NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiffs are Thomas and Edith Merrigan, and their daughters Colleen Denise Weldon and Bonnie Jo Merrigan.2 They appealed from December 17, 2014 orders granting the motion for summary judgment by VRI, and the motion for summary judgment by defendants Mac J. Keyport, LLC (Keyport) and James A. Carton, a principal of Keyport. We affirm.

I.

With their motions for summary judgment, defendants filed statements of material facts meeting the requirements of Rule 4:46-2(a). As a result, plaintiffs were required to "file a responding statement either admitting or disputing each of the facts in the movant's statement." R. 4:46-2(b); see R. 4:46-5(a). Plaintiffs failed to do so, instead submitting solely their own unresponsive statement.3 Nonetheless, we have been able to determine that the following facts are undisputed.4

In February or March 2010, plaintiffs discovered a house being sold in the Borough of Union Beach (the Borough). Edith took a tour of the home with one of Keyport's principals, Mr. McLean. McLean represented that he had built the house, and that it was all new construction. Edith planned to buy the house directly from McLean, but after McLean passed away, she dealt with the agent, VRI. VRI published real estate listings which indicated the house was a "Brand New Center Hall Colonial" and that it was a "new construction" and a "new dwelling."

On October 17, 2010, plaintiffs entered into a standard-form real estate contract to purchase the house. In the contract's "Items Included In Sale" provision, it was handwritten that a "10 year HOW warranty" was included with the purchase of the house. A "HOW" warranty referred to a home owner's warranty under the State's warranty program for new homes.5

However, the contract also contained a "Buyer's Rights to Inspections" provision, which provided:

Other contractual provisions stated that the representations by the seller in the contract concerning the condition of the property would not survive the closing of title; that no other representations had been made by the parties or agent; that the seller did not guarantee the condition of the premises after the closing; that the agent had no special training, knowledge, or experience with regard to discovering or evaluating structural defects; and that the buyer was therefore encouraged to inspect and investigate the property before closing.

After plaintiffs and Carton signed the contract, plaintiffs performed a walkthrough of the home and prepared a "punch list" that identified several defects, including a cracked foundation, exposed cinder blocks, low water pressure, and a leaking shower, among others. As a result, plaintiffs placed $4000 in an escrow account and withheld that amount from the agreed-upon purchase price. Despite these defects, plaintiffs never had a third party perform an inspection of the house prior to closing.

Sometime after the December 20, 2010 closing, the house's main water line burst. Plaintiffs notified Keyport and Carton. Keyport arranged for the line to be replaced at Carton's expense. During these repairs, plaintiffs learned that the house had been constructed on the old footings and foundation of a previous home on the property.

In October 2012, plaintiffs' home was flooded by Superstorm Sandy. Plaintiffs state the storm flooded 4.5 feet of the house's ground level and its eleven-foot-high foundation, causing the Borough to declare the house not habitable.

According to plaintiffs, they sought coverage from the State under the New Home Warranty Program. The State disclaimed coverage for several reasons. First, the house was built on an already-existing foundation and footing. The State said that Keyport improperly applied for the new home warranty. Second, many of the claimed defects were only covered for the first year of ownership. Moreover, there was no coverage for the escrowed punch list defects, or for damage due to extreme weather events. In any event, there was no coverage for any claims, because plaintiffs had failed to provide required documentation and had already accepted $2000 from the builder.

Plaintiffs filed a two-count complaint in the Law Division against Keyport, Carton, and VRI (collectively "defendants").6 Plaintiffs' first count alleged violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to-20, due to the misrepresentation of the home as being "new." Plaintiffs' second count alleged the house did not comply with "flood regulations," causing Superstorm Sandy to render it uninhabitable ("the negligence count").7

On December 17, 2014, the trial court issued orders granting defendants' motions for summary judgment and dismissing plaintiffs' complaint. The trial court found that plaintiffs had established a genuine issue of material fact as to whether defendants made material misrepresentations regarding whether the house was "new." However, the court found that plaintiffs failed to carry their burden to prove "ascertainable loss" as required by the CFA.

Plaintiffs filed a notice of appeal. Because that deprived the trial court of jurisdiction, it denied plaintiffs' pending motion for reconsideration pursuant to Rule 2:9-1(a).

II.

Summary judgment must be granted if the court determines "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 court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We "review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must hew to that standard of review.

III.

Plaintiffs argue the trial court improperly granted defendants' motions for summary judgment on their CFA claim. The CFA was intended "`to greatly expand protections for New Jersey consumers.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 120-21 (2014) (citation omitted). The CFA "provides relief to consumers from `fraudulent practices in the market place.'" Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 521 (2010) (citation omitted).

The CFA authorizes suit by "[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act[.]" N.J.S.A. 56:8-19. Thus, "[t]o prevail on a CFA claim, a plaintiff must establish three elements: `1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.'" Zaman v. Felton, 219 N.J. 199, 222 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). "A plaintiff who proves all three elements may be awarded treble damages, `attorneys' fees, filing fees and reasonable costs of suit.'" Manahawkin Convalescent, supra, 217 N.J. at 121 (quoting N.J.S.A. 56:8-19). Plaintiffs who "cannot survive a motion for summary judgment in respect of the issue of ascertainable loss" may not make "any claim to monetary damages," or "for injunctive relief and attorney's fees under the [CFA]," and their claims are properly dismissed. Weinberg v. Sprint Corp., 173 N.J. 233, 253-54 (2002).

The CFA defines an "unlawful practice" as "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any... real estate." N.J.S.A. 56:8-2. The trial court found a genuine issue of material fact regarding whether defendants committed an affirmative misrepresentation constituting an "unlawful practice" under the CFA.

Plaintiffs argue that the existence of a genuine issue of material fact on that element precludes summary judgment. However, even if there is a genuine issue of fact as to one element, summary judgment for a defendant "is appropriate when no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Perez v. Professionally Green, LLC, 215 N.J. 388, 407 (2013) (citation omitted). Here, the trial court granted summary judgment based on plaintiffs' failure to properly establish the other elements needed for a CFA claim.

The trial court found that plaintiffs "failed to establish an ascertainable loss that was caused by the alleged consumer fraud." "[T]o have standing under the [CFA] a private party must plead a claim of ascertainable loss that is capable of surviving a motion for summary judgment." Weinberg, supra, 173 N.J. at 237. "[T]he plain language of the [CFA] unmistakably makes a claim of ascertainable loss a prerequisite for a private cause of action." Id. at 251. "The limiting nature of the [ascertainable loss] requirement allows a private cause of action only to those who can demonstrate a loss attributable to conduct made unlawful by the CFA." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005) (citations omitted).

Plaintiffs' statement of facts in opposition to the summary judgment motions asserted that "[p]laintiffs should be able to return the property to the seller and receive back their entire purchase price of $320,000, plus the extras they put in of $14,000." However, plaintiffs' complaint did not seek any equitable remedies, such as rescission, which might have entitled them to a return of their purchase price. Moreover, plaintiffs could not show the purchase price was their ascertainable loss, because they did not and could not claim that a house they had lived in for almost two years had no value on the date they received it. "Consequently, the measure of plaintiff[s'] ascertainable loss for CFA purposes cannot be the purchase price [they] paid for the [house], but the difference between the [house they] received and the [house] as represented at purchase." See Romano v. Galaxy Toyota, 399 N.J.Super. 470, 484 (App. Div.), certif. denied, 196 N.J. 344 (2008).8

"[I]n the alternative," plaintiffs asserted that they should receive "at least $348,000 to properly rebuild the home, which should be a measurement of plaintiffs' damage and ascertainable loss." However, plaintiffs failed to show that replacement cost would be an appropriate measure where they had lived in the house for almost two years. This was not a situation where a consumer refused to accept defective goods and never used them. Cf. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 8, 10 (2004) (where a consumer declines to accept goods after "a merchant violates the Consumer Fraud Act by delivering defective goods and then refusing to provide conforming goods, a customer's ascertainable loss is the replacement value of those goods.").

Nor did plaintiffs present evidence on how much it would cost to fix damage caused by defendants' alleged misrepresentations, or how much those misrepresentations reduced the value of the house. "[I]n cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle." D'Agostino, supra, 216 N.J. at 191 (quoting Thiedemann, supra, 183 N.J. at 248). "[A] private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann, supra, 183 N.J. at 248. "To raise a genuine dispute about such a fact, the plaintiff must proffer evidence of loss that is not hypothetical or illusory"; it must be "quantifiable or measurable." Ibid. The "plaintiff must suffer a definite, certain and measurable loss, rather than one that is merely theoretical." Bosland, supra, 197 N.J. at 558. Moreover, the plaintiff must "prove that the loss is attributable to the conduct that the CFA seeks to punish by including a limitation expressed as a causal link." Id. at 555.

Here, "[t]he motion record contain[ed] neither expert proof of diminution of value of any of plaintiffs' property . . ., nor evidence of their out-of-pocket expenses causally connected with the claimed defect perpetrated by defendant." Thiedemann, supra, 183 N.J. at 244, 252-53. Plaintiffs' claim of ascertainable loss in their statement of facts was supported solely by an affidavit by their daughter, Bonnie Jo Merrigan. She cited an estimate of what it would cost to rebuild the house after Superstorm Sandy. Neither that estimate nor her affidavit provided any proof that defendants caused that damage, other than her unsupported assertion that "[a]ny damage done by Sandy was magnified by the poor stability of the home due to the improper construction." She offered no support for this assertion, and claimed no expertise. This speculation, "`in an area where laypersons could not be expected to have sufficient knowledge or experience,'" Kelly v. Berlin, 300 N.J.Super. 256, 268 (App. Div. 1997) (citation omitted), was inadequate to show an ascertainable loss, see Thiedemann, supra, 183 N.J. at 244, 250. As the trial court found, plaintiffs needed expert evidence to show a jury "what would cause a house to survive or not survive a storm like Sandy."

In moving for summary judgment, defendants supplied the trial court with three expert reports obtained by plaintiffs. Plaintiffs did not provide any additional expert reports.

Plaintiffs obtained an expert report from a plumbing contractor, Walter J. Lacey, who inspected the property before Superstorm Sandy. Lacey's report stated that he "inspected [the house] for plumbing leaks and other issues of concern." Lacey also dug several holes around the house to determine if the house was on a pre-existing foundation. Lacey opined that the builders "left the original footing which is no more than 8 inches thick (not much of a footing)," "that the foundation was added to the existing foundation to raise the house," and that "the footing and foundation of an older house were used as a base for the new construction." However, Lacey did not state that use of the pre-existing foundation and footings, or defendants' alleged misrepresentations that the house was new, caused any damage or loss of value to the house. All of the damage Lacey found was due to flaws in the new construction itself — e.g., a leaky shower caused by the shower seat being installed backwards and the shower tiles being installed incorrectly — which had nothing to do with defendants' alleged misrepresentations. Lacy also wrote that the outside water line installed after closing by Keyport "appear[ed] to be fine."9

At his deposition, Lacey did not opine on whether it was proper or improper to build a new house on an old foundation. Indeed, Lacey testified that the portion of the foundation that extended downwards four-and-a-half feet was actually better than the standard three feet utilized by the industry. Nothing in Lacey's report or testimony showed an ascertainable loss caused by defendants' alleged misrepresentation that the house was new.

Plaintiffs also obtained an expert report and deposition testimony of Lino A. DeAlmeida, III, an engineer who inspected the house after Superstorm Sandy. His report made no mention of defendants' misrepresentations, or the use of a prior home's foundation and footings. Instead, his conclusion addressed only the condition of the house after the storm:

During his deposition, DeAlmeida testified that his report did not contain any conclusions regarding the propriety or impropriety of the construction of the foundation. DeAlmeida testified that his opinions dealt solely with damage to the house due to Superstorm Sandy, which was similar to the damage the storm had done to several other houses he had seen. Importantly, DeAlmeida did not conclude that the damage to the house from Superstorm Sandy was in any way exacerbated because the house was built on a pre-existing foundation.

Lastly, plaintiffs obtained a report by Mark E. Reme, P.E., of Bruce Emson Structural Engineer (BE Structural). Reme performed an inspection of the house after Superstorm Sandy.

Reme's entire conclusion was:

However, the existence of a defect "does not establish, in and of itself, an actual and ascertainable loss." Thiedemann, supra, 183 N.J. at 251. Reme did not conclude that the misrepresentations of defendants, or the construction of the house on a pre-existing foundation, caused the house to be rendered uninhabitable by Superstorm Sandy. Reme also did not indicate that the misrepresentations caused a definite, certain, and measurable diminution in the value of the house. Cf. id. at 249 (citation omitted) ("An `estimate of damages, calculated within a reasonable degree of certainty' will suffice to demonstrate an ascertainable loss."). Given Reme's failure even to suggest a quantifiable loss, his opinion lacked "sufficient precision to withstand a motion for summary judgment." Ibid.

In any event, Reme did not visit the property until after the June 5, 2014 discovery end date, and he authored his report even later. Because the report was generated after the close of discovery, the trial court properly declined to consider it as evidence of an ascertainable loss. R. 4:23-5(b); McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001).

Finally, plaintiffs argue that the trial court failed to consider a May 19, 2014 report by Timothy S. Fitzpatrick, P.E., for BE Structural. However, plaintiffs chose not to supply that report to the trial court before it decided the summary judgment motions on December 17, 2014. Instead, plaintiffs gave the court Reme's report for BE Structural, which stated that it was intended "to validate the findings made by Timothy S. Fitzpatrick."10

Plaintiffs did not provide Fitzpatrick's report to the court until their motion for reconsideration. As Fitzpatrick's report had long been available to plaintiffs, it was "not an appropriate basis for reconsideration." Palombi v. Palombi, 414 N.J.Super. 274, 289 (App. Div. 2010). Moreover, plaintiffs prevented a ruling on reconsideration when they filed a notice of appeal which "deprived the trial court of jurisdiction to reconsider its order." Gordon v. Rozenwald, 380 N.J.Super. 55, 64 n.2 (App. Div. 2005). Plaintiffs cannot show the trial court erred by pointing to a report they never properly presented to that court.11

On appeal, plaintiffs continue to maintain that "their ascertainable loss was the value of the home," because Superstorm Sandy "wiped out the home due to the compromised foundation." However, there was no report, deposition testimony, or any other competent evidence showing a causal link between defendants' misrepresentations and the flooding and uninhabitability of the house due to Superstorm Sandy. Moreover, there was no expert proof of a diminution in value caused by defendants' alleged misrepresentations.12 The trial court properly found that the evidence before it was not sufficient to create a genuine issue of fact that plaintiffs suffered an ascertainable loss caused by defendants' misrepresentations. We therefore affirm the trial court's grants of summary judgment on plaintiffs' CFA count.

IV.

Plaintiffs argue the trial court erred in dismissing the negligence claim because defendants did not comply with alleged flood regulations. However, the only evidence plaintiffs proffered to support this claim was from their plumbing expert, Lacey. Lacey's report stated that "the foundation should have been raised approximately five feet above high tide level in order to comply with the requirements under the 100 year flood plain maps for new construction, rather than the 2 feet it appears to have been raised as I found here." At his deposition, Lacey testified that he knew the house was not built according to "code," but he could not identify any code provision that defendants violated. Nor did he conduct any measurements to support his opinion, instead merely "eyeballing" the height of the house in relation to the creek that flooded during the storm. Lacey also did not review the elevation certificate issued by the Borough indicating compliance with the flood plain requirement.

Thus, Lacey's report and deposition testimony on whether defendants adhered to the flood plain requirements was "`a mere conclusion.'" Pomerantz Paper Corp. v. New Comm. Corp., 207 N.J. 344, 372 (2011) (citation omitted). "[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.

Moreover, Lacey did not assert any causal link between the alleged violation and the house's flooding and uninhabitablity after by Superstorm Sandy. See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013) (a negligence plaintiff must show "actual and proximate causation"). Therefore, the trial court did not err when it granted defendants' motions for summary judgment on plaintiffs' negligence count.

Affirmed.