Dr. Humayun Akhtar and Yosaria Akhtar 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.

NOT FOR PUBLICATION WITHOUT THE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