YAMIREX VELASCO, a minor, by her mother and guardian ad litem, JENNY ORTEGA v. CARLOS ALULEMA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

YAMIREX VELASCO, a minor, by

her mother and guardian ad

litem, JENNY ORTEGA,

Plaintiffs-Respondents,

v.

CARLOS ALULEMA, PARICIA ALULEMA,

TERESA ALULEMA, and FAUSTO ALULEMA,

Defendants-Appellants.

______________________________________

September 23, 2015

Argued August 11, 2015 Decided

Before Judges O'Connor and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6162-12.

Milagros Camacho argued the cause for appellants (Camacho Gardner & Associates, L.L.P., attorneys; Ms. Camacho, on the brief).

Bruno Brunini argued the cause for respondents (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys; Mr. Brunini, of counsel and on the brief; Ronald J. Morgan, on the brief).

PER CURIAM

Defendants appeal the May 9, 2014 order that confirms an arbitration award and enters judgment for $35,178.36 in favor of plaintiff Yamirex Velasco. Defendants contend the award should not have been confirmed and judgment entered because they timely filed a request for a trial de novo pursuant to Rule 4:21A-6(b)(1). We disagree and affirm.

On August 20, 2012, plaintiff Jenny Ortega filed a complaint against defendants as guardian ad litem for her minor daughter, plaintiff Yamirex Velasco. The complaint alleges defendants owned and negligently failed to control a dog that attacked the minor plaintiff, causing her, among other things, physical injury.

On February 26, 2014, the parties submitted to mandatory arbitration pursuant to Rule 4:21A-1(a)(2). The arbitrator found defendant Carlos Alulema one-hundred percent liable for the minor plaintiff's damages and awarded her $35,000. It is undisputed the arbitrator signed and provided a copy of his Report and Award of Arbitrator (written award) to counsel for plaintiffs and defendants immediately following the hearing. The written award contains the following notice

Parties desiring to reject this award and obtain a trial de novo must file with the division manager a trial de novo request together with a $200 fee within thirty (30) days of today . . . Note that unless otherwise expressly indicated this award will be filed today.

Counsel and pro se litigants acknowledge receipt of this award by signing below . . .

[(Emphasis added)].

Immediately following the language cited above are both counsel's signatures.

It is undisputed the written award was filed on February 26, 2014. Twenty-eight days later, defense counsel realized that she had not yet received a filed copy of the written award from the court and, on March 26, 2014, mailed a request for a trial de novo to the civil division manager. However, the request was not received and filed by the court until April 8, 2014.

On April 1, 2014, plaintiffs filed a motion to confirm the arbitration award pursuant to Rule 4:21A-6(b)(3). Defendants opposed the motion, claiming they had timely filed a request for a trial de novo in accordance with the Rules of Court. Specifically, defense counsel cited Rule 4:21A-5, pointing out she never received a filed copy of the written award from the court. Nevertheless, on March 26, 2014, she went ahead and mailed to the court a request for a trial de novo.

The trial court rejected defendants' argument and granted plaintiffs' motion, finding the written award specifically indicated the award would be filed on February 26, 2014, and that a party had thirty days from this date to file a request for a trial de novo. Because defendants failed to file a timely request for a trial de novo pursuant to Rule 4:21A-6(b)(1), the court confirmed the arbitration award and entered judgment for $35,178.36.1

On appeal defendants contend that, when Rules 4:21A-5 and

-6(b)(1) are read together, the time to file a request for a trial de novo does not begin to run until a party receives a filed copy of an arbitration award from the court. Rule 4:21A-5 states

No later than ten days after the completion of the arbitration hearing, the arbitrator shall file the written award with the civil division manager. The court shall provide a copy thereof to each of the parties. The award shall include a notice of the right to request a trial de novo and the consequences of such a request as provided by R. 4:21A-6.

Rule 4:21A-6(b)(1) 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.

Thus, the issue is whether the filing deadline set forth in Rule 4:21A-6(b)(1) is tolled until a party receives a copy of the written award after it has been actually filed. We are satisfied the filing deadline was not tolled under these particular circumstances.

Here, on the day the arbitrator made his decision and signed the written award he specifically handed the award to both counsel, who signed the award acknowledging its receipt. The arbitrator then handed both counsel a copy of the written award. Just above counsel's signature appears a notice advising that, unless otherwise expressly indicated, the award was going to be filed that day, and that a party seeking a trial de novo had thirty days from "today" to file a trial de novo request. The written award was in fact filed that day.

Defendants argue Rule 4:21A-5 suggests that the court is to provide a copy of the written award after it has been filed by the arbitrator and, if so, it is from that point in time that a party has thirty days to file a request for a trial de novo. Even if that were so, the parties were given a copy of the written award, which explicitly states that the award was going to be filed that same day. In addition, the parties were specifically warned that if a party wanted to reject the award and obtain a trial de novo, the party had to file such request with the division manager within thirty days. Under these specific circumstances, the court was not further obligated under Rule 4:21A-5 to provide to the parties a copy of the written award after it was filed. The parties were on notice that the written award was going to be filed on February 26, 2014 and that the thirty-day time limit in which to file a request for a trial de novo started to run that day.

The cases defendants cite are distinguishable on their facts, and their remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In addition to entering judgment for $35,000, the court awarded $178.36 in prejudgment interest.