KAREN TUCKER VS. OPAL STOCKWELL (L-1556-17, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0088-19
KAREN TUCKER,
Plaintiff-Appellant,
v.
OPAL STOCKWELL,
Defendant-Respondent.
________________________
Submitted March 17, 2021 – Decided April 14, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-1556-17.
Karen Tucker, appellant pro se.
Law Office of Debra Hart, attorneys for respondent
(Emma K. Bradley, of counsel and on the brief).
PER CURIAM
Plaintiff Karen Tucker appeals from a July 26, 2019 order denying her
motion to vacate dismissal and reinstate her complaint. Having reviewed the
record, and considering the applicable law, we affirm.
We discern the following facts from the record. At approximately 11:30
a.m. on November 28, 2016, plaintiff was stopped at an intersection in Voorhees
Township, New Jersey. Defendant Opal Stockwell observed plaintiff slow down
and stop. Defendant attempted to brake but was unable to stop in time and
subsequently rear-ended plaintiff's vehicle.
On April 12, 2017, plaintiff, who was represented by counsel, filed a
complaint alleging negligence against defendant. Plaintiff included a certificate
of permanency from Dr. Uplekh Purewal, N.J.S.A. 39:6A-8(a). Dr. Purewal
opined that, as a result of the motor vehicle accident, plaintiff sustained
permanent and serious injuries including a C2-3 and C6-7 disc herniation as well
as disc bulges at C3-4, C5-6, C6-7, C7-T1, L3-4, and L4-5.
Mandatory non-binding arbitration was scheduled for March 26, 2019. On
that date, the arbitrators issued an award finding that, although defendant was
wholly liable for the rear-end collision, plaintiff failed to satisfy the verbal tort
threshold and accordingly issued a no cause for action determination. Both
parties' counsel signed the arbitration award.
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On March 28, 2019, plaintiff's counsel sent her a letter informing her that
he would not appeal the arbitration award. It is unclear from the record whether
plaintiff's counsel had her consent to make that decision. 1 Thereafter, plaintiff's
counsel did not file a timely demand for a trial de novo within thirty days as
required under Rule 4:21A-6(b)(1) and N.J.S.A. 2A:23A-26. On April 26, 2019,
thirty-one days after the arbitration decision was filed, plaintiff attempted to file
a pro se demand for a trial de novo. 2 Her pro se filing, however, was rejected
because she was still represented by counsel.
On April 29, 2019, defendant moved to confirm the arbitration award as a
judgment, R. 4:21A-6(b)(3). Although served with notice of the application,
plaintiff's counsel did not oppose the motion to confirm the arbitration award.
Indeed, plaintiff's attorney appeared at the hearing and indicated he did not
oppose the application. Following oral argument,3 Judge Daniel A. Bernardin
1
The issue whether plaintiff's counsel had a duty to file a demand for a trial de novo
is not before us. Regardless, we do not have the requisite documentation in the
record, such as the retainer agreement or the motion papers underlying the motion
to withdraw, to properly assess that issue. The only issue now before us is whether
the judge erred in denying plaintiff's motion to vacate dismissal and reinstate the
complaint.
2
The demand for a trial de novo was received on April 29, 2019.
3
Before oral argument, but after the thirty-day period had elapsed, plaintiff's counsel
filed a motion to withdraw.
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3
issued an order confirming the arbitration award. Two weeks later, Assignment
Judge Deborah Silverman Katz granted plaintiff's counsel's motion to withdraw
in an effort to preserve plaintiff's right to move to reconsider Judge Bernardin's
decision.
Plaintiff then filed a pro se motion to vacate dismissal and reinstate her
complaint against defendant. Judge Bernardin, relying on his previous decision,
denied plaintiff's motion and issued an accompanying order. This appeal
ensued.
N.J.S.A. 39:6A-25(a) mandates arbitration in certain automobile
negligence cases. The Legislature made clear that the "purpose and intent of
this [statute] is to establish an informal system of settling tort claims arising out
of automobile accidents in an expeditious and least costly manner, and to ease
the burden and congestion of the State’s courts." N.J.S.A. 39:6A-24.
Rule 4:21A-6 states in pertinent part:
(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; or . . .
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(3) within 50 days after the filing of the
arbitration award, any party moves for
confirmation of the arbitration award and entry of
judgment thereon.
This requirement is also statutorily mandated. See N.J.S.A. 2A:23A-26; see also
N.J.S.A. 39:6A-31. "The Legislature intended . . . [N.J.S.A. 2A:23A-26] to be
strictly enforced." Hart v. Prop. Mgmt. Sys., 280 N.J. Super. 145, 147 (App.
Div. 1995) (citation omitted). "The express language of R. 4:21A-6(b)(1)
provides that both filing and service of the demand must be accomplished within
thirty days of the entry of an arbitration award." Jones v. First Nat.
Supermarkets, Inc., 329 N.J. Super. 125, 127 (App. Div. 2000) (citation
omitted).
In Mazakas v. Wray, we noted that "courts do possess the power to
enlarge" the thirty-day period to file a demand for a trial de novo, "but that such
power should be exercised only in extraordinary circumstances." 205 N.J.
Super. 367, 371 (App. Div. 1985). In that regard, "the arbitration process, once
accomplished, should ordinarily bring about an end to the litigation when neither
party has made a timely motion for a trial de novo." Ibid. A "trial court's express
and inherent power to relax rules and grant equitable relief must be sparingly
exercised with a view to implementing both the letter and the spirit of the
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compulsory arbitration statute and the rules promulgated pursuant thereto, to the
end that the arbitration proceedings achieve finality." Id. at 372.
We have commented on the import of the "integrity of the arbitration
process and enforceability of arbitration awards." Behm v. Ferreira, 286 N.J.
Super. 566, 574 (App. Div. 1996). There, we emphasized the propriety of strict
interpretation of the "extraordinary circumstances" standard:
If a party could set aside [an] arbitration award and
obtain a trial de novo whenever his or her attorney
neglected to file for a trial de novo within time solely
because of a clerical error or failure to note or advise
the client of the thirty-day requirement to file for a trial
de novo, there would be an open door which would
render the thirty-day time limit of R. 4:21A-6(b)(1)
meaningless. Such a relaxation of the rule "thwarts the
effectiveness of a valid arbitration."
[Ibid. (quoting Sprowl v. Kitselman, 267 N.J. Super.
602, 610 (App. Div. 1993)).]
"To relax the thirty-day rule, courts must determine that 'extraordinary
circumstances' exist and that those circumstances did not arise from an attorney's
'mere carelessness' or 'lack of proper diligence.'" Hartsfield v. Fantini, 149 N.J.
611, 618 (1997) (citing In re T., 95 N.J. Super. 228, 235 (App. Div. 1967)).
In this case, plaintiff's counsel is not claiming he inadvertently missed the
filing deadline. Rather, well aware of the time constraints, he made the
deliberate decision not to file a demand for a trial de novo within the thirty-day
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period required under Rule 4:21A-6(b)(1). Plaintiff's counsel was also
cognizant of the fact that failure to do so would result in the permanent dismissal
of her complaint. With no demand for a trial de novo filed, defendant's counsel
moved to confirm the arbitration award. Plaintiff's counsel appeared but did not
oppose the motion to confirm the arbitration award. Plaintiff's untimely pro se
filing was ultimately rejected because she was still represented by counsel. 4 The
unambiguous thirty-day period of Rule 4:21A-6(b)(1) and N.J.S.A. 2A:23A-26,
coupled with the legislative intent that it be strictly enforced, Hart, 280 N.J.
Super. at 147 (citation omitted), compels us to affirm Judge Bernardin's decision
denying plaintiff's motion to vacate dismissal and reinstate the complaint .
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
4
It is unknown what would have transpired had plaintiff's counsel withdrawn
before plaintiff filed her pro se trial de novo request one day late.
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