RAINBOW ADVERTISING SALES CORP. v. MDTV MEDICAL NEWS NOW, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0400-06T50400-06T5

RAINBOW ADVERTISING SALES

CORP.,

Plaintiff-Respondent,

v.

MDTV MEDICAL NEWS NOW, INC.,

Defendant/Third-Party

Plaintiff-Appellant,

v.

CABLEVISION SYSTEMS CORP.,

its affiliates, subsidiaries,

successors and predecessors,

Third-Party Defendant-

Respondent.

 

Submitted April 18, 2007 - Decided April 30, 2007

Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Union County, UNN-L-3774-03.

Killian & Salisbury, attorneys for appellant (Carl A. Salisbury, on the brief).

Schenck, Price, Smith & King, attorneys for respondents (Jeffrey T. LaRosa and Michael G. Serafino, on the brief).

PER CURIAM

Plaintiff Rainbow Advertising Sales, a subsidiary of third-party defendant Cablevision Systems, sued defendant MDTV Medical News Now on a book account in the Special Civil Part. MDTV filed a counterclaim against Rainbow, and a third-party complaint against Cablevision. An arbitrator found no liability against Rainbow or Cablevision. MDTV appeals from the trial court's September 8, 2006 order affirming the arbitration award and denying MDTV's cross-motion to file a demand for a trial de novo out of time. We affirm.

MDTV produces medical news television programs featuring physicians who discuss healthcare issues. It entered into a contract with Rainbow to air those programs, plus advertising spots, on Cablevision stations. In Rainbow's suit against MDTV, it claimed $5,833.94 in compensatory damages for MDTV's failure to pay for the services, plus $1,458.48 for counsel fees. In its counterclaim, MDTV claimed that Rainbow and Cablevision aired certain programs with audio but no video, and other programs with video but no audio. MDTV asserts that this occurred "at least a hundred times," which "affected the relationship MDTV had with thirty-seven of [its] physician clients." MDTV claims that Rainbow and Cablevision were negligent, and breached the contract, "cost[ing] MDTV at least $4,000,000 in damages."

The case was referred to arbitration. See R. 4:21A-1 to -8 (2007). Upon completion of the arbitration proceeding on June 28, 2006, the arbitrator assessed zero liability on each party. The arbitrator provided the following written explanation on the "report and award":

The plaintiff's book account claim has been satisfied through payment. The defendant/ third-party plaintiff has not established that [Rainbow] breached any contract with MDTV, or that Cablevision's breach resulted in damages to MDTV. MDTV's damages claim is also speculative.

The report and award says that "unless otherwise expressly indicated, this award will be filed today." Attorneys for the parties to the arbitration, including MDTV's attorney, signed the arbitration award. Above their signatures, the report and award said: "Counsel acknowledge receipt of this award by signing below."

No party filed a motion rejecting the award and demanding a trial de novo within thirty days after the arbitration award was filed. See R. 4:21A-6(b)(1). On August 7, 2006, Rainbow filed a motion to confirm the arbitration award, R. 4:21A-6(b)(3); MDTV responded with its cross-motion to relax the thirty-day period to file a request for a trial de novo.

Accompanying the court's September 8, 2006 order denying MDTV's cross-motion was a written statement of reasons that said, in part:

MDTV counsel argues that the arbitration was not lengthy, that the arbitrator was not able to render a conclusive award, that discovery was incomplete and the matter not ripe for arbitration, that [there] was insufficient evidence to render a conclusive award and settlement discussions were progressing. [Counsel] argues that all of these facts create "extraordinary circumstances" so as to warrant a relaxation of the thirty day arbitration appeal deadline to request a trial de novo.

The thirty day time limitation is not jurisdictional and may be extended in extraordinary circumstances. Mazakas v. Wray, 205 N.J. Super. 367 ([App. Div.] 1985). The court in Mazakas noted that a party could be equitably estopped from asserting the time bar where there were settlement discussions citing Tantum v. Binz, 186 N.J. Super. 296 (App. Div. 1981), rev'd, 91 N.J. 426 (1982). Tantum dealt with much different circumstances where a borderline mentally retarded adult was lulled into waiting until the statute of limitations had run by the insurance company. In this case all parties are successful businesses represented by attorneys.

This court is satisfied that MDTV has not shown extraordinary circumstances which merit relaxation of the time deadline of the statute. All of counsel's arguments as incomplete discovery etc[.] may be true. They would form the basis for a decision to file a motion for a trial de novo. Those arguments do not constitute extraordinary circumstances for [relaxation] of the time deadlines. Plaintiff's motion to confirm the arbitration award and enter judgment is granted.

On appeal, defendant makes the following argument:

Under the unusual circumstances of this case, in which both parties and the arbitrator agreed that any award to either party would be speculative, and in which the arbitrator did not enter a finding of liability or a no cause as to any party, substantial justice would be served by reversing the Trial Court's dismissal.

We have considered defendant's argument in light of the record and are satisfied that it is without merit. We agree with Judge Dupuis's well-reasoned opinion that MDTV has not demonstrated extraordinary circumstances that merit relaxation of the deadline to file an appeal from the arbitrator's award.

To relax the thirty-day time limit within which a party must file a demand for a trial de novo, Rule 4:21A-6(b)(1), "a court must determine that 'extraordinary circumstances' exist and that those circumstances did not arise from an attorney's 'mere carelessness' and 'lack of proper diligence.'" Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 310 (App. Div. 2001) (quoting Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)), certif. denied, 171 N.J. 338 (2002). Here, as evidence of extraordinary circumstances, defendant claims that the arbitrator did not reach a decision on the merits because discovery was not complete. That argument is not supported by the written record. The arbitration award specifically assesses zero liability for each of the parties, and the arbitrator gave cogent reasons for his decision, noting, among other things, that MDTV's damage claim was speculative.

Defendant also claims the parties continued to engage in discovery after the arbitration hearing. That may be so, but it does not constitute an extraordinary circumstance that would warrant relaxation of the thirty-day time period within which to file an appeal from the arbitrator's award.

As we have iterated in the past, arbitration programs have been "well-established" for many years, and "an attorney is compelled to determine the appropriate method to assure compliance with the thirty-day rule." Id. at 313. Defendant simply failed to file the demand for a trial de novo within the time provided by the court rules. Defendant has not established the extraordinary circumstances necessary to allow the court to relax the thirty-day time limit.

We affirm substantially for the reasons expressed by the motion judge in her statement of reasons that accompanied her September 8, 2006 order.

 
Affirmed.

(continued)

(continued)

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A-0400-06T5

April 30, 2007