MARLENE THOMAS v. PRINCETON PIKE OFFICE PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0950-09T3

MARLENE THOMAS,

Plaintiff-Appellant,

v.

PRINCETON PIKE OFFICE PARK;

JINGOLI MANAGEMENT COMPANY and

HELPER'S EVERGREEN LANDSCAPING, INC.,

Defendants-Respondents.

_____________________________________

May 16, 2011

Submitted December 8, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3300-06.

Glen L. Schemanski, attorney for appellant.

Daly, LaMastra & Cunningham, attorneys for respondents 100 Thanet Road Associates, LLC, improperly pled as Princeton Pike Office Park, and Jingoli Management Company (Michael S. Schwartz, on the brief).

Romando, Tucker, Zirulnik & Sherlock, attorneys for respondent Helper's Evergreen Landscaping, Inc. (Elizabeth R. Brennan, of counsel and on the brief).

PER CURIAM

This is a personal injury negligence action. Plaintiff Marlene Thomas appeals from the September 11, 2009 order that denied her motion seeking to reinstate her complaint to the active trial calendar and to grant her demand for a trial de novo. We affirm.

On December 20, 2004, plaintiff slipped and fell in a commercial parking lot owned and managed by defendants 100 Thanet Road Associates, LLC (Thanet), i/p/a Princeton Pike Office Park, and Jingoli Management Company (Jingoli), respectively. On December 18, 2006, plaintiff filed a complaint sounding in negligence, not only against defendants Thanet and Jingoli for failing to maintain the parking lot, but also against defendant Helper's Evergreen Landscaping, Inc. (Helper's Evergreen) for failing to properly remove snow and ice from the premises.

On July 22, 2008, the matter proceeded to non-binding arbitration pursuant to Rule 4:21A-1(a)(2). On August 21, 2008, plaintiff's counsel filed a rejection of the arbitration award and a demand for trial de novo, pursuant to Rule 4:21A-6(b)(1). Plaintiff's counsel supported his demand for trial de novo by forwarding a filing fee check in the amount of $200, payable to the Treasurer, State of New Jersey, to the Civil Division Manager's office (CDMO).

Believing that the demand for trial de novo and required fee were timely filed and paid, the court scheduled a trial de novo for November 3, 2008. The $200 check, however, was subsequently returned to the court by plaintiff's attorney's bank for insufficient funds. On September 12, 2008, the CDMO sent plaintiff's counsel a letter advising: "This office is in receipt of a Request for Trial de Novo. As indicated to you in a previous letter, this request cannot be filed as the fee has not been paid. Therefore, please note that the trial previously scheduled for November 3, 2008, has been cancelled."1

On October 1, 2008, court administratively dismissed the action pursuant to Rule 4:21A-6(b). On August 10, 2009, plaintiff's counsel filed a motion seeking to "reinstate [the] complaint and bifurcate liability and damage claims pursuant to Rule 4:38-2." Although counsel's supporting certification explained that the bank had returned his check to the CDMO because of insufficient funds, it was devoid of any explanation why he had waited eleven months before filing the motion seeking to reinstate the complaint. On September 11, 2009, the trial court entered an order supported by an oral decision denying the motion. In so doing, the court determined that the complaint had been properly dismissed because the demand for trial de novo had not been filed, plaintiff's counsel having failed to pay the mandatory $200 de novo filing fee, and that no party in the action had filed for confirmation of the arbitration award pursuant to Rule 4:21A-6(b)(3).

On appeal, plaintiff argues that the trial court erroneously denied her motion seeking to reinstate her complaint and to grant a trial de novo because she filed her demand for trial de novo timely. Plaintiff contends that her attorney was unaware that the CDMO had rejected the trial de novo demand until his receipt of the September 12, 2008 letter. Alternatively, plaintiff argues that because no party in the action had filed a motion seeking to confirm the arbitration award we should reinstate the complaint and confirm the award.2 We disagree.

Rule 4:21A-6(b) provides in pertinent part that following the filing of an arbitrator's award, the court "shall" enter an order dismissing the action unless:

(1) within 30 days after 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 as set forth in paragraph (c) of this rule; or

. . . .

(3) within 50 days after filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon.

[(Emphasis added).]

Rule 4:21-6(c) obligates a party filing a demand for trial de novo to "tender with the trial de novo request a check payable to the 'Treasurer, State of New Jersey' in the amount of $200."

When the thirty-day limit to file a demand for a trial de novo under Rule 4:21A-6(b)(1) is not complied with, the trial court may extend the time to file the demand only upon a showing of "extraordinary circumstances." Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 609 (1997). The determination whether extraordinary circumstances exist "is fact sensitive and should be made on a case-by-case basis." Ibid. What is clear, however, is that "[e]xtraordinary circumstances" do not arise from an attorney's "mere carelessness" or "lack of proper diligence." Hartsfield v. Fantini, 149 N.J. 611, 618 (1997); see also Wallace, supra, 149 N.J. at 610; Behm v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996); Hart v. Property Mgmt. Sys., 280 N.J. Super. 145, 147-49, (App. Div.), certif. denied, 141 N.J. 99 (1995).

Here, plaintiff did not file a demand for a trial de novo within the thirty-day period of Rule 4:21A-6(b)(1), because the $200 filing fee was not paid, the check having been returned by the bank for insufficient funds. Contrary to plaintiff's argument that her demand for a trial de novo was timely filed, payment of the appropriate filing fee is an integral component of filing a pleading, and Rule 4:21A-6(b)(1) mandates that both the demand for trial de novo and fee be paid within thirty days.

Plaintiff failed to offer any explanation why the check was returned for insufficient funds. Without reasons to the contrary, we assume that it was because of human error in maintaining the checking account. Human error or carelessness "which is part of the fabric of everyday existence" does not constitute extraordinary circumstances under Wallace. Flagg v. Twp. of Hazlet, 321 N.J. Super. 256, 260 (App. Div. 1999).

Plaintiff contends that extraordinary circumstances existed because the CDMO had failed to "reach out to [p]laintiff even by telephone to advise that there was an issue as to the filing fee, and that such should be cured forthwith." Plaintiff asserts that "[i]t is extraordinary that no other effort was made by the [CDMO] to advise [p]laintiff that the filing fee was an issue, but for the letter of September 12, 2008." We reject these contentions.

Contrary to plaintiff's attempt to lay blame for the dismissal of her complaint for not paying the proper filing fee at the feet of the CDMO, it was incumbent upon her attorney to submit a filing fee check to the CDMO that is drawn upon a checking account containing sufficient funds to honor it. Nor do we determine that the submission of a check drawn upon an account with insufficient funds constitutes "substantial compliance" with Rule 4:21A-6(b)(1). Although we have applied the doctrine of substantial compliance to extend the time for filing a demand for a trial de novo where a party failed to timely serve the demand upon the adverse party, Nascimento v. King, 381 N.J. Super. 593, 598 (App. Div. 2005), that doctrine does not apply to the filing requirement under Rule 4:21A-6(b)(1). The filing requirement of the rule may only be relaxed upon a showing of exceptional circumstances. Hartsfield, supra, 149 N.J. at 618. Indeed, even if the substantial compliance doctrine was applicable, plaintiff failed to present evidence that she ever attempted in good faith to pay the filing fee once her counsel received the September 12, 2008 letter from the CDMO. Accordingly, we discern no reason to interfere with the trial court's decision denying the motion to reinstate the complaint and to grant plaintiff's demand for a trial de novo.

Plaintiff argues next that we should reinstate the complaint and confirm the arbitration award in the interest of justice because defendants had not sought to confirm the arbitration award. Plaintiff contends that because the arbitrator had entered an award in her favor the dismissal of the complaint was without prejudice, and as such, we should review her request to reinstate the complaint and confirm the arbitration award with liberality.

Generally, we agree that a dismissal for failure to confirm an arbitration award entered in favor of a party pursuant to Rule 4:21A-6(b)(3) is a "'procedural dismissal' which is 'subject to vacation under the standards set forth in R. 4:50-1,'" Allen v. Heritage Court Assocs., 325 N.J. Super. 112, 117 (App. Div. 1999) (quoting Sprowl v. Kitselman, 267 N.J. Super. 602, 606 (App. Div. 1993)). The rationale for applying a less stringent standard when considering an application to restore a complaint and confirm an arbitration award is because confirmation of the award is merely a "pro forma step to convert the award into a judgment and . . . in most cases only the rights of the dilatory prevailing party will be affected by [the] delay in applying to the court for confirmation." Id. at 118 (internal quotations omitted).

Here, however, plaintiff failed to raise this argument in the trial court. Because the argument does not go to the jurisdiction of the trial court or concern a matter of great public interest, we decline to consider the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

1 We assume that the "previous letter" referenced in the September 12, 2008 correspondence from the CDMO was a notice advising plaintiff's counsel that his demand for a trial de novo had been stamped "[r]eceived but not [f]iled" on a certain date and that if the demand was "retransmitted together with the required . . . fee . . ., within ten days after the date of the clerk's notice, filing [will] be deemed to have been made on the stamped receipt date." R. 1:5-6c.

On appeal, plaintiff argues in her brief that her attorney did not receive the CDMO letter referenced in the September 12, 2008 letter. However, that contention is not supported by the record as plaintiff's counsel's certification filed in support of the motion to reinstate the complaint is silent as to him receiving that prior correspondence.

2 Contrary to the rules governing appellate practice, plaintiff failed to indicate that this alternative argument was not presented to the trial court "by including in a parenthesis a statement to that effect in the point heading." R. 2:6-2(a)(1).