Wallace v. JFK Hartwyck at Oak Tree, Inc.

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Stewart G. Wallace v. JFK Hartwyck at Oak Tree, Inc., et als. (A-119-96)

 
Argued March 17, 1997 -- Decided June 27, 1997

GARIBALDI, J., writing for a unanimous Court.

In this appeal, as in Hartsfield v. Fantini, also decided this date, the Court determines when an attorney's mistake, resulting in failure to appeal an arbitration decision within thirty days, constitutes extraordinary circumstances sufficient to allow a party to file for a trial de novo out of time.

Stewart Wallace was injured when he slipped and fell in a nursing facility where he had been assigned to work as a nurse's aid. Following the fall, Wallace filed a negligence action against the facility (Hartwyck). Thereafter, on January 18, 1996, nonbinding arbitration was held. The arbitrators found Hartwyck 100" liable for Wallace's injuries and awarded him $275,000 in damages. Although a witness to the accident, who disputed Wallace's version of the accident, was unavailable to testify at the arbitration, the arbitrators were made aware of his version of events.

Following the arbitration, Hartwyck's counsel, Christopher Weber, told Wallace's counsel that he would most likely file for a trial de novo. However, he noted that he would wait until the end of the thirty-day period to file because, in Union County, trial was generally scheduled to begin shortly after a trial de novo request is granted by the court. The attorneys agreed to continue discovery in preparation for trial.

Weber missed the February 20, l996, deadline for filing for a trial de novo, having posted a reminder on his calendar on the incorrect date of February 29, l996. During the thirty days following the arbitration, Weber had continued to work on the case extensively. On February 26, l996, Weber prepared and mailed the trial de novo notice, six days out of time. The court returned it to him shortly thereafter.

On February 28, l996, plaintiff's counsel filed a motion to confirm the arbitration award. Weber filed a cross-motion to permit the filing of a notice of demand for trial de novo. The trial court granted the motion to confirm the arbitration award and denied the motion to permit the filing for a trial de novo out of time. The trial court found that, although Weber had made an honest mistake, more was required to grant a motion for a trial de novo out of time. On appeal, the Appellate Division affirmed the trial court's decision for the reasons set forth in its oral opinion.

The Supreme Court granted Hartwyck's petition for certification.

HELD: An attorney's mere carelessness or lack of proper diligence does not constitute extraordinary circumstances and is insufficient to relax the thirty-day limitation set forth in Rule 4:21A-6(b)(1) for the filing of a request for trial de novo.

1. When a party fails to file a request for trial de novo within thirty days of an arbitration award, the trial court may extend the deadline if extraordinary circumstances exist. That determination, however, is fact sensitive and should be made on a case-by-case basis. (p. 5)

2. The trial court's ruling did not deny Hartwyck the opportunity to mount a proper defense against Wallace's claim as the arbitrators were aware that Hartwyck's eyewitness account of the accident differed from Wallace's. (pp. 5-6)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.

SUPREME COURT OF NEW JERSEY
A- 119 September Term 1996

STEWART G. WALLACE,

Plaintiff-Respondent,

v.

JFK HARTWYCK AT OAK TREE, INC.,

Defendant-Appellant,

and

JOHN DOES A THROUGH Z,
fictitious names,

Defendants.

Argued March l7, l997 -- Decided June 27, 1997

On certification to the Superior Court, Appellate Division.

Russell L. Hewit argued the cause for appellant (Dughi and Hewit, attorneys; Louis John Dughi, Jr., on the brief).

Wayne D. Greenfeder argued the cause for respondent (Kraemer, Burns, Mytelka & Lovell, attorneys; Waldron Kraemer, of counsel and on the brief).

The opinion of the Court was delivered by

GARIBALDI, J.

In this appeal, as in Hartsfield v. Fantini, ___ N.J. ___, also decided today, defendant JFK Hartwyck at Oak Tree, Inc. (Hartwyck) asks us to decide when an attorney's mistake, resulting in failure to appeal an arbitration decision within thirty days, constitutes "extraordinary circumstances" sufficient to allow a party to file for a trial de novo out of time. As in Hartsfield, we find that an attorney's "mere carelessness" or "lack of proper diligence" is insufficient to relax the thirty-day rule under the "extraordinary circumstances" exception. __ N.J. at __ (slip op. at 8).

I
 
On October l6, l992, plaintiff, Stewart Wallace, was employed by Cornell Medicare, Inc., as a nurse's aide. He was assigned to work at Hartwyck, a nursing facility. As Wallace walked around a patient's bed, he slipped and fell, injuring his right knee and back. Wallace claims that after the fall he observed a "slippery liquid substance appearing to be soap" on the floor where he had fallen.
At the time of the fall, another aide, Theodore Satter, was in the room. He saw plaintiff fall and helped plaintiff stand up. In a report written after the accident, Satter indicated that he had not observed any liquid on the floor and that it had appeared to him that plaintiff's knee had "just buckled under the weight of his own body." After the fall, plaintiff refused treatment at John F. Kennedy Medical Center and requested

transportation to Muhlenberg Hospital. The Muhlenberg Emergency Room physicians took x-rays, which indicated that Wallace had suffered lower back and right knee injuries. Plaintiff has undergone three surgeries on his knee and received physical therapy on both his back and knee.
On September 30, 1994, plaintiff filed a negligence action against Hartwyck. On January 18, 1996, nonbinding arbitration was held. The arbitrators found Hartwyck 100" liable for the injuries and awarded plaintiff $275,000 in damages. Although the witness to the accident, Satter, was unavailable to testify at the arbitration proceeding, the arbitrators were aware of his version of the accident.
Following the arbitration, defendant's counsel, Christopher Weber, told plaintiff's attorney that he would most likely file for a trial de novo. The attorneys agreed to continue discovery in preparation for trial, and Weber noted that he would wait until the end of the thirty-day period to file because, in Union County, trial is often scheduled to begin soon after a trial de novo request is granted by the court.
Weber missed the February 20, 1996, deadline for filing for a trial de novo. He had written a reminder on a post-it note and stuck it on his calendar on the incorrect date of February 29, 1996. He had continued to work on the case, reviewing medical records, forwarding medical authorization forms to plaintiff's counsel, refining interrogatory answers, and arranging deposition

dates. Three weeks after the hearing, he advised his client by letter of the results of the arbitration proceeding. He failed, however, to reach defendant's insurance representative during this time period, although he attempted to reach him twice. On February 5, 1996, he received a telephone call from plaintiff's attorney that he returned; however, he was unable to reach opposing counsel. He did not try to call plaintiff's attorney again. On February 26, l996, Weber prepared and mailed the trial de novo notice, six days out of time. The court returned it to him on March 3, 1996.
On February 28, 1996, plaintiff's counsel filed a motion to confirm the award, which was served on Weber on March 4, 1996. On March 21, 1996, defendant's counsel filed a cross-motion to permit the filing of a notice of demand for a trial de novo.
After hearing arguments on both motions, the trial court entered an order granting the motion to confirm the arbitration award of $275,000 and denying the motion to permit the filing for a trial de novo out of time. The trial court found that an honest mistake had been made by defense counsel, but concluded that more than an ordinary mistake is required to grant a motion for a trial de novo out of time.
Defendant appealed. The Appellate Division affirmed the trial court's decision and issued an order granting plaintiff's motion for summary disposition, for the reasons expressed by the trial court in its March 29, l996, oral opinion. We granted

defendant's petition for certification, l 46 N.J. 567, and now affirm.

II
 
Following the filing of an arbitration award, each party has thirty days within which to demand a trial de novo. Rule 4:21A-6(b)(1). When a party fails to file within thirty days, the trial court may extend the deadline if "extraordinary circumstances" exist. See Hartsfield, supra, __ N.J. at __ (slip op. at 8). That determination is fact sensitive and should be made on a case-by-case basis. Ibid.
No such circumstances exist in this case. Hartwyck's attorney failed to file for a trial de novo within the thirty-day period, because he marked the wrong date in his calendar. That mistake, characterized as an "honest mistake" by the trial court, was the result of mere carelessness on the part of the attorney. As we stated in Hartsfield, supra, ___ N.J. ___ (slip op. at 8), "mere carelessness" on the part of an attorney cannot give rise to extraordinary circumstances capable of relaxing the thirty-day rule.
We disagree with Hartwyck's assertion that the trial court's ruling essentially denies it the opportunity to mount a proper defense against Wallace's claim. Although Satter was unable to testify at the arbitration, the arbitrators were aware that his eyewitness account of the accident differed from Wallace's. The

trial court's confirmation of the arbitrators' award, therefore, was not incompatible with the interests of justice.
The trial court correctly denied Hartwyck's motion to demand a trial de novo out of time. The Appellate Division's judgment is affirmed.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-119

SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

STEWART G. WALLACE,

Plaintiff-Respondent,

v.

JFK HARTWYCK AT OAK TREE, INC.,

Defendant-Appellant,

and

JOHN DOES A THROUGH Z,
fictitious names,

Defendants.

DECIDED

June 27, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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