GARY HAWKINS AND MANDI HAWKINS VS. BOROUGH OF BARRINGTON (L-3543-12, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2848-16T1
GARY HAWKINS and MANDI HAWKINS,
Plaintiffs-Appellants,
v.
BOROUGH OF BARRINGTON, JOHN
DIXEY, SHEILA DIXEY, FIRST
AMERICAN TITLE INSURANCE
COMPANY, FRANKLIN AMERICAN
MORTGAGE COMPANY, and WELLS
FARGO HOME MORTGAGE,
Defendants,
and
KATHLEEN MCDONALD, and
PRUDENTIAL FOX & ROACH REALTORS,
Defendants-Respondents.
_________________________________
Submitted February 14, 2018 – Decided August 17, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
3543-12.
Matthew S. Wolf, LLC, attorneys for appellants
(Matthew S. Wolf, of counsel and on the
brief).
Reger Rizzo & Darnall, attorneys for
respondents (Andrew J. Luca and John M. Cinti,
on the brief).
PER CURIAM
Gary and Mandi Hawkins appeal the February 3, 2017 order
granting summary judgment to defendants Prudential Fox & Roach
Realtors and Kathleen McDonald (the Prudential defendants) and
dismissing their professional negligence claim against these
defendants arising from a real estate transaction. Their claims
for intentional infliction of emotional distress (IIED) and
violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -
210, were dismissed in 2015, by an order granting summary judgment.
We affirmed that order in October 2016. See Hawkins v. Borough
of Barrington, No. A-2788-14 (App. Div. Oct. 13, 2016). However,
our opinion reversed and remanded plaintiffs' professional
negligence claim to the trial court.
On remand, the Prudential defendants filed a new motion for
summary judgment limited to the professional negligence claim,
which plaintiffs opposed. On February 3, 2017, the trial court
granted summary judgment and dismissed the professional negligence
claim. Plaintiffs appeal that order, which we now affirm.
I.
We recount the facts of this case from our prior opinion.
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On April 24, 2010, plaintiff Mandi Hawkins
attended an open house on Erie Avenue in
Barrington, for a property that recently had
been relisted for sale by owners, John and
Sheila Dixey (the sellers). The sellers owned
the property for about five years. Defendant
Kathleen McDonald (McDonald), the listing
agent, worked for defendant realtor,
Prudential Fox and Roach (Prudential).
Prudential was also the broker when the
property was listed in 2009, but an agent
other than McDonald had the listing at that
time.
On April 29, 2010, plaintiffs signed a
contract with the sellers to buy the property
for $240,000. McDonald was the real estate
agent for the plaintiffs, as buyers, and the
sellers, making her a "disclosed dual agent"
for the sale. On April 29, 2010, plaintiffs
were given a copy of the seller's "Property
Condition Disclosure Statement" that had been
signed by the sellers in September 2009 when
they previously listed the property for sale
and by McDonald in March 2010 when she
obtained the listing. The sellers' disclosure
provided that the property was not in any area
"designated as protected wetlands"; was not
located in a flood hazard zone; and was not
the subject of "drainage or other easements
affecting the property." It did disclose that
there were "drainage or flood problems
affecting the property," with a handwritten
addition referencing flooding on the street:
"the street on a major storm, but the township
is fixing, had to sign a form to okay the
work."
On April 27, 2010, just two days before
signing the contract of sale, the sellers
filed a tax assessment appeal with the County
Board of Taxation where they complained about
the flooding on Erie Street, that their house
is located "in wetlands" and that the "front
and back yards are swamps." Photographs
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submitted by the sellers depicted these
conditions. On June 17, 2010, the Dixeys were
granted a $29,700 reduction, bringing the
property's assessed value to $240,000.
McDonald was aware of the tax assessment
appeal. In an April 28, 2010 e-mail, just one
day before plaintiffs signed the contract of
sale, McDonald responded to Sheila Dixey's
questions about filling out the tax appeal
forms, telling her, "[a]nd yes, put down the
wetland issue/swamp/railroad tracks . . . and
the rundown neighborhood to make it sound
good." McDonald also mentioned that the
"buyers seem very excited." McDonald
thereafter received an e-mail from the Sheila
Dixey who wanted "to check with you to make
sure the buyers won't eventually have access
to all I included in our appeal. I really
laid into the neighborhood and wetlands
condition and included all sorts of pictures
to verify my point. I'd die if that
information were to become available." In her
deposition, Dixey explained that she was
referring to her neighbors finding out she had
taken pictures of their "ratty houses and
properties."
The sellers previously listed the property for
sale in 2009. Although another buyer signed
a contract of sale for the property, that
contract was rescinded by the buyers "because
of the water issues associated with the
property." The buyers noted a moldy smell in
the house. Also, the November 2009 home
inspection performed for those buyers and
provided to Prudential and the sellers
reported there was water, raw sewage and mold
in the property's crawl space. The property
was taken off the market and then relisted for
sale early in 2010, after the sellers had a
waterproofing system professionally installed
in the crawl space.
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Plaintiffs closed on the property on June 23,
2010. On the very next day, it rained and
plaintiffs suffered "massive flooding" of
their front and back yards. Flooding happened
again on July 13, 2010, and at least six times
after that, although according to plaintiffs,
the water stopped short of coming into the
house.
The Borough's engineer investigated the
flooding in response to complaints by
plaintiffs. In his August 19, 2010 report,
the engineer noted the storm water runoff from
the street discharged into an adjacent wooded
wetland area and ditch. Flooding resulted
from the thirty-three-acre upstream
watershed, flatness of the topography, natural
drainage patterns and a century of suburban
development that created impervious surfaces
and surface runoff to the area adjacent to the
plaintiffs' home. The Borough updated the
discharge point of the existing storm sewer
pipe to allow more efficient discharge and
help "during normal precipitation."
[Hawkins, slip op. at 2-5.]
Plaintiffs filed suit against a number of defendants,1
including the Prudential defendants. Their claims against the
Prudential defendants included violation of the CFA, IIED and
professional negligence. We affirmed dismissal of the consumer
fraud claim, agreeing with the trial judge that plaintiffs did not
show proof of an ascertainable loss.
Plaintiffs were not qualified to offer an
opinion about the value of the real estate in
the absence of expert testimony.
1
Parties other than the Prudential defendants have been
dismissed.
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Plaintiffs did not present evidence of the
property's fair market value from a qualified
real estate appraiser. Plaintiffs' proffered
expert on damages was an engineer, not a real
estate appraiser.
Plaintiffs did not attempt to place the
property on the market or present proof of
repair costs.
[Id., slip op. at 11-12 (citations omitted).]
Although plaintiff Gary Hawkins alleged that he suffered
emotional distress related to the flooding, we said that his
"testimony about his alleged heart palpitations and stress was not
quantifiable or measurable because he had no proof of any out-of-
pocket losses. Plaintiffs also did not present medical testimony
to connect the stress and palpitations to the flooding." Id.,
slip op. at 13.
Plaintiffs' complaint also alleged the tort of outrage (IIED)
against the Prudential defendants. We stated in our 2016 opinion
that:
The tort of intentional infliction of
emotional harm requires proof that: 1)
defendant acted intentionally or recklessly;
2) the conduct was extreme and outrageous; 3)
the actions were the proximate cause of
plaintiffs' emotional distress; and 4) the
emotional distress was "so severe that no
reasonable [person] could be expected to
endure it." See Buckley v. Trenton Saving
Fund Soc'y, 111 N.J. 355, 366 (1988); Model
Jury Charge (Civil), § 3.30F.
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We find no error in the decision to dismiss
this claim because plaintiffs did not show the
type of severe emotional distress contemplated
by this cause of action. Plaintiffs proffered
no medical testimony to connect Gary Hawkins's
health issues to the flooding. Those issues
started four years after the closing and had
other explanations, both work related and
personal. Neither plaintiff testified in
their depositions to distress "so severe that
no reasonable [person] could be expected to
endure it." Buckley, 111 N.J. at 366.
[Id., slip op. at 14.]
Our 2016 opinion reversed and remanded the trial court's
dismissal of plaintiffs' professional negligence claim because the
trial court dismissed that claim without setting forth its reasons.
See R. 1:7-4(a). We noted that:
Professional negligence depends on proof that
defendants deviated from an applicable
standard of care, that the deviation was a
substantial factor in causing the plaintiff
to be injured and proof of damages. See Model
Jury Charge (Civil), § 5.50A; see generally
Levine v. Wiss & Co., 97 N.J. 242, 246 (1984).
These factors need to be addressed in the
first instance by the trial court, in light
of the record.
[Id., slip op. at 15.]
Our opinion made no decision about the outcome of the issues on
remand, stating:
We make no judgment on the outcome of this
issue on remand, and decline to exercise
original jurisdiction over it. We do note,
however, that there are competing expert
reports on the issues of standards and
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deviation from those standards, and there are
factual questions about what McDonald and
Prudential knew about this property in 2009
and then during the critical period of April
to June 2010.
Additionally, because this claim, if it is
deemed viable, involves negligence,
plaintiffs would be entitled to fair and
reasonable compensation for pain and
suffering, even if these damages did not
amount to an ascertainable loss within the
meaning of the CFA.
[Ibid.]
On remand, the Prudential defendants filed a new motion for
summary judgment that they described as a "recapitulation of the
original motion" from 2014. They alleged that plaintiffs "have
not raised any elements of damage that are something that could
reach a jury." The remand gave plaintiffs the opportunity "to
address whether or not they had any damages within [the] narrow
scope of the remand . . . [,][but] they failed to do so."
Plaintiffs opposed the motion. In new certifications that
were not included in the earlier summary judgment motions, Mandi
Hawkins alleged that they abandoned the house in July 2015 and
"are living elsewhere." She claimed that while she lived in the
house, she had "extreme anxiety and stress." They would put the
furniture and appliances on "blocks to raise them" if the weather
was bad. The children could not use the yard because of the
flooding. She said they put $20,000 down on the purchase of the
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house and paid $50,000 in mortgage payments until they stopped
paying it. The flooding put a strain on her family and marriage.
Plaintiff Gary Hawkins also submitted a certification. He
alleged the stress from the flooding was so great that he stopped
working for two months. He described "overwhelming stress" from
the flooding that caused problems at his work. He feared that the
water would enter the house. He said he felt he failed his family.
His heart would race. He described that he would search the yard
for sewer related items after flooding. He felt socially isolated.
Since they abandoned the house, he reported that his "stress,
anxiety and depression [have] abated to a great degree. I felt
much better."
Plaintiffs did not submit any medical or other expert reports
relating to their claimed emotional distress damages. They argued
they did not require medical testimony to support their claim for
emotional distress damages arising from the professional
negligence claim.
A different trial judge heard the motion for summary judgment
on remand because the prior judge had retired. He concluded that
without medical testimony, plaintiffs could not show emotional
distress damages. The court rejected plaintiffs' argument that
proof of damages in this case should be treated like cases under
the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
9 A-2848-16T1
where a medical expert is not required to prove emotional distress
damages. The court rejected plaintiffs' argument that they
suffered from diminution in property value damages since "no one
came forward with any proof to say that the value was impaired in
any way." Plaintiffs' contention that the land "is not usable"
and had to be abandoned, was a "self-declared subjective loss,"
that could not go to the jury.
On appeal, plaintiffs contend medical testimony is not needed
for emotional distress damages in this negligence case citing to
our 2016 opinion that referenced fair and reasonable compensation
for pain and suffering. They argue that negligence damages are
not measured by ascertainable loss, that dismissal of their claim
for IIED is not relevant to emotional distress damages, and that
the trial court did not take into consideration their down payment
and mortgage payments. We do not agree that these arguments have
merit.
II.
We review a court's grant of summary judgment de novo,
applying the same standard as the trial court. Conley v. Guerrero,
228 N.J. 339, 346 (2017). Summary judgment must be granted if
"the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
10 A-2848-16T1
and that the moving party is entitled to a judgment or order as a
matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-
2(c)).
"Whether it is alleged that the defendant acted
intentionally, recklessly or negligently, the Court has said that
recovery lies only if the plaintiff can prove emotional distress
produced by the defendant's tortious conduct was 'severe' . . .
or 'genuine and substantial.'" Innes v. Marzano-Lesnevich, 435
N.J. Super. 198, 235 (App. Div. 2014) (citations omitted). "Severe
emotional distress means any type of severe and disabling emotional
or mental condition which may be generally recognized and diagnosed
by professionals trained to do so . . . ." Id. at 236 (quoting
Taylor v. Metzger, 152 N.J. 490, 515 (1998)). This elevated
threshold is required because of the potential for fabricated
claims. Ibid. (citing Picogna v. Bd. of Educ. of Cherry Hill, 143
N.J. 391 (1996)).
"Complaints such as lack of sleep, aggravation, headaches and
depression have been frequently deemed insufficient as a matter
of law." Innes, 435 N.J. Super. at 237 (citing DeAngelis v. Hill,
180 N.J. 1, 20-21 (2004)). Emotional distress damages cannot be
based on speculation. Id. at 241. A litigant cannot recover
emotional distress damages for anxiety that is a consequence of
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litigation. Picogna, 143 N.J. at 399 (providing that "litigation-
induced distress" is not a separate component of damages).
"The severity of the emotional distress raises both questions
of law and fact. Thus, the court decides whether as a matter of
law such emotional distress can be found and the jury decides
whether it has in fact been proved." Innes, 435 N.J. Super. at
237 (citations omitted).
In Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.
1987), a legal malpractice case, we required proof of "medical
evidence establishing substantial bodily injury or severe and
demonstrable psychiatric sequelae proximately caused by the
tortfeasors misconduct" even in "egregious or extraordinary
circumstances".
Our opinion in Innes noted that there are exceptions to the
enhanced standard of proof. Innes was a legal malpractice case
where the breach of duty owed resulted in the "complete, and
potentially, permanent rupture of the parent-child bond." Innes,
435 N.J. Super. at 239. In that case, we said that plaintiffs
could recover for "emotional distress damages without enhanced
proof based upon the particular, and foreseeable, consequences of
defendants' breach of duty." Ibid. Innes cited other cases where
enhanced proof was not required. See Baglini v. Lauletta, 338
N.J. Super. 282, 307 (App. Div. 2001) (malicious use of process);
12 A-2848-16T1
Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003)
(wrongful birth arising from inadequate genetic counselling);
Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116
(App. Div. 2006) (funeral home failed to ensure that orthodox
ritual requirements were met).
Here, plaintiffs allege professional negligence by the
Prudential defendants, who were realtors involved in a real estate
transaction. This case did not involve a parent-child
relationship, malicious use of process, wrongful birth, funeral
services following specific religious tenets, or other non-
economic issues where emotional distress damages have been
permitted without expert proofs. There was no allegation of bodily
injury and no medical reports. The case did not involve a
permanent injury, death, or an injury where no other form of
redress could be identified. Therefore, we decline to accept
plaintiffs' argument that their case could advance without medical
evidence of bodily injury or "demonstrable psychiatric sequelae
proximately caused by the tortfeasor's misconduct." Those proofs
simply are not demonstrated by this record.
Plaintiffs' citation to LAD cases as support for their claim
that emotional distress damages do not require heightened proof
is not persuasive. In Innes, we said that the LAD's "broad
remedial purpose" was the reason why, in Rendine v. Pantzer, 141
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N.J. 292, 312-13 (1995), expert medical evidence was not necessary.
Legal malpractice claims, however, did not present the "broad,
statutorily-created remedy that necessarily relieved plaintiffs
of their burden to prove 'severe' or 'genuine and substantial'
emotional distress." Innes, 435 N.J. Super. at 238. The
professional negligence claim made here against the Prudential
defendants similarly did not present any such broad based statutory
remedy.
Finally, the remand was limited to plaintiffs' professional
negligence claim; it was not an opportunity for plaintiffs to
reargue their lack of ascertainable losses.
Affirmed.
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