                                NOT FOR PUBLICATION WITHOUT THE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-3399-18T1

JESSICA ARDILES and
CHRISTIAN ARDILES,

          Plaintiffs,

v.

STEVEN D'AGOSTINO,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

MELISSA CARLIN, REMAX
HOMELAND WEST, PETER
SEEMS, BRIAN SCOTT,
RE/MAX REAL ESTATE, LTD,

          Third-Party Defendants-
          Respondents,

and

FAMILY FIRST FUNDING,
JOSH BLAIR, DANA TEEPLE,
RONALD BENNARDO, ROBERT
LAMB, JESSICA DONNELLY,
SANDRA IAMMATTEO, JUDITH
AMORSKI, FIRST ATLANTIC
FEDERAL CREDIT UNION, LES
KRAMSKY, 2119 RT. 35, LLC,
GEORGE VEITENGRUBER, LISA
HAMMELL, SOUTHERN OCEAN
MEDICAL CENTER, and RMB, INC.,

     Third-Party Defendants.
________________________________

            Argued February 10, 2020 – Decided August 24, 2020

            Before Judges Fasciale and Mitterhoff.

            On appeal from the Superior Court of New Jersey,
            Law Division, Ocean County, Docket No. L-2130-17.

            Steven D'Agostino, appellant, argued the cause pro se.

            Andrew S. Turkish argued the cause for respondents
            Melissa Carlin and Remax Homeland West (Clausen
            Miller, PC, attorneys; Andrew S. Turkish and Marisa
            G. Michaelsen, on the brief).

PER CURIAM

      In this residential real estate contract dispute, Steven D'Agostino appeals

pro se from four orders: an April 20, 2018 order dismissing his claims against

third-party defendants Brian Scott and Re/Max Real Estate, Ltd; a June 26,

2018 order granting summary judgment in favor of third-party defendant Peter

Seems; an August 9, 2018 order granting summary judgment in favor of third -

party defendants Remax Homeland West (Remax) and Melissa Carlin


                                                                        A-3399-18T1
                                      2
(collectively, the Carlin defendants); and a September 14, 2018 order denying

reconsideration of the August 9 order.

        As an initial matter, D'Agostino has settled his claims with Scott,

Re/Max Real Estate, Ltd, and Seems, 1 so we dismiss the appeal in part with

prejudice, to the extent that D'Agostino's arguments contest the dismissal of

his claims against these third-party defendants. 2 We also decline to address

the September 14, 2018 order, as D'Agostino makes no argument in his

appellate briefs pertaining to it, see Sklodowsky v. Lushis, 417 N.J. Super.

648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed

waived."), and D'Agostino's argument concerning third-party defendants Lisa

Hammell, First Atlantic Federal Credit Union, and Judith Amorski, 3 as he did

not identify the orders pertaining to this issue in his notice of appeal, see R.

2:5-1(e)(3)(i) ("In civil actions the notice of appeal . . . shall designate the

judgment, decision, action or rule, or part thereof appealed from[.]"); 30 River

1
  Seems wrote to the court on September 13, 2019, stating he has settled with
D'Agostino, and in his reply brief, D'Agostino acknowledges this settlement.
D'Agostino, Scott, and Re/Max Real Estate, Ltd signed a stipulation of
dismissal with prejudice on October 15, 2019.
2
  Specifically, we decline to consider the arguments under point heading one
and under the portion of point heading two as it relates to the judge's dismissal
of the claims against Seems.
3
    Specifically, we decline to address the argument under point heading three.
                                                                        A-3399-18T1
                                         3
Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App.

Div. 2006) (declining to address matters the trial judge decided in orders not

identified in the notice of appeal). Therefore, we consider only the merits of

D'Agostino's argument that the judge erred in granting the Carlin defendants'

motion for summary judgment. Having reviewed the record, we affirm the

dismissal of D'Agostino's claims against the Carlin defendants.

      We discern the following relevant facts from the record, viewing them in

a light most favorable to D'Agostino. See Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). In January 2016, Jessica and Christian Ardiles

were introduced to Carlin when they contacted Remax Homeland West to

inquire about purchasing a home. After learning that D'Agostino's Barnegat

property was listed for sale, Carlin contacted him to ask if he would be

interested in selling to the Ardileses.

      On April 18, 2016, Carlin and D'Agostino executed a listing agreement,

granting Carlin "the sole and exclusive irrevocable right to sell" D'Agostino's

Barnegat property through the end of June 2016. Carlin "agree[d] to exert . . .

her best efforts to obtain a buyer . . . and . . . register the [property] with all

[p]articipants of the Multiple Listing Service, in accordance with its Rules and

Regulations." The same day, Carlin and D'Agostino also executed a standard


                                                                          A-3399-18T1
                                          4
form of informed consent to dual agency, in which D'Agostino consented to

Carlin's representation of both him and the buyer and acknowledged that a dual

agency might create a conflict of interest, so Carlin was prohibited from

representing either D'Agostino's or the buyer's interests "to the exclusion or

detriment of the [other's] interests." The agreement further specified that as a

dual agent, Carlin owed a limited fiduciary duty:

            As a [d]isclosed [d]ual [a]gent of both the [s]eller and
            the [b]uyer, [Carlin] will be working equally for both
            parties to the real estate transaction and will provide
            services to complete the transaction without the full
            range of fiduciary duties ordinarily owed by an agent
            who represents [s]eller alone, or the [b]uyer alone. In
            the preparation of offers and counteroffers between
            [s]eller and [b]uyer, [Carlin] will act only as an
            intermediary to facilitate the transaction rather than as
            an active negotiator representing either the [s]eller or
            [b]uyer in a fiduciary capacity. By consenting to this
            dual agency, [s]eller is giving up the right to
            undivided loyalty and will be owed only limited duties
            of disclosure by [Carlin].

      On May 5, 2016, the Ardileses and D'Agostino executed a contract for

the sale of D'Agostino's Barnegat property. The parties agreed to a purchase

price of $310,000, with a $1000 deposit due April 21, 2016 and a $5000

deposit due May 2, 2016. 4 The Ardileses agreed to provide a mortgage


4
  It is unclear why the dates listed had passed before the parties signed the
contract.
                                                                        A-3399-18T1
                                      5
commitment letter no later than May 31, 2016 and to pay the balance of the

purchase price at closing, which was scheduled to occur on July 29, 2016. The

contract provided that "all dates and times . . . are of the essence."

      Soon thereafter, disputes arose between the Ardileses and D'Agostino.

Nevertheless, they agreed to proceed with the sale and executed an addendum

to their contract on June 10, 2016. Among other things, the addendum reduced

the purchase price to $309,000; required the Ardileses to pay all deposits, to be

held in Carlin's or Remax's escrow account, within three days of the

document's execution; and changed the mortgage commitment date to June 27,

2016 and the closing date to August 5, 2016.

      The Ardileses paid a $1000 deposit on June 7, 2016, a $4000 deposit on

June 22, 2016, and another $1000 deposit on August 18, 2016, all of which

were provided through checks made payable to Remax. They also obtained a

preliminary mortgage commitment letter on July 11, 2016, which they signed

the following day. Receipt of a final commitment letter was contingent upon

their satisfaction of several outstanding items. D'Agostino emailed Carlin on

July 25, 2016 to determine whether the Ardileses had satisfied the conditions

yet, and she replied, "Conditions are all satisfied.. Lender can close the end of




                                                                         A-3399-18T1
                                        6
this month!!!!" The following day, D'Agostino emailed the lender to confirm,

and she replied,

              [T]he last things needed are homeowners insurance,
              executed flood determination notice, and proof of
              deposit, which . . . the processor clarified she already
              had.

                    ....

              You can contact [the title company] and [it] will help
              you prepare the documents needed for closing.

              Will forward you the final commitment upon receipt,
              will be here sooner than later.

The lender issued the final commitment in a letter dated August 25, 2016.

      Meanwhile, D'Agostino had become concerned about the status of the

sale. He asked the Ardileses if they would agree to a use and occupancy

clause, which would allow him to remain in possession of the property for up

to sixty days after closing in exchange for a $30,000 security deposit and a

payment for each day he remained on the property, but they were not

interested.

      By mid-September, the closing had not occurred. On September 16,

2016, the Ardileses' attorney wrote to D'Agostino, notifying him that the time

for closing was "OF THE ESSENCE" and demanding that he appear for the

closing on September 26, 2016 or be in breach of contract. Three days before

                                                                         A-3399-18T1
                                        7
the scheduled closing, at the lender's instruction, Carlin returned $1000 of the

deposit to the Ardileses and sent the remaining $5000 to their attorn ey to be

held in trust for D'Agostino. On September 26, 2016, D'Agostino did not

appear for the closing. Despite his decision not to appear, he refused to release

the $5000 held in trust, and according to Carlin, this prevented her from

changing the property's listing status from "pending" to "expired" because the

Ardileses were still considered interested buyers.

      The following month, D'Agostino listed his property for sale on

forsalebyowner.com. According to D'Agostino, he initially had few showings

and was surprised he had been unable to schedule more. He grew even more

concerned after a prospective buyer asked about other pending offers on the

property and then "made a rather low ball offer." This led D'Agostino to

believe the buyer was not actually interested and was a spy sent by the

Ardileses.   D'Agostino claimed that in June 2017, he began to receive

numerous calls from real estate agents interested in listing his property. He

attributed this change to the fact that Carlin had only changed the listing status

of his property to "expired" at the end of May 2017. Sometime during 2017,

D'Agostino listed the property with another real estate agent.




                                                                         A-3399-18T1
                                       8
      Meanwhile, on April 18, 2017, the Ardileses filed a complaint against

D'Agostino in the Special Civil Part, alleging breach of contract and seeking to

recover the $5000 deposit and home inspection fees.        D'Agostino filed an

answer, a counterclaim, and a third-party complaint. 5 Among the various

parties named in the third-party complaint were the Carlin defendants, against

whom D'Agostino asserted claims for breach of contract, breach of the implied

covenant of good faith and fair dealing, conspiracy to commit a tort, tortious

interference with a prospective economic advantage, and negligence.

      D'Agostino's claims against the Carlin defendants were based on his

belief that although Carlin agreed to act as a dual agent, "she was . . . acting

99% in favor of the buyers." Specifically, D'Agostino claimed "Carlin lied to

[him] about his rights during attorney review, lied about having a final

mortgage commitment at the end of July, when in fact it did not exist until

[August] 25th, lied about the Ardiles[es'] living situation and intentions, and

much more."     During November 2016, Carlin lied again when she told

D'Agostino that the Ardileses wanted to reinstate the contract and then told the


5
   On July 21, 2017,   this matter was transferred to the Law Division. On
March 4, 2019, the     Ardileses and D'Agostino executed a stipulation of
settlement, in which   they agreed to dismiss their claims in exchange for
D'Agostino receiving   $4500 of the deposit and the Ardileses receiving the
remaining $500.
                                                                       A-3399-18T1
                                      9
Ardileses' attorney that "D'Agostino was willing to acquiesce to all of [the

Ardileses'] demands."    Additionally, after the contract was unquestionably

"dead" in September 2016, Carlin did not update the status of D'Agostino's

listing to "expired" until the end of May 2017 and "actually took steps to

indicate the exact opposite to other prospective buyers," even though she

unequivocally told D'Agostino she was not interested in working with him

again. For example, D'Agostino claimed Carlin continued to update the status

with new projected closing dates to occur in 2017. Lastly, D'Agostino asserted

that Carlin improperly returned $1000 of the deposit to the Ardileses.

      On July 5, 2018, the Carlin defendants filed a motion for summary

judgment. After hearing oral argument, Judge James Den Uyl issued a written

decision in favor of the Carlin defendants and an order granting their motion

on August 9, 2018.

      In addressing D'Agostino's claim for breach of contract, the judge

determined there was no evidence of breach. Carlin was not a party to the

contract between the Ardileses and D'Agostino, and she fulfilled her duties

under the listing agreement by securing a buyer for D'Agostino's Barnegat

property. The failure to complete the sale was due to D'Agostino's failure to

appear for the closing or possibly the Ardileses' alleged failures to meet


                                                                         A-3399-18T1
                                     10
contract deadlines. The judge further relied on this reasoning in discussing

D'Agostino's claims for breach of the covenant of good faith and fair dealing

and tortious interference. The judge added that D'Agostino failed to identify

specific actions taken in bad faith, as required for a claim for breach of the

covenant of good faith and fair dealing, and D'Agostino failed to produce any

evidence that the Carlin defendants interfered with his ability to procure other

buyers, as he alleged under his tortious interference claim. As there was no

evidence of tortious interference, which formed the basis for D'Agostino's

claim of conspiracy to commit a tort, or any agreement to commit such a tort,

the judge concluded that D'Agostino failed to make a prima facie showing of

conspiracy. Lastly, with respect to D'Agostino's negligence claim, the judge

noted that he failed to provide expert testimony on the issues of Carlin's duty

as a dual agent and any alleged breach, which was required in a professional

negligence case.

      On September 14, 2018, Judge Den Uyl denied D'Agostino's motion for

reconsideration of the order granting summary judgment in favor of the Carlin

defendants, as D'Agostino failed to show that the decision "was based upon a

palpably incorrect or irrational basis or that [the judge] either did not consider,

or failed to appreciate the significance of the probative, competent evidence."


                                                                          A-3399-18T1
                                      11
      This appeal ensued.

      On appeal, D'Agostino raises the following arguments: 6

            2) IN GRANTING THE SUMMARY JUDGMENT
            MOTION[] OF . . . [THE CARLIN DEFENDANTS],
            THE    COURT      HARMFULLY    ERRED   BY
            IGNORING THE REAL ESTATE CONTRACT'S
            EXPRESS TIME OF THE ESSENCE CLAUSE.

                  ....

            4) THE MATTER SHOULD BE ASSIGNED TO A
            DIFFERENT JUDGE ON REMAND (NOT RAISED
            BELOW).

      We review the grant of a summary judgment motion under the same

standard that governed the motion judge. Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary

judgment   is   appropriate   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 and that

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

4:46-2(c); Brill, 142 N.J. at 540. The judge must view the evidence in a light

most favorable to the non-moving party to determine whether a rational


6
  We refer only to those points we are considering in this appeal, as explained
in footnotes two and three.


                                                                          A-3399-18T1
                                      12
factfinder could resolve the issue in favor of that party. Brill, 142 N.J. at 540.

While the judge "must accept as true all the evidence which supports the

position of the party defending against the motion and must accord him [or

her] the benefit of all legitimate inferences which can be deduced therefrom,"

id. at 535 (alteration in original) (quoting Lanzet v. Greenberg, 126 N.J. 168,

174 (1991)), "[c]onclusory and self-serving assertions . . . are insufficient to

overcome the motion," Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super.

276, 283 (App. Div. 2017) (quoting Puder v. Buechel, 183 N.J. 428, 440-41

(2005)). "[A]n adverse party may not rest upon the mere allegations or denials

of the pleading, but must respond by affidavits meeting the requirements of

[Rule] 1:6-6[.]" R. 4:46-5(a); see R. 1:6-6 ("If a motion is based on facts not

appearing of record, or not judicially noticeable, the court may hear it on

affidavits made on personal knowledge, setting forth only facts which are

admissible in evidence to which the affiant is competent to testify and which

may have annexed thereto certified copies of all papers or parts thereof

referred to therein.").

      To establish his claim for breach of contract, D'Agostino was required to

prove that he and the Carlin defendants entered into a contract, he complied

with the contract terms, the Carlin defendants did not comply with the terms,


                                                                         A-3399-18T1
                                      13
and the Carlin defendants' breach caused him to suffer a loss.            See Globe

Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016).

      The only contracts to which Carlin and defendant were parties were the

listing agreement and the dual agency agreement. Under the listing agreement,

Carlin agreed to use her best efforts to secure a buyer for D'Agostino's

property, which she accomplished when she arranged for the Ardileses to

purchase it. As the motion judge determined, any failure to comply with the

terms of the real estate contract, including the time of the essence clause, was

attributable to the Ardileses, the only other parties to that contract.

      Under the dual agency agreement, Carlin agreed not to represent the

Ardileses' interests to the exclusion of D'Agostino's, and having reviewed the

record, we are satisfied that D'Agostino has been unable to show that Carlin

violated this obligation.       Moreover, we are unpersuaded D'Agostino's

allegation that during an April 2016 three-way telephone conversation, Carlin

"repeatedly took the Ardiles[es]' side over [his]." D'Agostino has provided no

specific details of the content of this call, and without the opportunity to

review it, his assertion is conclusory and, consequently, insufficient to survive

a motion for summary judgment. See Sullivan, 449 N.J. Super. at 283.




                                                                            A-3399-18T1
                                       14
      For similar reasons, we agree with the motion judge's decision to dismiss

D'Agostino's claim for breach of the implied covenant of good faith and fair

dealing. To establish this claim, D'Agostino was required to show that Carlin

had a bad motive or intention, see Brunswick Hills Racquet Club, Inc. v. Route

18 Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005), and her actions deprived

him of "the benefit of the bargain originally intended by the parties," ibid.

(quoting 23 Williston on Contracts § 63:22 (Lord ed. 2002)). Our review of

the record does not reveal any evidence of bad faith that denied D'Agostino the

benefit of the contract between him and Carlin. Again, we are not persuaded

by the allegations D'Agostino highlights on appeal that suggest otherwise.

      D'Agostino refers to a May 12, 2016 telephone conversation, during

which Carlin allegedly falsely told him that the Ardileses had already paid a

$1000 deposit, but he provides as proof a self-created transcript of the call,

based on his own audio recording, and the transcript omits several minutes of

the conversation and includes his "best guess[es] at barely audible phrases."

Although referenced in D'Agostino's certification, this purported partial

transcript is not certified itself, so we need not consider it.   See R. 1:6-6.

Nevertheless, this transcript does not assist in proving D'Agostino's claim.

D'Agostino has not shown that if the statement was made, it was made in bad


                                                                       A-3399-18T1
                                    15
faith and deprived him of the benefits of his contract with the Carlin

defendants.

      Additionally, D'Agostino relies on the July 25, 2016 email from Carlin,

in which she told defendant that the Ardileses had satisfied all conditions of

their mortgage commitment.      The following day, the lender confirmed the

remaining items needed and indicated that the processor had some, if not all,

of the information needed. She further instructed D'Agostino to contact the

title company to prepare documents needed for closing. Again, D'Agostino

has failed to demonstrate that Carlin acted in bad faith, and her conduct

deprived him of the benefits of their contract.

      Turning to D'Agostino's claim of tortious interference, D'Agostino was

required to prove that he "was in 'pursuit' of business," the Carlin defendants

interfered with this pursuit intentionally and with malice, their interference

caused D'Agostino "loss of the prospective gain," and D'Agostino suffered

damages. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-

52 (1989). In this context, "malice is defined to mean that the harm was

inflicted intentionally and without justification or excuse." Id. at 751. We are

satisfied that the record lacks sufficient evidence of D'Agostino's claim, which




                                                                       A-3399-18T1
                                      16
is based on the fact that Carlin did not change the status of the property listing

from "pending" to "expired" until May 2017.

      D'Agostino asserted that he began seeking a new buyer for his property

in October 2016, listing it online without the assistance of an agent.          He

provides no evidence that his inability to sell the property during this time was

a result of the listing status, other than his own self-serving and conclusory

assertions. Further, Carlin certified that D'Agostino's refusal to release the

$5000 deposit in the Ardileses' attorney's trust account precluded her from

making this change, as the Ardileses were still considered interested buyers.

Therefore, it appears that D'Agostino's own conduct caused the damages he

allegedly suffered.

      Similarly, we are satisfied that D'Agostino was unable to prove his

negligence claim, which required him to show that the Carlin defendants owed

him a duty of care, they breached that duty, their breach was a proximate cause

of harm he suffered, and he suffered actual damages. See Townsend v. Pierre,

221 N.J. 36, 51 (2015). We are not persuaded by D'Agostino's reliance on

Carlin's alleged repeated lies, her return of $1000 of the deposit to the

Ardileses, and her failure to change the property's listing status.          Even

assuming these allegations are true, D'Agostino has not demonstrated that


                                                                         A-3399-18T1
                                      17
Carlin's conduct caused him to suffer any damages, as the Ardileses were still

willing to purchase the property at the agreed-upon price in September 2016,

and D'Agostino declined to sell to them.

       Finally, with respect to D'Agostino's civil conspiracy claim, we deem

this issue waived, as he did not raise an argument on appeal specific to this

claim. See Sklodowsky, 417 N.J. Super. at 657. Nevertheless, we conclude

that   summary    judgment     was    appropriate,   as,   given   our   foregoing

determinations, D'Agostino failed to prove that the Carlin defendants

committed any wrong or inflicted any injury upon him. See Banco Popular N.

Am. v. Gandi, 184 N.J. 161, 177-78 (2005) ("In New Jersey, a civil conspiracy

is 'a combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means, the principal

element of which is an agreement . . . to inflict a wrong against or injury upon

another, and an overt act that results in damage.' . . . [T]he 'gist of the claim is

not the unlawful agreement, "but the underlying wrong which, absent the

conspiracy, would give a right of action."'" (quoting Morgan v. Union Cty.

Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993))).




                                                                           A-3399-18T1
                                       18
      To the extent we have not addressed any of D'Agostino's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed in part; dismissed in part.




                                                                    A-3399-18T1
                                       19
