Deborah Townsend v. Noah Pierre (072357)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized).

Deborah Townsend v. Noah Pierre (A-2-13) (072357)

Argued October 21, 2014 -- Decided March 12, 2015

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court addresses the net opinion rule and the standard for summary judgment in the

context of a negligence action.

On August 9, 2008, a fatal collision occurred at the intersection of Garfield Drive and Levitt Parkway in the

Township of Willingboro (Township). A lot on that intersection (the Property) was owned by Garland Property

Management, LLC (Garland) and leased to Sunset Family Dental, LLC (Sunset Family Dental). The tragic accident

occurred when Noah Pierre (Pierre) was turning left onto Levitt Parkway. As Pierre approached the intersection, she

stopped at a stop sign, pausing behind another stopped vehicle. Initially, shrubbery on the Property obstructed

Pierre’s view, but she “edged up” into the intersection, starting and stopping four times before attempting the left

turn. Pierre testified repeatedly that when she made her final stop, the shrubbery no longer impeded her view.

Pierre’s testimony was corroborated by her passenger, who stated that Pierre’s view of oncoming traffic was not

impeded by the shrubbery when she made her turn. As Pierre turned, her vehicle collided with a motorcycle

traveling in the left eastbound lane of Levitt Parkway. The motorcyclist died as a result of the collision.

Plaintiffs filed this action against several defendants, asserting claims pursuant to the Wrongful Death Act,

N.J.S.A. 2A:31-1 to -6, and the Survival Act, N.J.S.A. 2A:15-3. Plaintiffs alleged that Garland and Sunset Family

Dental negligently maintained overgrown shrubbery on the Property, blocking the view of oncoming traffic.

Plaintiffs also named the Township and County as defendants, alleging that they negligently designed the

intersection, causing the view of motorists to be obstructed.

After substantial discovery, the trial court denied motions for summary judgment on the ground that

plaintiffs had sought to serve an expert report. Plaintiffs subsequently served a report by Nicholas Bellizzi, P.E.

(Bellizzi), which primarily focused on the alleged negligence of the Township and County, but also addressed the

care allegedly owed by Garland and Sunset Family Dental, concluding that the shrubbery violated local ordinances.

Bellizzi’s report also addressed the critical issue, concluding that “[t]he restricted substandard and unsafe

intersection sight distance was a significant contributing cause” of the accident. Bellizzi noted Pierre’s testimony

that she did not turn until she had a clear view of oncoming traffic, but opined that Pierre must have been mistaken.

Defendants ultimately filed motions to bar Bellizzi’s report as a net opinion. The court granted the motions

and granted renewed summary judgment motions filed by defendants. The court dismissed plaintiffs’ claims against

the Township and County based on the immunity afforded to them by the Tort Claims Act (TCA), N.J.S.A. 59:1-1

to 12-3, and, with regard to Garland and Sunset Family Dental, held that the shrubbery was “not a factor in this

case” given Pierre’s testimony and the absence of evidentiary support for a theory of causation.

Plaintiffs appealed, and, in a ruling that plaintiffs do not challenge, the Appellate Division affirmed the

dismissal of plaintiffs’ claims against the Township and the County. Townsend v. Pierre, 429 N.J. Super. 522, 532

(App. Div. 2013). The panel reversed, however, the grant of summary judgment in favor of Garland and Sunset

Family Dental, holding that the expert’s conclusion was sufficiently grounded in the record and that plaintiffs could

elicit the expert’s opinion disputing Pierre’s testimony in the form of a hypothetical question at trial. This Court

granted Garland and Sunset Family Dental’s petition for certification. 215 N.J. 485 (2013).

HELD: Given the uncontradicted testimony that the driver’s view was unimpeded by the shrubbery on defendants’

property, the trial court properly barred the causation opinion of plaintiffs’ expert and granted summary judgment. The

opinion on the issue of causation was a net opinion that was directly contradicted by the factual evidence. The opinion

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with regard to the duty of care owed by the property owner and lessee was properly substantiated and was therefore

admissible under N.J.R.E. 702 and 703.

1. To sustain a cause of action for negligence, plaintiff must establish four elements, including that defendants’

alleged negligence was a proximate cause of the collision and Townsend’s death. Accordingly, a pivotal issue of

fact is whether Pierre’s view was obstructed by shrubbery when she turned left. The evidence on that question

consists entirely of two excerpts from deposition testimony: Pierre’s testimony that she moved her car forward into

the intersection four times before turning, and that when she turned, her view was unobstructed by the shrubbery;

and her passenger’s testimony corroborating Pierre’s recollection regarding her clear line of vision at the crucial

moment. To rebut that factual record, plaintiffs relied entirely on a portion of Bellizzi’s expert report addressing the

issue of causation. In that setting, the trial court decided the two motions at the center of this appeal. (pp. 16-17)

2. The admission or exclusion of expert testimony is committed to the sound discretion of the trial court. When, as

in this case, a trial court confronts an evidence determination precedent to ruling on a summary judgment motion, it

must address the evidence decision first. Appellate review proceeds in the same sequence. (pp. 17-18).

3. When a trial court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its

analysis. The net opinion rule is a corollary of N.J.R.E. 703 which forbids the admission into evidence of an

expert’s conclusions that are not supported by factual evidence or other data. The rule requires that an expert “give

the why and wherefore that supports the opinion, rather than a mere conclusion.” Borough of Saddle River v. 66 E.

Allendale, LLC, 216 N.J. 115, 144 (2013) (internal quotation marks and additional citation omitted). The rule does

not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems

preferable. The net opinion rule, however, mandates that experts be able to identify the factual bases for their

conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are

reliable. By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E.

702 envisions: a qualified specialist’s reliable analysis of an issue beyond the ken of the average juror. (pp. 18-21)

4. A party’s burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported

by the factual record or by an expert’s speculation that contradicts that record. Here, Bellizzi’s testimony must be

rejected as a net opinion to the extent that he speculated on the issue of causation. Had Bellizzi been proffered as an

expert only as to defendants’ duty of care, his opinion would have been admissible, subject to cross-examination.

With respect to causation, however, Bellizzi’s opinion diverged from the evidence, and, to reconcile his opinion

with the testimony, he reconstituted the facts and asserted that Pierre’s testimony about her accident was wrong. In

this crucial respect, Bellizzi’s proposed expert testimony is an inadmissible net opinion. (pp. 21-25)

5. Acknowledging that the “unconditional admission” of Bellizzi’s opinion on causation would be improper, the

Appellate Division reasoned that the opinion’s shortcomings could be remedied by the use of hypothetical questions.

Townsend, 429 N.J. Super. at 529. The Court disagrees. The hypothetical suggested by the Appellate Division -- in

which the expert would be asked to assume that Pierre’s account of the accident was mistaken -- not only lacks the

requisite foundation in the facts, but is premised on a rejection of uncontroverted testimony. On this record, no

hypothetical question could salvage the causation opinion proffered by Bellizzi. See N.J.R.E. 705. (pp. 25-27)

6. Having addressed the propriety of Bellizzi’s opinion, the Court turns to review the trial court’s grant of summary

judgment. Although the issue of causation is ordinarily left to the factfinder, summary judgment may be granted

dismissing the plaintiff’s claim in the unusual setting in which no reasonable factfinder could find that the plaintiff

has proven causation by a preponderance of the evidence. This case presents such a setting. No facts in the record

support plaintiffs’ contention that the shrubbery was a proximate cause of the fatal collision. The trial court properly

granted summary judgment dismissing plaintiffs’ claims against Garland and Sunset Family Dental. (pp. 27-30)

The judgment of the Appellate Division is REVERSED with respect to Garland and Sunset Family Dental,

and the trial court’s grant of summary judgment in favor of Garland and Sunset Family Dental is REINSTATED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE

CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did

not participate.

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SUPREME COURT OF NEW JERSEY

A-2 September Term 2013

072357

DEBORAH F. TOWNSEND,

administratrix ad prosequendum of

the Estate of Alvin J. Townsend,

Jr.; ALVIN J. TOWNSEND, SR.,

administrator ad prosequendum of

the Estate of Alvin J. Townsend,

Jr.; and ALVIN J. TOWNSEND, JR.,

deceased,

Plaintiffs-Respondents,

v.

NOAH PIERRE an individual; JEAN

HILAIREMONT, an individual; THE

PRECISION DENTAL SPECIALIST, LLC;

LEONARD H. JUROS, an individual;

JANET L. JUROS, an individual;

TOWNSHIP OF WILLINGBORO; and BOARD

OF CHOSEN FREEHOLDERS OF THE

COUNTY OF BURLINGTON,

Defendants,

and

GARLAND PROPERTY MANAGEMENT, LLC;

and SUNSET FAMILY DENTAL, LLC,

Defendants-Appellants.

Argued October 21, 2014 – Decided March 12, 2015

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 429 N.J. Super. 522 (2013).

Michael Dolich argued the cause for

appellants (Bennett, Bricklin & Saltzburg,

attorneys; Mr. Dolich and Nicholas A.

Cummins, on the briefs).

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Donald M. Stanzione argued the cause for

respondents (Lombardi and Lombardi,

attorneys).

Michael G. Donahue, III, argued the cause

for amicus curiae New Jersey Association of

Justice (Stark & Stark, attorneys).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we apply the net opinion rule and the

standard for summary judgment to a negligence action arising

from a fatal collision between an automobile and a motorcycle.

The accident occurred as the driver of the automobile, Noah

Pierre (Pierre), was turning left at an intersection controlled

by a stop sign. Among the defendants named in plaintiffs’

wrongful death and survival actions were the owner and lessee of

a property located on a corner of the intersection where the

accident occurred. Plaintiffs alleged that these defendants

negligently maintained overgrown shrubbery on their property,

blocking Pierre’s view of oncoming traffic at the intersection.

The role of the defendants’ shrubbery in the accident was

the subject of discovery. Pierre testified that shrubbery on

the property initially obscured her view when she was stopped at

the stop sign at the intersection, but that she edged forward,

starting and stopping four times until her view of oncoming

traffic was unimpeded. A passenger in Pierre’s vehicle

corroborated Pierre’s testimony that when she turned left, she

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had an unobstructed view of approaching traffic. The record

contains no testimony to the contrary. However, an engineering

expert retained by plaintiffs opined that the overgrown

shrubbery on the property next to the intersection was a

proximate cause of the fatal collision. He acknowledged

Pierre’s testimony that she stopped four times before proceeding

and that the shrubbery on the adjoining property did not

obstruct her view, but contended that Pierre’s account of the

accident was mistaken.

The trial court granted defendants’ motion to strike the

expert’s testimony as a net opinion lacking support in the

record. The court then granted defendants’ motion for summary

judgment dismissing plaintiffs’ claims against the property

owner and lessee. The Appellate Division vacated the trial

court’s order barring the expert’s report and reversed the grant

of summary judgment, holding that the expert’s conclusion was

sufficiently grounded in the record and that plaintiffs could

elicit the expert’s opinion disputing Pierre’s testimony in the

form of a hypothetical question at trial.

Given the uncontradicted testimony of Pierre and her

passenger that Pierre’s view of oncoming traffic was unimpeded

by the shrubbery on defendants’ property when she made her left

turn, we hold that the trial court properly barred the causation

opinion of plaintiffs’ expert and granted summary judgment. The

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expert’s opinion that the defendant property owner and defendant

lessee both had a duty to maintain the landscaping on their

property so that it did not obstruct the view of drivers was

properly substantiated and was therefore admissible under

N.J.R.E. 702 and 703. However, his opinion on the issue of

causation was a net opinion that was not only unsupported by the

factual evidence, but directly contradicted that evidence.

Accordingly, we reverse the judgment of the Appellate

Division. We reinstate the trial court’s order barring the

expert testimony and its grant of summary judgment dismissing

plaintiffs’ claims against the owner and lessee of the property

adjoining the intersection.

I.

The tragic accident that gave rise to this litigation

occurred during the evening of August 9, 2008, at the

intersection of Garfield Drive and Levitt Parkway in the

Township of Willingboro (Township).1 Garfield Drive is a roadway

that runs north to south and is maintained by the Township.

Levitt Parkway is a roadway that runs east to west and is

maintained by Burlington County (County). A stop sign on

Garfield Drive regulated northbound traffic approaching the

1 Our summary of the facts is based on the limited record that

the parties presented to the trial court in connection with

defendants’ motion to strike the plaintiff’s expert report and

motion for summary judgment.

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intersection on Garfield Drive, but no traffic signal or stop

sign controlled eastbound and westbound traffic on Levitt

Parkway.

The lot designated as 77 Garland Lane (the Property),

situated at the southwest corner of the intersection, was owned

by defendant Garland Property Management, LLC (Garland) and

leased to a dental practice, defendant Sunset Family Dental, LLC

(Sunset Family Dental). Plaintiffs allege that overgrown

shrubbery located on the northern border of the Property

obscured the lateral view of northbound drivers stopped at the

stop sign at the intersection of Garfield Drive and Levitt

Parkway.

According to Pierre’s deposition testimony given when she

was a defendant in this case, Pierre was traveling northbound on

Garfield Drive shortly before the accident. Pierre stated that

she approached the intersection and stopped at the stop sign,

initially pausing behind another stopped vehicle. She testified

that rather than turn left onto Levitt Parkway from the location

of the stop sign, she “edged up” into the intersection, starting

and stopping four times before attempting the left turn. Pierre

acknowledged that when she initially stopped at the stop sign,

the shrubbery on the Property obstructed her view of eastbound

vehicles on Levitt Parkway approaching the intersection.

However, Pierre repeatedly stated that when she made her fourth

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and final stop before turning left, the shrubbery no longer

impeded her view of oncoming traffic. Pierre further recalled,

“I looked to my right. I looked to my left. I didn’t see

anything. It was safe. So, I began to make my left turn onto

Levitt.”

Pierre’s testimony regarding her view of oncoming traffic

when she turned left on Levitt Parkway was corroborated by her

front-seat passenger, Danielle Kirby. Kirby’s testimony

diverged from that of Pierre with respect to how many times

Pierre stopped the car before turning left; Kirby stated that

Pierre stopped only once, not four times. However, Kirby

testified that Pierre looked to her left before turning on to

Levitt Parkway, and that when Pierre made her turn, her view of

oncoming traffic was not impeded by the shrubbery on the

Property.

The driver of another car, Anna Nelson (Nelson), testified

that when she drove up to the intersection, she observed

Pierre’s car to her left, and that Pierre’s car was already

beyond the “stop line.” Nelson testified that Pierre’s car was

“at the stop sign with me and then proceeded to go ahead and

make a left-hand turn.”2

2 Although none of the parties to this appeal submitted the

testimony of Kirby and Nelson to the trial court, plaintiffs

represent that excerpts of the depositions of Kirby and Nelson

were submitted as part of the summary judgment record by the

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It is undisputed that immediately after Pierre commenced

her left turn, her vehicle collided with Townsend’s motorcycle,

which was traveling in the left eastbound lane of Levitt

Parkway. Townsend died as a result of the collision.

Plaintiffs, the Administratrix and Administrator of

Townsend’s Estate and Townsend in his individual capacity, filed

this action in the Law Division. They asserted claims pursuant

to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the

Survival Act, N.J.S.A. 2A:15-3, against several defendants.

Plaintiffs claimed that Pierre operated her vehicle in a

negligent manner, and that Pierre’s employer was vicariously

liable for Pierre’s negligence. They alleged that Garland,

Sunset Family Dental, and the previous owners of the Property

“failed to properly cut the overgrown vegetation and/or bushes

presenting a hazardous and dangerous condition” for drivers, and

that at the time of the accident, Pierre’s view “was obstructed

by the presence of the aforementioned overgrown vegetation” on

the Property. Plaintiffs also named the Township and County as

defendants. They alleged that those entities negligently

Township and County, neither of which remain defendants. Those

excerpts may, therefore, be considered in this appeal. See R.

2:5-4(a). We do not consider other deposition testimony that

was not presented to the trial court and that was submitted by

the parties for the first time on appeal. Id.; Davis v.

Devereux Found., 209 N.J. 269, 296 n.8 (2012) (citing R. 2:5-4;

N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278

(2007); State v. Golotta, 178 N.J. 205, 211-12 (2003)).

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designed the intersection, causing the view of motorists to be

obstructed by the “vegetation and/or bushes” on the Property.

Upon completing a substantial portion of discovery,

Garland, Sunset Family Dental, the Township, and the County

moved for summary judgment.3 The trial court denied defendants’

motions without prejudice on the ground that plaintiffs had

requested leave to serve an expert’s report in support of their

claims.

Plaintiffs subsequently served upon Garland, Sunset Family

Dental, the Township and the County a report dated November 15,

2010, by Nicholas Bellizzi, P.E. (Bellizzi), a professional

engineer. Bellizzi recited in his report that he inspected the

site of the accident and took measurements and photographs on

November 22, 2009, approximately fifteen months after the

accident. Bellizzi stated that he relied on his site

inspection, photographs that he took during his inspection,

photographs that plaintiffs’ representatives took ten days after

the accident, the police report, deposition transcripts, witness

statements, Township codes and related documents, and highway

3 On a date that is not specified in the record, plaintiffs settled

their claims against Pierre. Although it appears that plaintiffs’

claims against Pierre’s employer and the former owner of 77 Garland

Lane were also resolved, the record does not reveal whether those

claims were withdrawn, settled, or dismissed by court order.

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design standards promulgated by the American Association of

State Highway and Transportation Officials (AASHTO).

Bellizzi’s analysis was premised on the assumption that the

relevant location, for purposes of determining a driver’s

ability to see traffic on Levitt Parkway, was behind the stop

sign on Garfield Drive. The primary focus of his report was the

alleged negligence of the Township and County. Bellizzi opined

that the Township and the County maintained the intersection of

Garfield Drive and Levitt Parkway in an unsafe condition. The

expert contended that both entities had actual and constructive

notice that the “large shrubbery” in front of the Property

created “a visual barrier and obstruction to the safe

intersection sight distance at the intersection.” He further

opined that the stop sign at the intersection should have been

situated further north “to a point where a northbound motorist

on Garfield Drive would have had an adequate line of sight at

the intersection by seeing past, i.e., to the west of, the

subject shrubbery,” and that a white stop bar could have been

painted “at an appropriate location to provide motorists with

adequate sight distance.”

Bellizzi’s report also addressed the duty of care allegedly

owed by Garland and Sunset Family Dental. He concluded that the

height of the shrubbery in front of 77 Garland Lane violated the

Township’s Traffic and Parking Code, Willingboro, N.J., Rev.

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Gen. Ordinances § 13-11.1 (2003), re-adopted as Willingboro,

N.J., Code § 356-42 (2013). That ordinance imposed upon

property owners and tenants the obligation to ensure that “no

brush, hedge, or other plant life” close to roads and

intersections “shall be cut to a height of more than 2 1/2 feet

where it shall be necessary and expedient, as determined by the

director of public safety, for the preservation of public

safety.” Id.4 Bellizzi also cited, but did not discuss, a

portion of the Township’s Property Maintenance Code,

Willingboro, N.J., Rev. Gen. Ordinances §§ 21-1 to 21-13 (2003),

re-adopted as Willingboro, N.J., Code §§ 272-4 to -16 (2013).

Bellizzi’s report briefly addressed the critical issue in

this appeal: whether Garland’s and Sunset Family Dental’s

alleged breach of the Township’s ordinances was a cause of the

fatal collision. The expert asserted that “[t]he restricted

substandard and unsafe intersection sight distance was a

significant contributing cause” of the accident and Townsend’s

death. With respect to the conflict between his opinion and the

evidence, Bellizzi offered only the following comment:

4 The Township’s Traffic and Parking Code prescribes a procedure

by which the Township Director of Public Safety notifies a

property owner or tenant that “brush, hedge, or plant life” is

overgrown, and the owner or tenant has ten days after notice of

a violation to comply. Id. There is no evidence that prior to

the accident that gave rise to this action, the Township ever

notified Garland or Sunset Family Dental that the landscaping on

the Property was overgrown.

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I am mindful of the testimony of Noah Pierre

regarding her allegedly stopping four (4)

times before proceeding. However, given her

testimony that the bushes obstructed her view

of eastbound traffic on Levitt Parkway, and

given that she never saw the approaching

motorcycle, I reasonably conclude that she did

not have an unobstructed view of Levitt

Parkway when she proceeded into the roadway.

Bellizzi thus opined that when Pierre testified that she

did not turn left until she had proceeded to the point at which

she had an unobstructed view of the eastbound traffic on Levitt

Parkway, she must have been mistaken. The expert offered

neither factual evidence nor expert analysis contradicting

Pierre’s recollection. Instead, Bellizzi discounted Pierre’s

testimony that she did not turn until she had a clear view of

oncoming traffic, based on Pierre’s statement that her view was

impeded before she edged into the intersection.

Following plaintiffs’ service of Bellizzi’s report, the

Township, the County, Garland, and Sunset Family Dental renewed

their motions for summary judgment. Noting that no motion to

strike the expert’s testimony as a net opinion had been filed,

the trial court denied the summary judgment motions without

prejudice. All four defendants then filed motions to bar

Bellizzi’s expert report as a net opinion. No party requested

that the trial court conduct an evidentiary hearing on the

expert opinion pursuant to N.J.R.E. 104(a), and the court did

not hold such a hearing.

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The trial court granted the motion to strike Bellizzi’s

report. It held that an expert’s opinion must be supported with

facts in the record, that Bellizzi offered neither evidentiary

support nor an engineering analysis to counter Pierre’s

testimony, and that the expert report therefore stated a net

opinion. Pursuant to Rule 4:46-2, the trial court subsequently

granted renewed summary judgment motions submitted by the

Township, the County, Garland, and Sunset Family Dental. It

dismissed plaintiffs’ claims against the Township and County

based on the immunity afforded to them by the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Addressing the

summary judgment motion filed by Garland and Sunset Family

Dental, the trial court held that the shrubbery on the disputed

property was “not a factor in this case” given Pierre’s

testimony and the absence of evidentiary support for a theory of

causation.

Plaintiffs appealed the trial court’s determination. In a

ruling that plaintiffs do not challenge before this Court, an

Appellate Division panel affirmed the trial court’s dismissal of

plaintiffs’ claims against the Township and the County on TCA

grounds. Townsend v. Pierre, 429 N.J. Super. 522, 532 (App.

Div. 2013). The panel reversed, however, the grant of summary

judgment in favor of Garland and Sunset Family Dental. Ibid.

It held that the trial court had abused its discretion when it

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determined that Bellizzi’s report constituted a net opinion.

Id. at 528.

Noting that “Bellizzi’s opinion that the bushes proximately

caused the accident depends on the believability of Pierre’s

statement that she had an unobstructed view,” the panel

acknowledged that “the unconditional admission of Bellizzi’s

opinions on causation would be inappropriate, given Pierre’s

deposition testimony and that of her passenger.” Id. at 529.

The panel reasoned, however, that through “the use of a

hypothetical question, with a corresponding limiting

instruction,” plaintiffs could offer Bellizzi’s opinions to

counter Pierre’s fact testimony. Ibid. It concluded that where

there is a reasonable basis “to reject a credibility-based

recollection of a fact witness,” the expert could, in response

to a hypothetical question, comment about “alternative factual

possibilities” that are inconsistent with the testimony --

specifically, the possibility that “Pierre was unable to see

clearly to her left as she made the turn.” Id. at 531. Based

on that reasoning, the panel reversed the grant of summary

judgment in favor of Garland and Sunset Family Dental. Id. at

532.

We granted certification. Townsend v. Pierre, 215 N.J. 485

(2013).

II.

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Garland and Sunset Family Dental contend that Bellizzi’s

proposed testimony regarding causation constitutes a net

opinion. They argue that the standards supporting Bellizzi’s

opinion on the question of negligence do not buttress his

opinion on the issue of causation, which, in their view,

challenged Pierre’s uncontroverted testimony and lacked

foundation in either expert analysis or the facts of this case.

Garland and Sunset Family Dental assert that an expert is not

authorized to invent facts contravening the testimony of

witnesses without supporting evidence. They argue that the

trial court properly granted summary judgment dismissing

plaintiffs’ claims.

Plaintiffs counter that the Appellate Division properly

reversed the trial court’s grant of the motion to strike the

expert report and the motion for summary judgment filed by

Garland and Sunset Family Dental. They contend that a

reasonable jury could reject Pierre’s testimony that her view of

oncoming traffic was unobstructed by the shrubbery on the

Property when she turned left, because Pierre testified that

before she entered the intersection, the shrubbery at 77 Garland

Lane obscured her view, and because she did not see Townsend’s

motorcycle before the collision. Plaintiffs argue that

Bellizzi’s report was premised on objective standards, that it

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was not a net opinion, and that it created a fact issue that

should be resolved by a jury.

Amicus curiae New Jersey Association for Justice (NJAJ)

argues that the Appellate Division correctly concluded that

Bellizzi’s opinion should be admitted by means of a hypothetical

question. NJAJ contends that the issue of proximate cause

should be submitted to a jury, rather than determined by the

court in a summary judgment motion, in all but the extraordinary

case. Raising an issue not asserted by the parties, NJAJ

contends that the trial court should have conducted a hearing

pursuant to N.J.R.E. 104(a) before striking Bellizzi’s report as

a net opinion.

III.

A.

We consider the trial court’s net opinion and summary

judgment determinations in light of the legal framework that

governs plaintiffs’ negligence claim and the factual evidence in

the record that relates to that claim.

To sustain a cause of action for negligence, a plaintiff

must establish four elements: “‘(1) a duty of care, (2) a

breach of that duty, (3) proximate cause, and (4) actual

damages.’” Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)

(alterations omitted) (quoting Weinberg v. Dinger, 106 N.J. 469,

484 (1987)). A “plaintiff bears the burden of establishing

15

those elements ‘by some competent proof.’” Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing Buckelew v.

Grossbard, 87 N.J. 512, 525 (1981); Overby v. Union Laundry Co.,

28 N.J. Super. 100, 104 (App. Div. 1953), aff’d o.b., 14 N.J.

526 (1954)). Proximate cause consists of “‘any cause which in

the natural and continuous sequence, unbroken by an efficient

intervening cause, produces the result complained of and without

which the result would not have occurred.’” Conklin v. Hannoch

Weisman, 145 N.J. 395, 418 (1996) (quoting Fernandez v. Baruch,

96 N.J. Super. 125, 140 (App. Div. 1967), rev’d on other

grounds, 52 N.J. 127 (1968)); Dawson v. Bunker Hill Plaza

Assocs., 289 N.J. Super. 309, 322 (App. Div.), certif. denied,

146 N.J. 569 (1996).

Applied here, the proximate cause element of a negligence

claim requires that plaintiffs do more than simply demonstrate

that Garland and Sunset Family Dental owed a duty of care to

Townsend, a motorcyclist traveling on the county road past their

property, and that they breached that duty by maintaining

shrubbery in an overgrown condition. Plaintiffs must also prove

by a preponderance of the evidence that the defendants’ alleged

negligence was a proximate cause of the collision and Townsend’s

death.

Accordingly, the question whether Pierre’s view was

obstructed by the shrubbery when she turned left is a pivotal

16

issue of fact. In the record that was submitted to the trial

court, the evidence regarding that question consists entirely of

two excerpts from deposition testimony: Pierre’s testimony that

she moved her car forward into the intersection four times

before turning, and that when she made her left turn, her view

was unobstructed by the shrubbery; and Kirby’s testimony

corroborating Pierre’s recollection regarding her clear line of

vision at the crucial moment. To rebut that factual record

before the trial court, plaintiffs relied entirely on a portion

of Bellizzi’s expert report addressing the issue of causation.

In that setting, the trial court decided the two motions that we

review in this appeal.

B.

The admission or exclusion of expert testimony is committed

to the sound discretion of the trial court. State v. Berry, 140

N.J. 280, 293 (1995). As a discovery determination, a trial

court’s grant or denial of a motion to strike expert testimony

is entitled to deference on appellate review. See Bender v.

Adelson, 187 N.J. 411, 428 (2006); Carey v. Lovett, 132 N.J. 44,

64 (1993); Rivers v. LSC P’ship, 378 N.J. Super. 68, 80 (App.

Div.), certif. denied, 185 N.J. 296 (2005). As this Court has

noted, “we apply [a] deferential approach to a trial court’s

decision to admit expert testimony, reviewing it against an

abuse of discretion standard.” Pomerantz Paper Corp. v. New

17

Cmty. Corp., 207 N.J. 344, 371-72 (2011). When, as in this

case, a trial court is “confronted with an evidence

determination precedent to ruling on a summary judgment motion,”

it “squarely must address the evidence decision first.” Estate

of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85

(2010). Appellate review of the trial court’s decisions

proceeds in the same sequence, with the evidentiary issue

resolved first, followed by the summary judgment determination

of the trial court. Id. at 385.

When a trial court determines the admissibility of expert

testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis.

N.J.R.E. 702 imposes three core requirements for the admission

of expert testimony:

“(1) the intended testimony must concern a

subject matter that is beyond the ken of the

average juror; (2) the field testified to must

be at a state of the art such that an expert’s

testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise

to offer the intended testimony.”

[Creanga v. Jardal, 185 N.J. 345 (2005)

(quoting Kemp ex rel. Wright v. State, 174

N.J. 412, 424 (2002)).]

N.J.R.E. 703 addresses the foundation for expert testimony.

It mandates that expert opinion be grounded in “‘facts or data

derived from (1) the expert’s personal observations, or (2)

evidence admitted at the trial, or (3) data relied upon by the

expert which is not necessarily admissible in evidence but which

18

is the type of data normally relied upon by experts.’” Polzo,

supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473,

494 (2006)). The net opinion rule is a “corollary of [N.J.R.E.

703] . . . which forbids the admission into evidence of an

expert’s conclusions that are not supported by factual evidence

or other data.” Ibid.5 The rule requires that an expert “‘give

the why and wherefore’ that supports the opinion, ‘rather than a

mere conclusion.’” Borough of Saddle River v. 66 E. Allendale,

LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp.,

supra, 207 N.J. at 372); see also Buckelew, supra, 87 N.J. at

524 (explaining that “an expert’s bare conclusion[], unsupported

by factual evidence, is inadmissible”).

The net opinion rule is not a standard of perfection. The

rule does not mandate that an expert organize or support an

5 When it decides a motion to strike an expert report, a trial

court may conduct a hearing under N.J.R.E. 104(a). N.J.R.E.

104(a) prescribes a procedure by which a trial court may “assess

the soundness of [an expert’s] proffered methodology and the

qualifications of the expert.” Rubanick v. Witco Chem. Corp.,

125 N.J. 421, 454 (1991). Such a hearing “allows the court to

assess whether the expert’s opinion is based on scientifically

sound reasoning or unsubstantiated personal beliefs couched in

scientific terminology.” Kemp, supra, 174 N.J. at 427 (citing

Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992)). We do

not address the argument asserted by amicus curiae NJAJ that the

trial court abused its discretion by failing to sua sponte order

an N.J.R.E. 104(a) hearing before deciding the motion to strike

the expert report, as that issue was not raised by any party.

Nicholas v. Mynster, 213 N.J. 463, 477 n.13 (2013) (citing

Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91

N.J. 38, 48-49 (1982)).

19

opinion in a particular manner that opposing counsel deems

preferable. An expert’s proposed testimony should not be

excluded merely “‘because it fails to account for some

particular condition or fact which the adversary considers

relevant.’” Creanga, supra, 185 N.J. at 360 (quoting State v.

Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988), certif.

denied, 114 N.J. 525 (1989)). The expert’s failure “to give

weight to a factor thought important by an adverse party does

not reduce his testimony to an inadmissible net opinion if he

otherwise offers sufficient reasons which logically support his

opinion.” Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App.

Div. 2002) (citing Freeman, supra, 223 N.J. Super. at 115-16).

Such omissions may be “a proper ‘subject of exploration and

cross-examination at a trial.’” Ibid. (quoting Rubanick v.

Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990),

modified on other grounds, 125 N.J. 421 (1991)); see also State

v. Harvey, 151 N.J. 117, 277 (1997) (“‘[A]n expert witness is

always subject to searching cross-examination as to the basis of

his opinion.’” (quoting State v. Martini, 131 N.J. 176, 264

(1993))).

The net opinion rule, however, mandates that experts “be

able to identify the factual bases for their conclusions,

explain their methodology, and demonstrate that both the factual

bases and the methodology are reliable.” Landrigan, supra, 127

20

N.J. at 417. An expert’s conclusion “‘is excluded if it is

“‘based merely on unfounded speculation and unquantified

possibilities.’” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580

(App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co.,

240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J.

333 (1990)), certif. denied, 154 N.J. 607 (1998). As the

Appellate Division noted, when an expert speculates, “he ceases

to be an aid to the trier of fact and becomes nothing more than

an additional juror.” Jimenez v. GNOC, Corp., 286 N.J. Super.

533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996),

overruled on other grounds, Jerista v. Murray, 185 N.J. 175

(2005). By definition, unsubstantiated expert testimony cannot

provide to the factfinder the benefit that N.J.R.E. 702

envisions: a qualified specialist’s reliable analysis of an

issue “beyond the ken of the average juror.” Polzo, supra, 196

N.J. at 582 (citations omitted); see N.J.R.E. 702. Given the

weight that a jury may accord to expert testimony, a trial court

must ensure that an expert is not permitted to express

speculative opinions or personal views that are unfounded in the

record.

A party’s burden of proof on an element of a claim may not

be satisfied by an expert opinion that is unsupported by the

factual record or by an expert’s speculation that contradicts

that record. In Polzo, supra, an expert witness opined that,

21

for purposes of the TCA, N.J.S.A. 59:4-3(b), the defendant had

constructive notice of the depression or declivity on a roadway

that it maintained. 196 N.J. at 581. Despite the absence of

factual evidence as to when the depression or declivity had

developed, the expert speculated that it “would have existed for

a significant period of time [--] i.e. months if not years,

based on the recorded changes,” and opined that such a defect

“would, or should, have been noticed by those responsible for

the maintenance” of the road. Ibid. (alteration in original).

This Court commented:

On its face, [the expert]’s report appears to

provide no explanation for any of his

conclusions: it does not explain the basis

for his conclusion that the

depression/declivity “would have existed for

a significant period of time;” it does not

support, in any manner whatsoever, the

statement that the depression/declivity

existed “for months if not years;” and it does

not cite to or otherwise explain the relied-

upon “recorded changes.”

[Id. at 583 (alterations omitted).]

Although the defendant in Polzo had not moved to strike the

expert report, this Court held that the expert had stated

nothing more than a net opinion that was insufficient to sustain

the plaintiff’s burden of establishing that the public entity

was on constructive notice for purposes of the TCA. Id. at 584

& n.5. The Court remanded to the trial court for consideration

22

of the constructive notice issue on the basis of other evidence.

Id. at 586.

In Smith v. Estate of Kelly, 343 N.J. Super. 480, 497 (App.

Div. 2001), the Appellate Division similarly precluded an

expert’s unfounded report as a net opinion. There, the

plaintiff sought to toll the statute of limitations on her

action against a parish and several individuals for failing to

act on her report that her father had sexually abused her. Id.

at 486. The plaintiff proffered the expert report of a priest,

who opined that because of “religious duress,” the plaintiff had

felt compelled to “‘remain silent, refrain from making any

public accusations, remarks or complaints and above all, avoid

any contact with civil authorities in search of justice.’” Id.

at 497. The expert contended that by virtue of “religious

duress,” the plaintiff was unable to initiate her civil action

until her father was convicted and imprisoned. Ibid. The

Appellate Division affirmed the trial court’s rejection of the

report as a net opinion because the expert’s comments

contravened the evidence. Ibid. The panel noted that:

[T]he facts in the record directly contradict

[the priest]’s conclusion. Plaintiff did not

remain silent, but spoke out to numerous

individuals, including family members,

friends, public officials and law enforcement

authorities. She sought out and successfully

obtained the assistance of civil authorities

in prosecuting her father, and she played an

active role in that prosecution. This she did

23

more than three years before instituting this

civil law suit.

[Ibid.]

Applied here, the principle set forth in Polzo and Smith

warrants the rejection of Bellizzi’s testimony as a net opinion

to the extent that he speculated on the issue of causation.

Bellizzi’s qualifications to opine on issues within his

expertise as an engineer are unchallenged. His opinions with

respect to the duty of entities that design and maintain

roadways to ensure that shrubbery does not impede the view of

drivers, and of landowners to comply with ordinances in the

maintenance of landscaping, are adequately supported by relevant

standards. Had Bellizzi been proffered as an expert only to

generally define the defendants’ duty of care, his opinion would

have been admissible, subject to the scrutiny of cross-

examination at trial.

With respect to the issue of causation, however, Bellizzi’s

opinion diverged from the evidence. Bellizzi did not apply his

engineering expertise to present empirical evidence undermining

Pierre’s undisputed and corroborated testimony that when she

turned left, her view of traffic on Levitt Parkway was

unimpeded. He took no measurements to demonstrate the line of

vision of a driver located at the point at which Pierre recalled

making her left turn. Indeed, his expert opinion does not

24

suggest that at the location identified by Pierre as the point

at which she turned, the shrubbery was capable of blocking a

driver’s view of oncoming traffic.

Instead, the expert analyzed the impact of the shrubbery on

the line of vision of a driver stopped behind the stop sign,

explaining that defective placement of a stop sign and negligent

property maintenance proximately caused the accident. In an

attempt to reconcile his opinion with the testimony, Bellizzi

reconstituted the facts. He asserted that Pierre’s testimony

about her accident was wrong. In this crucial respect,

Bellizzi’s proposed expert testimony is an inadmissible net

opinion.

Acknowledging that the “unconditional admission” of

Bellizzi’s opinion on causation would be improper, the Appellate

Division reasoned that the opinion’s shortcomings could be

remedied by the use of hypothetical questions. Townsend, supra,

429 N.J. Super. at 529. The Appellate Division envisioned that

Bellizzi would be asked “to assume hypothetically that Pierre

was unable to see clearly to her left as she made the turn.”

Id. at 530. We disagree with the Appellate Division that such a

hypothetical question could convert Bellizzi’s net opinion on

the issue of causation into admissible expert testimony.

The use of hypothetical questions in the presentation of

expert testimony is permitted by N.J.R.E. 705, “provided that

25

the questions include facts admitted or supported by the

evidence.” Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 4 on N.J.R.E. 705 (2014) (citing Wilsey v.

Reisinger, 76 N.J. Super. 20, 25 (App. Div.), certif. denied, 38

N.J. 610 (1962)). As this Court noted in Stanley Co. of America

v. Hercules Powder Co., “[t]he opinions of experts must be based

either upon facts within their own knowledge which they detail

to the jury or upon hypothetical questions embracing facts

supported by the evidence upon which the expert opinion is

sought.” 16 N.J. 295, 305 (1954) (citing Beam v. Kent, 3 N.J.

210, 215 (1949)); see also Savoia v. F. W. Woolworth Co., 88

N.J. Super. 153, 162 (App. Div. 1965). “Expert opinion is

valueless unless it is rested upon the facts which are admitted

or are proved.” Stanley, supra, 16 N.J. at 305 (citing Bayonne

v. Standard Oil Co., 81 N.J.L. 717, 722 (E. & A. 1910)); see

also State v. Sowell, 213 N.J. 89, 100 (2013) (holding that

hypothetical question in criminal case must be limited to facts

presented at trial); accord State v. Nesbitt, 185 N.J. 504, 519

(2006); State v. Odom, 116 N.J. 65, 78-79 (1989). Consequently,

“a hypothetical question cannot be invoked to supply the

substantial facts necessary to support the conclusion.”

Stanley, supra, 16 N.J. at 305 (citations omitted); Wilsey,

supra, 76 N.J. Super. at 25.

26

That principle governs this case. The hypothetical

question suggested by the Appellate Division -- in which the

expert would be asked to assume that Pierre’s account of the

accident was mistaken -- not only lacks the requisite foundation

in the facts, but is premised on a rejection of uncontroverted

testimony. On this record, no hypothetical question that

conforms to our standard can salvage the causation opinion

proffered by Bellizzi.

Accordingly, we hold that the trial court properly

exercised its discretion when it rejected Bellizzi’s causation

testimony as a net opinion.

C.

In the wake of its exclusion of Bellizzi’s opinion, the

trial court granted summary judgment on the ground that

plaintiffs had failed to present a prima facie showing of

causation. That determination is reviewed de novo. Davis,

supra, 219 N.J. at 405 (citing Manahawkin Convalescent v.

O’Neill, 217 N.J. 99, 115 (2014)). We apply the same standard

that governs the trial court, which requires denial of summary

judgment when “‘the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party.’” Id.

27

at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995)).

The issue of causation is ordinarily left to the

factfinder. Fluehr v. City of Cape May, 159 N.J. 532, 543

(1999) (citing Scafidi v. Seiler, 119 N.J. 93, 101 (1990)); J.S.

v. R.T.H., 155 N.J. 330, 351 (1998) (citing Martin v. Bengue,

Inc., 25 N.J. 359, 374 (1957)). That rule, however, is not

absolute. As this Court has noted, the issue of proximate cause

“may be removed from the factfinder in the highly extraordinary

case in which reasonable minds could not differ on whether that

issue has been established.” Fleuhr, supra, 159 N.J. at 543

(citing Vega by Muniz v. Piedilato, 154 N.J. 496, 509 (1998));

J.S., supra, 155 N.J. at 352 (“[O]ur courts have, as a matter of

law, rejected the imposition of liability for highly

extraordinary consequences.”). For example, in Fleuhr, supra,

this Court reinstated the grant of summary judgment in favor of

a municipality because dangerous ocean conditions and a surfer’s

conduct, not the alleged negligence of a lifeguard, caused a

surfing accident. 159 N.J. at 543-45; see also Vega, supra, 155

N.J. at 507-09 (holding summary judgment properly granted where

no reasonable jury could find condition of property, with an

open air shaft, and not plaintiff’s “undisputed” attempt to leap

air shaft, was proximate cause of injury); Dawson, supra, 289

N.J. Super. at 322-25 (holding summary judgment properly granted

28

where expert report was inadmissible “net opinion” on proximate

cause between defendant’s negligent handling of roof trusses and

truss collapse). Thus, in the unusual setting in which no

reasonable factfinder could find that the plaintiff has proven

causation by a preponderance of the evidence, summary judgment

may be granted dismissing the plaintiff’s claim.

This case presents such a setting. As this Court has

noted, to prove the element of causation, plaintiffs bear the

burden to

introduce evidence which affords a reasonable

basis for the conclusion that it is more

likely than not that the conduct of the

defendant was a cause in fact of the result.

A mere possibility of such causation is not

enough; and when the matter remains one of

pure speculation or conjecture, or the

probabilities are at best evenly balanced, it

becomes the duty of the court to direct a

verdict for the defendant.

[Davidson v. Slater, 189 N.J. 166, 185 (2007)

(quoting Reynolds v. Gonzalez, 172 N.J. 266

(2002)).]

Here, no facts in the record support plaintiffs’ contention

that the shrubbery on the Property was a proximate cause of the

fatal collision between Pierre and Townsend. None of the three

witnesses to the accident whose testimony was before the trial

court suggested that the shrubbery impeded Pierre’s view of

oncoming traffic when she made her left turn. Against her

interest as a defendant in this case, Pierre denied that the

29

shrubbery obscured her view, and Kirby corroborated Pierre’s

testimony. No engineering analysis undermined Pierre’s

recollection of the accident. Plaintiffs’ contention that the

fact of the accident itself provides circumstantial evidence

that the shrubbery was a cause of the collision, because Pierre

did not notice the approaching motorcycle before the impact, is

nothing more than speculation.

There is, in short, no evidence in the record that would

support a factfinder’s determination in plaintiffs’ favor on the

crucial element of proximate cause. The trial court properly

granted summary judgment dismissing plaintiffs’ claims against

Garland and Sunset Family Dental.

IV.

The judgment of the Appellate Division is reversed with respect

to Garland and Sunset Family Dental, and the trial court’s grant of

summary judgment in favor of Garland and Sunset Family Dental is

reinstated.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, and

SOLOMON, and JUDGE CUFF (temporarily assigned) join in JUSTICE

PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

30

SUPREME COURT OF NEW JERSEY

NO. A-2 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

DEBORAH F. TOWNSEND,

Administratrix ad prosequendum of

the Estate of Alvin J. Townsend,

Jr.; ALVIN J. TOWNSEND, SR.,

administrator ad prosequendum of

the Estate of Alvin J. Townsend,

Jr.; and ALVIN J. TOWNSEND, JR.,

deceased,

Plaintiffs-Respondents,

v.

NOAH PIERRE an individual; JEAN

HILAIREMONT, an individual; THE

PRECISION DENTAL SPECIALIST, LLC;

LEONARD H. JUROS, an individual;

JANEL L. JUROS, an individual;

TOWNSHIP OF WILLINGBORO; and BOARD

OF CHOSEN FREEHOLDERS OF THE

COUNTY OF BURLINGTON,

Defendants,

and

GARLAND PROPERTY MANAGEMENT, LLC;

and SUNSET FAMILY DENTAL, LLC,

Defendants-Appellants.

DECIDED March 12, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE/

CHECKLIST

REINSTATE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA ------------------------ ----------------------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6

1