JACQUELINE NGUYEN v. PENSUWAN, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1215-10T1

 

 

JACQUELINE NGUYEN,

 

Plaintiff-Appellant,

v.

PENSUWAN, INC., d/b/a WASHLAND

LAUNDROMAT,1

Defendant-Respondent,

and

EVANDORA WHEELER, BARBARA EINHORN,

and SHONALISIA LYLES,

Defendants.

______________________________________

November 9, 2011

 

Submitted July 19, 2011 - Decided

 

Before Judges R. B. Coleman and

Sapp-Peterson.

 

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-12204-10.

 

Jacqueline Nguyen, appellant pro se.

 

Graham Curtin, attorneys for respondent (John Maloney, on the brief).

 

PER CURIAM

Plaintiff filed a complaint in the Law Division, Special Civil Part, alleging that she sustained injuries when assaulted at defendant's establishment, Pensuwan, Inc., d/b/a Washland Laundromat (Washland). The complaint named three other defendants: Barbara Einhorn, an attorney who plaintiff claimed had represented her in an unrelated matter; Evandora Wheeler, who plaintiff alleges assaulted her; and Shonalisia Lyles, against whom no specific allegations were set forth. Washland is the only defendant that answered the complaint. It subsequently moved for dismissal of the complaint on the ground that the action was barred by the statute of limitations. The trial court agreed and dismissed the complaint as to all defendants, except that as to Einhorn, the court found plaintiff failed to state a claim upon which relief may be granted because Einhorn never represented plaintiff in connection with the action and, by plaintiff's own admission, was never involved in the incident. We affirm the dismissal of the complaint against Einhorn but vacate the order dismissing the complaint as to the remaining defendants and remand for further proceedings.

According to plaintiff, the assault occurred on June 15, 2008. N.J.S.A. 2A:14-2, which governs causes of action resulting in "an injury to the person caused by the wrongful act, neglect or default of any person," requires that an action "be commenced within two years next after the cause of any such action shall have accrued." The trial court found that plaintiff's cause of action accrued on June 15, 2008 and, therefore, her complaint should have been filed within two years of that date. The court determined that plaintiff filed her complaint on June 21, 2010, six days beyond the statutory filing deadline, despite recognizing that there were two filing dates on the complaint, June 21, 2010 and June 14, 2010. The latter filing date was crossed out.

The court attempted to resolve the discrepancy by reviewing the complaint and inquiring of plaintiff whether she received a letter "that told [her] how to fix up [her] complaint." Plaintiff acknowledged that she received such a letter, which she characterized as "just a form," but advised the court that she did not have the letter with her. The court explained that it was hard to believe plaintiff did not keep the letter, since she had everything else. The court then found:

[T]his case was originally not filed, but received by the . . . office here at Special Civil Part and it was marked with marks to show where this complaint was insufficient. And, therefore, the . . . plaintiff was told what the problems were and was also told at that time, by the letter that was attached to the complaint, that the complaint was being returned and marked received, but not filed. And it's very important that you understand that it [was not] filed, but it was received. It was received and there [were] some corrections that had to be made and those corrections were then made and then it was sent back to the court for June 21st, 2010.

Based upon these findings, the court dismissed the complaint against Washland, Wheeler and Lyles. The court dismissed the complaint against Einhorn based upon plaintiff's representation to the court that Einhorn had no involvement in the matter, neither as her attorney nor as a participant or witness in the underlying matter. The present appeal followed.

On appeal, plaintiff, in her pro se brief, essentially argues that because she has asserted a meritorious claim "she should not have been disqualified from reliefs [sic]." She reiterates that she filed her complaint on June 14, 2010, but urges, for the first time on appeal, that (1) the court clerk "set [her] up for failure as she racially discriminated [against her] as her race is black"; (2) defendants' attorney "secretly ask[ed] the clerk to put the date[] June 21, 2010, on the SUMMON [sic] but not on the complaint to punish [her]"; (3) the clerk took advantage of her and her baby "to bury us, or retaliate [against] us on PURPOSE TO RUN THE STATUTE OU[T] OF TIME"; and (4) defendants' "lawyers conspired with the court to kick [her] out of court" by changing the filing date from June 14, 2010 to June 21, 2010, "a[] false fact."

We reject each of these contentions as they are unsupported in the record. Moreover, because these issues were not raised before the trial court, we decline to consider these arguments on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding issues not raised before the trial court will not ordinarily be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest). We, nonetheless, remand for further findings because the court failed to make specific findings relative to the applicability or non-applicability of Rule 1:5-6(c) to the particular circumstances here.

Rule 1:5-6(c), "Nonconforming Papers," provides in pertinent part:

The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules, except that

 

(1) the paper shall be returned stamped "Received but not Filed (date)" if it is presented for filing unaccompanied by any of the following:

 

(A) the required filing fee; or

 

(B) a completed Case Information Statement as required by R. 4:5-1 in the form set forth in Appendices XII-B1 or XII-B2 to these rules; or

 

. . . .

 

(D) the signature of an attorney permitted to practice law in this State pursuant to R. 1:21-1 or the signature of a party appearing pro se, provided, however, that a pro se appearance is provided for by these rules;

 

. . . .

 

If a paper is returned under this rule, it shall be accompanied by a notice advising that if the paper is retransmitted together with the required signature, document or fee, as appropriate, within ten days after the date of the clerk's notice, filing will be deemed to have been made on the stamped receipt date.

 

. . . .

 

(4) [A] paper shall be returned stamped "Received but not Filed (date)" if it does not conform to the requirements of R. 1:4-9 with notice that if the document is retransmitted on conforming paper within 10 days after the date of the clerk's notice, filing will be deemed to have been made on the stamped receipt date.

 

(d) Misfiled Papers. If papers are sent to the wrong filing office, they shall be stamped "Received but not Filed (date)" and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.

In its ruling, the court notes that plaintiff was told in a letter from the Clerk's Office what to do to correct the deficiencies in the complaint. The court clerk advised the court that June 14, 2010 was marked as the original filing date, but that date was crossed out and June 21, 2010 was marked as the filing date. The nature of the deficiency is not set forth in the record, since plaintiff did not have the letter which accompanied the returned complaint. The court clerk, at the court's request, looked into the "record." It is unclear whether that inquiry involved reviewing the court's file or the Automated Case Management System. Nonetheless, it is undisputed that within the ten-day period, plaintiff addressed whatever deficiency caused the Clerk's Office to return the complaint to her. The court, however, made no finding why application of Rule 1:5-6(c) did not govern the circumstances here, since whatever deficiency existed was apparently cured within the ten-day period. We therefore remand for further findings.

Finally, the dismissal order applied to all defendants, notwithstanding that Washland was the only defendant who filed a motion to dismiss the complaint. Although we reverse as to defendants Washland, Wheeler and Lyles, we affirm the dismissal as to Einhorn. Plaintiff represented to the court that her claims against Einhorn were unrelated to the underlying action. We observe plaintiff's appendix reflects that plaintiff previously filed an action against Einhorn under a separate docket number and that action was dismissed on November 25, 2009 for lack of prosecution. Consequently, despite the absence of a formal motion to dismiss the complaint filed on behalf of Einhorn, no useful purpose is served by continuing the action as to her.

Affirmed in part, vacated in part and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Improperly pled as Washerland Laundromat Corp.