Cherin & Mellott, L.L.C., attorneys; Mr. Feinstein, of counsel and on the brief).

PER CURIAM Plaintiff Margaret Bell appeals the February 26, 2015 summary judgment or der , which dismissed her claim s of legal malpractice NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

July 11, 20172 A - 3523

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against defen da nts Richard C. Klein, Esq., Richard C. Klein, P.C. (P.C.) , and Spector, Gadon & Rosen (SGR) ( collectively , the defendants). We affirm in part , reverse in part and remand . I. Bell retained Klein and his P.C. in September 2005 to represent her in a divorce action filed by her husband, Michael
Bell (husband) . Klein continued to represent Bell after he dissolved his P.C. on December 31, 2005 and became employed by

SGR . Bell and h er husband were married for sixteen years . He worked full

- time in a family

- owned business. She was employed in the last few years of the marriage part - time as a realtor. The divorce involved two parcels of real estate : the marital home in New Jersey and another property solely in Bell's name in Florida.

A pendent e lite order provided that Bell was to receive unallocated support of $600 per week . H er husband was to pay certain household expenses such as the mortgage , insurance and utilities on the marital home , and Bell's car payment. 1 The couple was divorced by Dual Final Judgment of Divorce with Stipulations (Final Judgment) on February 26, 2007 . The Final Judgment included their s ettlement a greement , and was signed

1 This order was not included in the record .3 A - 3523

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by both parties and their cou nsel . The parties were both questioned under oath about their willingness to voluntarily enter into the settlement. For her part , Bell acknowledged she was entering into the agreement freely and voluntarily and without coercion.

KLEIN: Thank you. Now, you understand that this is an agreement that both of you must be bound by and it is going to become an order of the Court, correct.

BELL: Yes.

KLEIN: All right, and you certainly intend

to be bound by this agreement, correct.

BELL: Yes , I intend

- - KLEIN: Okay.

BELL: - - everything I said here.

. . . . KLEIN: As you sit here today are you under

the influence of any substance, medication, that would impair your ability to understand these proceedings?

BELL: No.

KLEIN: Okay. And do you understand that

[the judge] is making no determination today a bout the fairness of this agreement or the merits of this agreement, that all she is doing today is taking testimony and making a4 A - 3523

- 14T3 determination that each of you have entered into this fr eely, voluntarily and willingly, is that correct?

BELL: That's correct.

KLEIN: Do you understand that?

BELL: Yes.

KLEIN: Okay. And you are

- - nobody's

forcing you or coercing you to enter into this agreement, correct? You had questions about it, we addressed those questions, correct.

BELL: Yes.

KLEIN: Okay.

BELL: You addressed them.

The trial judge found the parties " entered into the agreement voluntarily and int ended to be fully bound by it."
The settlement had been achieved two weeks earlier fo llowing

a two - day, non - binding arbitration before a retired judge , who was
well

- versed in matrimonial law . Klein had submitted a lengthy memorandum to the arbitrator in advance that addressed alimony,
real estate, equitable distribution and counsel fees.

T he Final J udgment provided for per manent alimony of $800 per
week . Bell's husband was required to secure the alimony by maintaining life insurance with a face amount of $300,000 that
would be reduce d by $50, 000 every five years. The Final J udgment5 A - 3523

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ref erence d two earlier agreements signed during the marriage . One agreement from 2000 was allegedly drafted by Klein. The second "Indemnification and Hold Harmless Agreement , " drafted by another lawyer not involved here, purportedly required Bell's husband to be responsible for past due federal income taxes , and he allegedly waived any rights to equitable distribution or possession of the premises. 2 The Final Judgment provided the indemnification agreements "shall be and are hereby declared unenforceable . . . past, present or future." The Final J udgment addressed equitable distribution . The Florida home had been sold and a portion of the net proceeds afte r payment of mortgages, taxes and commissions were placed in escrow.
The marital home was in foreclos ure, having both a mortgage and
home equity line of credit. Under the Final Judgment , Bell could refinance the property or the property would be sold. If sold,

p aragraph f ive of the Final J udgment described various deductions
and credits from any resulti ng equity, the net balanc e of which was to be paid by Be ll to her husband. " [ U ] npaid direct and indirect support" of $17,500 was to be deducted from the net equi ty.

2 These agreements (the indemnification agreements) are not part of the record on appeal.6 A - 3523

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The parties were "equally responsible" for federal income

taxes under the Final Judgment a lthough Bell's husband agreed to be solely responsible for u npaid New Jersey income taxes. The Final Judgment required each party to maintain life insurance for
the ir child's benefit. E ach party was responsibl e for their attorney's fees. The parties agreed the Final Judgment was "final and binding," entered into " voluntarily " without "force, coercion and/or duress, " was a "compromise" of their claims, and was "fair, adequate and satisfactory." SGR sued Bell in September 2007 for unpaid att orney's fees.
Bell filed a counterclaim against SGR and a third

- party complaint against Klein and P . C ., alleging legal malpractice (the 2007 complaint) . The 2007 complaint alleged that Klein , P.C. and SGR deviated from "customary standards and practices of lawyers" by not acting in her best interests; by forcing her under duress to sign the settlement agreement; by not conducting discovery pri o r
to settling the case; by not enforcing the earlier indemnification agreements ; by not enforcing the pen dente lite support order and by not using monies held in the attorney's escrow to pay her delinquent mortgage and taxes, as Klein allegedly promised.

I n March 2010 , Bell voluntarily dismissed the 2007 complaint without prejudice. This dismissal did not conform with Rule 4: 37

- 1(a) . Bell's c ounsel explained to the court that as a result of7 A - 3523

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post - trial motions, specifically one decided on February 19, 2010 , which allegedly involved a negative interpretation of the
settlement a greement , Bell could not "raise the additional claim of negligence and damages as part of this action" because discovery was closed and thus, needed to dismiss the legal malpractice complaint to assert such claims . Bell then accepted the
defendant s ' $30,000 Offer of Judgment , which dis missed with prejudice the attorney's fee portion of the case . The malpractice claim remained dismissed (voluntarily) without prejudice. Bell filed a nother legal malpractice complaint in May 2012 (the 2012 complaint) . 3 The 2012 complaint was similar to the 2007 action , naming Klein, his P.C. and SGR as defendants . In the complaint, Bell alleged Klein failed to enforce the pendente lite
order for support; did not file motions to amend her visitation rights ; improperly distributed monies f rom the sale of the Florida house to her husband; did not enforce the earlier indemnification agreements; did not pay her mortgage arrears or property taxes as agreed; did not conduct discovery about her husband's income ; and presented her with the settlem ent a greement just before going on the record in court , without the ability to review it, and that

3 In the interim, we decided a post

- divorce judgment appeal, where we rejected a request by Bell's ex - husband to reduce or terminate alimony, but we remanded the case for a recalculation of attorney's fees. Bell v. Bell , No. A - 4003

- 10 (App. Div. June 1, 201 2 ) .8 A - 3523

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it i ncluded terms with which she did not agree . The 2012 complaint alleged the Final Judgment required her to pay 100% of the equity
from the marital home t o her husband; 100% of the capital gains tax on the Florida home; and part of the federal income tax

ar rears. I t did not include a clause requiring her husband to pay past due support payments or to pay the mortgage, ta xes or utilities on either home. Bell objected to the alimony amount , contending it was based on inaccurate income figures. She also complained about certain allegedly inappropriate comments Klein
made to her. The 2012 complaint did not make any reference to post - judgment motions.

D efendants filed a motion to dismiss the 2012 complaint, alleging that because the 2007 complaint had been withdrawn in violation of Rule 4:37

- 1 (a), Bell should not be able to relitigate
the same issues. In April 2013, the motion judge denied the motion , but ordered Bell to pay defendant s ' litigation costs arising from the 2007 complaint in sixty days or the 2012 complaint
would be dismissed with prejudice. Bell paid $11, 283.20 and the
2012 complaint was reinstated i n October 2013.
Bell retained the same individual as an expert witness that
she utilized in connection with the 2007 complaint. The October 23, 2014 report of Cary Cheifetz, Esq. (Cheifet z) identi fi ed six different "deviations" from "accepted standard s of practice" that9 A - 3523

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constituted legal malpractice by defendants . The first deviation
concerned the failure to incorporate into the settlement agreement the indemnification agreements , which allocate d tax liabilities in Bell's favor. Klein allegedly did not aggressively seek
enforcement of th os e agreement s , which were not " mid

- marriage " agreements according to Cheifetz, but enforceable "tax indemnification agreements . " Klein allegedly deviated from accepted practice because there was no " downside ex posure" to trying to enforce the agreements , and Klein should have sought a compromise or a ruling on their enforceability . Cheifetz opined
that Bell's damages constituted one - half the equity in the marital home and the income tax liabilities she had paid . The second deviation concerned alimony. The "material deviation " was that Klein " used an insufficient income stream for [husband] in calculating the alimony for his client ." He should have retained a "forensic account ant and [conducted] discovery , " which should have included inquiry into the family

- run books and
records. Cheifetz asserted that Klein " settled the case far below his client's worst case scenar io." Cheifetz opined that Bell was damaged through lo st alimony of $35,950 per year. Cheife tz also took issue with the income that had been used for Bell in the alimony calculation .10 A - 3523

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The third alleged deviation was Klein's failure to collect the pendent e lite arrears for the mortgage s , taxes and capital gains, which should have been collected at the time of the
settlement.
The fourth alleged deviation involved the improper drafting of the settlement agreement , which required "post - judgment litigation as well as the employment of a certified public

accountant" to implement the agreement . Cheifetz found paragraph
f ive 's formula , which he asserted spawned post

- judgment litigation, to be " incomprehensible . " Cheifetz alleged the lack of clarity resulted in unspecified damages. The fifth deviation alleged that Klein had a conflict of interest because of his purported involvement in drafting the 2000 indemnification agreement . Cheifetz opined that had Klein pressed for a trial, he could not have testified because of his conflict. This gave t he other side "an unfair negotiation advantage" that damaged Bell. The sixth deviation addressed miscellaneous issues . Cheifetz alleged there was no need for Bell to have life insur ance for her daughter's benefit. He asserted the $300,000 insurance
that her husband was required to purchase was not adequate to

sec ure the alimony and the $50,000 stepdown added to the problem . Cheifetz alleged Klein deviated from the standard of care when he11 A - 3523

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failed to pay Bell's mortgage and taxes as promised . Klein also

was alleged to be rude and disrespectful contrar y to the Rules of Professional Conduct . Cheifetz concluded that the " settlement agreement deviate [ d ] materially from the reasonable expectations that a client would expect to receive if they were represented by competent counsel." He opined the settlement was , "a s a whole , " plaintiff's "worst case scenario with no consideration for c ompromise." The "alimony issue " was settled "far below " the worst case . Acceptance of the
settlement was " incompetent ." He opined that Klein committed legal malpractice by advising his client to settle the case instead of trying it where s he would have received more in alimony and equitable distribution . In addition , Cheifetz concluded B ell incurred costs arising post

- judgment that she "would not have incurred." 4
Defendants ' summary judgment motion in October 2014 alleged
that the 2012 complaint was barred by the entire controversy doctrine and constituted fraud upon the court, because the case
had been d ismissed with prejudice in 2010 , and Bell now was making
the same allega tions. Defendants alleged that Cheifetz's expert

4 D efendants retained an expert in 2009, whose report is in the record. We do not know if that report was updated for the 2012 litigation.12 A - 3523

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report offered only inadmissible net opinions . Defendants alleged Bell should be judicially estopped because she agreed to the
settlement and now was taking a contrary , inconsistent position;
that the claims against the P . C . were time

- barred , having been brought more tha n six years after the P . C . was closed ; and that the expert report was defective because it did not allege any damages . The motion was opposed by Bell, who alleged there were dispu ted facts. Bell relied on Cheifetz's report about deviations involving "the improper allocation of outstanding income tax liabilities, equity in the former marital residence, the amount of alimony recommended [,] . . . failure to collect pendente lite

arre ars [and] nu merous other issues."

O n November 21, 2014 , the trial judge granted partial summary judgment under the entire controversy doctrine and dismissed with prejudice "all claims [existing] on or prior to February 26, 2007 ."

F or claims after that, the court denied defend an ts' motion , but invited additional briefing to address whether those claims should be dismissed. Both parties filed supplemental submissions. Bell filed a motion to reconsider the November 21, 2014 order and extend discovery to se rve a supplemental expert report . D iscovery was extended , which permit ted the service of expert reports.13 A - 3523

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On February 20, 2015, t he trial judge granted Bel l's motion
for reconsideration , explaining that Bell's claims arising before February 2007 could go forward based upon the prior judge's ruling. However, the judge then granted summary judgment to defendants , finding Bell 's claims were judicially estopped , as "[t]he only evidence of any coercion is the plaintiff's own words, some two years after the fact . It is a bootstrap attempt to deny what she said under oath." The judge also found summary judgment was appropriate because Cheifetz's opinion was a net opinion, as he "ha[d] a personal opinion that he could have done better for [plaintiff] if he were t he attorney."
Bell appeal ed the February 26, 2015 order that dismissed her complaint . D efendants have not filed a cross

- appeal. As such , there is no appeal of the February 20, 2015 order that granted reconsideration nor of the December 19, 2014 order that allowed
Bell to serve a supplemental report by Cheifetz. 5 On appeal , Bell contends summary judgment was erroneously entered because there was a dispute of fact regarding he r state of mind when she was "forced, threatened and coerced" into set tling her matrimonial case, because Klein dispute s "such threats and allegations of duress." Moreover, Bell contends the trial court

5 A supplemental report was served which addressed the issue of damages.14 A - 3523

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erred as a matter of law in finding her expert report constituted a net opinion because the report was "replete with sound factual data," was supported by "legal foundation and citations," and

ex plained the legal "deviations f r o m the standard of care." Bell contends that post

- judgment litigation regarding the equity from the marital home provided an independent basis to cont inue this malpractice litigation, despite the dismissal of the earlier litigation, because that issue arose after dismissal of the earlier

case.
II. We review a trial court's order granting or denying summary judgment under the same standard employed by the trial court . W.J.A. v. D.A. , 210 N.J. 229, 237 (2012). The question is whether the evidence, when viewed in a light most favorable to the non

moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact , or whether the evidence is so one

- sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995). Where there are claims of legal malpractice, "summary disposition is appropriate only when ther e i s no genuine dispute of material
fact." Ziegelheim v. Apollo , 128 N.J. 250, 261 (1992) (citing Judson v. Peoples Bank & Tr. Co. , 17 N.J. 67, 74 (1954)).15 A - 3523

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The trial judge dismissed the malpractice compl ai nt on two
gro unds, namely that Bell was judicially e stopped from raising the claims , and that her expert's report constituted a net opinion.

W e agree Bell is judicially estopped from raising certain claims , but not others . W e do not agree that Bell's expert offered net opinion s on the remaining claims . A.

"P ublic policy favors the settlement of disputes." Willingboro Mall, Ltd. v. 240/242 Franklin Ave. L . L . C . , 215 N.J. 242, 253 (2013). See also Gere v. Louis , 209 N.J. 486, 500 ( 2012) (noting "New Jersey's strong public policy in favor of the
settlement of litigation") . We also acknowledge a "'strong public policy favoring stability of arrangements' in matrimonial

matters." Quinn v. Quinn , 225 N.J. 34, 44 (2016) (quoting
Konzelman v. Konzelman , 158 N.J. 185, 193 (1999)) . That said, " l awyers owe a duty to their clients to provide their services with reasonable knowledge, skill, and diligence . Ziegelheim , supra , 128 N.J. at 260. Necessary steps in the proper handling of the case " will include, among other things, a careful investigation of t he facts of the matter, the formulation of a legal strategy, the filing of appropriate papers, and t he maintenance of communication with the client . " Id. at 261 . "[T]he Court in Ziegelheim concluded that '[t]he fact that a party16 A - 3523

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received a set tlement that was "fair and equitable" does not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent . '" Guido v. Duane Morris, L. L .P. , 202 N.J. 79, 93 (2010) (alteration in original) (citation s omitted) . A "lawyer is obligated to give the client reasonable advice." Ziegelheim , supra , 128 N.J. at 261. "[A] ttorneys who pursue reasonable strategies . . . and who render reasonable advice to t heir clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes

. . . . " Id. at 267. "[T]he existence of a prior settlement is not a bar to the prosecution of a legal malpractice claim arising from such
settlement ." Guido , supra , 202 N.J. at 94. A narrow equity based exception to this exists "to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Ibid. (quoting Knorr v. Smeal , 178 N.J. 169, 178 (2003) ) (other citation omitted) . The C ourt applied this exception in Puder v. Buechel , 183 N.J. 428 (2005) , where the client's malpractice claim was barred because the "second settlement had the effect of placing [ the client] in the situation she contended she should have occupied at the outset." Gere , supra , 209 N.J. at 5 04 . Actions by counsel after settlement may17 A - 3523

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also form the basis for a legal malpractice action . Ibid. ( finding that the malpractice claim wa s not barred where c laims "revolved instead around" attorneys action after the sett le ment agreement was executed and the agreement reserved the ability to
sue former attorney ) . Here, t he trial judge erred in concluding that all of Bell's claims of legal malpractice were judicially estopped. "Judicial estoppel is an equitable doctrine precluding a party from asserting

a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding ." Tambu relli Props . Ass'n v. Borough of Cresskill , 308 N.J. Super. 326, 335 (App. Div. 1998). The doctrine is "meant to protect the integrity of the judicial system, designed to prevent litigants from 'playing fast and loose with the

courts.'" Ibid. (quoting Sc arano v. Cent . R .R. Co. , 203 F. 2d 510, 513 (3 d Cir. 1953) ) . We have applied the doctrine of judicial estoppel in upholding the dismissal of a legal malpractice action where a client voluntarily agreed to a settlement of the record , and later alleged
she was forced to accept this settlement. See Newell v. Hudson , 376 N.J. Super. 29, 46

- 47 (App. Div. 2005) (a lthough agreeing with the settlement on the record, the client later asserted she was forced to agree to this to obtain a divorce). In Newell , we sai d18 A - 3523

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that such "self

- serving behavior is precisely the type of inconsistent judicial position

- taking that the doctrine of judicial est oppel is designed to prevent." Id. at 47 .

Here, the trial court was correct to judicially estop Bell's malpractice claim p remised on duress. Bell now alleges she was coerced into the settlement , yet specifically told the court when the settlement was placed on the record that she was not coerced. The settlement document itself stated that it was the final agreement entered into voluntarily. She has offered no proof of coercion. Her s elf

- serving statements alone are insufficient to create a genuine issue of material fact to survive a summary judgment mot ion. See generally Heyert v. Taddese , 431 N.J. Super. 388 (App. Div. 2 013). Similarly, we agree with the trial judge that judicial estoppel applies to Bell's claim of legal malpractice regarding the incomes used to determine alimony and the alleged lack of discovery regarding that issue . The emails included in the record show that Bell was well aware her husband's income was not fully known prior to the arbitration. The issue was raised by Klein in the arbitration memo randum presented to the arbitrator. Klein provided Bell with the names of two experts , who could perform a forensic accounting, but warned her of the significant costs that such an analysis would entail. Similar to the plaintiff in Newel l ,19 A - 3523

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who was aware of a lack of financial information, Bell agreed to the settlement acknowledging that it was fair. Having settled the

case with knowledge of the uncertainty about her husband's income , Bell should be estopped from asserting a different position now.

T here was no basis , however , to conclude that Bell's legal malpractice claims based on drafting errors in the settlement agreement itself a re precluded by judicial estoppel. The agreement appears to require that 100% of the net equity from the marital
home was to be paid to her husband , but the arbitrator's notes
reflect the net equity should have been divided between the parties . The agreement seemed to reimburse only a portion of the pendente lite arrears although the arbitrator's notes tallied
those pendent e lite arrears at more than double . Bell could not know when she testified in support of the settlement what problems might arise in the implementation of the settlement based on alleged drafting errors. We are constrained to conclude t he judge
erred by preventing Bell from raising the al leged drafting errors in the settlement agreement as deviations from the standard of

care. We cannot agree that the other alleged deviations should be judicially estopped by Bell's agreement to the settlement. T he record is simply inadequate for us to de termine what advice was or was not given to Bell about the indemnification agreements, the20 A - 3523

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life insurance, the alleged conflict of interest, or the alleged agreement to pay the mortgage and taxes. Therefore, we reverse in part the trial court's order that granted summary judgment and dismissed Bell's complaint in its entirety, and remand for further proceedings consistent with this opinion . B. We agree with Bell that t he trial judge erred in determining Cheifetz's report constituted a net opinion. We r eview that determination under an abuse of discretion standard . Riley v.

Keenan , 406 N.J. S uper. 281, 295 ( A pp. Div.), certif. denied , 200

N.J. 207 (2009). A trial court must decide " whether [an] expert's opinion is
based on facts and data." Rosenberg v. Tavorath , 352 N.J. Super. 385, 401 (App. Div. 2002) (citations omitted) . " N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial ." Ibid. An expert must be able to point to general ly accepted objective standard s or practice s , not merely standards personal to them. Koruba v. A. Honda Motor Co. , 396 N.J. Super. 517, 526 (App. Div. 2007), certif. denied , 194

N.J. 272 (2008). "Under the 'net opinion' rule, an opinion lacking in such foundation and consisting of ba r e conclusions unsupported21 A - 3523

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by factual evidence is inadmissible. " Rosenberg , supra , 352 N.J. at 401 (citations omitted). Cheifetz opined , based upon case a uthority, that a ccepted
standard s required Klein to recognize the indemnification agreements were enforceable. 6 Klein took the same position in the arbitration memorandum . Having retreated from that position , Cheifetz opined the settlement agreement was below what reasonably could have been expected. Cheifetz quantified the alleged damages attributable to this alleged deviation. We cannot say , therefore, that the opinion was a mere conclusion based on a personal
standard. It provided the " why and wherefore " for t he conclusion.

See State v. One Marlin Rifle , 319 N.J. Super. 359, 370 (App. Div. 1999) (" [ T ] he net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion.") . On the alleged drafting err ors, the standard as alleged by Cheifetz was to draft the document to reflect the parties' agreement. He alleges the document varied from the agreement, causing Bell's equitable distribution to be below what could have been expected and resulting in litigation . This alleged deviation

6 We limit our discussion to the issue s that survived judicial estoppel.22 A - 3523

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was not based on Cheifetz's personal opinion , but again his report provided the foundation for his conclusions . W ith respect to the amount of life insurance that Bell's husband was required to maintain , Cheifetz explained that it would not be adequate to secure the alimony . He supported his conclusion with facts, not personal opinion. He explained why Bell should not be required to obtain life insuran ce because there was no indication the child would be without support in the event of Bell's passing. Therefore, we do not agree with the trial judge that Cheifetz's report constituted impermissible net opinion s . 7 Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion . We do not retain jurisdiction.

7 Bell's reply brief did not contest defendants' claim that Bell could not proceed against P.C. because the statute of limitations had run. "An issue not briefed is deemed waived." W.H. Indus., Inc. v. Fundicao Balancin s, Ltda , 397 N.J. Super. 455, 459 (App. Div. 2008) (citation omitted). By not opposing the defense, Bell conceded it.