Opinion
DOCKET NO. A-1296-14T2
05-13-2016
BARBARA K. LEWINSON and JOHN LEWINSON, Plaintiffs-Appellants, v. OLD MAN RAFFERTY'S, INC., Defendant-Respondent.
Barbara K. Lewinson argued the cause pro se and for appellant John Lewinson (Ms. Lewinson, attorney; Jeffrey Zajac, on the brief). Lisa Marie DeRogatis argued the cause for respondent (Law Offices of William E. Staehle, attorneys; Ms. DeRogatis, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8319-12. Barbara K. Lewinson argued the cause pro se and for appellant John Lewinson (Ms. Lewinson, attorney; Jeffrey Zajac, on the brief). Lisa Marie DeRogatis argued the cause for respondent (Law Offices of William E. Staehle, attorneys; Ms. DeRogatis, on the brief). PER CURIAM
Plaintiffs Barbara K. Lewinson and John Lewinson appeal from Law Division orders denying their motions to extend discovery, permit the late filing of an expert report and to allow a demand for trial de novo filed out-of-time, and granting defendant Old Man Rafferty's, Inc.'s motion to confirm the arbitration award of no cause for action. We affirm.
Plaintiffs' personal injury claim was arbitrated on August 12, 2014 with the arbitrator entering a report and award of no liability on the part of defendant. On September 4, 2014, seven days prior to the deadline for filing a demand for trial de novo, plaintiffs' counsel asserts he "submitted" two different documents to the Middlesex County Clerk's Office for filing: a request for trial de novo and a cross-motion to defendant's motion seeking partial summary judgment on the third count of the complaint. The cross-motion was received and filed but there is no record of the request for trial de novo having been received.
On September 12, 2014, defendant filed and served a timely motion to confirm the arbitration award, claiming that no request for trial de novo had been filed or served within the thirty-day period following the award. Plaintiffs' counsel responded by immediately attempting to file the request six days out of time. In his certification to the court in opposition to defendant's motion to confirm the award and in support of the motion to allow the late filing, plaintiffs' counsel claimed he "submitted a request for Trial De Novo on September 4, 2014" and "was waiting for a filed copy to be returned to [him] which was to be sent to the defendant in a timely manner" when he received a copy of defendant's motion to confirm the award in its favor. Counsel averred he "was shocked when [he] checked ACMS and found out that [his] submission was never filed." At oral argument on the motion, plaintiffs' counsel clarified that his "assistant," plaintiff John Lewinson, mailed the documents to the court for filing on September 5, 2014.
The transcript of the oral argument references a faxed certification of John Lewinson apparently attesting to the facts of mailing and attaching a copy of his personal check for $200 dated September 4, 2014 but submitted for filing on September 15, 2014. That certification was not included in the record on appeal. --------
The Law Division denied plaintiffs' request to allow the late filing and confirmed the arbitration award. Relying on Justice Garibaldi's opinion for the Court in Hartsfield v. Fantini, 149 N.J. 611, 618 (1997), and Jones v. First Nat'l Supermarkets, 329 N.J. Super. 125, 127 (App. Div.), certif. denied, 165 N.J. 132 (2000), Judge Rea concluded plaintiffs' failure to timely file and serve their request for trial de novo in accordance with Rule 4:21A-6(b)(1) was not the result of exceptional circumstances. The judge reasoned that assuming the request was sent by mail on either the 4th or 5th, it was incumbent on counsel to follow-up with the clerk's office to ensure timely filing and service on opposing counsel by the September 11 deadline. Failing to do so exhibited a lack of diligence or mere carelessness which would not qualify as extraordinary circumstances sufficient to relax the thirty-day rule. The judge dismissed the remaining motions as moot.
Plaintiffs appeal, contending the mailbox rule applied and their request for trial de novo should have been deemed timely nunc pro tunc, the trial court erred in not finding they satisfied the extraordinary circumstances test established in Hartsfield and its companion, Wallace v. JFK Hartwyck, 149 N.J. 605 (1997), the trial court should have evaluated the late service under a good cause standard and that the Law Division's decision "does violence to well established principles emphasizing the rendering of individual justice over strict procedural compliance."
Our review of the record convinces us that none of these arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Even according plaintiffs the presumption of delivery pursuant to Rule 1:5-4(b), it was nevertheless incumbent upon them, as Judge Rea noted, to confirm with the court that the request for trial de novo was actually timely filed. See Luiz v. Sanjurjo, 335 N.J. Super. 279, 282 (App. Div. 2000) (holding "an attorney owes a duty to monitor whether a mailed document has actually been received and filed"). In addition, plaintiffs' admitted failure to make any effort to timely serve their demand on defendant's counsel makes this case indistinguishable from Woods v. Shop-Rite Supermarkets, 348 N.J. Super. 613, 617-18 (App. Div.) (holding the failure to take any steps to serve a demand for trial de novo could not qualify as substantial compliance with the service requirement of Rule 4:21A-6(b)(1)), certif. denied, 174 N.J. 38 (2002).
We affirm substantially on the basis of Judge Rea's well-reasoned opinion from the bench on October 10, 2014. Our affirmance of the order confirming the arbitration award renders it unnecessary to address plaintiffs' contentions regarding the orders denying an extension of discovery and service of a late expert report.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION