                        NOT FOR PUBLICATION WITHOUT THE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-4103-14T4



ALEX PEREZ and CATHY PEREZ,

        Plaintiffs-Appellants/
        Cross-Respondents,

v.

SUSAN ADLER, ESQ., and
SUSAN ADLER – ATTORNEY AT LAW,

        Defendants,

and

TESSER & COHEN, GARY STRONG,
ESQ., and STEPHEN WINKLES, ESQ.,

        Defendants-Respondents/
        Cross-Appellants,

and

PORCELLO ENGINEERING, INC.,
FRED PORCELLO, and GARY MOORE –
ATTORNEY AT LAW,

        Defendants-Respondents.

_____________________________________________________

              Argued September 19, 2017 – Decided October 17, 2017

              Before Judges Yannotti, Leone and Mawla.
          On appeal from Superior Court of New Jersey,
          Law Division, Bergen County, Docket No. L-
          8488-11.

          Nancy C. Ferro argued the cause for appellants
          (Ferro & Ferro, attorneys; Ivan Raevski, on
          the briefs).

          Shaji   M.  Eapen   argued  the   cause  for
          respondents/cross-appellants Tesser & Cohen,
          Gary Strong, Esq., and Stephen Winkles, Esq.
          (Morgan Melhuish Abrutyn, attorneys; Mr.
          Eapen, on the brief).

          Craig J. Compoli, Jr., and James P. McBarron
          argued the cause for respondents Porcello
          Engineering, Inc. and Fred Porcello (O'Toole
          Scrivo Fernandez Weiner Van Lieu, LLC, and
          Hardin,   Kundla,  McKeon   &  Poletto,  PC,
          attorneys; Mr. McBarron, on the brief).

          Diana C. Manning argued the cause for
          respondents Gary Moore, Esq. and Gary Moore –
          Attorney at Law (Bressler, Amery & Ross,
          attorneys; Mark M. Tallmadge and Risa D. Rich,
          on the brief).

PER CURIAM

     Plaintiffs Alex Perez and Cathy Perez appeal from various

orders entered by the Law Division in this action, which granted

summary judgment to defendants Porcello Engineering, Inc. and Fred

Porcello (collectively, Porcello); Tesser & Cohen, Gary Strong,

and Stephen Winkles (collectively, Tesser & Cohen), and Gary Moore,

Esq. and Gary Moore – Attorney at Law (collectively, Gary Moore).

Plaintiffs also appeal from an order entered on April 10, 2015,

which denied their motion for reconsideration of the earlier


                                2                           A-4103-14T4
orders. Tesser & Cohen cross-appeal from part of the April 10,

2015 order. For the reasons that follow, we affirm the orders

challenged by plaintiff and dismiss Tesser & Cohen's cross-appeal.

                                       I.

     In February 2007, plaintiffs filed an action in the Law

Division against Professionally Green, LLC (Professionally Green),

Swim-Well   Pools,    Inc.    (Swim-Well),        Weissman    Engineering     Co.

(Weissman), VCA Sons, Inc., t/a Freedom Fence, Inc. (VCA), and

certain individuals associated with these entities. Plaintiffs'

claims arose from the installation of an in-ground swimming pool

and related work at plaintiffs' residence in Franklin Lakes.

     According to the complaint, plaintiffs retained Weissman to

prepare engineering plans for the pool, and they hired the other

defendants to install the pool and perform related work. In the

initial complaint, plaintiffs asserted claims of misrepresentation

under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -204, breach

of contract, breach of warranties, and negligence.

     Attorney    Susan   Adler   filed      the   complaint    on    plaintiffs'

behalf. Adler represented plaintiffs for almost two years, but

plaintiffs became dissatisfied with the manner in which she was

handling the case. Plaintiffs discharged Adler, and in December

2008,   Tesser   &   Cohen   assumed    responsibility       for    representing

plaintiffs in the lawsuit.

                                       3                                 A-4103-14T4
     At the suggestion of an attorney in the Tesser & Cohen firm,

plaintiffs retained Porcello as their engineering expert. Porcello

thereafter prepared an expert report, which identified certain

defects in Weissman's engineering plans and the work performed by

Swim-Well and the other defendants. Porcello estimated that the

cost to repair and remediate the deficient work was $107,131.79.

In the report, Porcello identified nineteen documents that he had

relied upon in preparing the report, which included a survey

prepared by Juan C. Almonte.

     Based on the findings in Porcello's report, Tesser & Cohen

filed a motion to amend the complaint to add additional claims

under the CFA, specifically violations of certain regulations

adopted pursuant to the CFA with regard to home improvement

practices. See N.J.A.C. 13:45A-16.1 to -16.2. Among other things,

plaintiffs   claimed   that    Swim-Well      and   Professionally     Green

violated   the   regulations   by   failing    to   include   starting    and

completion dates in their respective contracts. The trial court

granted the motion.

     In June 2009, Tesser & Cohen filed a motion on plaintiffs'

behalf, seeking summary judgment on plaintiffs' CFA claims. Swim-

Well filed a cross-motion for partial summary judgment. The trial

court granted partial summary judgment in favor of plaintiffs and

against Swim-Well and Professionally Green with regard to the

                                     4                               A-4103-14T4
failure    to   include    starting    and    completion    dates   in     their

respective contracts, but found that these were only technical

violations of the CFA.

     In addition, the court denied plaintiffs' motion for partial

summary judgment on the issue of whether they had sustained an

ascertainable loss under the CFA. The court determined that a jury

should resolve this issue. In addition, the court granted Swim-

Well's    motion   for    partial   summary   judgment     on   other   alleged

regulatory violations.

     Because plaintiffs had not paid all of their fees, Tesser &

Cohen filed a motion to be relieved as their attorneys. In August

2009, the court granted the motion. Plaintiffs then retained Moore

as their attorney. Plaintiffs' claims against all defendants other

than Swim-Well and Weissman were resolved.

     In October and November 2009, the court conducted a trial of

plaintiffs' claims against Swim-Well and Weissman. At the close

of plaintiffs' proofs, the judge granted Swim-Well's motion for

involuntary dismissal of plaintiffs' CFA claims pursuant to Rule

4:37-2(b). The judge found that plaintiffs had not presented

sufficient evidence to allow a jury to find that they sustained

an ascertainable loss due to the failure to include starting and

completion dates in the contracts.



                                       5                                 A-4103-14T4
       At the conclusion of the evidentiary portion of the trial,

plaintiffs' negligence claims against Swim-Well and Weissman were

submitted to the jury, which returned a verdict of no cause of

action on those claims. The trial court later denied plaintiffs'

motion for attorney's fees under the CFA, finding that plaintiffs

were not entitled to such fees because they had not sustained an

ascertainable loss as a result of the regulatory violation.

       Plaintiffs appealed from the denial of their motion for

attorney's fees. We reversed the trial court's order, reinstated

the claim, and remanded the matter to the trial court for further

proceedings. Perez v. Professionally Green, LLC, No. A-2850-09

(App. Div. Oct. 13, 2011) (slip op. at 12).

       The Supreme Court later granted Swim-Well's petition for

certification, Perez v. Professionally Green, LLC, 209 N.J. 99

(2012), and reversed our judgment, Perez v. Professionally Green,

LLC, 215 N.J. 388, 408 (2013). The Court held that plaintiffs

could not recover attorney's fees under the CFA because they did

not have a bona fide claim of an ascertainable loss. Ibid.

       In October 2011, plaintiffs filed their initial complaint in

this   matter,   naming   Adler,   Tesser   &   Cohen,   and   Porcello    as

defendants. In June 2013, plaintiff filed an amended complaint

adding Moore as a defendant. In the amended complaint, plaintiffs

asserted claims of negligence, professional malpractice, breach

                                    6                               A-4103-14T4
of fiduciary duty, and breach of contract. Porcello filed a

counterclaim against plaintiffs for breach of contract, seeking

payment of its expert fees, costs, and interest.

     In support of the claims against Tesser & Cohen and Moore,

plaintiffs submitted an expert report dated April 1, 2014, from

attorney Jeffrey E. Strauss.1 Plaintiffs also submitted an expert

report dated April 4, 2014, from architect Peter Wasem in support

of their claims against Porcello.

     In   September   2014,   Porcello   filed   a   motion   for   summary

judgment on plaintiffs' claims of professional negligence and its

counterclaim. The judge heard oral argument on the motions and

thereafter entered an order dated November 7, 2014, granting

summary judgment in favor of Porcello on plaintiffs' claims because

Wasem's report was an inadmissible net opinion. The judge also

granted summary judgment to Porcello on its counterclaim.

     Thereafter, Tesser & Cohen and Moore filed motions for summary

judgment on the claims asserted against them. The judge heard oral

argument and on January 28, 2015, entered orders granting the

motions. The judge determined that Strauss's report on Tesser &

Cohen's alleged legal negligence failed as a matter of law because



1
  In his report, Strauss stated that Adler did not deviate from
any accepted standards of legal practice. It appears, therefore,
that plaintiffs did not pursue their claims against Adler.

                                   7                                A-4103-14T4
Strauss was not qualified to render an opinion on proximate cause

and his opinion on that issue was based on Wasem's inadmissible

net opinion. The judge also determined that Strauss's report was

insufficient   to   support   the    legal    malpractice   claims   against

Moore.

     Plaintiffs then filed a motion seeking reconsideration of the

orders entered on November 7, 2014, and January 28, 2015. Tesser

& Cohen filed a cross-motion seeking reconsideration of the court's

January 28, 2015 order on the ground that the judge erred by

finding that Strauss's report on the firm's alleged negligence was

not a net opinion. The judge entered orders dated April 10, 2015,

denying plaintiff's motion and Tesser & Cohen's cross-motion.

Plaintiffs' appeal and Tesser & Cohen's cross-appeal followed.

                                     II.

     We turn first to plaintiffs' contention that the trial court

erred by granting summary judgment in favor of Porcello. We review

the grant of summary judgment "in accordance with the same standard

as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469,

479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

Therefore,   we   must   determine   "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

                                      8                              A-4103-14T4
to a judgment as a matter of law." R. 4:46-2(c); Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

       In their complaint, plaintiffs alleged that in the report

submitted in support of the claims in the underlying action,

Porcello failed to prepare an "appropriate and complete record"

and did not set forth the "full amount of damages" that plaintiffs

had sustained due to the alleged negligence, breach of contract,

and CFA violations of the named defendants. Plaintiffs alleged

that if Porcello had prepared an appropriate expert report, they

would not have settled any of their claims. They also alleged that

they would have succeeded on their claims at trial.

       In   support   of   these   allegations,   plaintiffs      relied   upon

Wasem's expert report. In that report, Wasem stated that Porcello

had "omitted important facts that could lead an impartial jury to

come   to   a   different   conclusion     and   award   lesser   damages    to

[plaintiffs], therefore leaving [plaintiffs] without the necessary

resources to reverse the damages caused by defendants."

       Wasem cited what he believed were deficiencies in the Porcello

report. He wrote that Porcello had failed to: (1) point to a

manufacturer's installation instruction, (2) cite the New Jersey

Administrative Code section governing the practice of licensed

engineers, (3) cite the New Jersey Department of Environmental

Protection's "Best Practices Manual," (4) discover that a storm

                                       9                              A-4103-14T4
water mitigation system was not required for the project, and (5)

point out other deficiencies in the project and damages.

       In granting summary judgment to Porcello, the motion judge

determined that "Wasem's report constitutes his own personal view

and is, thus, inadmissible as a net opinion." The judge noted that

Wasem had not identified the standard of care applicable to the

Porcello defendants as an engineering expert in the underlying

action. Wasem also did not cite any sources even hinting at such

a   standard.    The      judge   found    that      without       expert   testimony,

plaintiffs' claims against Porcello failed as a matter of law.

       On appeal, plaintiffs contend the judge erred in finding that

Wasem's report was an inadmissible net opinion. Plaintiffs assert

that   Wasem    is   an    expert   with       a   degree     in    architecture      and

engineering     design.     According      to      plaintiffs,      Wasem    relied   on

statutes, rules, regulations, laws, treatises, and factual data

in rendering the opinions in his report.

       It is undisputed that plaintiffs required expert testimony

to establish the standard of care applicable to their claims of

professional malpractice against Porcello. Indeed, it is well

established that in a negligence action, when a jury is not capable

of providing the required standard of care, the plaintiff must

present   expert       testimony    on    the      subject.    Davis    v.    Brickman



                                          10                                   A-4103-14T4
Landscaping, Ltd., 219 N.J. 395, 407 (2014) (citing Giantonnio v.

Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).

     Expert testimony must be provided by an individual who is

qualified    "by      knowledge,       skill,    experience,     training,     or

education" to offer a "scientific, technical, or . . . specialized"

opinion that will assist the trier of fact "to understand the

evidence    or   to   determine    a    fact    in   issue[.]"   N.J.R.E.    702.

Furthermore, the opinion must be based on facts or data "reasonably

relied upon by experts in the particular field in forming opinions

or inferences upon the subject[.]" N.J.R.E. 703.

     An expert must offer more than "a mere net opinion." Pomerantz

Paper Corp. v. New Comm. Corp., 207 N.J. 344, 372 (2011) (citing

Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v.

Grossbard, 87 N.J. 512, 524 (1981)). "[A]n expert's bare opinion

that has no support in factual evidence or similar data is a mere

net opinion which is not admissible and may not be considered."

Ibid. (citing Polzo, supra, 196 N.J. at 583; Buckelew, supra, 87

N.J. at 524). The expert must provide the "why and wherefore" that

supports his or her opinion, "rather than a mere conclusion."

Polzo, supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J.

473, 494 (2006)).

     An expert's opinion also must have objective support and the

opinion may not be based on a standard that is personal. Pomerantz,

                                        11                              A-4103-14T4
supra, 207 N.J. at 373 (citing Taylor v. DeLosso, 319 N.J. Super.

174, 180 (App. Div. 1999)). Thus, the expert must offer evidential

support "establishing the existence of a standard of care, other

than standards that [are] apparently personal to" the expert.

Davis, supra, 219 N.J. at 413 (quoting Kaplan v. Skoloff & Wolfe,

P.C., 339 N.J. Super. 97, 103 (App. Div. 2001)).

       In this case, the motion judge correctly found that Wasem's

report was an impermissible net opinion because he failed to

identify the standard of care applicable to Porcello in his role

as engineering expert in the underlying action. In his report,

Wasem    merely    made   his   own    assessment    of   damages,   which    he

attributed to the alleged negligence and breach of contract of the

defendants in the underlying action.

       Wasem concluded that Porcello had understated the amount of

damages by a factor of about two-and-one-half to three. He cited

some    source    materials,    such   as   a   manufacturer's   installation

instructions, which Porcello should have referenced in his report.

Wasem did not, however, identify any recognized standard of care

applicable to the measure of damages by an engineering expert.

       As such, Wasem's report merely represented a difference of

opinion as to the calculation of plaintiff's damages, rather than

a deviation from an accepted practice of engineering. Moreover,

in his report, Wasem never asserted that Porcello's work in

                                       12                              A-4103-14T4
connection     with   the   underlying     action    fell   below   accepted

standards, within a reasonable degree of professional certainty,

or words to that effect.

     We   therefore    conclude     that    the   motion    judge   correctly

determined that Wasem's report was an inadmissible net opinion.

Because plaintiffs' claims against Porcello lacked the required

expert support, the judge correctly decided that Porcello was

entitled to judgment as a matter of law.

                                    III.

     Next, plaintiffs argue that the motion judge erred by granting

summary judgment in favor of Tesser & Cohen. Therefore, we must

determine whether the judge correctly determined that there was

no genuine issue of material fact and Tesser & Cohen was entitled

to judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142

N.J. at 540.

     Here, plaintiffs alleged that Tesser & Cohen was negligent

in its handling of the underlying action. In support of their

claims,   plaintiffs    submitted    a    legal   malpractice   report    from

Strauss, in which Strauss opined that:

           Tesser & Cohen failed to plead, disclose and
           protect the CFA claims that would have
           provided an opportunity [for plaintiffs] to
           obtain the attorney fees and treble damages
           from the CFA defendants and they failed to
           engage and retain an expert to analyze and
           opine on the CFA issues concerning lack of

                                     13                               A-4103-14T4
          permits, improper and absent written and
          signed change orders and improper slope/pitch
          of the landscaped deck.

     Strauss   stated   that   generally   accepted   legal   standards

required Tesser & Cohen to amend the pleadings in the underlying

action to include all CFA claims against all defendants.               In

addition, Strauss stated that Tesser & Cohen failed to engage an

expert to analyze and render opinions on the CFA issues, and that

the firm was required to obtain "an informed and complete opinion,

such as [the opinion] provided by" Wasem.

     As we noted previously, the motion judge granted summary

judgment to Tesser & Cohen. The judge found that Strauss had

provided sufficient support for his opinion that the firm deviated

from accepted standards of legal practice by failing to amend the

complaint to include all CFA claims. The judge concluded, however,

that the claims against Tesser & Cohen failed as a matter of law

because Strauss's opinion on proximate cause was a net opinion.

     On appeal, plaintiffs argue that the judge erred by dismissing

their claims against Tesser & Cohen. Plaintiffs argue that Strauss

did not rely solely upon Wasem's report. They contend Strauss

based his report on his review of all of the records and files in

the underlying matter. Thus, plaintiffs assert, Strauss' report

has adequate factual support.



                                  14                            A-4103-14T4
      In a legal malpractice action, the plaintiff must establish:

(1)   the   existence   of   an   attorney-client   relationship,     which

creates a duty of care that the attorney owes to the client; (2)

breach of that duty; (3) the breach was a proximate cause of any

damages; and (4) the damages sustained. Jerista v. Murray, 185

N.J. 175, 190-91 (2005) (citing McGrogan v. Till, 167 N.J. 414,

425 (2001)); Sommers v. McKinley, 287 N.J. Super. 1, 9-10 (App.

Div. 1996).

      Because the average juror does not know the duties that an

attorney owes his or her client, in a legal malpractice action,

expert testimony is required to define the duty owed and explain

the breach. Id. at 10 (citing Butler v. Acme Markets Inc., 89 N.J.

270, 283 (1982)). Furthermore, when the issue of proximate cause

is "beyond the 'common knowledge of lay persons,'" expert testimony

is required to establish that the attorney's malpractice was a

proximate cause of damage to the plaintiff. Froom v. Perel, 377

N.J. Super. 298, 318 (App. Div.) (quoting Kelly v. Berlin, 300

N.J. Super. 256, 265–66 (App. Div. 1997)), certif. denied, 185

N.J. 267 (2005).

      Here, the motion judge correctly found that plaintiffs had

not submitted sufficient competent evidence to establish that

Tesser & Cohen's alleged negligence was a proximate cause of their

alleged damages. As we have explained, an expert may not present

                                    15                              A-4103-14T4
a "mere net opinion." Pomerantz, supra, 207 N.J. at 372. In his

report, Strauss stated that Tesser & Cohen was negligent because

the firm failed to retain an expert to analyze and opine on the

CFA claims with regard to the alleged lack of permits, change

orders, and slope/pitch of the landscaped deck. Strauss opined

that   Tesser    &   Cohen's     negligence    was   a   proximate   cause    of

plaintiffs' damages.

       In support of his opinion on proximate cause, Strauss relied

upon   Wasem's   report,    which    was   a   net   opinion,    thereby   also

rendering Strauss' report an inadmissible net opinion. See Borough

of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115, 144-45

(2011) (noting that an appraiser's opinion was a net opinion

because the appraiser relied upon the net opinion of another

expert).    Therefore,     the    motion   judge     correctly    found    that

plaintiffs failed to present sufficient evidence to support their

claims against Tesser & Cohen, and the firm was entitled to

judgment as a matter of law.

       In its cross-appeal, Tesser & Cohen argues that the judge

erred by finding that Strauss had provided sufficient support for

his opinion that the firm deviated from accepted standards of

legal practice by failing to amend the complaint in the underlying

action to assert all relevant CFA claims. The firm argues that the



                                      16                               A-4103-14T4
judge erroneously found that by referencing his trial experience,

Strauss had provided sufficient support to his opinion.

     Because we have concluded that the judge correctly granted

summary judgment to Tesser & Cohen, we need not address this

alternative     basis   for   affirming    the   trial   court's   order.        We

therefore dismiss the cross-appeal.

                                     IV.

     Plaintiffs also argue that the motion judge erred by granting

Moore's summary judgment motion. Again, we must determine whether

the motion judge correctly found that there was no genuine issue

of material fact and Moore was entitled to judgment as a matter

of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

     Here, plaintiffs claimed that Moore was negligent in his

handling of the trial in the underlying matter. In their amended

complaint, plaintiffs alleged that Moore: (1) was not qualified

to handle the matter; (2) never represented homeowners in a civil

action against contractors; (3) did not adequately prepare for

trial; (4) failed to prepare fact and expert witnesses to testify

at trial; (5) was incompetent and unable to handle the underlying

action; and (6) failed to exercise reasonable care, skill, and

learning in representing them.

     In   his   report,   however,   Strauss      only   opined    that     Moore

departed from generally accepted standards of legal practice by

                                     17                                   A-4103-14T4
failing to call Almonte as a witness at the trial of the underlying

case. According to Strauss, Almonte was a critical witness. The

record shows that Moore called Porcello as a witness, and he relied

upon Almonte's survey of plaintiffs' property. Strauss asserted

that if Almonte had been called to testify, plaintiffs' claims

against Swim-Well and Weissman would have succeeded.

       The motion judge found that plaintiffs' claim against Moore

was,   in   essence,   a   challenge   to   Moore's   trial   strategy   and

judgment. The judge determined that the claim failed because

Moore's decision not to call Almonte as a witness was not "a breach

of any identifiable standard of care." The judge therefore found

that plaintiffs' claim against Moore failed as a matter of law,

and granted Moore's motion for summary judgment.

       On appeal, plaintiffs argue that Strauss's report and opinion

provided sufficient support for their claim against Moore. They

argue that Moore's decision not to call Almonte as a witness was

legal malpractice, not valid trial strategy.

       We are convinced that the motion judge erred by suggesting

that Moore's decision not to call Almonte as a witness could not

be challenged since it was apparently            part of Moore's trial

strategy.    Nevertheless,    we   conclude   that    plaintiffs   did   not

present sufficient evidence to show that Moore's decision to rely



                                    18                              A-4103-14T4
upon   Fred      Porcello's   testimony    constituted     a   deviation     from

accepted legal standards.

       At the trial of the underlying action, Porcello testified

that he relied upon Almonte's survey, other documents, and his own

observations in forming his opinions about the alleged negligent

grading of the site and the construction of the pool and patio.

Defendants moved to bar Porcello's testimony because it was based

in   part   on    Almonte's    findings,   which      defendants   argued    were

inadmissible hearsay.

       The trial judge conducted a hearing pursuant to N.J.R.E. 104,

and Porcello testified. The judge ruled that he would instruct the

jury    that      Porcello's      testimony     about     Almonte's    survey,

specifically,       the   measurements     of   the    heights,    bounds,    and

distances, was not independently admissible to prove those facts,

but an expert could rely upon those facts in forming his opinions

and conclusions. Thus, the record in the underlying action shows

that the judge permitted Porcello to testify as to opinions he

reached based on Almonte's survey.

       Plaintiffs'     argument    that    Moore   deviated    from   accepted

standards of legal practice by failing to call Almonte rests on

the assumption that their claims would have been, as Strauss

opined, "substantially enhanced" if Almonte had testified as to

his own survey. However, Strauss's assertion that if Almonte had

                                      19                                A-4103-14T4
testified, plaintiffs would have had a better chance of prevailing

on   their    claims    against   Swim-Well      and   Weissman,   is   a     "bald

assertion," that "is equivalent to a net opinion." Kaplan, supra,

339 N.J. Super. at 102, 104 (quoting Taylor, supra, 319 N.J. Super.

at 180).

      As     stated    previously,     a     plaintiff   asserting      a     legal

malpractice claim must show that he or she suffered damages as a

proximate cause of the attorney's breach of a duty of care. 2175

Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487–88

(App. Div.), certif. denied, 137 N.J. 311 (1994). "Mere conjecture,

surmise or suspicion" is not sufficient to establish proximate

cause. Ibid. Plaintiffs' claim regarding Moore is based entirely

on conjecture and speculation. We therefore conclude that the

motion judge did not err by granting Moore's motion for summary

judgment.

                                        V.

      Plaintiffs       also   argue   the    trial   court's   orders   granting

summary judgment to Porcello, Tesser & Cohen, and Moore deprived

them of their fundamental constitutional right to a jury trial.

They contend that the court's application of the net opinion rule

wrongfully and unconstitutionally denied them of their fundamental

right to a jury trial. We are convinced that this argument lacks

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

                                       20                                   A-4103-14T4
     We note, however, that the constitutional right to a trial

is not absolute, and a party's failure to present sufficient

evidence warranting submission of a case to the jury is "the

functional equivalent of a waiver of the right to have a jury

decide the case." Brill, supra, 142 N.J. at 537 (citing Bussell

v. DeWalt Prods. Corp., 259 N.J. Super. 499, 512 (App. Div.),

certif. denied, 133 N.J. 431 (1993)). Therefore, the application

of the Brill summary judgment standard does not "'denigrate the

role of the jury.'" Ibid. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202,

216 (1986)). Accordingly, we reject plaintiffs' contention that

they were denied their constitutional right to a jury trial on

their claims.

     In addition, plaintiffs argue if the matter is remanded to

the trial court, the case should be assigned to a different judge.

In view of our decision affirming the trial court's orders granting

summary judgment to defendants, this issue is moot.

     The orders on appeal are affirmed, and the cross-appeal is

dismissed.




                               21                           A-4103-14T4
