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NOT FOR PUBLICATION WITHOUT THE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-2546-11T2

MARLENE THOMAS,

Plaintiff-Appellant,

v.

PRINCETON PIKE OFFICE PARK1,

JINGOLI MANAGEMENT COMPANY,

HELPER'S EVERGREEN LANDSCAPING,

INC.,

Defendants-Respondents.

_______________________________________

February 21, 2013

Submitted January 16, 2013 - Decided

Before Judges Ashrafi and Lisa.

On appeal from 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,

L.L.C. and Jingoli Management Company (Michael S. Schwartz, on the brief).

Zirulnik, Sherlock & DeMille, attorneys for

respondent Helper's Evergreen Landscaping, Inc. (Elizabeth R. Brennan, of counsel and on the brief).

PER CURIAM

Plaintiff Marlene Thomas appeals from a December 16, 2011 order of the Law Division that denied her motion to confirm belatedly a 2008 arbitration award pursuant to Rule 4:21A-6(b)(3). We affirm.

This is plaintiff's second appeal attempting to reinstate her lawsuit after it was dismissed for failure to take timely action under Rule 4:21A-6(b) following court-mandated arbitration. After we affirmed the Law Division's September 11, 2009 order denying her motion to file a late demand for trial de novo under that rule, Thomas v. Princeton Pike Office Park, Docket No. A-0950-09 (App. Div. May 16, 2011), certif. denied, 208 N.J. 370 (2011), plaintiff moved again before the Law Division to reinstate her complaint and, this time, to confirm the arbitration award. The Law Division denied that motion as well, and plaintiff filed this second appeal.

We repeat the statement of facts and procedural history of the case recited in our prior unpublished decision:

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."

On October 1, 2008, [the] 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).

[Thomas v. Princeton Pike Office Park, supra, slip op. at 1-4 (footnote omitted).]

In the previous appeal, we rejected plaintiff's challenge to the order of September 11, 2009, denying her motion to reinstate the complaint and to schedule a trial de novo. Id. at 8. After the Supreme Court denied plaintiff's petition for certification, Thomas v. Princeton Pike Office Park, 208 N.J. 370 (2011), she filed another motion in the Law Division on December 1, 2011, seeking to vacate the dismissal of her complaint pursuant to Rule 4:50-1(f) and now to confirm the net arbitration award of $28,220 in her favor. The Law Division denied plaintiff's motion by order dated December 16, 2011.

The trial court's denial was not an abuse of its discretion in ruling upon a motion brought pursuant to Rule 4:50-1 to vacate a final judgment. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). Under the court's rules pertaining to mandatory arbitration, a party who seeks confirmation of an award as a judgment must file such a request within fifty days from the date of the award. R. 4:21A-1(b)(3). Plaintiff did not make a timely request and, therefore, was not entitled to confirm the arbitration award, issued on July 22, 2008, more than forty months later.

Rule 4:21A-1(a)(2) requires that civil lawsuits seeking compensation for personal injury proceed to an arbitration provided by the court before they will be scheduled for a trial. Although the result of the arbitration proceeding is not binding on the parties, one or more parties must take action following the arbitration hearing before the lawsuit can proceed to trial by a jury or other form of disposition by a judge. Rule 4:21A-6(b) states:

(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award 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;[2] or

(2) within 50 days after the filing of the arbitration award, the parties submit a consent order to the court detailing the terms of settlement and providing for dismissal of the action or for entry of judgment; or

(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. The judgment of confirmation shall include prejudgment interest pursuant to R. 4:42-11(b).

[Emphasis added.]

If none of the alternative actions stated in the rule has occurred and been documented in the court's record, the court clerk administratively dismisses the lawsuit. Here, plaintiff failed either to file a proper demand for trial de novo within thirty days, with payment of the $200 fee, or to move within fifty days for confirmation of the arbitration award as a judgment.

In Allen v. Heritage Court Assocs., 325 N.J. Super. 112, 116 (App. Div. 1999), we distinguished a belated request for a trial de novo from a belated request to confirm an arbitration award. Because the thirty-day time limitation for demanding a trial de novo is a statutory requirement under N.J.S.A. 2A:23A-26, as well as a requirement of our court Rule 4:21A-1(b)(1), the thirty-day time limitation is strictly enforced. Ibid. That deadline will be relaxed only upon a showing of "extraordinary circumstances." Hartsfield v. Fantini, 149 N.J. 611, 618 (1997); see also Mazakas v. Wray, 205 N.J. Super. 367, 371 (App. Div. 1985). On the other hand, the fifty-day limitation period for seeking confirmation of an arbitration award is not fixed by statute. Instead, it "is a 'procedural dismissal,' which is 'subject to vacation under the standards set forth in R. 4:50-1.'" Allen, supra, 325 N.J. Super. at 117 (quoting Sprowl v. Kitselman, 267 N.J. Super. 602, 606 (App. Div. 1993)).

In her current appeal, plaintiff seeks to vacate the "procedural" dismissal of her complaint and to confirm the arbitration award pursuant to Rule 4:50-1. The only provisions of the latter rule that might apply to these circumstances are subsections (a) and (f). Subsection (a) would theoretically permit our vacating the dismissal because of the "mistake, inadvertence . . . or excusable neglect" of plaintiff or her attorney in that the check for the $200 fee was dishonored and not timely resubmitted with sufficient funds. But subsection (a) is not available to plaintiff because a motion under that subsection must be brought within one year of the judgment or order that is to be vacated. R. 4:50-2. Here, plaintiff's motion was filed on December 1, 2011, more than three years after her lawsuit was dismissed on October 1, 2008.

Subsection (f) of Rule 4:50-1 is not subject to a one-year time limitation, and it may permit a court to vacate an administrative dismissal, such as in this case, for "any other reason justifying relief from the operation of the judgment or order." A motion under subsection (f), however, must be made "within a reasonable time," R. 4:50-2, and such a motion is granted "sparingly, in exceptional situations," Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 289 (1994). The Supreme Court has stated that relief under subsection (f) "is available only when truly exceptional circumstances are present and only when the court is presented with a reason not included among any of the reasons subject to the one year limitation." Baumann v. Marinaro, 95 N.J. 380, 395 (1984); accord Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122-23 (1977).

Here, even if view plaintiff's circumstances "with great liberality" because she now seeks confirmation of the arbitration award rather than a trial de novo, see Allen, supra, 325 N.J. Super. at 117 (quoting Housing Auth. of Morristown, supra, 135 N.J. at 283), plaintiff has not shown "exceptional" reasons to set aside the dismissal three years later. Unlike the factual circumstances present in Allen, Sprowl, and several unpublished opinions of this court that permitted late confirmation of an arbitration award, plaintiff's delay was not a matter of only several weeks or months; it was several years. Moreover, the delay was not caused by any conduct of defendants, such as settlement proposals that lulled plaintiff into missing a deadline. See Allen, supra, 325 N.J. Super. at 119; Sprowl, supra, 267 N.J. Super. at 606.

In contrast to those cases, plaintiff prolonged this litigation through duplicate motions and appeals in an initial effort to overcome the strict thirty-day time period for demanding a trial de novo and, when that effort failed, confirmation of the award that she had rejected earlier. Plaintiff's reasons for failing to meet the deadline are not balanced by circumstances that "further[] the stated aims of the compulsory arbitration program, which is to bring about inexpensive, speedy adjudication of disputes and to ease the caseload of state courts." Hartsfield, supra, 149 N.J. at 619 (quoting Behm v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996)). We conclude that plaintiff has not shown exceptional circumstances that justify vacating the October 2008 dismissal of her lawsuit and permitting her to confirm the arbitration award.

Having reached this conclusion, we need not address whether the Law Division's original order of September 11, 2009, denying plaintiff's first motion to vacate the dismissal, should be res judicata and thus bar plaintiff's subsequent motion to vacate the dismissal and to reinstate her lawsuit. In the prior appeal, we declined to consider the merits of the issue raised on this second appeal because plaintiff had not requested confirmation of the arbitration award in the trial court. Thomas v. Princeton Pike Office Park, supra, slip op. at 9 (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Perhaps, plaintiff should have sought confirmation of the arbitration award as alternative relief when she filed her original motion in 2009, but we need not reach that conclusion based on the doctrine of res judicata. As we have stated, the court rules and case law do not support plaintiff's appeal.

1 Also known as 100 Thanet Road Associates, L.L.C.

2 In relevant part, Rule 4:21A-6(c) states:

(c) Trial De Novo. An action in which a timely trial de novo has been demanded by any party shall be returned, as to all parties, to the trial calendar for disposition. . . . A party demanding a trial de novo must tender with the trial de novo request a check payable to the "Treasurer, State of New Jersey" in the amount of $200 towards the arbitrator's fee . . . .