Diana Manning's Amicus Argument for the New Jersey State Bar Association on case over real estate transactions, professional malpractice

March 19, 2018

Diana C. Manning

Publication
New Jersey Law Journal

Diana C. Manning



The New Jersey State Bar Association was a friend-of-the-court in a case that questions procedures used in real estate closings, the role title companies should play, and the use of experts and net opinions.

At the request of the Appellate Division, the NJSBA joined the Bianchi v. Ladjen matter and NJSBA Trustee Diana Manning argued on behalf of the association.

The association weighed in on whether obligations asserted by the plaintiff and his experts should be a question for the court to decide, and absent reference to any authority or supporting materials establishing a duty whether the expert’s opinion is a net opinion and should be recognized as such and barred.

In this residential real estate closing case, it is alleged that an attorney negligently breached his duty to his client, the plaintiff-purchaser, by failing to provide advice about purchasing homeowners insurance.

In granting summary judgment to the defendants, the trial court ruled that the plaintiff’s expert reports from an attorney with experience in residential real estate transactions and a licensed title producer were inadmissible net opinions. The experts alleged the attorney and title company both owed a duty to the buyer and breached their respective duties and standards of care. The trial court noted that the law does not recognize the obligations asserted by the experts, and that the sellers were not liable to the buyer under the terms of the contract or applicable law.

The association urged the appeals panel to confirm the trial court’s finding.
 
Manning noted the expert opinions in the case were not substantive and did not point to case law, the Rules of Professional Conduct, publications or similar materials upon which to form the basis of an opinion. That is problematic, she said. Expert testimony is critical in cases where the duty of care is an issue.
 
“Our position is that it is the role of the trial court…to determine if there is a duty, and each case is going to be somewhat fact-specific. The court always is required to issue the ruling on whether or not there is a duty of care,” she said.
 
The panel reserved its opinion. Judge Sabatino said “You gave us a lot to think about. We’ll get an opinion out in due course.”

Read the full article on law.com: https://www.law.com/njlawjournal/2018/03/19/bar-report-njsba-weighs-in-on-case-over-real-estate-transactions-professional-malpractice/

Click here to read the NJSBA Brief