ROBERT DAVIS v. THE BRUNSWICK BOAT GROUP, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0292-05T3292-05T3

ROBERT DAVIS,

Plaintiff-Respondent,

v.

THE BRUNSWICK BOAT GROUP, a

corporation d/b/i New Jersey, and

SEA RAY BOATS, INC.,

a corporation of Tennessee,

d/b/i the State of New Jersey,

Defendants-Appellants.

__________________________________________________

 

Argued February 14, 2006 - Decided April 12, 2006

Before Judges C.S. Fisher, Yannotti and Humphreys.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County,

Docket No. L-1690-04.

Kevin M. McKeon argued the cause for appellants

(Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Nicholas Kierniesky, on the brief).

Kenneth E. Calloway argued the cause for

respondent.

PER CURIAM

Plaintiff brought this action for damages resulting from a breach in the hull of a boat. An award was entered in defendants' favor in the court's arbitration program.

Plaintiff's attorney did not file a demand for a trial de novo within the required 30-day time period. See R. 4:21A-6. Judge Nugent permitted a late filing. We granted defendants' motion for leave to appeal. We affirm Judge Nugent's determination that the extraordinary circumstances in this matter justify relaxation of the 30-day requirement.

I

The 30-day period expired on July 14, 2005. Plaintiff's attorney dictated a demand for a trial de novo on or before July 9, but his secretary did not transcribe it. On July 15, the day after the expiration of the 30-day period, plaintiff's attorney orally deposed a representative of the boat company. The parties also corresponded regarding the deposition after the arbitration award and before the expiration of the 30 day period.

On July 20, 2005, defendants filed a motion to confirm the arbitration award. The same day, plaintiff's counsel mailed a motion on short notice to allow the arbitration award to be rejected and the trial de novo demand to be filed.

Plaintiff's attorney stated in a certification in support of his motion that a very good friend of his had been involved in a serious accident. The accident occurred on June 24, 2005. The friend fell into a coma. On July 8, he was taken off life support and died that day. His funeral was held on July 12, two days before the 30-day period expired.

The attorney also stated in the certification that the deceased was a good friend of the attorney's secretary who was the executrix of the friend's estate. The secretary was also involved in the funeral arrangements.

At the argument before Judge Nugent, plaintiff's counsel made oral representations as follows. The deceased was his best friend, the secretary had a power of attorney for the deceased, and the secretary was in direct communication with the deceased's family regarding taking him off life support.

The attorney also stated at the oral argument that his secretary had been handling his friend's affairs for several years. While the friend was in the coma, the secretary had been back and forth at the hospital and her work had gotten behind. The attorney admitted that he should have made sure that the demand was timely filed but he had the interests of his friend at heart.

II

In Hartsfield v. Fantini, 149 N.J. 611 (1997) and Wallace v. JFK Hartwyck, 149 N.J. 605 (1997), the Supreme Court reviewed the criteria for relaxing the 30-day requirement in R. 4:21A-6. In Hartsfield, the Court said:

To relax the thirty-day rule, courts must determine that 'extraordinary circumstances' exist and that those circumstances did not arise from an attorney's 'mere carelessness' or 'lack of proper diligence.' What constitutes an 'extraordinary circumstance' will require a fact-sensitive analysis in each case.

[Hartsfield, supra, 149 N.J. at 618.

(citation omitted).]

The circumstances must be "exceptional and compelling." Id. at 619. An attorney's "heavy workload or improper supervision of staff does not constitute 'extraordinary circumstances.'" Ibid. Marking the wrong date on the attorney's calendar does not meet the extraordinary circumstances criteria. Wallace, supra, 149 N.J. at 610.

Judge Nugent in his opinion carefully considered the facts. He recognized that an attorney's heavy work load, carelessness or a failure to supervise properly one's secretary does not generally support a finding of extraordinary circumstances.

Judge Nugent found, however, that in this case extraordinary circumstances were present.

He stated:

Unlike Hartsfield, however, the

plaintiff's failure to timely file

for a trial de novo in this

action was not due solely to a

clerical error or a secretarial

oversight or an attorney's workload

or an attorney's failure to properly

supervise personnel. Rather, during

the last three weeks of the thirty-day

period for filing a trial de novo a

close friend of the plaintiff's

counsel suffered a tragic accident,

lapsed into a coma, and died.

Plaintiff's counsel's secretary,

the executrix of the decedent's

estate, participated in the funeral

arrangements.

These circumstances, at least

in the opinion of this Court, can

hardly be characterized as anything

other than extraordinary. Unexpected
accidents can hardly be characterized

as ordinary, and certainly the sudden

and unexpected and untimely accident

that results in a coma to one's friend

is anything but ordinary and anything

other than extraordinary. People don't

suffer the untimely death or a coma

or traumatic accidents to loved ones

or personal friends every day....

Judge Nugent's thoughtful and comprehensive opinion is persuasive. Certainly, more is involved here than "mere carelessness" and "improper supervision" of staff. A very close friend falling into a coma and dying is an "extraordinary circumstance." The resulting mental and emotional strain on plaintiff's attorney and on his secretary who was to transcribe the trial de novo demand, can easily result in time limits being missed. Our courts are not oblivious to the effect of these stresses and strains on attorneys who must cope with today's hectic pace of litigation. See Tischler v. Watts, 177 N.J. 243, 247 (2003) (The debilitating effects upon plaintiff's attorney of a course of medical treatment plainly constituted extraordinary circumstances thereby precluding dismissal of the case with prejudice); Tucci v. Tropicana Casino, 364 N.J. Super. 48, 54 (App. Div. 2003) (Plaintiffs' attorney's "personal situation by reason of his mother's terminal illness and death provided good cause, if not extraordinary circumstances, mandating a reasonable modicum of judicial indulgence."); O'Donnell v. Ahmed, 363 N.J. Super. 44, 51 (Law Div. 2003) (An example of exceptional circumstances in a discovery context would include injury to a family member requiring the attorney to attend more to that family member).

 
The extraordinary circumstances in the present case when coupled with the absence of prejudice to the defendant and a delay of only six days make this an "exceptional" and "compelling" case justifying Judge Nugent's relaxation of the rule.

Affirmed.

(continued)

(continued)

6

A-0292-05T3

April 12, 2006