                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2848-16T1

GARY HAWKINS and MANDI HAWKINS,

        Plaintiffs-Appellants,

v.

BOROUGH OF BARRINGTON, JOHN
DIXEY, SHEILA DIXEY, FIRST
AMERICAN TITLE INSURANCE
COMPANY, FRANKLIN AMERICAN
MORTGAGE COMPANY, and WELLS
FARGO HOME MORTGAGE,

        Defendants,

and

KATHLEEN MCDONALD, and
PRUDENTIAL FOX & ROACH REALTORS,

     Defendants-Respondents.
_________________________________

              Submitted February 14, 2018 – Decided August 17, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-
              3543-12.

              Matthew S. Wolf, LLC, attorneys for appellants
              (Matthew S. Wolf, of counsel and on the
              brief).
           Reger Rizzo & Darnall, attorneys for
           respondents (Andrew J. Luca and John M. Cinti,
           on the brief).

PER CURIAM

      Gary and Mandi Hawkins appeal the February 3, 2017 order

granting summary judgment to defendants Prudential Fox & Roach

Realtors and Kathleen McDonald (the Prudential defendants) and

dismissing   their   professional        negligence      claim   against     these

defendants arising from a real estate transaction.                  Their claims

for   intentional    infliction    of       emotional    distress    (IIED)       and

violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -

210, were dismissed in 2015, by an order granting summary judgment.

We affirmed that order in October 2016.                 See Hawkins v. Borough

of Barrington, No. A-2788-14 (App. Div. Oct. 13, 2016).                  However,

our   opinion   reversed   and     remanded       plaintiffs'       professional

negligence claim to the trial court.

      On remand, the Prudential defendants filed a new motion for

summary judgment limited to the professional negligence claim,

which plaintiffs opposed.         On February 3, 2017, the trial court

granted summary judgment and dismissed the professional negligence

claim.   Plaintiffs appeal that order, which we now affirm.

                                    I.

      We recount the facts of this case from our prior opinion.



                                        2                           A-2848-16T1
On April 24, 2010, plaintiff Mandi Hawkins
attended an open house on Erie Avenue in
Barrington, for a property that recently had
been relisted for sale by owners, John and
Sheila Dixey (the sellers). The sellers owned
the property for about five years. Defendant
Kathleen McDonald (McDonald), the listing
agent,   worked    for    defendant   realtor,
Prudential   Fox   and   Roach   (Prudential).
Prudential was also the broker when the
property was listed in 2009, but an agent
other than McDonald had the listing at that
time.

On April 29, 2010, plaintiffs signed a
contract with the sellers to buy the property
for $240,000.   McDonald was the real estate
agent for the plaintiffs, as buyers, and the
sellers, making her a "disclosed dual agent"
for the sale. On April 29, 2010, plaintiffs
were given a copy of the seller's "Property
Condition Disclosure Statement" that had been
signed by the sellers in September 2009 when
they previously listed the property for sale
and by McDonald in March 2010 when she
obtained the listing. The sellers' disclosure
provided that the property was not in any area
"designated as protected wetlands"; was not
located in a flood hazard zone; and was not
the subject of "drainage or other easements
affecting the property." It did disclose that
there were "drainage or flood problems
affecting the property," with a handwritten
addition referencing flooding on the street:
"the street on a major storm, but the township
is fixing, had to sign a form to okay the
work."

On April 27, 2010, just two days before
signing the contract of sale, the sellers
filed a tax assessment appeal with the County
Board of Taxation where they complained about
the flooding on Erie Street, that their house
is located "in wetlands" and that the "front
and back yards are swamps."       Photographs

                      3                     A-2848-16T1
submitted by the sellers depicted these
conditions. On June 17, 2010, the Dixeys were
granted a $29,700 reduction, bringing the
property's assessed value to $240,000.

McDonald was aware of the tax assessment
appeal. In an April 28, 2010 e-mail, just one
day before plaintiffs signed the contract of
sale, McDonald responded to Sheila Dixey's
questions about filling out the tax appeal
forms, telling her, "[a]nd yes, put down the
wetland issue/swamp/railroad tracks . . . and
the rundown neighborhood to make it sound
good."    McDonald also mentioned that the
"buyers   seem   very  excited."      McDonald
thereafter received an e-mail from the Sheila
Dixey who wanted "to check with you to make
sure the buyers won't eventually have access
to all I included in our appeal.     I really
laid into the neighborhood and wetlands
condition and included all sorts of pictures
to verify my point.        I'd die if that
information were to become available." In her
deposition, Dixey explained that she was
referring to her neighbors finding out she had
taken pictures of their "ratty houses and
properties."

The sellers previously listed the property for
sale in 2009. Although another buyer signed
a contract of sale for the property, that
contract was rescinded by the buyers "because
of the water issues associated with the
property." The buyers noted a moldy smell in
the house.     Also, the November 2009 home
inspection performed for those buyers and
provided to Prudential and the sellers
reported there was water, raw sewage and mold
in the property's crawl space. The property
was taken off the market and then relisted for
sale early in 2010, after the sellers had a
waterproofing system professionally installed
in the crawl space.



                      4                     A-2848-16T1
          Plaintiffs closed on the property on June 23,
          2010.   On the very next day, it rained and
          plaintiffs suffered "massive flooding" of
          their front and back yards. Flooding happened
          again on July 13, 2010, and at least six times
          after that, although according to plaintiffs,
          the water stopped short of coming into the
          house.

          The Borough's engineer investigated the
          flooding   in   response   to   complaints   by
          plaintiffs.   In his August 19, 2010 report,
          the engineer noted the storm water runoff from
          the street discharged into an adjacent wooded
          wetland area and ditch.      Flooding resulted
          from     the    thirty-three-acre      upstream
          watershed, flatness of the topography, natural
          drainage patterns and a century of suburban
          development that created impervious surfaces
          and surface runoff to the area adjacent to the
          plaintiffs' home.    The Borough updated the
          discharge point of the existing storm sewer
          pipe to allow more efficient discharge and
          help "during normal precipitation."

          [Hawkins, slip op. at 2-5.]

     Plaintiffs   filed   suit   against   a    number   of   defendants,1

including the Prudential defendants.           Their claims against the

Prudential defendants included violation of the CFA, IIED and

professional negligence.    We affirmed dismissal of the consumer

fraud claim, agreeing with the trial judge that plaintiffs did not

show proof of an ascertainable loss.

          Plaintiffs were not qualified to offer an
          opinion about the value of the real estate in
          the absence of expert testimony.

1
   Parties other than the Prudential defendants have been
dismissed.

                                   5                          A-2848-16T1
          Plaintiffs did not present evidence of the
          property's fair market value from a qualified
          real estate appraiser. Plaintiffs' proffered
          expert on damages was an engineer, not a real
          estate appraiser.

          Plaintiffs did not attempt to place the
          property on the market or present proof of
          repair costs.

          [Id., slip op. at 11-12 (citations omitted).]

     Although plaintiff Gary Hawkins alleged that he suffered

emotional distress related to the flooding, we said that his

"testimony about his alleged heart palpitations and stress was not

quantifiable or measurable because he had no proof of any out-of-

pocket losses.    Plaintiffs also did not present medical testimony

to connect the stress and palpitations to the flooding."             Id.,

slip op. at 13.

     Plaintiffs' complaint also alleged the tort of outrage (IIED)

against the Prudential defendants.    We stated in our 2016 opinion

that:

          The   tort  of   intentional  infliction   of
          emotional harm requires proof that: 1)
          defendant acted intentionally or recklessly;
          2) the conduct was extreme and outrageous; 3)
          the actions were the proximate cause of
          plaintiffs' emotional distress; and 4) the
          emotional distress was "so severe that no
          reasonable [person] could be expected to
          endure it."    See Buckley v. Trenton Saving
          Fund Soc'y, 111 N.J. 355, 366 (1988); Model
          Jury Charge (Civil), § 3.30F.


                                  6                    A-2848-16T1
          We find no error in the decision to dismiss
          this claim because plaintiffs did not show the
          type of severe emotional distress contemplated
          by this cause of action. Plaintiffs proffered
          no medical testimony to connect Gary Hawkins's
          health issues to the flooding. Those issues
          started four years after the closing and had
          other explanations, both work related and
          personal.    Neither plaintiff testified in
          their depositions to distress "so severe that
          no reasonable [person] could be expected to
          endure it." Buckley, 111 N.J. at 366.

          [Id., slip op. at 14.]

     Our 2016 opinion reversed and remanded the trial court's

dismissal of plaintiffs' professional negligence claim because the

trial court dismissed that claim without setting forth its reasons.

See R. 1:7-4(a).   We noted that:

          Professional negligence depends on proof that
          defendants   deviated   from   an   applicable
          standard of care, that the deviation was a
          substantial factor in causing the plaintiff
          to be injured and proof of damages. See Model
          Jury Charge (Civil), § 5.50A; see generally
          Levine v. Wiss & Co., 97 N.J. 242, 246 (1984).
          These factors need to be addressed in the
          first instance by the trial court, in light
          of the record.

          [Id., slip op. at 15.]

Our opinion made no decision about the outcome of the issues on

remand, stating:

          We make no judgment on the outcome of this
          issue on remand, and decline to exercise
          original jurisdiction over it. We do note,
          however, that there are competing expert
          reports on the issues of standards and

                                7                      A-2848-16T1
            deviation from those standards, and there are
            factual questions about what McDonald and
            Prudential knew about this property in 2009
            and then during the critical period of April
            to June 2010.

            Additionally, because this claim, if it is
            deemed     viable,    involves   negligence,
            plaintiffs would be entitled to fair and
            reasonable    compensation   for  pain   and
            suffering, even if these damages did not
            amount to an ascertainable loss within the
            meaning of the CFA.

            [Ibid.]

     On remand, the Prudential defendants filed a new motion for

summary judgment that they described as a "recapitulation of the

original motion" from 2014.       They alleged that plaintiffs "have

not raised any elements of damage that are something that could

reach a jury."        The remand gave plaintiffs the opportunity "to

address whether or not they had any damages within [the] narrow

scope of the remand . . . [,][but] they failed to do so."

     Plaintiffs opposed the motion.       In new certifications that

were not included in the earlier summary judgment motions, Mandi

Hawkins alleged that they abandoned the house in July 2015 and

"are living elsewhere."      She claimed that while she lived in the

house, she had "extreme anxiety and stress."      They would put the

furniture and appliances on "blocks to raise them" if the weather

was bad.     The children could not use the yard because of the

flooding.    She said they put $20,000 down on the purchase of the

                                    8                   A-2848-16T1
house and paid $50,000 in mortgage payments until they stopped

paying it.   The flooding put a strain on her family and marriage.

     Plaintiff Gary Hawkins also submitted a certification.              He

alleged the stress from the flooding was so great that he stopped

working for two months.      He described "overwhelming stress" from

the flooding that caused problems at his work.       He feared that the

water would enter the house. He said he felt he failed his family.

His heart would race.      He described that he would search the yard

for sewer related items after flooding. He felt socially isolated.

Since they abandoned the house, he reported that his "stress,

anxiety and depression [have] abated to a great degree. I felt

much better."

     Plaintiffs did not submit any medical or other expert reports

relating to their claimed emotional distress damages.       They argued

they did not require medical testimony to support their claim for

emotional    distress     damages   arising   from   the   professional

negligence claim.

     A different trial judge heard the motion for summary judgment

on remand because the prior judge had retired.       He concluded that

without medical testimony, plaintiffs could not show emotional

distress damages.       The court rejected plaintiffs' argument that

proof of damages in this case should be treated like cases under

the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,

                                    9                      A-2848-16T1
where a medical expert is not required to prove emotional distress

damages.     The    court   rejected    plaintiffs'   argument   that       they

suffered from diminution in property value damages since "no one

came forward with any proof to say that the value was impaired in

any way."    Plaintiffs' contention that the land "is not usable"

and had to be abandoned, was a "self-declared subjective loss,"

that could not go to the jury.

       On appeal, plaintiffs contend medical testimony is not needed

for emotional distress damages in this negligence case citing to

our 2016 opinion that referenced fair and reasonable compensation

for pain and suffering.        They argue that negligence damages are

not measured by ascertainable loss, that dismissal of their claim

for IIED is not relevant to emotional distress damages, and that

the trial court did not take into consideration their down payment

and mortgage payments.       We do not agree that these arguments have

merit.

                                 II.

       We review a court's grant of summary judgment de novo,

applying the same standard as the trial court. Conley v. Guerrero,

228 N.J. 339, 346 (2017).        Summary judgment must be granted if

"the   pleadings,    depositions,      answers   to   interrogatories       and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged

                                       10                     A-2848-16T1
and that the moving party is entitled to a judgment or order as a

matter of law."     Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-

2(c)).

     "Whether     it   is    alleged     that   the     defendant     acted

intentionally, recklessly or negligently, the Court has said that

recovery lies only if the plaintiff can prove emotional distress

produced by the defendant's tortious conduct was 'severe' . . .

or 'genuine and substantial.'"         Innes v. Marzano-Lesnevich, 435

N.J. Super. 198, 235 (App. Div. 2014) (citations omitted). "Severe

emotional distress means any type of severe and disabling emotional

or mental condition which may be generally recognized and diagnosed

by professionals trained to do so . . . ."            Id. at 236 (quoting

Taylor v. Metzger, 152 N.J. 490, 515 (1998)).              This elevated

threshold is required because of the potential for fabricated

claims.    Ibid. (citing Picogna v. Bd. of Educ. of Cherry Hill, 143

N.J. 391 (1996)).

     "Complaints such as lack of sleep, aggravation, headaches and

depression have been frequently deemed insufficient as a matter

of law."   Innes, 435 N.J. Super. at 237 (citing DeAngelis v. Hill,

180 N.J. 1, 20-21 (2004)).     Emotional distress damages cannot be

based on speculation.       Id. at 241.     A litigant cannot recover

emotional distress damages for anxiety that is a consequence of

                                  11                         A-2848-16T1
litigation.    Picogna, 143 N.J. at 399 (providing that "litigation-

induced distress" is not a separate component of damages).

     "The severity of the emotional distress raises both questions

of law and fact.    Thus, the court decides whether as a matter of

law such emotional distress can be found and the jury decides

whether it has in fact been proved."         Innes, 435 N.J. Super. at

237 (citations omitted).

     In Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.

1987), a legal malpractice case, we required proof of "medical

evidence establishing substantial bodily injury or severe and

demonstrable    psychiatric   sequelae     proximately      caused   by      the

tortfeasors    misconduct"    even   in   "egregious   or    extraordinary

circumstances".

     Our opinion in Innes noted that there are exceptions to the

enhanced standard of proof.      Innes was a legal malpractice case

where the breach of duty owed resulted in the "complete, and

potentially, permanent rupture of the parent-child bond."              Innes,

435 N.J. Super. at 239.       In that case, we said that plaintiffs

could recover for "emotional distress damages without enhanced

proof based upon the particular, and foreseeable, consequences of

defendants' breach of duty."     Ibid.    Innes cited other cases where

enhanced proof was not required.          See Baglini v. Lauletta, 338

N.J. Super. 282, 307 (App. Div. 2001) (malicious use of process);

                                     12                        A-2848-16T1
Geler   v.   Akawie,     358    N.J.   Super.    437,    457    (App.     Div.    2003)

(wrongful birth arising from inadequate genetic counselling);

Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116

(App. Div. 2006) (funeral home failed to ensure that orthodox

ritual requirements were met).

     Here,     plaintiffs       allege    professional         negligence      by       the

Prudential defendants, who were realtors involved in a real estate

transaction.          This     case    did    not    involve      a     parent-child

relationship, malicious use of process, wrongful birth, funeral

services     following    specific       religious      tenets,    or     other        non-

economic     issues    where     emotional      distress       damages     have        been

permitted without expert proofs. There was no allegation of bodily

injury and no medical reports.                  The case did not involve a

permanent injury, death, or an injury where no other form of

redress could be identified.              Therefore, we decline to accept

plaintiffs' argument that their case could advance without medical

evidence of bodily injury or "demonstrable psychiatric sequelae

proximately caused by the tortfeasor's misconduct."                     Those proofs

simply are not demonstrated by this record.

     Plaintiffs' citation to LAD cases as support for their claim

that emotional distress damages do not require heightened proof

is not persuasive.             In Innes, we said that the LAD's "broad

remedial purpose" was the reason why, in Rendine v. Pantzer, 141

                                         13                              A-2848-16T1
N.J. 292, 312-13 (1995), expert medical evidence was not necessary.

Legal malpractice claims, however, did not present the "broad,

statutorily-created remedy that necessarily relieved plaintiffs

of their burden to prove 'severe' or 'genuine and substantial'

emotional   distress."   Innes,    435   N.J.   Super.   at    238.         The

professional negligence claim made here against the Prudential

defendants similarly did not present any such broad based statutory

remedy.

     Finally, the remand was limited to plaintiffs' professional

negligence claim; it was not an opportunity for plaintiffs to

reargue their lack of ascertainable losses.

     Affirmed.




                                  14                          A-2848-16T1
