On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1537-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson and Alvarez.
Plaintiffs Jaime Velazquez, Yerica Estrada and Tanairy Velazquez, appeal from two trial court orders dated August 11, 2006, granting summary judgment dismissing their complaints against defendants Ranger Insurance Company, D&D Bonding Services, Inc., DeLapp Investigations, and Ronnie DeLapp. We affirm.
These are the most pertinent facts, drawn from the record of the summary judgment motions. On three occasions in the summer of 2002, several bounty hunters visited the plaintiffs' Atlantic City apartment, apparently under the mistaken belief that Jaime Velazquez was actually a North Carolina fugitive named Jorge Peralta. After the first such visit, one of the intruders identified himself as Bryant Torres of JBB Capital Recovery and Protection, Inc. (JBB). However, in her deposition, Yerica Estrada also testified that the intruders claimed to be FBI agents and that they brought Atlantic City police officers with them on one occasion. According to plaintiffs, the visits were marked by escalating violence and intrusion into their privacy. During the third incident, the intruders actually took Jaime to North Carolina for questioning, but eventually released him.
Subsequent to these events, plaintiffs discovered that Hunter Pay Less Bail Bonds (Hunter) had posted bail for Peralta in North Carolina. They brought suit against JBB and Hunter on the theory that Hunter hired JBB to track down Peralta. On a theory of vicarious liability, plaintiffs also sued Hunter's supervising agent, Ronnie DeLapp, DeLapp Investigations, and D&D Bonding Services Inc. (DeLapp or the DeLapp defendants), and Ranger Insurance Company (Ranger).*fn1
Following an extended period of discovery, defendants filed motions for summary judgment. At the initial return date of the summary judgment motions, defendants urged that there was no evidence actually linking any of their clients to JBB or its purported employee, Bryant Torres. Defendants had produced legally competent evidence that DeLapp had never hired, or even heard of, JBB and knew nothing about its alleged mission to capture Peralta. DeLapp had testified that neither his agency nor Hunter would even have been looking for Peralta at the time plaintiffs' home was invaded, because Peralta was not a fugitive at that time. He also testified that Ranger would have had no responsibility for recovering Peralta if he was a fugitive.
Judge Todd agreed to carry the motions to August 11, 2006, to give plaintiffs an opportunity to take the deposition of a representative of Ranger. However, he warned plaintiffs' counsel that the defense of the motion required more than "theories." Plaintiffs needed to come up with legally competent evidence linking JBB and its alleged employee Torres with the moving defendants. Otherwise summary judgment would be granted.
When the parties presented oral argument on August 11, 2006, plaintiffs' counsel conceded that the Ranger deposition had not produced any additional evidence to support plaintiffs' case. In granting summary judgment in favor of D&D Bonding Services, DeLapp Investigations and Ronnie DeLapp, the judge found that plaintiffs simply had provided "no proofs" to establish that any of those defendants "have any connection to this case." In particular, plaintiffs had not produced any evidence to dispute DeLapp's certification that he never "heard of, let alone hired, JBB Capital Recovery & Protection, Inc. and/or Bryant Torres" and that "none of his companies had anything to do with any action involving Jaime E. Velazquez." The judge also granted summary judgment in favor of Ranger, finding that "[t]here is no evidence that Ranger had any involvement with any person who was involved with the arrest of Jaime E. Velazquez." Since plaintiffs had not produced any evidence linking any of the moving parties with JBB or Torres, the persons allegedly actually responsible for falsely arresting Velazquez, the judge did not address plaintiffs' assorted theories of corporate liability against defendants.
Plaintiffs did not file a motion for reconsideration of the August 11, 2006 order or otherwise seek any further relief in the trial court from the operation of that order. However, they did pursue claims against Hunter and other defendants. Plaintiffs eventually obtained a default judgment for $145,000 against Hunter, the entity that issued the bail bond for Peralta. Although Hunter is not a party to this appeal, plaintiffs have improperly included in their appendix materials relating to their later default application against Hunter, including a certification from an investigator named Wilberto Alejandro. Those materials were not before Judge Todd when he decided the summary judgment motions involved in this appeal, and we have not considered them in deciding this appeal. See R. 2:5-4(a); Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978).
Our review of the summary judgment order is de novo, using the same standard employed by the trial court. Bello v. Lyndhurst Bd. of Ed., 344 N.J. Super. 187, 189-90 (App. Div. 2001). Generally, summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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." R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 ...