TROY ROBINSON v. OCEAN CLUB BAR & GRILLE, LLC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2290-05T12290-05T1

TROY ROBINSON,

Plaintiff-Appellant,

v.

OCEAN CLUB BAR & GRILLE, LLC,

JAMES SAWYER, and JONATHON TOZER,

Defendants-Respondents.

__________________________________

 

Submitted September 5, 2006 - Decided September 18, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-702-03.

Levine Staller Sklar Chan Brown & Donnelly, attorneys for appellant (Kevin J. McCabe and John M. Donnelly, on the brief).

No briefs were submitted on behalf of respondents.

PER CURIAM

Plaintiff Troy Robinson appeals from an order of the trial court denying his untimely motion to confirm an arbitration award under R. 4:21A-6(b)(3) and from denial of his motion for reconsideration. Plaintiff also argues that the arbitrator erred in awarding damages against parties in default.

The arbitrator rendered an award on about August 18, 2005. No liability was imposed against defendant Ocean Club Bar & Grill, L.L.C., the only defendant to appear in the case. However, the arbitrator did render an award against two parties in default, James Sawyer and Jonathan Tozer, finding each equally liable to plaintiff. The arbitrator fixed damages at $200,000.

Plaintiff did not seek a trial de novo within the thirty days allowed by R. 4:21A-6(b)(1) nor did defendant Ocean Club move to confirm the arbitration award in its favor within the fifty days allowed by R. 4:21A-6(b)(3). See Jones v. First Nat. Supermarkets, 329 N.J. Super. 125 (App. Div.), certif. denied, 165 N.J. 132 (2000); Sprowl v. Kitselman, 267 N.J. Super. 602 (App. Div. 1993). Plaintiff's attorney became concerned about the propriety of an arbitration award against parties in default, but he was not able to resolve the issue. As a result, he determined to move to confirm the award.

Upon reviewing the motion, the trial court sua sponte decided the issue of the timeliness of plaintiff's motion to confirm the arbitration award without notice to plaintiff. The court concluded that the motion was untimely under R. 4:21A-6(b)(3) and denied the application. Sprowl, supra, 267 N.J. Super. at 607. Plaintiff then sought reconsideration pursuant to R. 4:49, which was denied on the ground that the court had not acted in an arbitrary, capricious or unreasonable manner with respect to an issue committed to the discretion of the court.

The pivotal issue in this matter is whether the arbitrator had the authority to make an award against parties in default. This is not a novel issue. We have previously held that "[t]he arbitration rules, R. 4:21A-1 to -9 do not contemplate arbitrating matters where issue has not been joined." Ravelo v. Campbell, 360 N.J. Super. 511, 517 (App. Div. 2003). There is no provision in R. 4:21A for notice of the arbitration proceedings to parties in default. R. 4:21A-1(d). Nor is there any relief to be afforded for their failure to appear at the arbitration. R. 4:21A-4(f). As parties in default, they have no right to reject or confirm the award. R. 4:21A-6(b). Concomitantly, the clerk of court has no power to dismiss the action against the defaulting parties under R. 4:21A-6(b). Instead, the clerk is required to proceed under R. 4:43-2(d) and R. 1:13-7(a) to dismiss the entirety of the action.

A judgment by default may only be procured pursuant to R. 4:43-2. When the action is not for a liquidated sum, as here, only the court may enter the judgment by default. R. 4:43-2(b). In such a case, notice of a proof hearing must be served on the parties in default so that they may have an opportunity to appear and defend the amount of damages or file a motion to vacate the default. Enourato v. N.J. Building Auth., 182 N.J. Super. 58 (App. Div. 1981), aff'd, 90 N.J. 396 (1982). These due process protections cannot be avoided through reliance on R. 4:21A to secure a judgment.

Even if the arbitration award was properly entered, there does not appear to be any suggestion in the record before us that the action was dismissed as to all parties. In such case, the court should ordinarily grant a motion to confirm unless the opposing party shows good cause to the contrary. Sprowl, supra, 267 N.J. Super. at 607. Here, the motion was unopposed and it was a mistaken exercise of discretion to refuse to grant the motion on the grounds of timeliness.

Here, because default was entered on June 3, 2004, upon the expiration of the fifty-day period, the clerk of court should have issued a R. 1:13-7(a) notice. Upon receipt of the notice, plaintiff would then have been required to move for entry of a judgment by default pursuant to R. 4:43-2(d) or suffer a dismissal of the action.

Reversed and remanded for further proceedings consistent with this opinion.

 

The record here does not suggest that the clerk dismissed the action as to any party.

(continued)

(continued)

5

A-2290-05T1

 

September 18, 2006