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Fontaine v. Berndtson

Superior Court of New Jersey, Appellate Division

July 23, 2013

DIANE FONTAINE, Plaintiff-Appellant,
v.
BETHANY BERNDTSON, CATHERINE BERNDTSON, Defendants-Respondents, and ANN DRAGON, Defendant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Burlington County, Docket No. L-3337-09.

Burnham Law Group, LLC, attorneys for appellant (Philip S. Burnham, II, on the brief).

Margolis Edelstein, attorneys for respondents (Colleen M. Ready and Jessica R. Laine, on the brief).

Before Judges Lihotz and Mantineo.

PER CURIAM

In this auto negligence matter, we are asked to review whether defendants' facsimile notice to plaintiff Diane Fontaine, rejecting the arbitration award and requesting trial de novo on the thirtieth day following arbitration, and the filing of a demand for trial de novo filed the next day, was timely. Plaintiff appeals from a July 22, 2011 order denying her request to confirm an arbitration award, but granting defendants Bethany Berndtson and Catherine Berndtson's motion to reject the arbitration award and proceed to trial. The trial judge concluded defendants had "substantially complied" with the requirements of Rule 4:21A-6(b), which mandates notice of rejection must be filed within thirty days of the issuance of an arbitration award. Plaintiff argues the demand to the court was filed late and defendants failed to show extraordinary circumstances warranting consideration of the late filed notice. We agree and reverse.

In this auto collision matter, non-binding arbitration held pursuant to Rule 4:21A-1, resulted in a determination that defendants were 100% liable to plaintiff, who was entitled to $30, 000 in damages. We note, a second legal action filed by Ann Dragon, who was the driver of the vehicle struck by defendants in which plaintiff was a passenger, was consolidated with this matter prior to arbitration.[1]

On June 27, 2011, thirty days following entry of the arbitration award, defendants' attorney transmitted by facsimile a notice rejecting the arbitration award and demanding trial de novo. Immediately prior to sending the fax, at approximately 4:45 p.m., defense counsel called counsel for Dragon to inform him of the decision to reject the arbitration determination and proceed to trial. Dragon's counsel worked on the same floor as plaintiff's counsel and agreed to deliver the message. It was too late to file the demand for trial with the court, but defendants arranged for its delivery the following morning. Defendants' demand for trial was declined by the court clerk as untimely.

Defendants moved to allow their demand for trial de novo to be filed as within time. Counsel filed a supporting certification explaining a diary error by his staff caused the belated filing with the court, and maintained plaintiff received notice prior to the expiration of the designated thirty-day period. Defendants argued the doctrine of substantial compliance applied and the demand should be accepted as timely. A second certification from counsel's secretary explained the firm had two matters listed for which a request for trial de novo was to be filed. She mistakenly believed both notices had been sent, but later learned no notice was sent for this matter.

Plaintiff opposed defendants' motion, arguing substantial compliance was inapplicable to relax the thirty-day de novo filing deadline; rather, defendants were compelled to show extraordinary circumstances for the late submission. Asserting counsel's negligence did not meet the extraordinary circumstances standard, plaintiff requested the court deny defendants' motion and grant her cross-motion to confirm the arbitration award.

The judge granted defendants' motion, concluding defendants demonstrated substantial compliance. She also denied plaintiff's cross-motion to confirm the arbitration award. Plaintiff's request to stay the order pending her request for interlocutory appellate review was denied in part; however, the judge stayed ...


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