June 26, 2008
CARTERET REDEVELOPMENT AGENCY, (A BODY CORPORATE AND POLITIC), PLAINTIFF-RESPONDENT,
YING LONG YANG AND CHINA STAR, DEFENDANTS-APPELLANTS, AND HISPANIC SOCIAL CLUB PRESIDENT, EDYS LIQUOR, LLC, BRUNSWICK BANK & TRUST, ATLANTIC CITY SHOW BOAT AND CASINO, TRUMP PLAZA ASSOCIATES D/B/A TRUMP PLAZA HOTEL CASINO, MIDDLESEX WATER COMPANY, STATE OF NEW JERSEY, BOROUGH OF CARTERET (A MUNICIPAL CORPORATION OF NEW JERSEY), DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3607-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2008
Before Judges Sapp-Peterson and Messano.
Defendant Ying Long Yang appeals from the trial court order denying his motion to extend the time to file a notice of appeal from the April 12, 2007 Report of Commissioners fixing just compensation for defendant's property taken by plaintiff, Carteret Redevelopment Agency (CARA), for public use. N.J.S.A. 20:3-1 to -50. We affirm.
On May 3, 2006, plaintiff, acting as the redevelopment entity for the Borough of Carteret, filed an Order to Show Cause, Verified Complaint, and Declaration of Taking in Condemnation to acquire title to defendant's property located at 99-101 Roosevelt Avenue (property) in Carteret for public use. The property consisted of 6,233 square feet in land area, improved by a one-story commercial building totaling 3,570 square feet that was divided into three commercial units. In addition to owning the property, defendant was also the proprietor of China Star, a fast food business operated from one of the commercial units within the property.
On June 27, 2006, plaintiff deposited $210,000 into Superior Court, which amount represented the estimated just compensation for the property. The Declaration of Taking was recorded in the Middlesex County Clerk's Office on July 6, 2006, and title to the property vested in CARA on that same date pursuant to N.J.S.A. 20:3-21. The trial court entered an Order for Judgment and Appointment of Commissioners on December 14, 2006. Although leading up to the commissioners' hearing Yang had been represented by three different law firms, he appeared at the March 19, 2007 condemnation hearing without counsel. Yang was, however, accompanied by an individual whom Yang intended to use as an interpreter. Because defendant's real estate appraiser did not appear and also because the commissioners believed interpreting services should be performed by a disinterested and impartial interpreter, the hearing was continued until April 12, 2007. The hearing proceeded on that date as scheduled. Following the presentation of evidence, the commissioners fixed just compensation at $330,000.
On May 15, 2007, defendant filed a notice of appeal from the commissioners' report and a notice of motion for an extension of time to file a notice of appeal for up to thirty days. Defendant argued that he could not understand the procedural aspects of appealing the commissioners' decision due to language barriers, and when he finally retained counsel who could speak his native language, the time period in which to appeal the commissioners' decision had expired. The trial court denied the motion, finding:
Defendants were represented by [first defense counsel] as early as October 17th, 2005. [First defense counsel] was subsequently replaced and substituted by [second defense counsel]. Defendant then [retained] the services of [third defense counsel] but during February 2007 defendants released their attorneys and decided to proceed without legal counsel.
It is important to note that there are attorneys at [third defense counsel's firm] that speak defendant's native language. During the hearing defendant Yang, who appeared with an individual who served as his interpreter, told the Commissioners that he released his former attorneys and did not want an attorney to represent him at the hearing. Defendant's real estate appraisal was . . . appraiser was not present on March 19, 2007 so the hearing was scheduled for continuance on April 12, 2007. [The Commissioners] then also asked for a disinterested and impartial interpreter at the continuance of the hearing, which was provided. The Commissioner[s'] report was rendered on April 12, 2007 and forwarded to the respective parties on April 16, 2007.
While it is undisputed that defendant does not speak English or is not proficient in the language, but he is an informed businessman who operated a restaurant and leased business space to two other businesses at the property. In this case the failure to file a timely appeal was not [due to] defendant's lack of understanding a language but rather his decision to discharge his counsel and proceed pro se.
On appeal defendant claims the trial court abused its discretion in denying his motion, as there was no evidence demonstrating that he had been advised of the twenty-day time requirement in which to appeal the Report of Commissioners. We disagree the trial court abused its discretion in denying defendant's motion.
Reviewing courts "'do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
A condemnation action is a summary proceeding commenced by order to show cause. See R. 4:73-1. "The aim of a summary proceeding is to expedite the litigation." See Bergen County v. S. Goldberg & Co., 39 N.J. 377, 380 (1963) (holding "the right of a litigant to be heard [in a condemnation action] is not diminished in the least by the 'summary' nature of the proceeding. Rather expedition is achieved by shortcutting procedural steps to the end that the merits will be tried at the earliest time consistent with fairness.") Consistent with the goal of expeditious condemnation proceedings, a property owner aggrieved by the commissioners' determination of just compensation originally had ten days in which to file an appeal. R.R. 4:92-6(a). Pressler, Current N.J. Court Rules, comment on R. 4:73-6 (2006) at 1742. However, consistent with the concomitant goal of fairness in such proceedings, Rule 4:73-6(a) modified the time for filing a notice of appeal by providing:
An appeal from the report of the commissioners shall be taken by an appellant by filing a notice of appeal with the deputy clerk of the Superior Court in the county of venue within 20 days after the date of service upon him or her, by mail or otherwise, of a copy of the report; but the court for good cause shown may extend the time for a period not exceeding 30 days.
Here, although defendant failed to file a timely appeal during the twenty-day time period, he sought an extension to do so during the time Rule 4:73-6 provides for an extension to be granted, namely, an additional thirty days. Hence, the sole question before us is whether the record supports the trial judge's conclusion that defendant failed to establish good cause for the extension.
The term "good cause" is used throughout our rules in a variety of contexts but eludes precise definition. See, e.g., Rule 1:13-7(a) (reinstatement after dismissal for lack of prosecution), Rule 1:40-6(d) (removal from mediation), Rule 4:6-1(c) (extension of time for responsive pleading), Rule 4:6-3 (deferral of preliminary hearings), Rule 4:10-3 (protective orders), Rule 4:21A-4(f) (relief from orders entered based on failure to appear for arbitration), and Rule 4:43-3 (setting aside entry of default). We have previously observed that "[i]t is impossible to lay down a universal definition of good cause . . . or an all-inclusive and definitive catalogue of all of the circumstances to be considered by a court in determining whether there is good cause. Each case must be decided upon its own facts." Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409, 414 (App. Div. 1965).
Here, defendant claims that good cause for an extension was demonstrated by his ignorance of the appeal procedures, the fact that he was not told about the appeal process, and his inability to secure counsel who could speak his native language. The trial judge rejected plaintiff's explanations. In doing so, the trial judge observed that defendant had been represented by counsel as early as October 2005. Defendant replaced his first attorney with a second attorney and, by early 2007, was represented by a third firm. Defendant released that firm shortly before the hearing and decided to proceed at the March hearing pro se. The court also noted that there were attorneys employed by the third law firm who spoke defendant's native language. The court agreed that "it [was] undisputed that defendant does not speak English or is not proficient in the language[.]" Nonetheless, the court reasoned that "[Yang] is an informed businessman who operated a restaurant and leased business space to two other businesses at the property." Thus, the court concluded that defendant's "failure to file a timely appeal was not [due to] defendant's lack of understanding a language but rather his decision to discharge his counsel and proceed pro se."
We are satisfied the trial judge did not abuse his discretion in denying relief to defendant. In our review of the record, the very certification that defendant submitted in support of the motion to extend the time in which to file his appeal supports the trial judge's decision. In that certification, defendant devotes two sentences to his non-compliance with the rules. The first sentence indicates that defendant did not understand what was happening to him, and the second sentence indicates that defendant was searching for an attorney who could speak his native language. The remainder of the certification challenges the merits of the commissioners' report. Factors that could have assisted the court in finding good cause were not set forth. For example, defendant's certification offers no explanation why he chose to discharge three law firms and ultimately proceed pro se, particularly, as the trial judge noted, when the last firm had attorneys who spoke defendant's native language. Likewise, the certification fails to set forth with specificity the actual efforts defendant undertook to secure another attorney, including when these efforts commenced. In Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989), we stated,
[l]itigants are free to represent themselves if they so choose, but in exercising that choice they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process. Such litigants are also presumed to know, and are required to follow, the statutory law of this State.
In our view, having made the choice to proceed pro se and having participated in the condemnation hearing with a disinterested and impartial interpreter, defendant may not, without more, point to his language barrier, albeit an undisputed fact, and his inability to find counsel proficient in his native language, as a basis for his lack of understanding of the rules. Nor may he impose a duty upon others to inform him of the rules when he is presumed to know the rules. Ibid. We therefore discern no abuse of discretion that requires our intervention and correction.
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