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Pagan v. Smith

Superior Court of New Jersey, Appellate Division

June 7, 2013

JANE Q. PAGAN, Plaintiff-Respondent,
v.
ALETHIA SMITH, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0078-07.

Ma'isha L. Aziz, attorney for appellant.

Stephen W. Guice, attorney for respondent.

Before Lihotz and Mantineo, Judges.

PER CURIAM

Defendant Alethia Smith appeals from a Law Division order denying her request to schedule a trial de novo of the parties' dispute, untimely filed after an arbitration award was issued. Further, the order vacated a previously entered order of dismissal for inaction of plaintiff Jane Q. Pagan's complaint, and confirmed the arbitration award. Defendant also appeals from the subsequent denial of her motion for reconsideration of this order. We affirm the order, however, remand to correct the calculation of prejudgment interest.

Plaintiff and defendant entered into three separate "Vacation Club Membership Agreements" (Memberships) with Ocean Reef Yacht Club (Ocean Reef). The terms of the agreements provided they would repay $5850, $7200, and $7680, respectively, for the joint use of a timeshare property. The parties had agreed between themselves to "split the costs of the Memberships equally." Later, the parties also agreed to sell the Memberships and split the advertisement costs equally.

When defendant failed to pay her share of the Memberships and advertising costs, plaintiff filed a complaint seeking a judgment not only for defendant's share of these expenses, but also for alleged additional collection fees and late charges incurred because of defendant's non-payment. Plaintiff sought total damages of $12, 624.50.

Several procedural irregularities occurred, but ultimately the entry of default[1] and a wage execution against defendant were vacated; plaintiff's complaint, previously dismissed for failure to prosecute, was reinstated; and the matter was scheduled to proceed through the court's commercial arbitration program. An arbitration award of $7, 575.87 was entered in favor of plaintiff and against defendant. The arbitration report and award specified, "[p]arties desiring to reject this award and obtain a trial de novo must file . . . a trial de novo request . . . within thirty (30) days of [August 1, 2011]."

Following arbitration, neither party took action. Defendant failed to move for a trial de novo within the thirty days prescribed by Rule 4:21A-6(b)(1), and plaintiff failed to move to confirm the arbitration award within the fifty days prescribed by Rule 4:21A-6(b)(3). Consequently, plaintiff's complaint was dismissed without prejudice, as required by Rule 4:21A-6(b).[2]

On October 18, 2011, plaintiff moved to vacate the dismissal of her complaint and confirm the arbitration award. Defendant opposed the motion, and cross-moved for an order scheduling a trial de novo. During this same time period, defendant submitted receipts from Ocean Reef, purportedly ...


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