KATRINA PETERSON, et al. v. DANIELLE R. BAILOUS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3791-05T33791-05T3

KATRINA PETERSON, A Minor by her

Guardian ad litem, Veronica

Peterson, and VERONICA PETERSON,

Individually,

Plaintiffs-Respondents,

v.

DANIELLE R. BAILOUS,

Defendant-Appellant,

and

GILLS PROPERTY ASSOCIATES, LLC,

Defendant,

and

DANIELLE R. BAILOUS,

Third-Party Plaintiff/

Appellant,

v.

GILLS PROPERTY ASSOCIATES and

ISAAC FRANKEL,

Third-Party Defendants/

Respondents,

and

ELISA GILL, KENTON REALTY GROUP,

INC., and ARRAHEEM

GILES,

Third-Party Defendants.

________________________________________________________________

 

Submitted November 15, 2006 - Decided December 19, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-5054-04.

Mattleman, Weinroth & Miller, attorneys

for appellant (Kimberley Stuart

Kluchnick, on the brief).

Sluka & Minasian, attorneys for third-

party defendants/respondents, Giles

Giles Property Associates, LLC and

Isaac Frankel (Lawrence D. Minasian,

on the brief).

Lorre Sylvan Smith, attorney for

respondents Katrina Peterson and Veronica Peterson.

PER CURIAM

Plaintiff Katrina Peterson was injured when she touched a damaged bathroom light switch in her rental apartment. Through her guardian ad litem, Veronica Peterson, plaintiff sued defendant Danielle Bailous, the owner of the premises, and defendant Gills Property Associates, the entity that sold the premises to Bailous. The dispute was eventually arbitrated on December 13, 2005, and the panel awarded $17,500 to plaintiff, finding defendant Bailous 100% liable. On January 3, 2006, Bailous filed a notice demanding trial de novo, though the demand was not served on all counsel of record. However, based on the filed demand, the court issued a trial notice. This was received by plaintiff, but not Gills. On January 30, 2006, defendant Gills and plaintiff moved to confirm the arbitration award, and Judge Bernstein granted the motion. Only defendant Bailous appeals the confirmation. We affirm.

At oral argument before Judge Bernstein, defendant's counsel explained that service of the demand was not completed due to "administrative error." Counsel claimed, without submitting any corroborating certification, that although her predecessor's secretary was told to serve opposing counsel, this was not done, and the failure was not timely discovered.

On appeal, defendant argues that the trial court erred (1) "in failing to substitute [a trial] notice provided by the court for [the de novo] notice to have been provided by counsel," (2) "in failing to find good cause to relax the notice requirement," (3) "in failing to exercise its discretion" to relax any court rule, and (4) "in failing to consider testimony offered by [Bailous's] counsel because it was not set forth in . . . a certification." In addition, defendant contends that "the arbitration award must not stand because" Bailous would be (1) "irreparably harmed and justice demands that [Bailous] be provided an opportunity to be heard," (2) "the proper party has not been joined," and (3) "significant issues of fact exist relative to plaintiff's alleged injuries." Finally, Bailous argues that "the trial court erred in failing to deny third-party defendants' motion to confirm [the] arbitration award because [the] third-party defendants did not have standing to make a motion to confirm the arbitration award."

After an arbitration determination is made, the action is dismissed unless "within 30 days after [the] filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee . . . ." R. 4:21A-6(b)(1).

The filing and serving time requirements may be relaxed; however, they are governed by two different standards. Allen v. Heritage Court Assoc., 325 N.J. Super. 112, 116-17 (App. Div. 1999). The filing requirements of the rule may only be relaxed upon a showing of "exceptional circumstances," Hartsfield v. Fantini, 149 N.J. 611, 618 (1997), while the serving requirements may be extended where there is shown either "substantial compliance" with R. 4:21A-6(b)(1), Nascimento v. King, 381 N.J. Super. 593, 598 (App. Div. 2005), or good cause for the delay and lack of prejudice. Flett Assoc. v. S.D. Catalano, Inc., 361 N.J. Super. 127, 134 (App. Div. 2003).

In this case, substantial compliance did not occur. Counsel completely failed to serve opposing counsel, a fact that, on its own, shows a failure to substantially comply with R. 4:21A-6(b)(1). Woods v. Shop-Rite Supermarkets, 348 N.J. Super. 613, 617 (App. Div. 2002). Furthermore, the court's trial notice is no substitute for the substantial compliance requirement, especially here, where one of the defendants claims not to have received the trial notice.

Even if we were to excuse counsel's failure to supply a certification explaining why timely service was not effectuated, counsel's oral explanation cannot be accepted as good cause. A heavy workload caused by the departure of a predecessor or a forgetful secretary is not the kind of unusual circumstance that qualifies as good cause. See Flett Assoc., supra, 361 N.J. Super. at 134 (finding good cause when secretary broke her wrist on the night service was to be mailed). Good cause being absent, the lack or presence of prejudice need not be considered.

All of the other arguments Bailous advances in an effort to overturn the arbitration award were not presented below and, therefore, need not be considered by us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In addition, they all lack merit. R. 2:11-3(e)(1)(E).

Affirmed.

 

Defendant Bailous had filed a third-party complaint against third-party defendants Elisa Gill, Issac Frankel, Kenton Realty Group, and Arraheem Giles. All defendants filed cross-claims against each other. Subsequently, defendant Bailous' third-party complaint and cross-claim were dismissed without prejudice for failure to supply requested discovery, leaving only plaintiff's personal injury complaint against defendants Bailous and Gills for resolution at arbitration.

(continued)

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6

A-3791-05T3

December 19, 2006