LIENNA SHAIR v. MASARU TSUBOI

NOT FOR PUBLICATION WITHOUT THE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-4503-15T1

LIENNA SHAIR,

        Plaintiff-Appellant,

v.

MASARU TSUBOI and TOKIKO TSUBOI,

     Defendants-Respondents.
___________________________________

                Submitted September 26, 2017 – Decided November 14, 2017

                Before Judges Sumners and Moynihan.

                On appeal from Superior Court of New Jersey,
                Law Division, Bergen County, Docket No. L-
                0173-16.

                Lienna Shair, appellant pro se.

                Charles Michael Damian, LLC, attorneys for
                respondents (Rebecca L. Eckert, on the brief).


PER CURIAM

        Plaintiff sued defendants for damage to her home resulting

from     when    defendants    had    a    tree   trimmed   on   their   property

approximately twenty years earlier.                 Defendants counterclaimed

seeking attorney fees and costs for filing a frivolous suit.
Summary judgment was eventually granted in favor of defendants

dismissing plaintiff's complaint and awarding defendants' attorney

fees and costs.   We affirm substantially for the reasons stated

by Judge Rachelle L. Harz in her opinion placed on the record on

April 18, 2015.   We add the following comments.

     This action involving next-door neighbors originated in the

Special Civil Part.   Plaintiff filed a pro se complaint alleging

defendants hired Cherokee Tree Services to trim a tree on their

property and authorized Cherokee to park its truck on her property,

which caused extensive damage to her property.       Following the

service of the complaint, defendants' counsel served a notice of

a frivolous claim in accordance with 
N.J.S.A. 2A:15-59.1 and Rule

1:4-8, advising plaintiff to withdraw her complaint within twenty-

eight days because "your potential claims are       barred by the

[s]tatute of [l]imtations and you offer no facts to support your

outrageous and unfounded allegations."     When plaintiff did not

comply, defendants counter-claimed seeking attorney fees and costs

for filing a frivolous lawsuit.1




1
  The counter-claim also alleged defamation, libel per se, and
intentional   infliction   of   emotional   distress   based   upon
plaintiff's posting of signs on her property stating in Japanese,
"Hit and Run Liar" and "Hit and Run Neighbor." These claims are
not a subject of this appeal as plaintiff agreed in court to remove
the signs at the conclusion of the Law Division case.

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     On the trial date, plaintiff failed to appear resulting in

the dismissal of her complaint and entry of default judgment to

defendants on their counter-claim.          Plaintiff, in turn, filed a

second   complaint   raising   the   same    allegations   as   her     first

complaint.   The court subsequently reinstated plaintiff's first

complaint and dismissed the second complaint, due to the entire

controversy doctrine.

     After the Special Civil Part sua sponte transferred the matter

to the Law Division, plaintiff successfully moved to vacate the

default judgment on defendant's counter-claim, and was permitted

to file an answer to the counter-claim and reopen discovery to

serve interrogatories.     Following completion of discovery, the

court granted defendant's motion for summary judgment on April 18,

2016, dismissing plaintiff's complaint and awarding defendants

attorney fees and costs on their counter-claim.

     In her oral decision dismissing plaintiff's complaint, Judge

Harz reasoned:

           There has been no evidence presented by the
           plaintiff that defendants actually caused any
           alleged damage to plaintiff's property. The
           plaintiff has . . . stated in her complaint[]
           that a tree company, Cherokee, hired by
           defendants, is believed to have hit her home
           and cause damage. She does not allege that
           the defendants directly damaged the property.

           Not only has the plaintiff been unable to
           prove that any damage that exists on her

                                     3                                A-4503-15T1
          property was actually caused by a truck
          hitting her home, but she has failed to prove
          the defendants were the actual or proximate
          cause of any alleged damage.

          Defendants do not currently and never have
          worked for Cherokee Tree Service[s]. They are
          not an agent of nor are they in any way
          affiliated or associated with Cherokee Tree
          Service[s].   Defendants only hired Cherokee
          in or around 1995 to trim some branches on
          their property.    Plaintiff's claims should,
          therefore, be brought against Cherokee for any
          damages she alleges.

          Summary judgment is entered as to all of
          plaintiff's claims, because the plaintiff has
          failed to bring her claim within the stated
          statute of limitations.   While this [c]ourt
          is saying that today it appears, from what
          plaintiff has said herself, that she has been
          told this before by [the Special Civil Part
          Judge] and has been told this by [L]egal
          [A]id.    There is a six-year statute of
          limitations of this type of cause of action.
          
N.J.S.A. 2A:14-1.


     In granting summary judgement on defendants' counter-claim

for attorney fees and costs, Judge Harz determined the frivolous

litigation statute was enacted to prevent suits such as this,

especially where a litigant was well aware of the time bar to her

claims.   Although the judge found that the hourly rate sought by

defendants' counsel was reasonable, she ordered counsel to submit

another certification of services regarding legal fees pursuant

to the 
N.J.S.A. 2A:15-59.1.   A month later, Judge Harz entered an

order, and placed her reasons on the record, requiring plaintiff

                                 4                         A-4503-15T1
to pay defendants' attorney fees and costs in the amount of

$15,738.07.2

     In    this   appeal,    plaintiff      contends    that   her    complaint

alleging    defendants      damaged   her    property    in    1995   is     still

actionable because she is the victim of a crime and that under


N.J.S.A. 52:4B-64, a crime victim has the right to bring civil

action for damages without the restriction of the six-year statute

of limitations.     She further argues Judge Harz erred in finding

her claim was frivolous because she established defendants, by way

of Cherokee Tree Services, damaged her property in 1995,                          as

supported   by    the   defendants'    affirmative      defenses.          We   are

unpersuaded.

     Appellate review of a ruling on a motion for summary judgment

is de novo, applying the same standard governing the trial court.

Davis v. Brickman Landscaping, Ltd., 
219 N.J. 395, 405 (2014).

Thus, we consider, as the motion judge did, "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



2
  Before the proceeding to determine the amount of attorney fees
and costs, plaintiff wrote to Judge Harz to advise that she would
not be submitting opposition to defendants' application and did
not participate in the proceeding as she intended to appeal the
April 18 order.

                                      5                                    A-4503-15T1
of the non-moving party."        Id. at 406 (quoting Brill v. Guardian

Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995)).             "If there is no

genuine issue of material fact," an appellate court must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 
430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).                     We

accord    no   deference   to   the   trial    judge's   legal   conclusions.

Nicholas v. Mynster, 
213 N.J. 463, 478 (2013) (citing Zabilowicz

v. Kelsey, 
200 N.J. 507, 512-13 (2009)).

     In   light   of   the   undisputed       material   facts   presented    in

defendants' motion, Judge Harz' decision to grant summary judgment

is legally unassailable.          Plaintiff's appellate arguments are

without sufficient merit to warrant further discussion.              R. 2:11-

3(e)(1)(E).

     Affirmed.




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