Jose Daluz v. Horacio Pereira ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1688-22
JOSE DALUZ,
Plaintiff-Respondent,
v.
HORACIO PEREIRA and
HORATIO ASSOCIATES,
CORP.,
Defendants-Appellants.
___________________________
Submitted February 6, 2024 – Decided April 5, 2024
Before Judges Gooden Brown, Natali and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5351-20.
Norris McLaughlin, PA, attorneys for appellants
(Melissa A. Peña and Mina Miawad, on the briefs).
Ambrosio & Associates, attorneys for respondent (Elisa
C. Ambrosio-Farias and François D. Prophete, on the
brief).
PER CURIAM
1
Defendants Horacio Pereira and Horatio Associates Corp. appeal from a
December 30, 2022, Law Division order confirming an April 12, 2022,
arbitration award out of time and entering judgment in the amount of $100,000
in favor of plaintiff, Jose Daluz. We affirm.
We discern these facts from the record. Plaintiff filed a three-count
complaint alleging that on November 11, 2018, Pereira attacked him with a
"wooden object" and "struck or nearly . . . [struck]" plaintiff with a vehicle
owned by Horatio Associates Corp., causing plaintiff to suffer serious injuries.
In defendants' contesting answer and counterclaims, they countered that plaintiff
"commit[ted] a burglary" on defendants' property in order to steal "items of
value," and assaulted Pereira, who responded by defending himself. The case
proceeded to mandatory, nonbinding arbitration during which both parties were
represented by counsel. On April 12, 2022, the arbitrator found defendants
100% liable and awarded plaintiff $100,000.
The following day, April 13, 2022, defendants attempted to submit an
electronic filing request for a de novo trial pursuant to N.J.S.A. 2A:23A-26 and
Rule 4:21A-6(b)(1). N.J.S.A. 2A:23A-26 provides that "[t]he court shall, upon
motion of any of the parties, confirm the arbitration decision . . . unless one of
the parties petitions the court within [thirty] days of the filing of the arbitration
decision for a trial de novo." Rule 4:21A-6(b)(1) states that
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2
[a]n order shall be entered dismissing the action
following the filing of the arbitrator's award unless: (1)
within [thirty] 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.
In the April 13, 2022, electronic filing request, instead of attaching a
"notice of rejection of the award and demand for a trial de novo," as required by
Rule 4:21A-6(b)(1), defendants mistakenly filed an adjournment request for an
unrelated matter in a different county. The civil division manager's office
compounded the error by indicating that a trial date would be scheduled shortly
when they processed defendants' request on April 13, 2022.
On May 25, 2022, forty-three days after the arbitration award was entered,
plaintiff submitted a letter to the court in an attempt to correct the error.
Specifically, plaintiff requested that defendants' "[d]e [n]ovo trial request" be
denied because defendants did not submit "an actual request for a [t]rial [d]e
[n]ovo" within the thirty-day statutory deadline. See N.J.S.A. 2A:23A-26. On
the same day, May 25, 2022, defendants submitted a corrected request for a trial
de novo. The civil division manager's office responded on May 26, 2022, that
"[d]e[ ]novo was already processed on" April 13, 2022.
On June 6, 2022, plaintiff submitted a second request for the court to deny
defendants' trial demand. On June 9, 2022, the civil division manager's office
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3
reversed its prior decision and issued a notice stating that "[u]pon further
review, . . . the late submission of [the] de[ ]novo request will be denied." On
June 10, 2022, defendants moved to dismiss the complaint on the ground that
plaintiff had failed to move for confirmation of the award within fifty days of
its entry, as required by Rule 4:21A-6(b)(3). In response, on June 13, 2022,
plaintiff opposed defendants' motion to dismiss and cross-moved to confirm the
arbitration award.
Ultimately, in a December 30, 2022, order, the trial judge granted
plaintiff's cross-motion. The order confirmed the arbitration award out of time
and entered judgment in plaintiff's favor, thereby denying defendants' motion to
dismiss and file an untimely request for a trial de novo. In an accompanying
statement of reasons, the judge rejected defendants' contention that there were
extraordinary circumstances to justify accepting their deficient trial demand but
no basis to accept plaintiff's belated request for confirmation.
The judge explained:
In [Allen v. Heritage Court Associates], the court
distinguished a belated request for a trial de novo from
a belated request to confirm an arbitration award,
explaining that the [thirty]-day time limitation for
demanding a trial de novo is a statutory requirement
under [N.J.S.A.] 2A:23A-26, as well as a requirement
of [Rule] 4:21-6(b)(1), and as such the [thirty]-day time
limitation is strictly enforced. 325 N.J. Super 112, 116
(App. Div. 1999). That deadline will be relaxed only
A-1688-22
4
upon a showing of "extraordinary circumstances."
Hartsfield v. Fantini, 149 N.J. 611, 618 (1997). On the
other hand, the [fifty]-day limitation period for seeking
confirmation of an arbitration award is not fixed by
statute. Instead, it "is a 'procedural dismissal,' which is
'subject to vacation under the standards set forth in
[Rule] 4:50-1.'" [Allen, 325 N.J. Super. at 117]
(quoting Sprowl v. Kitselman, 267 N.J. Super. 602, 606
(App. Div. 1993)). "A motion to vacate a dismissal for
failure to file a timely motion to confirm an arbitration
award should be viewed with great liberality." Id. at
118. Further, under [Rule] 4:50-1(a), the court may
relieve a party from final judgment for "mistake,
inadvertence, surprise, or excusable neglect."
Applying these principles, the judge concluded there was "good cause to
extend the [fifty]-day time limit" for confirmation, stating:
Here, plaintiff argues that he failed to timely move to
confirm the arbitration award because he relied on the
clerk's office's errant April 13, 2022[,] notice that a new
trial would be scheduled. Unlike the strict [thirty]-day
time limit to request a trial de novo, the [fifty]-day time
limit to confirm an arbitration award under [Rule]
4:21A-6(b)(3) has been afforded more flexibility.
Moreover, the court finds plaintiff's reliance on the
clerk's office's errant notice meets the threshold of
"mistake" under [Rule] 4:50-1(a).
Conversely, the judge was
not persuaded by defendant[s'] bald assertion that "[t]he
failure of arbitration employees to review filings or file
a deficiency notice constitutes 'extraordinary
circumstances' as it prejudiced defendant[s'] right to de
novo the award," thereby permitting the court to disturb
the [thirty]-day time limit . . . . Defendant fails to
provide any authority to show that these circumstances
A-1688-22
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indeed meet the standard under Allen, and further fails
to show any other "extraordinary circumstances" for
this court to disturb the [thirty]-day time limit for
requesting a trial de novo.
[(Second alteration in original).]
This appeal followed.
On appeal, defendants raise the following points for our consideration:
[I] THE TRIAL COURT ERRED IN REFUSING TO
RELAX THE DEADLINES SET FORTH IN N.J.S.A.
2A:23A-26 AND R. 4:21A-6(b)(1) TO REJECT THE
ARBITRATION AWARD AND REQUEST A TRIAL
DE NOVO AS THERE WERE EXTRAORDINARY
CIRCUMSTANCES WARRANTING RELAXATION
OF THE DEADLINE AND DEFENDANT[S]
SUBSTANTIALLY COMPLIED WITH THE COURT
RULE.
[A.] There Are Exceptional Circumstances
Warranting an Extension of the Deadline to
Request a Trial De Novo.
[B.] Defendants have Substantially Complied
with R. 4:21A-6(b)(1).
[II] THE TRIAL COURT ERRED IN FINDING THAT
UNDER R. 4:21A-6(B)(3) AND R. 4:50-1(A), THERE
WAS GOOD CAUSE TO EXTEND THE [FIFTY]-
DAY TIME LIMIT FOR CONFIRMATION OF THE
APRIL 12, 2022[,] ARBITRATION AWARD[.]
The short deadline established in N.J.S.A. 2A:23A-26 and Rule 4:21A-
6(b)(1) for filing a de novo demand is designed to "require a prompt demand for
a trial de novo in cases subject to mandatory arbitration," Corcoran v. St. Peter's
A-1688-22
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Med. Ctr., 339 N.J. Super. 337, 344 (App. Div. 2001), and to "ensure[] that the
court will promptly schedule trials in cases that cannot be resolved by
arbitration." Nascimento v. King, 381 N.J. Super. 593, 597 (App. Div. 2005).
"The Legislature intended [that rule] . . . to be strictly enforced." Hartsfield,
149 N.J. at 616 (alteration and omission in original) (quoting Hart v. Prop.
Mgmt. Sys., 280 N.J. Super. 145, 147 (App. Div. 1995)). "This furthers the
stated aims of the compulsory arbitration program, which is to bring about
inexpensive, speedy adjudications of disputes and to ease the caseload of state
courts." Behm v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996).
Thus, our courts have cautioned that
when neither party has made a timely motion for a trial
de novo, the court's power to extend the time frame
[under Rule 4:21A-6] "must be sparingly exercised
with a view to implementing both the letter and the
spirit of the compulsory arbitration statute and the rules
promulgated pursuant thereto, to the end that the
arbitration proceedings achieve finality."
[Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 310
(App. Div. 2001) (quoting Mazakas v. Wray, 205 N.J.
Super. 367, 372 (App. Div. 1985)).]
Only upon a showing of "extraordinary circumstances" will the thirty-day
filing requirement be relaxed. Hartsfield, 149 N.J. at 618. "That determination
is fact sensitive and should be made on a case-by-case basis." Wallace v. JFK
Hartwyck at Oak Tree, Inc., 149 N.J. 605, 609 (1997). However, extraordinary
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circumstances will "not arise from an attorney's 'mere carelessness' and 'lack of
proper diligence.'" Martinelli, 345 N.J. Super. at 310 (quoting Hartsfield, 149
N.J. at 618). Nor will "substantial compliance with the filing limitation . . .
constitute 'extraordinary circumstances' sufficient to relax the thirty-day rule."
Hartsfield, 149 N.J. at 618. Instead, "the circumstances must be 'exceptional
and compelling.'" Id. at 619 (quoting Baumann v. Marinaro, 95 N.J. 380, 393
(1984)).
In Hartsfield, while "sympathetic," our Supreme Court held that an
attorney's "difficulties following the departure of two attorneys from his four-
attorney office" did not excuse "his failure to review his diary" and "ensure that
his secretary followed his instructions" to qualify as "extraordinary
circumstances" sufficient to relax the thirty-day rule. 149 N.J. at 619. In
Martinelli, 345 N.J. Super. at 312-13, we concluded that "defense counsel's
computer failure did not qualify as an extraordinary circumstance to allow
extension of the time within which to file for a trial de novo" because
"[c]omputer failures, not unlike human failures," "can be anticipated and
guarded against." In Behm, 286 N.J. Super. at 574, we observed that "[t]he
excuse that an attorney is too busy or has too heavy a work load to properly
handle litigation or to supervise staff is insufficient to constitute extraordinary
circumstances."
A-1688-22
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We have emphasized the importance of such a stringent 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 [Rule] 4:21A-6(b)(1)
meaningless. Such a relaxation of the rule "thwarts the
effectiveness of a valid arbitration."
[Behm, 286 N.J. Super. at 574 (quoting Sprowl, 267
N.J. Super. at 610).]
Although Rule 4:21A-6(b)(1) requires that both filing and service of a trial
de novo demand be made within thirty days, the requirement to serve the trial
demand on one's adversary is subject to a less stringent standard and "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). This
is so because "a delay in satisfaction of the service requirement does not have
the same deleterious effect upon efficient administration of the arbitration
program as a failure to file the demand within time." Ibid.; see Nascimento, 381
N.J. Super. at 598-99 (concluding that "the doctrine of substantial compliance
can be invoked to extend the thirty[-]day time limit for serving the de novo
demand" on the adversary "since the filing and service requirements serve
different goals").
A-1688-22
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On the other hand, the time limit to file a motion to confirm an arbitration
award "has no statutory foundation," Allen, 325 N.J. Super. at 116, and is
imposed solely by Rule 4:21A-6(b)(3), which provides that "[a]n order shall be
entered dismissing the action following the filing of the arbitrator's award
unless . . . . within [fifty] days after the filing of the arbitration award, any party
moves for confirmation of the arbitration award and entry of judgment thereon."
We have explained that, unlike "the strict enforcement" of the thirty-day limit
on de novo trial demands,
a relaxation of the time period for filing a motion to
confirm an arbitration award does not "thwart[] the
effectiveness of a valid arbitration." [Sprowl, 267 N.J.
Super. at 610]. In fact, a plaintiff who obtains an award
in arbitration proceedings under Rule 4:21A commonly
receives payment from the defendant without filing a
motion to confirm. Thus, the only apparent reason for
entry of an order of dismissal when there has not been
a timely demand for a trial de novo or motion to
confirm, and the parties have not submitted a consent
order of dismissal or judgment, is to clear the court
calendar of a case which has been finally resolved by
arbitration.
[Allen, 325 N.J. Super. at 116-17 (first alteration in
original).]
For these reasons, a motion to confirm an arbitration award out of time is
generally viewed indulgently because a procedural dismissal under Rule 4:21A-
6(b)(3), like a default judgment, "deprives a party of the benefit of an
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adjudication on the merits." Id. at 117; see Marder v. Realty Constr. Co., 84
N.J. Super. 313, 319 (App. Div. 1964) (recognizing that applications to vacate
a default judgment are "viewed with great liberality, and every reasonable
ground for indulgence is tolerated to the end that a just result is reached").
Moreover, "[t]he equitable considerations supporting relief from a procedural
dismissal for failure to file a timely motion for confirmation of an arbitration
award . . . are even more compelling" because "[a] plaintiff who has obtained an
arbitration award has already expended the time and money required to present
evidence at an arbitration hearing, and the arbitrator or arbitrators who heard the
evidence have determined that plaintiff is entitled to a recovery ." Allen, 325
N.J. Super. at 118.
Because this appeal involves interpreting the court rules governing
mandatory arbitration, our review is de novo. Vanderslice v. Stewart, 220 N.J.
385, 389 (2015). Thus, we are not bound by the trial court's findings and
conclusions, but have "the right to review the record and make [our] own
findings of fact and conclusions" based on the record. Grasso v. Borough
Council of Glassboro, 205 N.J. Super. 18, 25 (App. Div. 1985).
Guided by these principles, we agree with the judge's decision and affirm
substantially for the judge's cogent reasons. Defendants argue that despite their
deficient filing, counsel "made the request for a trial de novo by selecting [the]
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category in its [electronic filing] and paying the requisite fee" the day after the
arbitration award was entered. By defendants' own admission, "th[eir] error
went unnoticed by the [c]lerk," who did not "notify [d]efendants of the deficient
filing." Instead, according to defendants, "[t]he [c]lerk noted on two . . . separate
occasions that a trial de novo had been processed" and "[p]laintiff was aware
that a trial had been scheduled." Thus, defendants contend that since "counsel
had no reason to believe that the filing was deficient or that a de novo request
was not timely filed," defendants established extraordinary circumstances to
justify relaxing the deadline.
Unlike a failure to pay a required filing fee, where the clerk "shall" notify
a party if the fee is not paid, if a party files deficient papers, the clerk "may
notify the person filing if such papers do not conform[.]" See Vanderslice, 220
N.J. at 390 (alteration in original) (citing R. 1.5-6(c), (c)(1)(A)). Technical
filing defects, such as deficient payment, do not serve to defeat an otherwise
valid filing. Id. at 391.
Here, however, defendants' filing deficiency is substantive.
N.J.S.A. 2A:23A-26 requires that a party "petition[] the court . . . for a trial de
novo." "A petition, in legal language, describes an application to a court, in
writing . . . ." In re Estate of Levy, 46 A.2d 82, 83 (Ch. 1946) (citing Bergen v.
Jones, 45 Mass. 371, 376 (Mass. 1848)); see also Black's Law Dictionary 1384
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(11th ed. 2019) (defining "petition" as "[a] formal written request presented to
a court or other official body."). Defendants' filing of an unrelated adjournment
request, in place of a petition for trial de novo, see N.J.S.A. 2A:23A-26, plainly
confounds the statutory requirement by which they were bound.
Countless motions have come before our courts, imploring us to find
extraordinary circumstances after an attorney inadvertently failed to comply
with the thirty-day requirement. While we are sympathetic, we have made clear
that extraordinary circumstances do not arise from attorney carelessness. See
Martinelli, 345 N.J. Super. at 310 (collecting cases where attorneys' carelessness
did not present extraordinary circumstances). This entreaty is no different.
Permitting relaxation merely because the civil division manager's office did not
alert counsel of his deficient filing would inappropriately absolve counsel of his
responsibility to file with proper diligence. Counsel's mistaken submission of
an adjournment request for an entirely unrelated case could have been avoided
with due care.
Equally unpersuasive is defendants' argument that "the substantial
compliance standard" for the service requirement should be applied to relax the
filing requirement. Defendants concede that "the substantial compliance
standard has only been applied in situations where a litigant has failed to serve
a request for trial de novo[] but has timely filed same." Nonetheless, defendants
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urge us to apply the substantial compliance standard here because of the "unique
circumstances of this case." We decline defendants' invitation to depart from
our well-established standards. See Vanderslice, 220 N.J. at 391 (recognizing
that "a delay in satisfaction of the service requirement does not have the same
deleterious effect upon efficient administration of the arbitration program as a
failure to file the demand within time" (quoting Flett Assocs., 361 N.J. Super.
at 134)).
Finally, defendants contend the judge erred in finding "good cause to
extend the [fifty]-day deadline for [p]laintiff to confirm the arbitration award."
We disagree. We again observe, as we did in Allen, "an order vacating a
dismissal under Rule 4:21A-6(b) to enable a plaintiff to obtain confirmation of
an arbitration award does not conflict with any mandate of the statute under
which the arbitration was conducted[,]" and "[m]ost importantly, . . . an order
granting additional time for confirmation of a valid arbitration award promotes
the judicial policy of finality of arbitration awards." 325 N.J. Super. at 121
(citation omitted).
Here, we agree with the judge's determination that "plaintiff's reliance on
the clerk's office's errant notice meets the threshold of 'mistake' under [Rule]
4:50-1(a)." Plaintiff reasonably relied on the two notices from the clerk's office,
issued prior to the fifty-day deadline, that processed defendants' deficient filing.
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Once the clerk's office denied defendants' filing on June 6, 2022, fifty-five days
after the arbitration award was entered, plaintiffs moved to confirm the award
out of time on June 13, 2022. Like the judge, under the circumstances, we do
not believe plaintiff should be denied relief.
Affirmed.
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________________________
NATALI, J.A.D., dissenting.
The majority opinion accurately recites the case law interpreting Rule
4:21A-6 and the extraordinary circumstances necessary to relax the Rule's
thirty-day filing requirement to seek a trial de novo. See Hartsfield v. Fantini,
149 N.J. 611, 619 (1997). If this were a situation where defendants' counsel
failed to file his de novo request within thirty days because of his carelessness
or "lack of proper diligence," ibid., I would unqualifiedly agree we should
affirm. But that is not at all what occurred here.
Defendants' counsel clearly made a timely de novo demand accompanied
by the appropriate filing fee which was accepted by the clerk and confirmed to
be a proper de novo demand on two occasions and formed the basis for the clerk
to advise a trial would be scheduled shortly. If that were not enough, plaintiff's
counsel herself, at least initially, understood that defense counsel's
communication to the court was a timely de novo demand.
As referenced by the majority, according to plaintiff's complaint, he
sustained injuries after a physical altercation in which he alleged defendant
Pereira struck him with a "wooden object" and a vehicle owned by defendant
Horatio Associates Corp. Defendants disputed plaintiff's version of events, as
reflected in their answer and counterclaims, in which they asserted plaintiff
sustained his injuries after he was found trespassing on a closed lot to steal
1
"batteries from vehicles and other items of value from [d]efendants," and that
Pereira acted in self-defense in response to plaintiff "chok[ing] and injur[ing]"
him. The case proceeded to mandatory, nonbinding arbitration pursuant to Rule
4:21A-1(a)(2), and the arbitrator awarded plaintiff $100,000, and ascribed 100%
liability to Pereira.
Unhappy with the result, on April 13, 2022, one day after the arbitration
award was entered and twenty-nine days before the deadline to file such a
demand, defendants' counsel submitted via the eCourts filing system, a "Request
for De Novo Trial." As represented in defendants' merits brief—unrebutted by
plaintiff or any other evidence in the record—defendants paid the appropriate
fee for de novo relief as required by Rule 4:21A-6(c), which the court accepted.
Defense counsel's only error, as accurately detailed by the majority, was
inadvertently appending an incorrect document, unrelated to this case, to his
demand.1 Despite the attachment, that same day, the clerk accepted the filing
and notified all parties that defendants' request was "now processed and a date
for trial w[ould] be scheduled shortly."
On May 25, 2022, approximately a week and a half after the thirty-day
period set forth in Rule 4:21A-6(b)(1) had expired, plaintiff's counsel filed a
1
The document defendants' counsel submitted was a confirmation from eCourts
of an adjournment request submitted in an unrelated case.
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"Notice to the Court" in which she explicitly acknowledged that on April 13,
2022, "[t]he arbitration award was rejected by [defendants]" and defendants'
counsel had "requested a trial de novo," but nevertheless inconsistently claimed,
for the first time, defendants' demand was somehow not "an actual request,"
based on counsel's appending of the unrelated adjournment confirmation. Upon
being alerted to plaintiff's counsel's belated complaint, defendants' counsel
immediately filed on May 25, 2022, a second request for trial de novo. 2 The
next day, the clerk entered a second notice which confirmed, correctly, the de
novo demand "was already processed on Apr[il] 13[, 2022]."
Undeterred, on June 6, 2022, plaintiff's counsel filed yet another "Notice
to the Court." That letter notably failed to include her earlier characterization
that defendants had filed a de novo request on April 13, 2022. Instead, counsel
characterized defendants' counsel's April 13, 2022 filing as "an adjournment
request confirmation document of another matter."
Two days later, the clerk responded in a notice advising plaintiff to
"contact the Arbitration Administrator." The following day, the clerk, without
further explanation, reversed course and entered a notice stating "[u]pon further
2
While it is not in the record before us, I assume the second request included a
conforming letter.
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review, please note the late submission of [defendants'] de[ ]novo request will
be denied" and "[f]or further inquir[y], defendant[s] should contact the court."
Against these facts, the majority agrees with plaintiff and the trial court,
that defendants failed to make a timely demand for a trial de novo. I
fundamentally reject that conclusion, as to accept it would require me to pretend
the events leading up to May 25, 2022 never occurred. I cannot. Those
undisputed events clearly establish both plaintiff and the court understood
defendants' counsel's April 13, 2022 filing was a demand for a trial de novo
despite the attachment. Indeed, as noted, the court accepted the filing fee,
processed the demand, and advised that a trial on the merits would be scheduled.
Defendants had every right to rely upon the clerk's notice to conclude they had
filed a timely trial de novo. And, having filed their request within a day of entry
of the arbitration award, had the clerk reached a contrary result there was more
than sufficient time within the remaining period for defendants' counsel to
correct any misunderstanding.
Because I conclude defendants timely demanded a trial de novo on April
13, 2022, I would not reach the issue of whether they established extraordinary
circumstances to relax the thirty-day deadline set forth in Rule 4:21A-6(b)(1).
Were it necessary to address that issue, I would conclude under these
circumstances and the "fact-sensitive analysis" required, "exceptional and
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compelling" facts exist to warrant relief. Hartsfield, 149 N.J. at 618-19 (quoting
Baumann v. Marinaro, 95 N.J. 380, 393 (1984)). On this point, the cases relied
upon by the majority do not compel a different result.
Indeed, in Hartsfield, the plaintiff's attorney failed to make a de novo
demand in any capacity until nearly twenty days after expiration of the thirty -
day deadline because his secretary had not followed his instruction and he had
not reviewed his diary due to an increased caseload. Id. at 614. In Martinelli v.
Farm-Rite, Inc., 345 N.J. Super. 306 (App. Div. 2001), defendant's counsel
failed to file a de novo demand within the thirty-day period because his
electronic diary malfunctioned and "had not alerted him to file a demand." Id.
at 309. In Behm v. Ferreira, 286 N.J. Super. 566 (App. Div. 1996), an attorney
neglected, without further explanation, to timely file de novo demands in three
separate cases until after receiving motions to confirm the awards filed twenty -
eight, nineteen, and sixty-two days after the thirty-day deadlines expired. Id. at
570-73. None of these cases considered the facts before us, where: 1) a party's
counsel made a timely de novo demand and paid the fee, 2) the adverse party
acknowledged the de novo request, and 3) the clerk advised the parties the
demand had been processed and a trial would be scheduled.
Having concluded defendants timely sought a trial de novo, and even
assuming they had not, extraordinary circumstances existed to warrant a
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relaxation of the thirty-day deadline, I would reverse the court's order
confirming the award. While I acknowledge, as does the majority, the different
standards and Rule applicable to a motion to confirm an arbitration award, I
would be remiss if I did not also note, in my view, it would be fundamentally
unfair to apply such an inequitable and crabbed interpretation of defendants'
April 13, 2022 de novo demand while indulging completely plaintiff's counsel's
positions and arguments related to her unexplained and indisputably untimely
motion to confirm the award.
As Justice Clifford cogently stated in his dissent in Stone v. Old Bridge
Township, "[o]ur Rules of procedure are not simply a minuet scored for lawyers
to prance through on pain of losing the dance contest should they trip." 111 N.J.
110, 125 (1988) (Clifford, J., dissenting). Rather, the Rules "should be
subordinated to their true role, i.e., simply a means to the end of obtaining just
and expeditious determinations between the parties on the ultimate merits."
Ragusa v. Lau, 119 N.J. 276, 284 (1990) (quoting Handelman v. Handelman, 17
N.J. 1, 10 (1954)).
The outcome reached by the majority, in my view, ignores the principles
espoused by Justice Clifford and all events prior to May 25, 2022, solely because
defendants' counsel filed a letter that did not memorialize what everyone
understood he requested. The result? Plaintiff is unfairly permitted to confirm
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an award and avoid a trial on the merits. Because I do not believe that outcome
is warranted by the facts, I respectfully dissent.
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