# J.R. v. New Jersey State Parole Board

> New Jersey Superior Court Appellate Division · December 21, 2023

URL: https://www.frixlaw.com/law-library/cases/9911964

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** December 21, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9911964

## Opinion text

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1936-21

J.R., as administratrix ad
prosequendum of the Estate of
V.R. and J.R.,1 individually,

Plaintiffs-Appellants,

v.

NEW JERSEY STATE PAROLE
BOARD, STATE OF NEW JERSEY,
NEW JERSEY DEPARTMENT OF
CORRECTIONS, and DIVISION
OF PAROLE,

Defendants,

and

SR. PAROLE OFFICER
ANGEL RODRIGUEZ,

Defendant-Respondent.
________________________________

Submitted June 1, 2023 – Decided December 21, 2023

1
We employ initials to identify V.R., her foster parent J.C. and her mother,
J.R., because the identity of a victim of an alleged sexual assault, V.R., is
confidential and not subject to public disclosure. N.J.S.A. 2A:82-46(b).
Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0470-16.

Blume, Forte, Fried, Zerres & Molinari, PC, attorneys
for appellants (Michael B. Zerres, of counsel and on the
briefs; Richard T. Madurski, on the briefs).

Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Justine M. Longa, Deputy
Attorney General, on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, a public

employee is not liable for injuries resulting from the parole of a prisoner or the

terms and conditions of the prisoner's parole. N.J.S.A. 59:5-2(a). But that broad

grant of immunity does not exonerate a public employee from liability for

injuries where the employee's conduct "constitute[s] a crime, actual fraud, actual

malice or willful misconduct." N.J.S.A. 59:3-14(a).

It is claimed defendant Angel Rodriquez worked as the supervising parole

officer of convicted sex offender and parolee Brian Farmer in July 2019, when

Farmer is alleged to have sexually assaulted and brutally murdered nine-year-

old V.R. and murdered V.R.'s then-foster parent, J.C. Plaintiff J.R., V.R.'s

A-1936-21
2
biological mother, later filed suit on her own behalf and as administratrix ad

prosequendum of V.R.'s estate, claiming defendant engaged in willful

misconduct—an alleged failure to properly supervise Farmer on parole—and, as

a result, defendant is not immune from liability under N.J.S.A. 59:5-2(a) and

instead is liable under N.J.S.A. 59:3-14(a) for plaintiff's and V.R.'s injuries and

damages. Plaintiff appeals from an order granting defendant summary judgment

based the court's determination plaintiff lacked evidence defendant's alleged

actions constituted willful misconduct under N.J.S.A. 59:3-14(a), and defendant

therefore is immune from liability under N.J.S.A. 59:5-2(a). Based on our

review of the record, the parties' arguments, and the applicable legal principles,

we vacate the court's order and remand for further proceedings.

Plaintiff's First Complaint

In July 2015, plaintiff filed a complaint alleging the New Jersey State

Parole Board, the State of New Jersey, the New Jersey Department of

Corrections, Division of Parole, and defendant recklessly, carelessly, and

negligently supervised Farmer on parole and thereby proximately caused V.R.

to suffer injuries and death as a result of the sexual assault and murder allegedly

committed by Farmer. Those defendants jointly moved for summary judgment,

arguing they were immune from liability under N.J.S.A 59:5-2(a).

A-1936-21
3
The court granted the motion, finding plaintiff did not plead a cause of

action upon which relief may be granted, see R. 4:6-2(e), because defendants

were immune from liability under N.J.S.A. 59:5-2(a) for the only claim asserted

in the complaint—that defendants recklessly, carelessly, or negligently caused

the asserted injuries and damages. The court, however, recognized plaintiff

could properly assert a legally cognizable claim alleging willful misconduct

against the defendants. The court noted the initial complaint did not assert a

willful misconduct claim and explained that it made "no ruling with regard to"

such a claim.

The court denied plaintiff's request for leave to file an amended complaint

to add a willful misconduct claim, reasoning the putative claim required the

filing of a new complaint. The court explained it was not "precluding [plaintiff]

from raising that claim." In its order dismissing the initial complaint, the court

stated it "ma[de] no ruling with regard to" willful misconduct.

Plaintiff appealed from the court's order dismissing the reckless, careless,

and negligent conduct cause of action. We affirmed the order, J.R. v. N.J. State

Parole Bd., No. A-2277-15 (App. Div. Mar. 9, 2018) (slip op. at 26), but noted

the court had stated plaintiff could file a new complaint asserting a willful

A-1936-21
4
misconduct claim. Id. at 4 n.2. We further observed that plaintiff had already

filed a second complaint asserting a willful misconduct claim. Ibid.

Plaintiff's Second Complaint

In her second complaint, plaintiff asserted a single cause of action alleging

Farmer was a violent sex offender serving parole under defendant's supervision

at the time of V.R.'s sexual assault and murder. The complaint further alleged

defendant engaged in reckless and willful misconduct in his supervision of

Farmer by failing to follow the "rules, policies, procedures, regulations and

directives related to supervising and monitoring a paroled violent sex offender,

such as" Farmer. Plaintiff also averred that as a direct and proximate result of

defendant's "deliberate indifference and willful misconduct, [V.R.] . . . was

violently and sexually assaulted and murdered by . . . Farmer, and, suffered

great physical pain and suffering and emotional and psychiatric suffering and

distress."

The complaint also alleged the New Jersey State Parole Board, State of

New Jersey, and State of New Jersey, Department of Corrections and Division

of Parole, were vicariously liable for defendant's alleged willful misconduct.

The court later granted the State defendants' motion to dismiss the complaint,

A-1936-21
5
and the matter proceeded solely on plaintiff's willful misconduct claim against

defendant.2

Defendant filed an answer to the complaint. During discovery, plaintiff

provided a report from a putative liability expert Nancy Hildner who in part

opined that defendant engaged in willful misconduct by failing to supervise

Farmer in accordance with New Jersey State Parole Board policies and

procedures.3 In response to Hildner's report, defendant offered a certification

from James Stephens, a long-time employee of the New Jersey State Parole

Board, Division of Parole, who is a Supervising Parole Office/Captain and

whose duties include supervising the Sex Offender Management Unit. 4 In his

certification, Stephens provided an "assessment" of Hildner's report, detailing

his numerous disagreements with her findings and conclusions.

2
Plaintiff does not challenge the court's order dismissing the complaint as to
the New Jersey State Parole Board, State of New Jersey, and State of New
Jersey, Department of Corrections and Division of Parole.
3
The summary judgment record does not identify Hildner's putative area of
expertise or any evidence establishing Hildner's purported qualifications as an
expert witness.
4
The summary judgment record does not identify Stephens' putative area of
expertise. His certification describes his experience as an employee in the
Division of Parole, but the lack of any description of the area of expertise for
which defendant might offer him as an expert witness renders it impossible to
determine if he might be properly qualified as an expert.
A-1936-21
6
Defendant moved for summary judgment. He argued he is entitled to

judgment as a matter of law because he is immune from liability under N.J.S.A.

59:5-2(a) and plaintiff lacked evidence he engaged in willful misconduct such

that he is exonerated from the immunity under N.J.S.A. 59:3-14(a). Plaintiff

opposed the motion, arguing there were genuine issues of material fact

concerning defendant's supervision of Farmer's parole prior to V .R.'s sexual

assault and murder. 5

The Summary Judgment Record

We review a grant of summary judgment de novo, applying the same

standard as the trial court. Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023);

Samolyk v. Berthe, 251 N.J. 73, 78 (2022). The standard requires that we

"consider whether 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." Ibid. (quoting Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119,

5
Plaintiff cross-moved to bar defendant's putative expert, Stephens, from
testifying at trial. As we explain, the court granted defendant's summary
judgment motion and then denied plaintiff's cross-motion as moot. Plaintiff
does not argue the court erred by denying the cross-motion, but because we
vacate the court's summary judgment order and remand for further proceedings ,
the court shall consider and decide the cross-motion to the extent required based
on its disposition of the summary judgment motion.
A-1936-21
7
125 (2023)). We also must determine "whether '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.'"

Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-

2(c)).

In reviewing a summary judgment record, we limit our findings of fact to

those facts properly presented in accordance with Rule 4:46-2. The Rule states:

[A] party moving for summary judgment is required to
submit a "statement of material facts" . . . "set[ting]
forth in separately numbered paragraphs a concise
statement of each material fact as to which the movant
contends there is no genuine issue together with a
citation to the portion of the motion record establishing
the fact or demonstrating that it is uncontroverted."

[Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488
(App. Div. 2003) (quoting R. 4:46-2(a)).]

A moving party's citation to the motion record "shall identify the document and

shall specify the pages and paragraphs or lines thereof or the specific portions

of exhibits relied on" in support of each statement of material facts. R. 4:46-

2(a).

A-1936-21
8
"[A]ll material facts in the movant's statement which are sufficiently

supported will be deemed admitted for purposes of the motion only, unless

specifically disputed by citation conforming to the requirements of paragraph

(a) demonstrating the existence of a genuine issue as to the fact." R. 4:46-2(b).

"[A] party opposing a motion for summary judgment [must] 'file a responding

statement either admitting or disputing each of the facts in the movant's

statement.'" Claypotch, 360 N.J. Super. at 488 (quoting R. 4:46-2(b)).

Rule 4:46-2's requirements are "critical" but "entail[] a relatively

undemanding burden." Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App.

Div. 1998). They are "designed to 'focus [a court's] . . . attention on the areas

of actual dispute' and [to] 'facilitate the court's review' of the motion."

Claypotch, 360 N.J. Super. at 488 (second alteration in original) (quoting

Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:46-2 (2003)).

A court must decide a motion for summary judgment based only on the "factual

assertions . . . that were . . . properly included in the motion [for] and [in

opposition to] . . . summary judgment" pursuant to Rule 4:46-2. Kenney v.

Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 573 (App. Div.

1998); see also Lombardi v. Masso, 207 N.J. 517, 549 (2011) (Rivera-Soto, J.,

dissenting) (stating a trial court must decide a summary judgment motion

A-1936-21
9
"[b]ased on the [Rule]-defined, specifically tailored summary judgment record

before it").

Consistent with those principles, in our de novo review of the court's order

granting defendant summary judgment, we consider only "those [properly

included] factual assertions" set forth in the parties' Rule 4:46-2 statements.

Kenney, 308 N.J. Super. at 573; see also Lombardi, 207 N.J. at 549 (Rivera-

Soto, J., dissenting) ("That limitation—that a summary judgment determination

is defined and limited by the summary judgment record—also applies on

appeal."). Applying that standard, we have reviewed the parties' Rule 4:46-2

statements, summarize the scant undisputed facts they support, and view those

facts in the light most favorable to plaintiff as the non-moving party.6 See Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In support of his summary judgment motion, defendant submitted a

statement of material facts consisting of twenty-four paragraphs, nineteen of

6
The record on appeal includes defendant's statement of material facts pursuant
to Rule 4:46-2(a), which is supported by defendant's counsel's initial
certification with exhibits annexed and a supplemental certification with
additional exhibits annexed. The record also includes plaintiff's response to
defendant's statement of material facts and a counterstatement of material facts,
which are supported by plaintiff's counsel's certification with exhibits ann exed,
including a "Case Point Summary" with annexed exhibits and a confidential
appendix.
A-1936-21
10
which describe nothing more than the allegations in the first and second

complaints, and the procedural history of the matter and exchange of discovery,

including the parties' exchange of putative expert reports. The facts alleged in

those paragraphs pertain solely to defendant's argument on appeal that the

willful misconduct claim asserted in the second complaint is barred under the

doctrine of res judicata.

The remaining five paragraphs of defendant's Rule 4:46-2(a) statement

assert few facts. In the first two paragraphs, defendant asserts V.R. was

"tragically killed" in July 2014 and Farmer "was suspected of committing the

murder" and passed away prior to his trial on charges related to the murder. In

her Rule 4:46-2(b) response to those two averments of fact, plaintiff admitted

the first and disputed the second, noting that Farmer was charged with, and

detained for, the murder and was not just "suspected" of committing it.

In the third of the remaining paragraphs in his statement of material facts,

defendant incorporates by reference the contents of Stephens' certification. The

certification is fourteen pages long, consists of thirty-one separate paragraphs,

and constitutes a point-by-point refutation of the opinions and alleged facts set

forth in plaintiff's putative expert Hildner's report.

A-1936-21
11
Like Hildner's report, Stephens' certification is riddled with factual

assertions about what defendant and other parole supervisors allegedly did or

failed to do during the supervision of Farmer on parole, and what Farmer said

and did during his period of parole supervision. The certification does not

reflect that the factual assertions are based on Stephens' personal knowledge,

and it is otherwise clear they are not. See R. 1:6-6.

As we have explained:

Where a motion for summary judgment is based on
facts either not of record or not judicially noticeable,
Rule 1:6-6 allows the court to "hear it on affidavits
made on personal knowledge setting forth only facts
which are admissible in evidence to which the affiant is
competent to testify and which may have annexed
thereto certified copies of all papers or parts thereof
referred to therein."

[New Century Fin. Servs., Inc. v. Oughla, 437 N.J.
Super. 299, 317 (App. Div. 2014).]

Contrary to those well-established requirements, none of the factual assertions

in Stephens' certification concerning the supervision of Farmer is supported by

a citation to competent evidence in the motion record. 7 See R. 4:46-2(a).

7
We acknowledge Stephens refers to various parole policies he claims were in
effect during, and governed the requirements for, defendant's supervision of
Farmer on parole. The policies are not annexed to Stephens's certification and
he otherwise relied on reports and records made by others in concluding

A-1936-21
12
Although "hearsay statements upon which an expert relies are

admissible . . . to apprise the jury of the basis of the opinion reached," they are

not admissible to "establish[] the truth of their contents." State v. Torres, 183

N.J. 554, 576 (2005) (quoting State v. Humanik, 199 N.J. Super. 283, 305 (App.

Div. 1985)). Thus, Stephens' numerous assertions of fact concerning defendant's

and Farmer's actions during the supervision of Farmer on parole do not

constitute competent evidence establishing facts we may accept and properly

consider in our de novo determination of defendant's summary judgment

motion.8 Ibid.; see also Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div.

defendant complied with the policies and therefore did not engage in willful
misconduct. Because Stephens' factual assertions are not based on his personal
knowledge or otherwise supported by evidence the summary judgment record
establishes is admissible, we may not properly accept Stephens' assertions, to
the extent defendant attempted to incorporate them by reference in his statement
of material facts, as establishing facts supporting defendant's summary judgment
motion. See R. 4:46-2(a).
8
We also find no support in Rule 4:46-2 for defendant's circumvention of the
plainly stated requirement that a party moving for summary judgment "shall set
forth in separately numbered paragraphs a concise statement of each material
fact to which the movant contends there is no genuine issue together with a
citation to the portion of the motion record establishing the fact or demonstrating
that it is uncontroverted." That is, defendant's wholesale incorporation of
Stephens' certification into the statement of material facts contravenes Rule
4:46-2(a)'s requirements and is therefore unacceptable. In any event, for the
reasons we have explained, Stephens' certification does not properly establish
any facts pertinent to the disposition of the summary judgment motion because

A-1936-21
13
1995) ("[E]vidence submitted in support of a motion for summary judgment

must be admissible."). And, for the same reasons, we do not accept Hildner's

assertions in her report as constituting competent evidence establishing facts we

may properly consider in our de novo review of defendant's summary judgment

motion.

The two remaining paragraphs in defendant's Rule 4:46-2(a) statement of

material facts refer to Stephens' conclusory opinions defendant's supervision of

Farmer did not "contribute[] in any way to the homicides committed by Farmer

on July 30, 2014," and the record lacked evidence defendant's conduct

"resembled willful misconduct as a matter of law." In her response, plaintiff

denied the assertions, citing Hildner's opinion as set forth in her report, that

defendant's willful disregard of parole office policies and procedures,

backdating of chronological record entries, and failure to make contact with

Farmer established that defendant engaged in willful misconduct resulting in the

sexual assault and murder of V.R.

the factual assertions included are not based on Stephens' personal knowledge
or other competent evidence. See R. 1:6-6.
A-1936-21
14
Plaintiff submitted a counterstatement of material facts in opposition to

defendant's motion. 9 Plaintiff asserted that under New Jersey State Parole Board

policies, defendant was required to perform one face-to-face contact with

Farmer every thirty days, a positive home visit to Farmer's approved residence

every thirty days, and one random drug or alcohol test every thirty days. In

support of the assertion, plaintiff cites a document entitled "800 Series –

Procedure," that is included in a confidential appendix.10 The document is

neither certified nor supported by a certification, affidavit, or other competent

evidence establishing it as a New Jersey State Parole Board policy or procedure

9
Plaintiff's appendix on appeal also includes a two-page "Case Point
Summary." The record does not reflect whether the summary was submitted to,
or filed with, the motion court, and the only reference to the document in the
record on appeal is in plaintiff's listing of it in the index of the items included in
the appendix. In any event, even if the summary was submitted to the motion
court, we do not consider it as establishing facts that may be properly considered
in our de novo review of the summary judgment record. The summary is not
certified, supported by an affidavit or certification in accordance with Rule 1:6-
6, or otherwise tethered to a citation to competent evidence. See Rule 4:46-2(b).
Moreover, the purported facts included in the summary are not set forth in the
plaintiff's counterstatement of material facts as required under Rule 4:46-2(b).
10
We are uncertain of the basis on which plaintiff submitted a confidential
appendix. The record on appeal includes a protective order entered by the trial
court permitting submission of "certain privileged and confidential records"
pertaining to V.R.'s custody that was filed in a Family Division non-dissolution
matter, but it is unclear whether the documents included in plaintiff's
confidential appendix on appeal are within the scope of the protective order.

A-1936-21
15
that governed defendant's supervision on Farmer on parole. See Kenney, 308

N.J. Super. at 573.

Plaintiff's counterstatement of material facts also asserts defendant "was

required to immediately report any violations of Farmer's conditions of

supervision," and "was required to familiarize himself with Farmer's case plan

agreement to ensure continuity of compliance." In support of the assertion,

plaintiff cites the "N.J. State Parole Board Policy and Procedure #09.881 Sex

Offender Management" that is included in the confidential appendix. The policy

included in the appendix is incomplete and untethered to any competent

evidence establishing it governed defendant's supervision of Farmer on parole,

and the record does not include "Farmer's case plan agreement."11

Plaintiff also asserts defendant made untimely entries in a chronological

record of his supervision of Farmer. More particularly, plaintiff asserts

defendant made his first entry in the chronological record on July 30, 2014,

stating he called Farmer that day but did not make contact with him. Plaintiff

further asserts it was not until July 31, 2014, that defendant made an entry in the

chronological record detailing purported activity concerning Farmer that

11
The policy in the appendix includes only paragraphs numbered "3" and "4 ."
It does not include the policy's other paragraphs.
A-1936-21
16
occurred fifteen days earlier on July 16, 2014. 12 Defendant also avers that the

next entry, made on August 4, 2014, describes defendant's interaction with

Farmer during a phone call that defendant reported occurred on July 28, 2014.13

Last, plaintiff asserts defendant's chronological report next includes a second

entry made on August 4, 2014, reporting an alleged telephone call defendant had

with Farmer four days earlier on July 31, 2014.14

In plaintiff's final assertion in her counter-statement of material facts, she

first states Farmer had not been charged with any other crimes during "the

relevant term of his parole" supervision other than when he was supervised by

defendant. The parties' respective statements of material facts, however, do not

include any averments of fact supported by competent evidence establishing the

relevant period of Farmer's parole supervision by defendant or anyone else, or

12
The July 31, 2014 entry in part states that on July 16, 2014, defendant visited
Farmer's "approved residence," and spoke with the owner who confirmed
Farmer resided there and was at work.
13
The August 4, 2014 entry describes a July 28, 2014 phone call defendant
reported he had with Farmer during which they discussed Farmer's claimed need
to move from his then-current residence and defendant's instruction that Farmer
report to the Asbury Park Rescue Mission for temporary housing.
14
The second August 4, 2014 entry describes a July 31, 2014 phone call
defendant reported he had with Farmer during which Farmer confirmed his
whereabouts and claimed he was at the Asbury Park Rescue Mission.
A-1936-21
17
that he had never been previously charged with an offense while on parole

supervision.

In plaintiff's final averment of fact in opposition to defendant's summary

judgment motion, she asserts that on August 14, 2014, Division of Parole

Lieutenant Thomas Barr placed Farmer in a more restrictive phase of

supervision.

Based on the scant factual assertions set forth in the parties' Rule 4:46-2

submissions, the court heard oral argument on defendant's motion for summary

judgment.15 Defendant argued the motion should be granted because plaintiff

lacked evidence that any of his purported actions or failure to act in supervising

defendant constituted willful misconduct such that he is exonerated under

N.J.S.A. 59:3-14 from the immunity to which he is otherwise entitled under

15
In the dearth of facts provided in the parties' Rule 4:46-2 statements, the
record lacks even the most basic facts pertinent to plaintiff's claims, defendant's
assertion of immunity under N.J.S.A. 59:5-2(a), and plaintiff's contention
defendant is not entitled to immunity because he engaged in willful misconduct,
see N.J.S.A. 59:3-14. For example, the parties' Rule 4:46-2 statements do not
address or establish: Farmer's period of parole supervision by the Division of
Parole, defendant, or anyone else; that Farmer was a convicted sex offender;
Farmer's designated level of supervision on parole; the date or location of V.R.'s
sexual assault and murder; the date defendant learned of the assault and murder;
and many other facts that may be deemed pertinent to a determination of whether
defendant violated any Division of Parole policies or procedures as alleged by
plaintiff and, if so, whether the violations constituted willful misconduct under
N.J.S.A. 59:3-14.
A-1936-21
18
N.J.S.A. 59:5-2(a). Plaintiff asserted defendant engaged in willful misconduct

because he did not supervise defendant in accordance with Division of Parole

policies, he back-dated certain entries in the chronological report to cover up his

failures, and defendant should have known—given Farmer's status as a

convicted sex offender and the purpose of the requirements for close supervision

of convicted sex offenders on parole—that defendant's alleged failure to

properly supervise Farmer would likely result in Farmer's alleged commission

of crimes—the sexual assault and murder of V.R.

In its decision from the bench, the court did not make findings of fact

based on the parties' Rule 4:46-2 statements or otherwise. See R. 1:7-4. Instead,

the court generally summarized the law governing a determination as to whether

public employees have engaged in willful misconduct under N.J.S.A. 59:3-14

such that they are exonerated from immunity under N.J.S.A. 59:5-2(a). The

court then determined that although the events that are the subject of the

complaint are "tragic" and "horrific[,]" and defendant's "conduct . . . is

negligent, perhaps even above negligence, [and] maybe reckless," the conduct

does not "arise to the level of willful misconduct."

A-1936-21
19
Based on those limited findings, the court granted defendant's summary

judgment motion and entered a memorializing order. 16 This appeal followed.

We conduct a de novo review of an order granting summary judgment,

applying the same standard as the trial court. Conforti, 255 N.J. at 162;

Samolyk, 251 N.J. at 78. In doing so, we must "consider whether 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." Ibid. (quoting

Statewide Ins. Fund, 253 N.J. at 125). We must also consider "whether '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.'" Branch, 244 N.J. at 582 (quoting R. 4:46-2(c)).

Our de novo review on appeal is not a substitute for a trial court's

obligation, in the first instance, "to set forth factual findings and correlate them

to legal conclusions," and measure "[t]hose findings and conclusions . . . against

the standards set forth in Brill." Great Atl. & Pac. Tea Co., Inc. v. Checchio,

16
As noted, the court also denied as moot plaintiff's cross-motion to bar
Stephens' testimony at trial.
A-1936-21
20
335 N.J. Super. 495, 498 (App. Div. 2000) (citing 142 N.J. at 540). As we

explained in Estate of Doerfler v. Fed. Ins. Co., "[a]lthough our standard of

review" of a summary judgment order "is de novo, our function as an appellate

court is to review the decision of the trial court, not to decide the motion tabula

rasa." 454 N.J. Super. 298, 301-02 (App. Div. 2018) (citation omitted).

Here, the court did not make the findings based on the summary judgment

record required by Rule 1:7-4's "unambiguous" requirements, and, for that

reason, we vacate the court's order and remand for further proceedings. Id. at

302. On remand, the court shall reconsider defendant's motion, conduct such

additional proceedings as it deems appropriate, and "'state clearly [its] factual

findings and correlate them with relevant legal conclusions, so the parties and

appellate courts [are] informed of the rationale underlying th[ose]

conclusion[s]'" and the basis for its decision. Avelino-Catabran v. Catabran,

445 N.J. Super. 574, 594-95 (App. Div. 2016) (alterations in original) (quoting

Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)).

As we have explained, the parties' Rule 4:46-2 statements provide few

facts in support of, and in opposition to, defendant's motion, and many of the

scant factual assertions are unsupported by citations to competent evidence. We

observe, however, that in their respective briefs before this court the parties

A-1936-21
21
make numerous assertions of fact that are untethered to the Rule 4:46-2

statements presented to the motion court and therefore may not be properly

considered on a determination of a summary judgment motion. Allegations of

fact in briefs on appeal are no substitute for the exchange of statements of

material fact required under Rule 4:46-2. See Kopec v. Moers, 470 N.J. Super.

133, 156-57 (App. Div. 2022) (citations omitted) (finding "[s]ummary judgment

requirements . . . are not optional" and explaining summary judgment may be

denied for failing to meet the requirements of Rule 4:46-2).

It appears the parties may agree on many facts pertinent to a disposition

of defendant's summary judgment motion, and the important issues presented by

the motion deserve an appropriate record presented in accordance with the Rule.

We accordingly do not preclude the court on remand from exercising its

discretion to allow the exchange of substituted or supplemental Rule 4:46-2

statements of material fact, if requested by a party or the parties, such that the

record permits a determination of the undisputed facts supporting the parties'

respective positions. And, as noted, the remand court shall otherwise conduct

such proceedings on the summary judgment motion as it deems necessary.

Nothing in this opinion shall be construed as expressing an opinion on the

merits of defendant's motion or plaintiff's opposition to it. The merits shall be

A-1936-21
22
addressed and decided in the first instance by the trial court in accordance with

Rule 4:46-2 and the Brill standard based on the record presented. 142 N.J. at

540.

We also note that defendant argues for the first time on appeal he is

entitled to judgment as a matter of law based on the doctrine of res judicata.

More particularly, defendant argues the dismissal of plaintiff's original

complaint bars the filing of the second complaint under the doctrine of res

judicata. We do not consider the merits of the argument because it was not

"properly presented to the trial court," and does not "go to the jurisdiction of the

trial court or concern matters of great public interest," State v. Robinson, 200

N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973)), but because we remand for further proceedings, we do not preclude

defendant from presenting the argument to the trial court on remand.

Vacated and remanded for further proceedings. We do not retain

jurisdiction.

A-1936-21
23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9911964. Public record. Not legal advice.