                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5723-13T2

PORT IMPERIAL CONDOMINIUM
ASSOCIATION, INC.,

     Plaintiff-Respondent,

v.

ALEXANDER CANE,

     Defendant/Third-Party
     Plaintiff-Appellant,

v.

K. HOVNANIAN at PORT IMPERIAL URBAN
RENEWAL, INC.,

     Third-Party Defendant-Respondent.
________________________________________

         Argued December 2, 2015 – Decided January 11, 2016

         Before Judges Alvarez, Haas and Manahan.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Docket No. L-1708-12.

         Christopher J. Hanlon argued the cause for
         appellant (Hanlon Niemann, P.C., attorneys;
         Mr. Hanlon, on the brief).

         Wendy   H.   Smith   argued  the    cause   for
         respondent K. Hovnanian at Port Imperial
         Urban   Renewal,   Inc.   (Marshall    Dennehey
         Warner Coleman & Goggin, attorneys; Ms.
         Smith, on the brief).
    PER CURIAM

        Third-party plaintiff-appellant Alexander Cane (plaintiff)

    appeals a July 26, 2013 order entered by the Civil Part judge

    granting      summary     judgment       in    favor       of    third-party

    defendant/respondent       K.   Hovnanian     at    Port    Imperial      Urban

    Renewal, Inc. (defendant).1          The order dismissed plaintiff's

    third-party complaint against defendant.            We affirm.

        On     March   1,   2001,   plaintiff     and   defendant    executed       a

    purchase agreement, wherein plaintiff purchased from defendant a

    condominium in West New York, New Jersey.                  According to the

    complaint, plaintiff purchased the condominium for $925,449.24;

    and at summary judgment, plaintiff certified he paid $396,000 as

    a down payment.         The condominium complex was built on land

    filled into the Hudson River and developed around two shipping

    berths (also referred to as lagoons).

        Paragraph sixteen of the purchase agreement states:

                     This agreement, the Public Offering
                Statement    and    DCA   Application   for
                Registration, any Lot Disclosures Statement
                presented to [plaintiff], the approved site
                plans and architect's plan, and any Riders
                to this Agreement or the Documents, contain
                the   parties[']  entire  agreement.    Any
                modification   of  this  Agreement   is not

1
  Because the sole issue on appeal arises from the third-party
complaint filed by plaintiff in the Civil Part, we refer to
Alexander Cane as "plaintiff" and K. Hovnanian at Port Imperial
Urban Renewal, Inc., as "defendant."



                                         2                                 A-5723-13T2
            binding unless it is in writing and signed
            by both [plaintiff] and [defendant].

            [(emphasis added).]

Section C of the public offering statement referenced in the

purchase    agreement    —   which    was       generated   by   defendant      and

another related entity as the developers of condominiums in West

New York and Guttenberg — states the following, in pertinent

part:

                 There are two old shipping berths or
            coves located in the [c]ondominium.   At low
            tide the mud in the bottom of them is
            visible.   To make them more aesthetically
            pleasing,   the    [d]evelopers   may   seek
            governmental permits to allow the planting
            of vegetation in them.   The [d]evelopers do
            not know if they will be successful in doing
            so.

            [(emphasis added).]

    Plaintiff's condominium was located adjacent to one of the

shipping berths referenced in the public offering statement.                     No

vegetation   or    improvements      to   the    shipping   berths      were   ever

installed, causing the lagoons to become "fetid" and "stinking."

As a result, plaintiff claimed he was unable to market or sell

the property and ultimately lost his interest in the condominium

due to foreclosure.

    We recite the procedural history of the litigation for both

context    and    clarity.    On     November      13,   2009,   Port    Imperial

Condominium Association, Inc. (PICA), filed a complaint against



                                          3                               A-5723-13T2
plaintiff in Hudson County based on plaintiff's failure to pay

the condominium maintenance fees.                On November 30, 2011, the

matter was transferred to the Middlesex County Special Civil

Part.      Thereafter, plaintiff filed a motion seeking leave to

file a counterclaim against PICA and a third-party complaint

against defendant, which the collective defendants opposed.                         On

April 27, 2012, the Special Civil Part judge granted the motion,

but declined to transfer the entire matter to the Law Division.

Instead,      PICA's   claim    for   condominium       fees   remained       in   the

Special Civil Part and plaintiff's counterclaim and third-party

complaint      were     transferred     to      the     Law    Division.           The

counterclaim alleged breach of contract/failure to maintain, and

the third-party complaint brought action for contribution and

indemnification        (count   one),    misrepresentation           (count    two),

breach   of    contract    (count     three),    and    violation     of   the     New

Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195 (count

four).

      Plaintiff and PICA settled the claim for maintenance fees,

and on July 19, 2012, a "consent order" was entered awarding

PICA $5,640.      PICA reserved the right to seek attorneys' fees in

a   separate     application.         PICA   also      filed   its    initial      fee

application on July 19, 2012, seeking $30,810.61 in legal fees.




                                        4                                  A-5723-13T2
The judge issued an order on July 3, 2014, awarding counsel fees

in the amount of $31,321.30.2

      As for the Law Division matter, discovery commenced after

the   counterclaim      and       third-party       complaint      were    transferred.

Following     two     separate         discovery-related           motions      filed     by

defendant    in     early    2013      arising     from     plaintiff's        failure    to

provide discovery, the judge entered an order on February 22,

2013,     dismissing        plaintiff's          third-party       complaint      without

prejudice.          Plaintiff          eventually         served    his      answers      to

interrogatories and also sought to extend the February 22, 2013

discovery    end    date.         An   order      dated    March    22,   2013,    denied

plaintiff's       motion     to     extend       the      discovery      end    date     for

plaintiff     failing        to    demonstrate         exceptional        circumstances

warranting an extension.               See R. 4:24-1(c).           Plaintiff's third-

party complaint was reinstated.

      On April 5, 2013, defendant and PICA filed motions for

summary     judgment.              Plaintiff        opposed        the    motions        and

subsequently       filed    a     motion   to      "supplement      the    record"       and

include documents not provided during the discovery period.                               On

July 26, 2013, after hearing oral argument, the judge granted




2
  PICA's requested counsel fees changed from the original amount
after additional work was performed on the matter.



                                             5                                    A-5723-13T2
the motions for summary judgment and denied plaintiff's motion

to supplement the record.

    Plaintiff      filed   a    notice       of   appeal     on    August    8,   2014.

Plaintiff appealed both of the orders granting summary judgment

in favor of the collective defendants, as well as the order

awarding attorneys' fees.            However, on April 22, 2015, plaintiff

and PICA executed and filed a stipulation of partial dismissal

with prejudice and without costs as to PICA.                        The stipulation

dismissed    plaintiff's       appeal    of       the   order     granting    summary

judgment in PICA's favor, as well as the appeal challenging the

award of attorneys' fees.             Plaintiff did not appeal the order

denying     an   extension      of     discovery        or   the     order    denying

plaintiff's motion to "supplement the record."

    Plaintiff raises the following points on appeal:

                                      POINT I

            [DEFENDANT'S] MOTION FOR SUMMARY JUDGMENT
            SHOULD HAVE BEEN DENIED BY THE TRIAL COURT
            SINCE THERE WERE SEVERAL GENUINE ISSUES OF
            MATERIAL FACT IN THE RECORD BELOW.

                                      POINT II

            THE RECORD BEFORE THE TRIAL JUDGE SUPPORTED
            THE PROPOSITION THAT THE RECORD DEVELOPED BY
            [PLAINTIFF] SUPPORTS THE INFERENCE THAT
            MISREPRESENTATIONS   WERE   MADE    BY   THE
            CONDOMINIUM DEVELOPER.




                                         6                                    A-5723-13T2
                               POINT III

          [PLAINTIFF'S] PROOFS DEMONSTRATE SIGNIFICANT
          [OUT-OF-POCKET] EXPENDITURE IN RELIANCE UPON
          THE   REPRESENTATIONS  OF   THE  CONDOMINIUM
          DEVELOPER AND REPRESENTS ADEQUATE PROOF OF
          AN ASCERTAINABLE LOSS.

    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 of 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).     The court's inquiry is "whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law."        Liberty Surplus Ins. Corp. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995); see

also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div.

2007).    "At   this   stage   of    the    proceedings,    the   competent

evidential materials must be viewed in the light most favorable

to plaintiff, the non-moving party, and [plaintiff] is entitled

to the benefit of all favorable inferences in support of [the]

claim."   Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div.

2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540); see




                                     7                              A-5723-13T2
also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App.

Div.), certif. denied, 189 N.J. 103 (2006).

       We apply the same standard as the trial court in reviewing

the granting of a motion for summary judgment.                                 Townsend v.

Pierre, 221 N.J. 36, 59 (2015).                  If there is no factual dispute,

and only a legal issue to resolve, the standard of review is de

novo   and   the    trial       court     rulings      "are     not     entitled      to    any

special deference."             Manalapan Realty, L.P. v. Manalapan Twp.

Comm., 140 N.J. 366, 378 (1995).

       According      to    plaintiff,       the       factual        issue    in     dispute

pertains     to    representations          allegedly         made      to    plaintiff      by

defendant     during        negotiations           for     the        purchase        of    the

condominium.          In    response       to     defendant's          summary       judgment

motion,      plaintiff          produced:        his      own         certification,           a

certification from a sales representative for defendant, and a

certification        from       plaintiff's         closing            attorney.            The

certifications      cited       to    defendant's        representations             that   the

shipping     berths    would         be   improved       with     an    aquatic       garden.

Plaintiff    claims        he   relied      upon    these        representations            when

deciding to purchase the property.                       Plaintiff also produced a

certification       from    a    neighbor        who     asserted       that     a    similar

representation was made to her by defendant when purchasing her

condominium.        Additionally, plaintiff produced documents from




                                             8                                        A-5723-13T2
the Army Corps of Engineers related to approvals secured for

development of the lagoons which noted defendant's failure to

maintain the area after initial efforts to install improvements

went   unfinished.        Although    the   witnesses   were   identified    in

plaintiff's answers to interrogatories, they were never deposed.

The    documents   from    the   Army   Corps   of   Engineers   were    never

exchanged or produced in discovery.              Rather, after discovery

ended, plaintiff submitted these documents in his opposition to

the motions for summary judgment and used them as the basis for

his motion to supplement the record.

       The CFA states:

                 The act, use or employment by any
            person of any unconscionable commercial
            practice, deception, fraud, false pretense,
            false promise, misrepresentation, or the
            knowing,    concealment,   suppression,    or
            omission of any material fact with intent
            that others rely upon such concealment,
            suppression or omission, in connection with
            the sale or advertisement of any merchandise
            or real estate, or with the subsequent
            performance of such person as aforesaid,
            whether or not any person has in fact been
            misled, deceived or damaged thereby, is
            declared to be an unlawful practice . . . .

            [N.J.S.A. 56:8-2.]

       To prevail on a claim for violation of the CFA, a plaintiff

must allege (and prove) the following: (1) unlawful conduct; (2)

an ascertainable loss; and (3) a causal relationship between the

unlawful   conduct   and     the     ascertainable   loss.     N.J.   Citizen



                                        9                             A-5723-13T2
Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App.

Div.), certif. denied, 178 N.J. 249 (2003); see also Cox v.

Sears Roebuck & Co., 138 N.J. 2 (1994).                       A misrepresentation is

actionable      under    the   CFA    only        if     it    is     material    to    the

transaction, false in fact and induces the buyer to purchase.

Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 535 (App.

Div.   1996),    aff'd    as   modified,          148    N.J.   582     (1997).         Oral

misrepresentations are covered by the CFA to the same extent as

written misrepresentations.            Gupta v. Asha Enters., L.L.C., 422

N.J. Super. 136, 147 (App. Div. 2011).

       At oral argument on the summary judgment motion, the judge

noted "that the ascertainable loss is going to boil down to a

diminution of value, and in order to establish that you need an

appraiser."        The    judge      held        that,    in    the     absence    of    an

appraiser, plaintiff failed to establish damages:

           [W]hen it comes to real property when
           there's   out-of-pocket   lawsuits   with a
           difference in value, he needs an appraiser.
           He needs someone to say, an expert to come
           in and say what the damages are, and you
           don't have that.      And that’s not being
           proffered, that’s not being proffered as
           part of these additional materials. There's
           no late expert being put forth here.

                This is simply going to whether or not
           a contract materialized.    Because if you
           look at the contract of sale it's not a
           contract.    But detrimental reliance, and
           things of that nature, and when you add to
           it   that  they  did   get  the   government



                                            10                                    A-5723-13T2
            approvals, well then perhaps there was an
            obligation to take it a step further, if you
            got the approvals, to finish the job.

                 . . . [I]t's all moot because there's
            nobody to say what the damages are.

                 . . . .

                 . . . And I don't think you can equate
            earnest money deposit[s] with out-of-pocket
            losses.

      In    matters     involving        alleged      breach       of    contract       or

misrepresentation in a CFA action, "either out-of-pocket loss or

a   demonstration      of    loss   in   value     will     suffice      to     meet    the

ascertainable loss hurdle . . . ."                 Thiedemann v. Mercedes-Benz

USA, LLC, 183 N.J. 234, 248 (2005).                   To withstand a motion for

summary     judgment    in    matters      alleging         a    loss    in    value,     a

plaintiff     "must     proffer      evidence         of        loss    that     is     not

hypothetical    or     illusory.         It    must    be       presented      with    some

certainty demonstrating that it is capable of calculation[.]"

Ibid. (emphasis added).

            An "estimate of damages, calculated within a
            reasonable degree of certainty" will suffice
            to demonstrate an ascertainable loss.     We
            can envision the possibility that an expert
            may be able to speak to a loss in value of
            real or personal property due to market
            conditions, with sufficient precision to
            withstand a motion for summary judgment.

            [Id. at 249 (quoting Cox, supra, 138 N.J. at
            22) (emphasis added).]




                                          11                                     A-5723-13T2
    Expert testimony is required when a jury "simply does not

have the knowledge, training, or experience" to consider all the

relevant factors to arrive at a proper award of damages.       Kelly

v. Berlin, 300 N.J. Super. 256, 268-70 (App. Div. 1997); see

also Jiries v. BP Oil, 294 N.J. Super. 225, 230-31 (Law Div.

1996) (holding expert testimony required to prove damages for

CFA claim alleging deficient repairs).     Moreover, it has been

held that expert evidence is required to determine the value of

real property.   See Jacobitti v. Jacobitti, 263 N.J. Super. 608,

613 (App. Div. 1993), aff’d, 135 N.J. 571 (1994); Smart SMR of

Smart New York, Inc. v. Fairlawn Bd. of Adjustment, 152 N.J.

309, 336 (1998); Cell South of New Jersey, Inc. v. Zoning Bd. of

Adjustment of West Windsor Township, 172 N.J. 75, 87 (2002)

(citing Smart, supra, 152 N.J. at 336).

    Here, the third-party complaint alleges that defendant's

failure to install the aquatic garden decreased the value of the

condominium.       Plaintiff   alleged    in   his   answers      to

interrogatories that the ascertainable loss was "the difference

between the market value of identical units and the purchase

cost of the property."   However, plaintiff failed to produce an

appraisal or an expert report as to the value of the condominium

or any depreciation thereof.




                               12                          A-5723-13T2
      Predicated        upon    plaintiff's       failure           to     provide      the

requisite proofs, the judge properly held that plaintiff could

not   demonstrate        that   he    suffered    an       ascertainable         loss     as

required by the CFA.            See Thiedemann, supra, 183 N.J. at 248.

Stated    otherwise,      plaintiff      failed       to    "present[]       with       some

certainty" damages that are "capable of calculation."                           Ibid.

      Plaintiff also argues that his down payment constitutes an

out-of-pocket ascertainable loss.              We disagree.

      The damages sought by plaintiff were based solely on the

decrease in value of the property.                     In Chattin v. Cape May

Greene, Inc., 243 N.J. Super. 590, 594, 605 (App. Div. 1990),

aff’d    o.b.,    124    N.J.   520   (1991),     a    suit       for    consumer    fraud

brought by a group of homeowners against a developer, we held

the trial court properly instructed the jury on damages on a

consumer fraud claim.           In the charge, the trial court instructed

that,    "Under    the    [out-of-pocket]        approach         recovery      would     be

permitted for the difference between the price paid and the

actual value of the property acquired."                     Id. at 604.          In order

to prove the difference in value, an expert would be required.

Thiedemann, supra, 183 N.J. at 249.

      Finally, we note that although plaintiff references in his

brief that the judge erred by denying the motion to supplement

the   record     for    consideration     of     the       Army    Corp    of    Engineer




                                         13                                       A-5723-13T2
documents, plaintiff did not appeal the order denying the motion

and his brief does not address that issue in its point headings.

As such, plaintiff "has no right to our consideration of this

issue" because "only the judgment or orders designated in the

notice of appeal . . . are subject to the appeal process and

review[.]"   1266 Apartment Corp. v. New Horizon Deli, Inc., 368

N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of

Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff’d o.b.,

138 N.J. 41 (1994)); see also R. 2:5-1(f)(3)(A); R. 2:6-2(a)(5).

    Affirmed.




                               14                        A-5723-13T2
