JOEY J. CARRERA v. ANTHONY T. YOUNG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0972-07T30972-07T3

JOEY J. CARRERA,

Plaintiff-Respondent,

v.

ANTHONY T. YOUNG and KIMBER LEE

M. YOUNG,

Defendants,

and

GARDEN STATE HOSPITAL,

Defendant-Appellant.

__________________________________________________

 

Submitted September 11, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-4666-05.

James A. Key, Jr., attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Garden State Animal Hospital ("Garden State") appeals from the dismissal of its counterclaims due to its failure to serve a timely demand for a trial de novo pursuant to Rule 4:21A-6(b)(1). Since the demand for a trial de novo was served out of time and no good cause or substantial compliance has been shown, we affirm.

The record indicates that plaintiff Joey J. Carrera left his rottweiler dog in defendant's care for boarding for a period of one week. At the end of the week, he failed to retrieve the dog and did not arrange for the dog to remain at defendant's establishment for additional time. He made no arrangements to pay for further boarding. Despite numerous requests by Garden State, plaintiff failed to pick up the dog. On August 11, 2005, Garden State sent plaintiff a certified letter with return receipt requested indicating that if he did not pick up the dog within seven days, the dog would be considered abandoned and disposed of, mostly likely by euthanasia. Plaintiff claimed that he did not receive the letter, although he acknowledged that his girlfriend signed for it. When plaintiff failed to pick up the dog, the dog was euthanized. On August 23, 2005, plaintiff went to defendant's establishment. According to Garden State, plaintiff became belligerent, and the police were called. Later that same day, plaintiff confronted defendants Kimberlee M. Young, a veterinarian at Garden State, and Anthony T. Young, in the parking lot of Garden State. Plaintiff contends that they negligently struck him with their automobile, although they deny that he was hit by the vehicle.

Garden State thereafter obtained a Special Civil Part judgment in the amount of $1,871 against plaintiff for the boarding costs. Plaintiff then filed this lawsuit. He asserted a negligence claim against defendants Kimberlee M. Young and Anthony T. Young arising out of the alleged motor vehicle accident. The motor vehicle accident claims were eventually resolved and dismissed from the case, and as a result, they are not involved in this appeal. Plaintiff also asserted a claim for negligent infliction of emotional distress against Garden State. Garden State filed two counterclaims against plaintiff. Both counterclaims sought a declaration that plaintiff had filed a frivolous complaint. The second counterclaim also requested enforcement of the Special Civil Part judgment. We note, however, that enforcement of a judgment is not an independent cause of action, and any enforcement of that judgment should be pursued in the Special Civil Part case. See R. 6:7.

On June 14, 2007, the case was submitted to arbitration pursuant to the court arbitration program under Rule 4:21A-1. The arbitrator entered a no cause award on plaintiff's complaint against Garden State and a no cause award on Garden State's counterclaims against plaintiff. At that juncture, in order for the case to proceed, either party must, within thirty days of the date of the award, file and serve a demand for a trial de novo pursuant to Rule 4:21A-6(b)(1). During this thirty day period, Garden State's attorney wrote to plaintiff's counsel offering to refrain from filing a demand for a trial de novo if plaintiff paid the Special Civil Part judgment. No agreement was reached. The record is undisputed that Garden State did file a timely demand for a trial de novo with the court, but it served plaintiff's counsel one day late. Plaintiff did not file a demand for a trial de novo.

Plaintiff then filed a timely motion to confirm the arbitration award under Rule 4:21A-6(b)(3). For reasons set forth on the record on August 17, 2007, the trial court entered an order on that date, confirming the arbitration award and dismissing the case with prejudice. In doing so, the trial court rejected Garden State's argument that it was entitled to a trial de novo. Garden State's motion for reconsideration was denied by order dated September 20, 2007. This appeal followed. As permitted by Rule 2:5-1(b), the trial court subsequently issued a comprehensive written opinion further explaining and amplifying its decisions on both motions.

On appeal, Garden State contends that it substantially complied with the requirements of Rule 4:21A-6(b)(1), regarding service of the demand for a trial de novo on its adversary, and that the trial court applied the wrong standard when confirming the arbitration award.

After a careful review of the record, we affirm substantially for the reasons set forth by the trial judge in the lengthy written opinion submitted to this court. We note that the correct standard may not have been accurately articulated on the record when the arbitration award was initially confirmed. However, the written decision issued by the trial court amplifying both the decision to confirm the arbitration award and the decision denying the motion for reconsideration applies the correct legal standard set forth in Flett Associates v. S.D. Catalano, Inc., 361 N.J. Super. 127, 134 (App. Div. 2003), and reiterated in Nascimento v. King, 381 N.J. Super. 593, 598 (App. Div. 2005), namely that the thirty day requirement for service of the demand for a trial de novo may not be relaxed absent "a showing of good cause and the absence of prejudice." In conjunction with this analysis, the decision correctly considered application of the substantial compliance doctrine as set forth in Corcoran v. St. Peter's Med. Ctr., 339 N.J. Super. 337 (App. Div. 2001), and its progeny. A review of the trial court's written opinion reveals that this law was correctly applied to the facts of this case.

Affirmed.

 

The record is unclear on exactly when the dog was left with defendant. Defendant's "new information patient sheet" describing the dog and signed by plaintiff is dated June 6, 2005, and defendant maintains in this appeal that the dog was left on or about this date. However, defendant's counterclaim states that the dog was left on July 6, 2005, and the trial court in its decision states that the dog was brought to defendant's establishment on July 2005.

Incorrectly spelled as "Kimber Lee" in the case caption.

(continued)

(continued)

6

A-0972-07T3

September 29, 2008