                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2327-12T3


DR. HUMAYUN AKHTAR and                  APPROVED FOR PUBLICATION
YOSARIA AKHTAR,
                                           February 24, 2015
         Plaintiffs-Appellants,           APPELLATE DIVISION

v.

JDN PROPERTIES AT FLORHAM PARK, L.L.C.,
JDN PROPERTIES, L.L.C., JOSEPH NATALE,
RANDY DELUCA, DELTRUS, L.L.C., and
CASEY & KELLER, INC.,

          Defendants-Respondents.
________________________________________________________________

         Argued January 6, 2015 – Decided February 24, 2015

         Before Judges Koblitz, Haas and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Morris County, Docket No.
         Docket No. L-1701-07.

         Jay J. Rice argued the cause for appellants
         (Nagel Rice, L.L.P., attorneys; Mr. Rice, of
         counsel and on the brief; Randee M. Matloff,
         on the brief).

         Andrew S. Cimino argued the cause for
         respondent Casey & Keller (Marshall Dennehey
         Warner Coleman & Goggin, attorneys; Mr.
         Cimino, of counsel and on the brief).

     The opinion of the court was delivered by

KOBLITZ, J.A.D.
       Plaintiffs,    Dr.       Humayun    Akhtar   and     his    wife,    Yosaria,

appeal from a jury verdict dismissing their malpractice claims

against defendant,1 engineering firm Casey & Keller, Inc.                             A

judge     initially      awarded      plaintiffs         summary     judgment       on

liability, but a second judge reconsidered and vacated the grant

of summary judgment.            A third judge held a full trial, which

yielded a no-cause jury verdict.                Plaintiffs maintain that they

were entitled to summary judgment as a matter of law, or at

least a new trial, because their expert's opinion was unrebutted

by defendant's expert.           In light of plaintiffs' burden of proof

and the conflicting evidence as to the factual predicates for

their expert's opinion, we affirm.

                                           I

       As developer JDN Properties at Florham Park, L.L.C., (JDN

FP),    was   planning      a    ten-lot       project    on   a   set     of     steep

properties, its manager, Randy DeLuca, engaged engineer Michael

Lanzafama's firm, Casey & Keller, Inc.                   Lanzafama's firm was to

perform    title,     topographic,        and    utilities     surveys,         prepare

designs for a road and other infrastructure for the project, and


1
  "Defendant" refers only to Casey & Keller.       The complaint
against JDN FP, JDN Properties, and Joseph Natale, the principal
of both entities, as well as on site-manager Randy DeLuca and
his company Deltrus (collectively, the JDN defendants) is the
subject of a separate consolidated appeal under docket numbers
A-5907-11 and A-6064-11.



                                           2                                A-2327-12T3
submit      those   documents      for   approval     from    the     appropriate

government agencies.             In the course of that work, Lanzafama

drafted an individual lot grading plan for what would become

plaintiffs' property, depicting two semi-circular Allan Block

retaining       walls       and     incorporating       the      manufacturer's

specifications.         The       grading     plan    was     filed    with    the

municipality in conjunction with the property's site plan and

approved by borough engineer Robert Kirkpatrick in April 2005.

       Plaintiffs contracted with JDN FP to purchase the lot and

have a home constructed, with certain modifications, such as one

to accommodate a full walk-out basement, which ultimately drove

the price up to just over $1.56 million.              Akhtar, who frequently

visited the site during construction, testified at trial that

shortly before the closing, he was surprised to find that the

builder had deviated from Lanzafama's design by constructing a

much longer, higher retaining wall along the eastern side of the

property than originally designed.               He acknowledged, however,

that he had requested that the wall be raised by at least one

foot   to    accommodate     a    backyard    pool,   and    DeLuca    introduced

testimony suggesting that plaintiffs' requests for modifications

required a more level backyard and consequently, expansion of

the    retaining    wall.         Lanzafama   claimed   at     trial    that   his

personnel had no knowledge of the modification until their site




                                         3                               A-2327-12T3
visit for a final survey, but confirmed that his design provided

sufficient        information       for     building       the       wall     ultimately

constructed.

       Nonetheless, the modification was undertaken without prior

municipal approval, and JDN FP had apparently never obtained a

permit for the wall in the first place.                        On one of his site

visits, borough engineer Kirkpatrick noticed the change, along

with   other      unauthorized      work.       Because    the       municipality       had

never inspected the retaining wall's construction, he requested

a letter assuring that the wall had been built according to the

manufacturer's specifications.                  Lanzafama wrote the letter at

DeLuca's request.

       At   trial     Lanzafama     testified      that,      before    doing     so,   he

discussed      with    DeLuca       the   methods      that      had   been      used   to

construct the wall and inspected the wall himself, albeit after

its    completion.          He   explained      that   while        investigating,       he

observed     geogrid       fabric   protruding      from      the    wall   at    various

points, confirming that the three appropriately spaced layers of

geogrid     had     been    placed.       He    also   observed        drainage     pipes

extending from the wall, suggesting that the required toe drain

had been installed at the crushed stone's base to evacuate any

water that might build up within or alongside the wall.                                 His

field crew took measurements of the wall to confirm its location




                                            4                                    A-2327-12T3
and elevation, and he himself examined soil immediately behind

the     wall    to    confirm    its    stability.            He    further       reviewed

photographs his crew had taken on site visits, which he believed

showed that the blocks, gravel, and geogrid were appropriately

placed and that the correct compaction tools had been used.

Moreover,      he    recalled    his    own     prior   site       visits    at    various

stages of the wall's construction, albeit undertaken for other

reasons, where he nonetheless saw the wall being built with

appropriate materials and equipment.                    He concluded from those

observations that the wall had been appropriately built and felt

comfortable writing the letter.

      Borough        building    inspector       Stephen      Jones     testified        at

deposition that the letter had not specifically been requested

in    connection        with    the    review     of    any    application         for     a

certificate of occupancy.              It was, in any event, submitted in

connection       with    such    an    application.      The       borough     issued      a

temporary certificate of occupancy for the property on June 1,

2006.     Pursuant to the contract, JDN FP then remitted a "time of

the essence letter" to plaintiffs and set a closing date for

June 9.        Akhtar performed a walk-through of the property prior

to closing and requested repair of certain defects.                           Plaintiffs

first became aware of serious problems with the property when




                                           5                                      A-2327-12T3
they learned from a plumber not long after closing that the

house was "sliding."           They have never moved in.

     Subsequent investigations by engineering firm LAN, hired by

JDN FP, revealed cracking in the foundation under a substantial

portion   of    the    eastern    side    of    the       house   due   to   improperly

compacted soil.        Plaintiffs, meanwhile, retained Henry Naughton,

an engineering consultant, who concluded that the cracks in the

foundation      were     attributable         to     the     soil's     poor    bearing

capacity.      He further concluded that the eastern retaining wall,

which   Lanzafama      had     vouched   for,       had    questionable      long    term

stability that, because of transport of soil through the wall,

would undermine structures supported on the soil.                        He testified

that failure of the retaining wall was one of the causes of the

movement of the house.           LAN recommended installing helical piles

to   bolster    the     foundation       and       arrest    its    settlement,          but

plaintiffs and JDN FP were never able to agree on an appropriate

remedy.

     At trial, plaintiffs claimed Lanzafama's certification that

the wall had been built correctly caused the certificate of

occupancy      to     issue,     requiring         plaintiffs      to   close       on    a

deficiently built house with a failing retaining wall.                          To that

end, they introduced Naughton, who testified that no engineer

should issue a certification without conducting an investigation




                                          6                                     A-2327-12T3
sufficient     to     make     the   engineer      reasonably      certain      of     its

accuracy.        He     set     forth   numerous       investigatory           steps     a

reasonable engineer might take to reach an appropriate level of

certainty and how Lanzafama's course of conduct fell short.                             He

recounted      that,     although     Lanzafama      had    never       overseen       the

construction or inspected the wall as it was built, he should at

least have discussed with the contractor how each aspect of the

manufacturer's specifications had been met, that the soil had

been appropriately compacted, and that the appropriate lengths

of   geogrid    had     been    installed.          Moreover,      he    should      have

requested    compaction        and   soil    density   test     results      from      the

contractor     and     performed     independent     tests    if    the    contractor

made none available.

      Naughton         acknowledged         that    Lanzafama       had        reviewed

photographs depicting the progress of construction of the wall,

but disagreed that anything meaningful could be learned from

them.   He asserted, moreover, that, had Lanzafama conducted a

proper investigation before issuing the letter, particularly had

he performed any soil testing, it would have set off "bells and

whistles" undermining any confidence he could have as to the

retaining wall's construction.

      Plaintiffs        also     introduced        Martin    Grant,       an     expert

surveyor.      Grant took a series of measurements at several points




                                            7                                   A-2327-12T3
on the wall on eight occasions from October 2007 to June 2012,

and concluded from them that the wall had moved approximately

one to three inches, well in excess of what the manufacturer's

specifications contemplate.            All movement, moreover, had been in

a consistent easterly direction.

      Defendant introduced engineering expert Robert Simpson, who

testified that the damage to the house had been caused by the

improperly-compacted           fill    beneath      the      foundation,    not    the

retaining wall.         As to the issue of breach, he summarized his

understanding of what Lanzafama had done before preparing the

letter, but never offered an opinion as to whether issuing the

letter constituted a deviation from any accepted standard of

care.     He candidly acknowledged that he would not have written

the letter under those circumstances, but elaborated that that

was because his firm "insist[s] upon full-time inspections for

all     certifications"        and    that       defendant     might   simply      have

different standards.

      Moreover, Simpson believed the evidence inconclusive as to

whether    the   wall    had    been    properly      constructed.         There    was

strong evidence from testing and measurements by the parties'

experts that the wall was stable.                    He concluded from his own

observations and other experts' data that the wall had shown

little movement and was not failing, and that, even if it were,




                                             8                               A-2327-12T3
it was too far from the house for that failure to have caused

the damage the house sustained.

       Defendant     also    conducted      its     own     investigation   of    the

wall's      movement,     taking    measurements      approximately      every    six

months between November 2007 and August 2012.                   Such measurements

revealed that the wall had moved no more than a fraction of an

inch     within    that     time,    consistent       with    the    manufacturer's

representation of the wall's flexibility.                     Lanzafama explained

that Allan Block retaining walls were "basically soil masses

that act as giant gravity walls," which acquire their stability

from geogrid fabric installed "at various levels within the soil

mass."      Soil between each pair of geogrid layers is compacted to

form    a   single   unit    that    acts       together.      The   manufacturer's

specifications show that the walls are designed to be flexible

and "move with stresses, yet not yield."

       Finally, defendant presented Wayne Sanclimenti of Ron-Jon

Construction, the subcontractor that built the eastern retaining

wall.       Sanclimenti testified to his experience as a certified

Allan Block builder for at least fifteen years, explained the

wall's construction process with reference to photographs taken

during that construction, and stated that the wall had been

built according to the manufacturer's specifications.




                                            9                               A-2327-12T3
      The jury voted five to one that defendant did not breach

its standard of care. Therefore, the jury did not proceed to

consider proximate cause or damages.           The trial judge denied

plaintiffs' motion for a new trial.

                                    II

      Plaintiffs    first        challenge     the     second       judge's

reconsideration of the first judge's grant of partial summary

judgment in favor of plaintiffs as to liability.                A court may

grant summary judgment as to an issue only if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with 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).    The   facts    must   be   viewed   in   a   light   most

favorable to the non-moving party.        Polzo v. Cnty. of Essex, 209

N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 523 (1995)).        The slightest doubt as to an

issue of material fact must be reserved for the factfinder, and

precludes a grant of judgment as a matter of law.                Saldana v.

DiMedio, 275 N.J. Super. 488, 494 (App. Div. 1994).

      Any issues of credibility must be left to the finder of

fact.   Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13




                                    10                              A-2327-12T3
(App. Div. 2007).        That is so even where a witness's testimony

is uncontradicted, D'Amato by McPherson v. D'Amato, 305 N.J.

Super. 109, 115 (App. Div. 1997), as long as, when considering

the testimony in the context of the record, persons "of reason

and fairness may entertain differing views as to [its] truth

[.]"     Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415

(1997) (quoting Ferdinand v. Agric. Ins. Co. of Watertown, N.Y.,

22 N.J. 482, 494 (1956)).                Summary judgment should be denied

unless "the right thereto appears so clearly as to leave no room

for controversy."       Saldana, supra, 275 N.J. Super. at 495.                   Our

review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court.                    Nicholas v. Mynster,

213 N.J. 463, 478 (2013).

       Once   made,   such    an    interlocutory        order     may   always   be

reconsidered,    on    good     cause     shown    and    in   the   interests    of

justice, prior to entry of final judgment.                     Johnson v. Cyklop

Strapping Corp., 220 N.J. Super. 250, 257, 263-64 (App. Div.

1987),    certif.     denied,      110   N.J.     196    (1988).     Nonetheless,

relitigation of an interlocutory order before successive judges

of coordinate jurisdiction is generally disfavored, Cineas v.

Mammone, 270 N.J. Super. 200, 207-08 (App. Div. 1994), and the

"law of the case" doctrine invests the court with discretion to

decline relitigation of any legal decision made earlier by an




                                          11                               A-2327-12T3
equal court in the same case, Lombardi v. Masso, 207 N.J. 517,

538-39   (2011).     The     doctrine    is   not   inflexible,   however,

Southport Dev. Group v. Twp. of Wall, 295 N.J. Super. 421, 430

(Law Div. 1996), aff'd, 310 N.J. Super. 548 (App. Div. 1998),

certif. denied, 156 N.J. 384 (1998), and a court maintains the

discretion   to    revisit    the   earlier     ruling   whenever      those

"'factors that bear on the pursuit of justice and, particularly,

the search for truth'" outweigh "the value of judicial deference

for the rulings of [the] coordinate judge."              Hart v. City of

Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998) (quoting

State v. Reldan, 100 N.J. 187, 205 (1985)).              Such may be the

case, for example, where a court recognizes clear error in the

earlier decision.    Sisler v. Gannett Co., Inc., 222 N.J. Super.

153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

    In Lombardi, our Supreme Court emphasized that:

          [A]lthough a party who obtains summary
          judgment may believe he is absolutely free
          of the litigation, it is a contradiction in
          terms to say that an interlocutory decree
          should be a finality.        The policy that
          litigation   must   have   an    end  is   not
          threatened   in   such    a    case,   because
          litigation has not yet terminated. In other
          words, a party's sense of finality upon
          summary judgment is just that – a feeling
          unsupported by the notion of what is, in
          fact, interlocutory.     Interlocutory orders
          are always subject to revision in the
          interests of justice.




                                    12                              A-2327-12T3
            [Lombardi, supra,  207  N.J.  at  535-36
            (internal citations and quotation marks
            omitted).]

      The first motion judge granted partial summary judgment to

plaintiffs     on    liability       exclusively        because         defendant    had

introduced no expert testimony disputing Naughton's conclusion

that defendant had deviated from the accepted standard of care.

The second motion judge, relying on Lombardi, supra, 207 N.J. at

534-40,     concluded      that     the    order    granting       partial     summary

judgment to plaintiffs should be vacated and a trial had on

liability     as    well    as     damages.        He   noted      that     deposition

testimony from the building inspector, Jones, put into dispute

whether issuance of the certificate of occupancy was conditioned

on   defendant's     letter,       and    that   data   as   to    movement    of    the

retaining wall did not inexorably compel the conclusion that the

wall was moving.        Yet plaintiffs' expert Naughton had relied on

those factual circumstances to conclude that defendant's alleged

breach of the accepted standard of care was a proximate cause of

plaintiffs' damages.             Resolution of either factual dispute in

defendant's    favor       would    call    into   question       the    integrity    of

Naughton's opinion.          Moreover, there remained a factual dispute

as to whether the wall had, in fact, been built according to

specifications.




                                           13                                 A-2327-12T3
       The summary judgment standard takes into account who has

the burden of proof on a matter.                          CPC Int'l, Inc. v. Hartford

Accident     &    Indem.     Co.,    316    N.J.          Super.    351,    375   (App.     Div.

1998), certif. denied, 158 N.J. 73 (1999).                               We have explained

that, where "'the movant is also the party bearing the burden of

persuasion with regard to a claim, its initial summary judgment

burden is somewhat higher in that it must show that the record

contains evidence satisfying the burden of persuasion and that

the evidence is so powerful that no reasonable jury would be

free    to   disbelieve           it.'"         Ibid.         (quoting     Moore's      Federal

Practice, § 56.13(1), at 56-138 (3d ed. 1997)).                               Consequently,

where the plaintiff's case hinges on the testimony of a witness,

whose    credibility         is     subject          to    question      considering          that

testimony        in   the    context       of    the       record,       there    may    be    no

"'single, unavoidable resolution'" of disputed questions of fact

so as to warrant summary judgment.                        Ibid. (quoting Brill, supra,

142 N.J. at 540).              Naughton's report was not so "clear and

convincing [or] . . . [un]contradicted in any way by witnesses

or circumstances, [or] so plain and complete that disbelief of

the story could not reasonably arise in the rational process of

an   ordinarily       intelligent         mind       .    .    .   ."      Cameco,      Inc.   v.

Gedicke,     299      N.J.   Super.        203,       213      (1997)      (emphasis     added)

(quoting Ferdinand, supra, 22 N.J. at 494), aff’d as modified,




                                                14                                      A-2327-12T3
157 N.J. 504 (1999).              His report was not so eminently credible

in the context of this record, even if unopposed formally by a

defense expert, as to demand judgment as a matter of law in

light of plaintiffs' burden of proof.

       Moreover,      the    factual      predicates      for   Naughton's      opinion

remained      subject       to    legitimate       dispute.     The     value    of    an

expert's opinion is in elucidating evidence in the record and

explaining to lay factfinders the significance of that evidence

in light of the expert's training and experience.                            State v.

Odom, 116 N.J. 65, 76 (1989).                 Naked opinions have no probative

value in themselves and, indeed, are inadmissible to the extent

they bear no connection to the factual record.                      Pomerantz Paper

Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).                          The first

motion judge stated that Naughton asserted that defendant had

breached the accepted standard of care, specifically because it

had "issued [its] certification with no attempt to verify how

the    retaining      walls       at    the   subject    property     were     actually

constructed."        (Emphasis added).

       A finder of fact could certainly conclude otherwise on the

record available at summary judgment.                     There was evidence that

at    least   some     investigation          occurred,    including     Lanzafama's

observations     during          site   visits,    discussion    with    DeLuca,      and

examination      of     photographs           of   the    retaining     wall     during




                                              15                                A-2327-12T3
construction.        The fact-sensitive inquiry as to whether that

investigation was adequate to meet the standard of care Naughton

outlined was one for the jury, which would remain free to reject

Naughton's credibility in whole or in part, or to resolve any

disputed    issue       as    to    the       factual     predicate    for    Naughton's

opinion in defendant's favor.                  See Suarez v. E. Int'l Coll., 428

N.J. Super. 10, 27 (App. Div. 2012) (cautioning that a court

must not invade a jury's exclusive role as factfinder), certif.

denied, 213 N.J. 57 (2013).                    Defendant's failure to introduce

any expert to address the issue of breach, in other words, did

not in itself warrant summary judgment for plaintiffs.                                  The

factual record on which Naughton's opinion relied was simply not

so one-sided as to warrant that relief.                       Gilhooley v. Cnty. of

Union, 164 N.J. 533, 545 (2000).

       The second motion judge did not abuse his discretion in

reconsidering the first motion judge's ruling, and after our de

novo   review,     we    agree      that       plaintiffs    were     not    entitled    to

summary judgment on liability.

                                                 III

       Plaintiffs also contend that the trial judge should have

granted    their    motion         for    a    directed    verdict.         The   standard

applicable to a motion for a directed verdict is equivalent to

that    applicable       to    one       for    summary     judgment.         Frugis      v.




                                               16                                 A-2327-12T3
Bracigliano, 177 N.J. 250, 269-70 (2003).                         The trial court must

accept as true all evidence that supports the non-moving party's

position and all favorable legitimate inferences therefrom to

determine whether the moving party is entitled to judgment as a

matter of law.        Dolson v. Anastasia, 55 N.J. 2, 5 (1969).                          The

court must deny the motion so long as "reasonable minds could

differ,"   Johnson       v.    Salem       Corp.,    97    N.J.     78,   92   (1984),    to

ensure that any legitimate dispute of material fact be left to

the jury, Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998).

The same standard applies on appeal.                       Estate of Roach v. TRW,

Inc., 164 N.J. 598, 612 (2000).

    The trial judge concluded after reviewing the evidence that

judgment as a matter of law was unwarranted as to the issues of

both breach and proximate cause.                    Plaintiffs' challenge to this

decision      rests   on      the    notion       that,     because       Simpson    never

directly      rebutted     Naughton's        opinion       that     defendant    deviated

from the accepted standard of care, plaintiffs are entitled to

judgment as a matter of law.                     However, as already discussed,

plaintiffs were not entitled to such relief in light of their

burden of proof, so long as Naughton's credibility could be

reasonably subject to question, see CPC Int'l, supra, 316 N.J.

Super.   at    375,   or      so    long    as    the     factual    predicate      to   his




                                             17                                   A-2327-12T3
opinion remained subject to reasonable dispute on this record,

see Suarez, supra, 428 N.J. Super. at 27.

         [At the direction of the court, Parts IV, V
         and VI are omitted from the published
         version. See R. 1:36-2(d).]

    Affirmed.




                               18                      A-2327-12T3
