Opinion
DOCKET NO. A-3344-14T2
08-11-2016
ANA VELARDE and PEDRO VELARDE, her husband, Plaintiffs-Respondents, v. DANIEL ANDRE and ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendants, and CITY OF PATERSON, Defendant-Appellant.
Albert C. Lisbona argued the cause for appellant (Dwyer Connell & Lisbona, attorneys; Mr. Lisbona, on the brief). Randi S. Greenberg argued the cause for respondents (John W. Meyers, III, attorney; Mr. Meyers, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-589-13. Albert C. Lisbona argued the cause for appellant (Dwyer Connell & Lisbona, attorneys; Mr. Lisbona, on the brief). Randi S. Greenberg argued the cause for respondents (John W. Meyers, III, attorney; Mr. Meyers, on the brief). PER CURIAM
On March 23, 2011, plaintiff Ana Velarde was involved in an automobile accident with defendant Daniel Andre when the street sweeper Andre was driving struck her vehicle. On January 23, 2013, plaintiff filed a civil complaint naming as defendants Andre and the City of Paterson (the City), under the doctrine of respondeat superior as Andre's employer and as the owner of the motor vehicle Andre was driving at the time of the accident.
Although Pedro Velarde also seeks compensatory damages, we will refer to "plaintiff" in the singular because his per quod claims are derived from his relationship as Ana Velarde's husband. --------
The discrete legal issue before us in this appeal concerns defendants' failure to file a proper and timely notice of trial de novo, pursuant to Rule 4:21A-6(b). As identified in the notice of appeal, defendants seek to overturn two particular rulings made by the Law Division. The first is reflected in an order dated December 1, 2014, which entered judgment in the amount of $165,000 in favor of plaintiff "as per [the] Order dated November 7, 2014," which confirmed the mandatory, non-binding arbitration award rendered on May 15, 2014. The second ruling is memorialized in an order dated December 22, 2014, which denied defendants' motion for reconsideration of the November 7, 2014 order. After reviewing the record developed before the Law Division, we affirm.
Pursuant to Rule 4:21A-1(a)(1), the Law Division referred the case to mandatory, non-binding arbitration on May 15, 2014. The arbitrator found Andre 100% liable and awarded plaintiff $165,000 in compensatory damages. Neither party took action to comply with Rule 4:21A-6(b)'s requirements in a timely manner. The City did not file a notice of trial de novo within 30 days "after filing of the arbitration award" as required by Rule 4:21A-6(b)(1). Plaintiff did not move to confirm the award and enter judgment within 50 days, as required by Rule 4:21A-6(b)(3).
In a computer generated notice dated July 25, 2014, the Civil Division Manager's Office advised the attorneys for both sides that the case had been dismissed for failure to adhere to the requirements of Rule 4:21A-6(b). On August 5, 2014, plaintiff filed a motion seeking to reinstate the complaint and confirm the $165,000 arbitration award. Defendants filed a cross-motion requesting the court accept its request for trial de novo nunc pro tunc. The judge granted in part and denied in part the parties' motions. He explained the reasons for his ruling in a rider attached to the order.
In the interest of clarity, we will first describe the arguments the judge found unpersuasive and therefore not a basis for granting the relief he subsequently granted to the City. Defense counsel claimed he had tried to file a request for a trial de novo on June 11, 2014, but the notice was sent by regular mail and was not processed by the court until June 17, 2014, more than thirty days from the date of the arbitration award. The motion judge rejected as "inapplicable" defense counsel's invocation of "the mailbox rule" as a means of relaxing the thirty-day deadline for filing a request for a trial de novo under Rule 4:21A-6(b)(1).
Citing Hartsfield v. Fantini, 149 N.J. 611, 619 (1997), the judge held that Rule 4:21A-6(b)(1)'s thirty-day deadline "is strictly construed, requiring a showing of exceptional circumstances that does not include excusable neglect or carelessness of the attorney or his staff." He also rejected defendants' arguments seeking to justify the delay in filing the request for trial de novo based on internal staffing problems in defense counsel's firm and on the difficulties associated with securing authorization to settle the case from the City's then recently elected municipal governing council and mayor. The judge noted such matters "have no bearing on whether the request for trial de novo was filed timely with the court."
Relying on the discretionary authority conferred to the court by Rule 1:1-2(a), the judge decided to grant plaintiff's motion to reinstate the complaint but denied her application to confirm the arbitration award. Construing plaintiff's lack of objection as akin to an implied consent, the judge granted defendants' request for a trial de novo nunc pro tunc. The judge gave defendants fourteen days "from receipt of this order to file its application and pay the $200.00 trial de novo fee." The court memorialized these rulings in an order dated August 26, 2014.
The City did not take advantage of the opportunity the trial court gave it to correct its past derelictions, and again failed to file the request for a trial de novo as directed. On September 10, 2014, fifteen days after the August 26, 2014 order, plaintiff again moved to confirm the arbitration award. In response, defense counsel alleged he had not received the August 26, 2014 order and requested an extension of five days to file the request for a trial de novo. Without citing to any case law or other legal authority, the judge once again accepted the City's "explanation" and extended its time to file the request for a trial de novo nunc pro tunc to October 17, 2014. The court granted this relief 155 days after the May 15, 2014 arbitration award.
As provided in a statement handwritten by the motion judge on the face of the October 14, 2014 order, the court granted plaintiff the right to submit a certification attesting to the attorney's fees incurred "in connection with motion practice created by [defendants'] untimely filing of trial de novo." Once again the largesse the motion judge extended to defendants did not produce the intended results. The motion judge found "defendants filed the request for a trial de novo on October 15, 2014, but failed to serve same upon plaintiff."
The judge found defendants' attorneys sent a fax to plaintiff's counsel on October 15, 2014, consisting of three pages: the first page was a fax transmittal coversheet; the second page advised plaintiff's attorney "the trial de novo was filed;" and the third page was "indecipherable." On October 21, 2014, plaintiff filed a motion for reconsideration of the October 14, 2014 order and confirmation of the May 15, 2014 arbitration award.
Faced with defendants' numerous failures to take advantage of the opportunities offered by the court to file a timely and legally effective request for a trial de novo, the motion judge found plaintiff was entitled to the relief requested in her motion for reconsideration. In his written decision, the judge noted he extended defendants "every indulgence" and "relaxed the requirements of [Rule] 4:21A-6(b)(1), despite contrary court decisions." Because these extraordinary measures proved to be futile, the judge thus concluded plaintiff was entitled to the relief she had requested.
By order dated November 7, 2014, the motion judge granted plaintiff's motion for reconsideration and confirmed the arbitration award in the amount of $165,000 in plaintiff's favor. Citing this court's decision in Jones v. First Nat'l Supermarkets, Inc., 329 N.J. Super. 125, 127 (App. Div.), certif. denied, 165 N.J. 132 (2000), the motion judge emphasized that the clear language of Rule 4:21A-6(b)(1) requires that the party seeking to reject the arbitration award and requesting a trial de novo must serve the filed materials on the civil division manager and "on all other parties." The judge found defendants had consistently failed to adhere to the clear mandate of Rule 4:21A-6(b)(1). The latest example of such dereliction was defendants' attempt to serve plaintiff's counsel with an unreadable faxed document, in lieu of complying with the clear mandate of the Rule. We have recognized that a delay in serving a party under Rule 4:21A-6(b)(1) "does not have the same deleterious effect upon efficient administration of the arbitration program as a failure to file the demand within time." Flett Assocs. v. S.D. Catalano, Inc., 361 N.J. Super. 127, 134 (App. Div. 2003). However, defendants' failure to comply with the Rule's time restrictions affected both the court and plaintiff.
On December 1, 2014, twenty-four days after the November 7, 2014 order, the City filed a motion for reconsideration pursuant to Rule 4:49-2. The record before us does not contain anything other than the "Notice of Motion for Reconsideration." Defendants did not include as part of the appellate record any certifications or supporting memorandum of law. The motion judge signed an order dated December 22, 2014, in which he denied defendants' motion for reconsideration.
In the rider attached to the order, the judge recounted the procedural history of the case, and noted defendants have not established extraordinary circumstances warranting the relief requested. Citing this court's decisions in Nascimento v. King, 381 N.J. Super. 593, 599-600 (App. Div. 2005) and Flett, supra, 361 N.J. Super. at 133-34, defendants argue we should reverse the Law Division because, under the doctrine of substantial compliance, "plaintiff's counsel knew of [defendants'] intent to seek a de novo trial and [defendants'] attorney's office inadvertently sent plaintiff's counsel a notice of deposition rather than a notice of de novo demand."
Defendants' argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendants make no attempt to establish the extraordinary circumstances standard warranting the relief from the strict time mandate in Rule 4:21A-6(b)(1). Hartsfield, supra, 149 N.J. at 619. Furthermore, defendants' motion for reconsideration was not timely filed. Rule 4:49-2 requires a party to serve the motion no "later than 20 days after service of the judgment or order." Here, the record shows defendants served the motion upon the parties and the court on December 1, 2014, twenty-four days after the November 7, 2014 order. Rule 1:3-4(c) prohibits "the parties" and "the court" from enlarging the twenty-day time restriction in Rule 4:49-2. Thus, defendants' reconsideration motion was as untimely as their request to file a trial de novo.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION