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Jacqueline Nguyen v. Pensuwan

November 9, 2011

JACQUELINE NGUYEN, PLAINTIFF-APPELLANT,
v.
PENSUWAN, INC., D/B/A WASHLAND LAUNDROMAT,*FN1 DEFENDANT-RESPONDENT, AND EVANDORA WHEELER, BARBARA EINHORN, AND SHONALISIA LYLES, DEFENDANTS.



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.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 19, 2011 - Decided Before Judges R. B. Coleman and Sapp-Peterson.

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 ...


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