Submitted December 12, 2017 December. Before Judges Carroll and Leone.

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1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. PENTECOSTAL ASSEMBLIES OF GOD CHURCH, a non-profit religious corporation, v. Plaintiff-Appellant, ARCHER & GREINER, and ROBERT W. BUCKNAM, JR., ESQUIRE, v. Defendants/Third-Party Plaintiffs-Respondents, ESTATE OF NORMAN G. MORRELL, DECEASED, and PANNA CONSTRUCTION CO., Third-Party Defendants. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted December 12, 2017 December January 10, 2018 Before Judges Carroll and Leone. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L Peter A. Ouda, LLC, attorneys for appellant (Peter A. Ouda, on the brief).

2 PER CURIAM Archer & Greiner, PC, attorneys for respondents (Ellis I. Medoway, on the brief). Plaintiff Pentecostal Assemblies of God Church (PAG) appeals from the July 14, 2016 summary judgment dismissal of its legal malpractice action against defendants Archer & Greiner, PC and Robert W. Bucknam, Jr., 1 Esquire. The trial court found PAG's claims were precluded by the doctrine of collateral estoppel. We affirm. The motion record reflects that PAG purchased vacant land in Hammonton in 1997, for the purpose of constructing a church there. PAG contracted with Aqua Terra, P.A. (Aqua Terra), an engineering firm, to design a preliminary site plan to obtain a use variance for the church construction. PAG also retained defendants to represent it in the site plan approval process. Aqua Terra was an existing client of Archer & Greiner, and recommended Bucknam to PAG. PAG obtained the use variance approval in On June 10, 1998, PAG entered into a second contract with Aqua Terra to prepare a proposed preliminary and final site plan for submission to various agencies, including the Hammonton Zoning Board, Atlantic County Planning Board, New Jersey Pinelands 1 Defendant's name is misspelled in the caption and at various points in the record as Robert W. Buckman, Jr. 2

3 Commission, and the regional Soil Conservation District. The agreed price was $7000, which did not "includ[e] services normally performed during the bidding, construction, and operational phases of a project." The contract further specified: The sole purpose for the preparation of the plans associated with this PROJECT is to secure development approval from certain governmental agencies as agreed between [PAG] and [Aqua Terra]. They are not intended to be used as formal contract documents. Such use by anyone shall not be interpreted to imply any contractual relationship between that person and [Aqua Terra] for professional services involved in the construction of the improvements shown on these plans, unless there is a formal written agreement between that person and [Aqua Terra] to provide those services..... Any reuse without written verification or adaptation by [Aqua Terra] for the specific purpose intended will be at [PAG's] sole risk and without liability or legal exposure to [Aqua Terra]... and [PAG] shall indemnify and hold harmless [Aqua Terra]... from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. At his deposition, PAG's pastor, Alberto Torres, agreed with testimony previously given by Aqua Terra's representative that Bucknam had no input with respect to the terms or language of the contract. 3

4 After the approvals were obtained, PAG began construction of the church in 2003, and completed it in PAG used Aqua Terra's site plans as contract documents with the builder, Panna Construction (Panna), to construct the improvements shown on the plans. In March 2010, PAG began experiencing issues with water infiltration in the church basement. Consequently, in November 2010, PAG filed suit against Panna, the estate of the project architect, Norman Morrell, and Aqua Terra, alleging water infiltration and structural damages arising from design and construction deficiencies in the church construction (the previous action). PAG subsequently settled its claims against Panna and Morrell's estate. PAG continued to assert its claims for professional negligence and breach of contract against Aqua Terra, based on PAG's allegation that the engineer identified the seasonal high ground water elevation (SHGWE) four feet below its actual level. Plaintiff contended that, when Aqua Terra's plans were used in the construction phase, this misidentification caused the building to be built below the SHGWE and rendered it subject to flooding. In May 2013, the trial court granted summary judgment in favor of Aqua Terra. In a thirteen-page written opinion, Judge 4

5 James E. Isman first found that PAG's suit was barred by the express terms of its contract with Aqua Terra: In essence, [p]laintiff argues that by its unilateral misuse of the [p]erfected [s]ite [p]lans as construction contract documents, Aqua Terra had a duty to ensure that the [p]erfected [s]ite [p]lans contained the level of detail necessary to be used as construction contract documents despite [PAG's] unwillingness to pay for those additional services. However... such an interpretation is clearly contrary to the clear language of the contract.... The contract specifically and unambiguously stated that additional engineering, design and construction details were required to generate construction contract documents. This [c]ourt cannot overlook the fact that [PAG] intentionally and affirmatively elected not to pay for such additional services.... There is simply no theory of law under which [PAG] can establish that by [PAG's] unilateral misuse of the site plans, Aqua Terra undertook a duty to ensure that the plans contained the level of detail necessary to be used as construction documents, particularly given [PAG's] unwillingness to pay for those additional services. As a second basis for granting summary judgment, Judge Isman found PAG could not establish that any of its damages were proximately caused by Aqua Terra's professional negligence. The judge elaborated: As argued by [Aqua Terra], [PAG's] own expert's report and testimony supports granting summary judgment in [Aqua Terra's] favor. [PAG's] expert, Gregory S. Baker, P.E., has conceded that the basement has never experienced more than a few inches of water 5

6 on the basement floor. Notably, [PAG] has not alleged any damage from groundwater being four feet higher than that which they have experienced. Additionally, [PAG's] expert has opined that the flooding occurred because the architect, Norman G. Morrell (deceased), failed to specify that the basement floor and walls had to be waterproofed. Furthermore, [PAG's] expert concedes that Aqua Terra's identification of the SHGWE being at the same elevation of the basement floor was sufficient notice to the architect, Norman Morrell, to require him to specify that the basement floor and walls be waterproofed. However, Mr. Morrell failed to specify that the basement floor and walls be waterproofed. Furthermore, even [PAG's] expert opines that had the basement floor and walls been properly waterproofed and the perimeter drain properly located, the basement would not have experienced any flooding. As such, [PAG] has failed to allege any damage that could have been proximately caused by Aqua Terra's failure to identify the SHGWE four feet higher. PAG commenced the present malpractice action on April 7, 2014, alleging defendants "should have known that [PAG] could not proceed with construction based on the site plans of Aqua Terra," and that defendants "specifically advised [PAG] that it could proceed with construction based on Aqua Terra's documents." During discovery, PAG presented a four-page report from its expert witness, an attorney, who distilled the malpractice claim into the following: [The June 10, 1998] contract should have been discussed with the client PAG in detail so that [PAG] fully understood the risks of using 6

7 the documents beyond what was permitted in the... contract.... In the exercise of reasonable care, [Archer & Greiner] should have advised PAG not to use the documents as construction documents and should have advised [PAG] further to make contact with Aqua Terra to ascertain the costs and timing to obtain documents that could be used as "formal contract documents." At the conclusion of discovery, defendants moved for summary judgment, arguing that (1) PAG's claims were precluded by the doctrine of collateral estoppel, and (2) PAG failed to produce an expert engineering report to support its claim that Aqua Terra's negligence led to the water infiltration in the church basement. Judge Noah Bronkesh dismissed the malpractice complaint, finding the following: When all facts are viewed in the light most favorable to the non moving party, no questions of material fact remain. The princip[le] of collateral estoppel precludes [relitigation] of the same issue. [PAG] concedes [defendants'] statement of material facts, including that Judge Isman determined in the previous action that the engineer was entitled to summary judgment because [PAG] could not establish that any of the alleged damages caused by the water infiltration were proximately caused by the engineer. [PAG's] "Counterstatement of Material Facts" are unavailing because none of those facts touch upon Judge Isman's factual finding that the engineer was not the proximate cause for the water damage sustained by the Church's building. The proximate cause issue was fully and fairly litigated by [PAG] before Judge Isman and his decision bars the [relitigation] of that fact issue in this case. This [c]ourt 7

8 finds that under the princip[le] of collateral estoppel, [d]efendants are entitled to summary judgment. This appeal followed. When reviewing the grant of summary judgment, we analyze the decision applying 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)). That standard mandates that summary judgment 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 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., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).] "To defeat a motion for summary judgment, the opponent must 'come forward with evidence' that creates a genuine issue of material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)), certif. denied, 220 N.J. 269 (2015). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, (2005) (citations omitted). "When no issue of fact exists, and only a question of law remains, 8

9 [we] [afford] no special deference to the legal determinations of the trial court." Templo Fuente De Vida, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). To establish legal malpractice, PAG was required to show that competent, credible evidence existed to support each of the elements of that negligence action, i.e., "1) the existence of an attorney-client relationship creating a duty of care upon the attorney; 2) that the attorney breached the duty owed; 3) that the breach was the proximate cause of any damages sustained; and 4) that actual damages were incurred." [Cortez, 435 N.J. Super. at 598 (quoting Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996)).] With respect to the third factor, "an attorney is only responsible for a client's loss if that loss is proximately caused by the attorney's legal malpractice[,]" that is, "the negligent conduct is a substantial contributing factor in causing the loss." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487 (App. Div. 1994). Therefore, a plaintiff bears the burden of showing, by a preponderance of the competent, credible evidence, "what injuries were suffered as a proximate consequence of the attorney's breach of duty." Id. at 488 (citing Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 341 (1980)). The burden is not satisfied by mere "conjecture, surmise or suspicion." Ibid. 9

10 (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). Ordinarily, the measure of damages is what result the client would have obtained in the absence of attorney negligence. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004). Thus, to prove such injury, "the client must demonstrate that he or she would have prevailed, or would have won materially more... but for the alleged substandard performance." Lerner v. Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003). "[C]ollateral estoppel, or issue preclusion, bars the relitigation of an issue that has already been addressed in a prior matter...." Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 423 (App. Div. 2011). That is, whereas res judicata, or claim preclusion, bars relitigation of already adjudicated claims between the same parties or their privies, collateral estoppel "bars relitigation of issues in suits that arise from different causes of action." Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000) (citing United Rental Equip. Co. v. Aetna Life and Cas. Ins. Co., 74 N.J. 92, 101 (1977)). Collateral estoppel requires a party to establish: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the 10

11 party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. [First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (citing Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).] Here, in the previous action, PAG did not establish that any professional negligence by Aqua Terra was the proximate cause of its water damage because it was the architect who failed to specify that the basement floor and walls be waterproofed. PAG had a full and fair opportunity to litigate that issue in the prior action, and was unsuccessful in establishing Aqua Terra's liability for the water infiltration. We thus agree with Judge Bronkesh that the doctrine of collateral estoppel precluded PAG from relitigating that issue in the malpractice action. Consequently, to the extent PAG alleged that defendants negligently failed to review Aqua Terra's contract and documents, PAG was similarly unable to establish that such failure caused PAG damage. Stated differently, because the architect's negligence, and not the engineer's negligence, proximately caused PAG's water damage, PAG cannot show it suffered loss as a consequence of defendants' 11

12 alleged failure to properly advise PAG regarding the use of the engineer's plans. 2 PAG contends the water damage was only one part of its damages in the malpractice action. PAG relies upon its legal expert to establish that "the measure [of] damages would be all of the costs and fees associated with the purchase of the property and all of the professional fees associated with the approval process." However, the expert offered no basis for this opinion other than defendants' failure to prevent the engineer's alleged negligence. However, in the prior action PAG failed to establish any negligence by the engineer. Hence, collateral estoppel was properly applied to dismiss the malpractice action. Affirmed. 2 Because we share the trial court's view that the doctrine of collateral estoppel barred PAG's legal malpractice action, we need not reach defendants' second argument that dismissal was also proper due to PAC's failure to present an appropriate engineering expert in the malpractice action. 12