MING ZHANG v. CHRISTOPHER BORK

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1002-17T4

MING ZHANG,

          Plaintiff-Appellant,

v.

CHRISTOPHER BORK,

     Defendant-Respondent.
_____________________________

                    Submitted September 10, 2019-Decided November 22, 2019

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Sussex County, Docket No. DC-000274-
                    17.

                    B. David Jarashow, attorney for appellant.

                    Law Office of Patricia A. Palma, attorney for
                    respondent (Amanda M. Rochow, on the brief).

PER CURIAM

          Plaintiff Ming Zhang appeals from a no-cause verdict entered after a

bench trial where plaintiff appeared pro se. Plaintiff's civil complaint sought
compensation for property damage to his vehicle sustained from a rear-end

collision. The trial judge, sitting as the trier of fact, found that plaintiff caused

the accident when he abruptly changed into the lane that defendant was

travelling in and stopped short, causing defendant's vehicle to clip plaintiff's left

rear bumper.     We affirm the trial verdict and dismissal of the plaintiff's

complaint essentially for the reasons explained in the trial judge's ruling denying

plaintiff's motion for reconsideration.

      Plaintiff contends on appeal that:

             POINT I

             THE COURT RULED THAT THE TRIAL WOULD
             BE ADJOURNED UNTIL SEPTEMBER 12, 2017 IN
             ORDER TO PROVIDE PLAINTIFF WITH
             ADDITIONAL TIME TO ESTABLISH HIS PROOFS,
             BUT THEN PROCEEDED TO CONDUCT A FULL
             TRIAL AND RENDER A DECISION.

             POINT II

             A PRO SE LITIGANT, WITHOUT THE
             WHEREWITHAL     TO   UNDERSTAND    THE
             REQUIREMENTS OF THE RULES GOVERNING
             CIVIL PRACTICE, MAY BE RELIEVED OF THE
             CONSEQUENCES OF THAT FAILURE.

             POINT III

             PLAINTIFF IS ENTITLED TO JUDGMENT AS A
             MATTER OF LAW AS TO DEFENDANT'S
             LIABILITY.

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            POINT IV

            BASED ON THE TRIAL COURT'S COMMENTS
            ABOUT PLAINTIFF'S "TINY" CHINESE ACCENT
            AND HIS "JOKE" ABOUT PLAINTIFF BEING
            FROM JERSEY CITY, A REASONABLE, FULLY
            INFORMED PERSON WOULD HAVE DOUBTS
            ABOUT THE JUDGE'S IMPARTIALITY.

      After reviewing the record, plaintiff's contentions on appeal do not

warrant extensive discussion in a written opinion. See R. 2:11-3(e)(1)(E). With

respect to plaintiff's claim regarding the adjournment of the trial, the trial court

did not actually adjourn the matter. Rather, the trial judge decided to take

testimony from both parties that day on the question of liability while permitting

plaintiff the opportunity to present evidence concerning damages at a future trial

date. The need to continue the trial to a second day evaporated, however, when

plaintiff accepted the defense expert's testimony concerning the nature and

extent of the damage to plaintiff's vehicle. Because there was no dispute as to

the amount of damage to the vehicle, there was no reason not to complete the

trial on July 24, 2017. In sum, we are satisfied that plaintiff was not denied an

opportunity to fully present his case at the bench trial.

      Likewise, plaintiff's contention that he was denied an opportunity to

subpoena the police officer who wrote an accident report is clearly without



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merit. As it turned out, defense counsel consented to the admissibility of the

report, making it unnecessary to call the officer as a live witness.

      Plaintiff asserts that he is entitled to a new trial because he lacked the

wherewithal to understand the rules of civil litigation. That contention is clearly

without merit. Plaintiff elected to proceed pro se. Such litigants are presumed

to know the law. Cf. Tuckey v. Harleysville Ins. Co.,  236 N.J. Super. 221, 224

(App Div. 1989) (finding pro se plaintiffs who contended that they should not

be bound by rules of procedure "are, of course, wrong in their belief that

procedural rules and substantive law are only for attorneys or litigants

represented by attorneys"). Having voluntarily chosen to represent himself at

the civil trial, defendant is hard pressed on appeal to complain that an attorney

might have presented his case more effectively.

      Plaintiff also is mistaken in his assertion that he is entitled as a matter of

law to judgment on the question of liability because his vehicle was struck from

behind. Plaintiff's reliance on Pagano v. McClammy,  159 N.J. Super. 581 (App.

Div. 1978) and Dolson v. Anastasia,  55 N.J. 2 (1969) is misplaced. Those cases

do not establish an absolute rule of law that striking the rear end of a vehicle

automatically and invariably constitutes negligence without considering how

and when a plaintiff's vehicle got in front of a defendant's vehicle.


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      In this instance, the trial judge found credible the testimony of the

defendant that plaintiff abruptly changed into the lane that defendant was

travelling in and then stopped short. There is no basis for us to disturb the trial

court's witness credibility assessment as to how the events leading up to the

accident unfolded. See State v. Johnson,  42 N.J. 146, 161 (1964) (holding

appellate courts "should give deference to those findings of the trial judge which

are substantially influenced by [the] opportunity to hear and see the witnesses

and to have the 'feel' of the case, which a reviewing court cannot enjoy"). In

view of the trial judge's factual findings as to the circumstances leading up to

the collision, he could reasonably conclude in applying the relevant principles

of law that the plaintiff caused the accident and that defendant was not negligent.

      Finally, we are satisfied after reviewing the record that the trial judge was

not biased against plaintiff as plaintiff now contends. At one point in the trial,

the judge referred to plaintiff's "tiny" accent and quipped that plaintiff was not

from Jersey City. When plaintiff responded that he was from China, the judge

immediately replied, "I'm kidding, Mr. Zhang."

      In his ruling on the motion for reconsideration, the trial judge explained

that plaintiff had become excited and the judge was merely trying to calm

plaintiff down by making a joke. We caution that judges must always be


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circumspect before attempting to inject humor into court proceedings. Litigants

and lawyers under the stress inherent in a trial can easily misperceive and

misconstrue a judge's well-intentioned levity. Even when the litigants recognize

that the judge means only to be humorous, they may be reluctant to do anything

other than smile politely, even when offended.

       In this instance, we accept the judge's explanation that he was trying only

to relieve tension in the courtroom. We caution that as a general proposition, a

litigant's foreign accent is not an appropriate subject of any attempt at judicial

levity. In the particular circumstances of this case, we are satisfied that the trial

judge's brief, isolated remark does not reasonably suggest that the judge was

biased against plaintiff or otherwise deprived plaintiff of a fair trial.

      To the extent that we have not already addressed them, any other

arguments raised by plaintiff do not warrant discussion in this written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




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