Opinion
DOCKET NO. A-1201-12T4
07-03-2014
RUTH GOMES & MANUEL GOMES, Plaintiffs-Appellants, v. TOWN OF KEARNY, CONCRETE CONCEPTS INC., UNIVER REALTY ASSOC., LLC, Defendants-Respondents, and TOWN OF KEARNY, Third-Party Plaintiff-Respondent, v. CONCRETE CONCEPTS INC., UNIVER REALTY ASSOC., LLC., and CHASE BANK, Third-Party Defendants-Respondents.
Fusco & Macaluso, LLC, attorneys for appellants (Robert S. Maider, on the brief). Jose B. Moreira, P.C., attorneys for respondent Town of Kearny (Jose B. Moreira and Monique Moreira, on the brief). Connell Foley, LLP, attorneys for respondents Chase Bank, NA and Univer Realty Assoc., LLC (Kevin R. Gardner, of counsel; Michael J. Shortt, on the brief). Zirulnik, Sherlock & Demille, attorneys for respondent Concrete Concepts Inc. (Joseph E. Kelley, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6268-10.
Fusco & Macaluso, LLC, attorneys for appellants (Robert S. Maider, on the brief).
Jose B. Moreira, P.C., attorneys for respondent Town of Kearny (Jose B. Moreira and Monique Moreira, on the brief).
Connell Foley, LLP, attorneys for respondents Chase Bank, NA and Univer Realty Assoc., LLC (Kevin R. Gardner, of counsel; Michael J. Shortt, on the brief).
Zirulnik, Sherlock & Demille, attorneys for respondent Concrete Concepts Inc. (Joseph E. Kelley, on the brief). PER CURIAM
This is a personal injury action. Plaintiffs Ruth and Manuel Gomes appeal from Law Division orders that denied a motion they filed to extend discovery, denied their motion to enlarge the time for serving a demand for trial de novo following arbitration, and granted the other parties' motions to confirm the arbitration award of no cause for action. Plaintiffs also appeal from the order that denied their motion for reconsideration of the orders concerning the arbitration award.
In denying plaintiffs' motion to belatedly serve a demand for trial de novo, the trial court ruled that a secretary's misunderstanding as to when a demand must be served is not an adequate basis for enlarging the thirty-day period for serving the demand. We conclude that the court did not err by so ruling. In view of that conclusion, we do not reach plaintiffs' argument concerning a further discovery extension, and we affirm the confirmation of the arbitration award.
The procedural history of this case, for the most part, is undisputed. Plaintiffs filed a negligence action against the Town of Kearny on November 15, 2010, alleging that a year earlier Ruth Gomes was injured when she stepped in a hole in a public sidewalk. Kearny filed an answer in January 2011 and, seven months later, filed a third-party complaint against Concrete Concepts, Inc., Univer Realty Assoc., LLC, and JP Morgan Chase Bank, NA (the Bank).
Manuel Gomes pled a per quod claim.
The third-party defendants all filed answers by November 2, 2011. Meanwhile, in October 2011, the parties filed a stipulation extending the discovery period for an additional sixty days. Three months later, in January 2012, the court granted the Bank's motion to extend discovery until April 12, 2012.
The parties have not included in the appellate record the third-party pleadings. Nevertheless, none of the parties disputes either that Kearny filed the third-party complaint in July 2011 or that the third-party defendants all had answered by November 2, 2011.
The parties have not included the stipulation in the record, but no party disputes that it was filed in October 2011.
The order extending discovery provided deadlines for serving and replying to written discovery. Depositions of parties and fact witnesses were to be completed by March 30, 2012. Expert reports were to be served by April 12, 2012, the new discovery end date. Although the order recited that the Bank had demonstrated "good and sufficient cause" for the discovery extension, it scheduled arbitration for April 25, 2012, thereby shifting the standard for additional discovery extensions from good cause to exceptional circumstances. See R. 4:24-1(c) ("No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.").
A month after the court signed the order extending discovery and scheduling arbitration, a new attorney substituted in as counsel for plaintiffs. New counsel immediately moved to amend the complaint to name the third-party defendants as first-party defendants. The court granted the motion but ordered that the discovery end date would remain April 12, 2012, and that the arbitration date would remain April 25, 2012.
Around the time the order permitting the amendment was entered, plaintiffs' new attorney filed a motion to extend discovery. The motion was returnable March 30, 2012. In his supporting certification, plaintiffs' counsel explained that the depositions of all parties had been scheduled for March 13, 2012, but "were postponed due to counsel for Concrete Concepts beginning a trial on March 13, 2012." Plaintiffs' counsel also asserted that he required an expert to prepare a liability report and that counsel for the Bank, Univer Realty, and Concrete Concepts all consented to the extension, but Kearny had declined to give consent.
In the first order from which plaintiffs appeal, dated March 30, 2012, the court denied their motion to extend discovery. The court noted its reasons below the signature line on the order: plaintiffs failed to attach to the motion "prior order(s) extending discovery pursuant to R. 4:24-1(c)"; the proposed order did not "describe the discovery to be completed and set forth proposed dates for completion, as required by R. 4:24-1(c)"; the moving papers failed to set forth exceptional circumstances; and "parties disregarded Court Order dated 1/6/12." For similar reasons, the court on the same date denied the Bank's motion to extend discovery.
The case proceeded to arbitration on April 25, 2012. In an award that defies rational explanation, the arbitrator determined that none of the defendants was negligent and that plaintiffs were 51% negligent. The "Report and Award of Arbitrator" noted, among other things, that "[plaintiffs have] no expert to determine cause of holes."
The finding that plaintiffs were 51% negligent implies that the arbitrator allocated the negligence of plaintiffs and the negligence of one or more defendant based on an analysis of comparative fault. Yet, the arbitrator found each defendant 0% negligent.
On May 22, 2012, plaintiffs transmitted to the court a request for a trial de novo. The transmittal letter included a signature above the typewritten name of plaintiffs' counsel, but the signature was immediately followed by "/s/." The transmittal letter did not show a "cc" to the defense attorneys and did not otherwise indicate that a copy was being sent to them. Plaintiffs claim the trial de novo was filed two days later, on May 24, 2012. On June 5, 2012, eleven days after the time for filing and serving the demand for a trial de novo had elapsed, plaintiffs' counsel responded to an inquiry from a defendant by sending a letter to all defense counsel purportedly enclosing the filed trial de novo demand. Plaintiffs' counsel subsequently filed a motion "to enlarge the period of time in which to serve Trial De Novo upon all counsel of record." In support of the motion, counsel explained in a certification and again at oral argument that a "brand new secretary" had "the mistaken belief that it was the filed Trial De Novo that was to be served on counsel."
In a certification in support of a motion to confirm the arbitration award, counsel for Concrete Concepts avers that when he inquired with the court on May 30, 2012, he was informed that no trial de novo had been filed. He further avers that plaintiffs' counsel never sent him a "filed" demand for a trial de novo. Plaintiffs have not included a filed demand for a trial de novo in the appellate record.
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The court denied plaintiffs' motion and granted the defendants' motions to confirm the arbitration award. This appeal followed.
In the first of their two arguments, plaintiffs contend that the trial court abused its discretion by denying their motion as well as the Bank's motion to extend discovery. Plaintiffs' argument raises some legitimate concerns. For example, when the court extended discovery on January 6, 2012, it did so "having considered the within application and good and sufficient cause having been shown." There is a legitimate question as to whether a court, having found good cause for a discovery extension, has the authority to schedule an arbitration and thereby change the standard of review for future discovery extensions to exceptional circumstances.
Additionally, the court's order extending discovery required depositions of fact witnesses to be completed by March 30, 2012, and expert reports to be served by April 12, 2012. Even assuming that deposition transcripts of fact witnesses could be prepared and that experts could review them and issue reports within such a tight time frame, the order provided no sanction for a defendant's non-compliance. Under such circumstances, if a defendant in a multi-party case violates the order by canceling timely-scheduled depositions, and the court rigidly enforces the order, the plaintiff is the only party penalized, as happened here. In those circumstances, a plaintiff who cannot obtain an expert report may ultimately be unable to prove liability.
Despite those concerns, we need not address the issue on this record. Not only is the record incomplete, but the issue is moot because plaintiffs did not timely serve their demand for a trial de novo following the arbitration.
In their second argument, plaintiffs contend the trial court erred by denying their motion to enlarge the time for serving defendants with the demand for a trial de novo and by confirming the arbitration award. We disagree.
Plaintiffs' counsel had an obligation to assure that the demand for trial de novo was timely filed and served. That responsibility was his, not his secretary's. Nothing in the record indicates that counsel so much as reviewed the letter that his secretary prepared, apparently over his typewritten name. A cursory review of that letter would have disclosed that defense counsel were not provided with copies. Stated differently, the reason the demand for trial de novo was not timely served was attorney neglect. An attorney's neglect is not a basis for relaxing the time period for serving a demand for a trial de novo.
Rule 4:21A-6(b)(1) requires in pertinent part that a court enter an order dismissing the action following the filing of the arbitrator's award unless:
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[.]
The thirty-day requirement for serving a demand for a trial de novo should be strictly enforced. Jones v. First Nat'l Supermarkets, 329 N.J. Super. 125, 127 (App. Div.), certif. denied, 165 N.J. 132 (2000). Nevertheless, the requirement "may be relaxed upon a showing of good cause and the absence of prejudice," Flett Assocs. v. S.D. Catalano, Inc., 361 N.J. Super. 127, 134 (App. Div. 2003), or upon a showing of substantial compliance, Corcoran v. St. Peter's Med. Ctr., 339 N.J. Super. 337, 343 (App. Div. 2001). In the case before us, plaintiffs demonstrated neither good cause nor substantial compliance.
We have previously explained that "[m]ere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment in a civil action." In Re T., 95 N.J. Super. 228, 235 (App. Div. 1967). On the other hand, "[s]uch carelessness may be excusable when attributable to honest mistake, accident, or any cause not incompatible with proper diligence. . . ." Ibid. Here, plaintiffs' failure to timely serve the demand for a trial de novo was due to a lack of proper diligence. As we have explained, it does not appear that plaintiffs' attorney either read or summarily reviewed the transmittal letter his secretary had prepared. Had counsel undertaken even a cursory review of the letter, he would have readily seen that copies were not provided to defense counsel.
Counsel has offered no excuse for his failure to either supervise his secretary or review the letter transmitted over his name. Such an unexplained lack of diligence is incompatible with a showing of good cause. Cf. Hartsfield v. Fantini, 149 N.J. 611, 618-19 (1997) (finding that an attorney's failure to supervise staff is insufficient to satisfy the thirty-day requirement for filing the demand for a trial de novo).
Nor has defendant established substantial compliance with Rule 4:21A-6(b)(1). A party attempting to demonstrate substantial compliance must show, among other elements of the doctrine, "a series of steps taken to comply with the statute [or rule] involved . . . ." Corcoran, supra, 339 N.J. Super. at 343 (citation and internal quotation marks omitted). Plaintiffs in this case took no steps to comply with the service requirement of the Rule.
Having failed to demonstrate good cause for relaxing the Rule's thirty-day requirement for service, and having failed to demonstrate substantial compliance with the Rule, plaintiffs were not entitled to relief from the trial court.
We also conclude the trial court did not err by denying plaintiffs' motion for reconsideration. A motion for reconsideration should only be granted "for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of the City of Newark, 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 174 N.J. 544 (2002). Neither applies here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION