SUNG KIM v. LISA HENRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SUNG KIM,

Plaintiff-Appellant,

v.

LISA HENRY, a/k/a LISA LAMATTINA,

Defendant-Respondent,

and

BLAKE HENRY, a/k/a "JOHN"

PAULELLA, First Name Unknown,

and RENATA PAULELLA,

Defendants.

___________________________________

December 1, 2014

Submitted July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket

No. L-3165-12.

Sung Kim, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

This matter is before us for a second time. Plaintiff Sung Kim appeals from the entry of summary judgment dismissing her complaint. We affirm.

As we summarized the facts the last time the case was before us

This case involves a relatively simple claim for property damage to Kim's car resulting from an accident involving a vehicle allegedly owned by defendants Lisa and Blake Henry and driven by defendant Renata Paulella, who was employed by the Henrys as a live-in nanny at the time of the accident. The Henrys, through their attorney, attempted to settle the claim several times, both before and after the filing of suit. Kim declined the settlement offers, refusing to sign releases requested as part of the settlement and insisting on payment for diminished value, interest, and costs.

[Kim v. Henry, No. A-3627-10 (App. Div. Oct. 9, 2012) (slip op. at 2).]

Although the facts are simple, the procedure has not been nearly so straightforward. We recount only those points necessary to provide context for our decision. The accident happened in early 2007. Plaintiff filed a complaint for property damage to her ten-year old Toyota Camry in the Special Civil Part in late 2008. Before filing an answer, defendant's insurance carrier offered plaintiff the exact sum she demanded and her court costs, a total of $2,135.48. Plaintiff refused settlement, apparently because defendant requested plaintiff sign a standard release. Shortly before the trial date, and without notice to defendant, plaintiff withdrew the action and refiled in the Law Division.

After eighteen months of discovery, the matter proceeded to arbitration. The arbitrators determined that defendant was one hundred percent liable and awarded plaintiff the entirety of her claimed out-of-pocket costs, $2,078.48, the same sum defendant had offered before answering in the Special Civil Part, less the $57 in court costs. Plaintiff declined the award and filed an application for a trial de novo. Plaintiff's suit was dismissed a year later when plaintiff failed to respond to the call on the trial date, although she was present in the courtroom.

We reversed that decision, finding that plaintiff should have been provided with a Korean interpreter on the trial date. Kim v. Henry, supra, (App. Div. Oct. 9, 2012) (slip op. at 14). Although acknowledging the proficiency of plaintiff's written submissions was at odds with the difficulty she appeared to be having communicating with the judge in court, we determined "[u]nder all of the circumstances . . . that the interests of justice are best served by vacation of the order of dismissal and remand for a trial on the merits, at which time a Korean interpreter should be made available to interpret for Kim as she presents her case and testifies." Id. at 15.

Following our remand, the parties engaged in further motion practice. Plaintiff served requests for admissions, prompting defendant's motion for a protective order, and defendant filed another motion for summary judgment.1 Plaintiff filed a cross-motion to extend discovery. The Law Division judge wrote to the parties on April 2, 2013, advising them that he would hear the motions in his courtroom on April 19, 2013, at 9:00 a.m. Plaintiff acknowledges that the judge's law clerk also called and left her a phone message with the same information.

Plaintiff did not appear in court on the return date. Defense counsel was present as was a Korean interpreter court personnel had arranged to be present for the argument.2 When plaintiff did not appear, the judge directed his staff to telephone plaintiff's home and utilized the services of the interpreter to leave a message on her machine.3 The judge directed defense counsel to telephone plaintiff as well.

After waiting with the interpreter and defense counsel until 11:00 a.m. for plaintiff to appear, the judge decided the motions.

In a clear effort to equitably resolve the parties' competing claims and bring this protracted litigation to a close, the judge granted defendant's motion for summary judgment contingent on defendant paying plaintiff the amount of the arbitration award, $2,078.48, within thirty days. The judge also allowed plaintiff thirty days to file an amended complaint asserting any claims other than for property damage. Plaintiff did not file an amended complaint or request more time to do so. She elected instead to pursue this appeal and oppose defendant's motion to deposit the $2,078.48 in court after plaintiff declined to accept the carrier's check in that sum.

Plaintiff claims that she "has been denied her day in court and never had a chance to present her case." She reminds us of the Supreme Court's words in Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988), that "[g]enerally, we seek to afford 'every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case.'" (quoting United Rental Equip. Co. v. Aetna Life and Cas. Ins. Co., 74 N.J. 92, 99 (1977)). She argues that defendant and the Law Division have deprived her of full participation in the justice system. We cannot agree.

The plaintiff in Velantzas was faced with summary judgment early in the proceedings when the case was not fully developed. Velantzas, supra, 109 N.J. at 191. This case was over five years old when the order from which plaintiff appeals was entered. While plaintiff is certainly correct that we said in our prior opinion that the matter was remanded for trial, we are frankly unable to discern what there was left to try. Plaintiff has never presented proof of any damages beyond that which the Law Division ordered defendant to pay to her. We are not aware of any other sums to which she would be legally entitled.

Our concern when the matter was last before us was that although plaintiff's written submissions demonstrated a considerable degree of sophistication and polish, the lack of a court-provided interpreter hampered her ability to communicate in open court. The Law Division rectified that problem on the remand. But plaintiff is not the only party deserving of justice. Defendant is also entitled to justice and the court's consideration in ensuring access to the courts. While it is, of course, "critical that a trial court ruling on a summary judgment motion not 'shut a deserving litigant from his [or her] trial[,]'" the Supreme Court has noted "that it is just as important that the court not 'allow harassment of an equally deserving suitor for immediate relief by a long and worthless trial.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540-41 (1995) (quoting Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 77 (1954)).

Plaintiff has recovered the full measure of damages available to her without having to sign the release to which she objected. Defendant has ended five years of litigation seeking the same damages she offered to pay before filing her answer. Because we are satisfied that the Law Division's resolution of this matter was appropriate under the circumstances, we affirm.

Affirmed.

1 Defendant's motion was premised on the lack of proof of any agency relationship between defendant and the driver of the car that caused the accident. We note that defendant, although willing throughout this case to pay plaintiff's claimed damages, has refused to admit agency at any time.

2 This was not the first time plaintiff had failed to appear at

a court event after an interpreter had been hired to appear. The court denied defendant's first motion for summary judgment because defendant had not been deposed. The court sua sponte ordered the defendant to appear at a deposition in the courthouse on a specified date. Defendant, her counsel and an interpreter defendant had hired appeared in the courthouse as ordered. Plaintiff failed to appear.

3 Plaintiff claims that "the day before the return date of the motions, a good Samaritan went to the online Civil Motion Calendar Case Detail" on her behalf and read that there was no oral argument requested or granted for the three motions. That information clearly was not consonant with the court's letter directing her to appear for argument and the clerk's phone message.