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Marlene Thomas v. Princeton Pike Office Park

May 16, 2011

MARLENE THOMAS, PLAINTIFF-APPELLANT,
v.
PRINCETON PIKE OFFICE PARK; JINGOLI MANAGEMENT COMPANY AND HELPER'S EVERGREEN LANDSCAPING, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3300-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2010

Before Judges Fuentes and Gilroy.

This is a personal injury negligence action. Plaintiff Marlene Thomas appeals from the September 11, 2009 order that denied her motion seeking to reinstate her complaint to the active trial calendar and to grant her demand for a trial de novo. We affirm.

On December 20, 2004, plaintiff slipped and fell in a commercial parking lot owned and managed by defendants 100 Thanet Road Associates, LLC (Thanet), i/p/a Princeton Pike Office Park, and Jingoli Management Company (Jingoli), respectively. On December 18, 2006, plaintiff filed a complaint sounding in negligence, not only against defendants Thanet and Jingoli for failing to maintain the parking lot, but also against defendant Helper's Evergreen Landscaping, Inc. (Helper's Evergreen) for failing to properly remove snow and ice from the premises.

On July 22, 2008, the matter proceeded to non-binding arbitration pursuant to Rule 4:21A-1(a)(2). On August 21, 2008, plaintiff's counsel filed a rejection of the arbitration award and a demand for trial de novo, pursuant to Rule 4:21A-6(b)(1). Plaintiff's counsel supported his demand for trial de novo by forwarding a filing fee check in the amount of $200, payable to the Treasurer, State of New Jersey, to the Civil Division Manager's office (CDMO).

Believing that the demand for trial de novo and required fee were timely filed and paid, the court scheduled a trial de novo for November 3, 2008. The $200 check, however, was subsequently returned to the court by plaintiff's attorney's bank for insufficient funds. On September 12, 2008, the CDMO sent plaintiff's counsel a letter advising: "This office is in receipt of a Request for Trial de Novo. As indicated to you in a previous letter, this request cannot be filed as the fee has not been paid. Therefore, please note that the trial previously scheduled for November 3, 2008, has been cancelled."*fn1

On October 1, 2008, court administratively dismissed the action pursuant to Rule 4:21A-6(b). On August 10, 2009, plaintiff's counsel filed a motion seeking to "reinstate [the] complaint and bifurcate liability and damage claims pursuant to Rule 4:38-2." Although counsel's supporting certification explained that the bank had returned his check to the CDMO because of insufficient funds, it was devoid of any explanation why he had waited eleven months before filing the motion seeking to reinstate the complaint. On September 11, 2009, the trial court entered an order supported by an oral decision denying the motion. In so doing, the court determined that the complaint had been properly dismissed because the demand for trial de novo had not been filed, plaintiff's counsel having failed to pay the mandatory $200 de novo filing fee, and that no party in the action had filed for confirmation of the arbitration award pursuant to Rule 4:21A-6(b)(3).

On appeal, plaintiff argues that the trial court erroneously denied her motion seeking to reinstate her complaint and to grant a trial de novo because she filed her demand for trial de novo timely. Plaintiff contends that her attorney was unaware that the CDMO had rejected the trial de novo demand until his receipt of the September 12, 2008 letter. Alternatively, plaintiff argues that because no party in the action had filed a motion seeking to confirm the arbitration award we should reinstate the complaint and confirm the award.*fn2

We disagree.

Rule 4:21A-6(b) provides in pertinent part that following the filing of an arbitrator's award, the court "shall" enter an order dismissing the action 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 (3) within 50 days after filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. [(Emphasis added).]

Rule 4:21-6(c) obligates a party filing a demand for trial de novo to "tender with the trial de novo request a check payable to the 'Treasurer, State ...


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