(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 17, 1997 -- Decided June 27, 1997
GARIBALDI, J., writing for a unanimous Court.
In this appeal, as in Hartsfield v. Fantini, also decided this date, the Court determines when an
attorney's mistake, resulting in failure to appeal an arbitration decision within thirty days, constitutes
“extraordinary circumstances” sufficient to allow a party to file for a trial de novo out of time.
Stewart Wallace was injured when he slipped and fell in a nursing facility where he had been
assigned to work as a nurse's aid. Following the fall, Wallace filed a negligence action against the facility
(Hartwyck). Thereafter, on January 18, 1996, nonbinding arbitration was held. The arbitrators found
Hartwyck 100" liable for Wallace's injuries and awarded him $275,000 in damages. Although a witness to
the accident, who disputed Wallace's version of the accident, was unavailable to testify at the arbitration, the
arbitrators were made aware of his version of events.
Following the arbitration, Hartwyck's counsel, Christopher Weber, told Wallace's counsel that he
would most likely file for a trial de novo. However, he noted that he would wait until the end of the thirty-day period to file because, in Union County, trial was generally scheduled to begin shortly after a trial de
novo request is granted by the court. The attorneys agreed to continue discovery in preparation for trial.
Weber missed the February 20, l996, deadline for filing for a trial de novo, having posted a reminder
on his calendar on the incorrect date of February 29, l996. During the thirty days following the arbitration,
Weber had continued to work on the case extensively. On February 26, l996, Weber prepared and mailed
the trial de novo notice, six days out of time. The court returned it to him shortly thereafter.
On February 28, l996, plaintiff's counsel filed a motion to confirm the arbitration award. Weber
filed a cross-motion to permit the filing of a notice of demand for trial de novo. The trial court granted the
motion to confirm the arbitration award and denied the motion to permit the filing for a trial de novo out of
time. The trial court found that, although Weber had made an honest mistake, more was required to grant a
motion for a trial de novo out of time. On appeal, the Appellate Division affirmed the trial court's decision
for the reasons set forth in its oral opinion.
The Supreme Court granted Hartwyck's petition for certification.
HELD: An attorney's mere carelessness or lack of proper diligence does not constitute “extraordinary
circumstances” and is insufficient to relax the thirty-day limitation set forth in Rule 4:21A-6(b)(1) for the
filing of a request for trial de novo.
1. When a party fails to file a request for trial de novo within thirty days of an arbitration award, the trial
court may extend the deadline if “extraordinary circumstances” exist. That determination, however, is fact
sensitive and should be made on a case-by-case basis. (p. 5)
2. The trial court's ruling did not deny Hartwyck the opportunity to mount a proper defense against
Wallace's claim as the arbitrators were aware that Hartwyck's eyewitness account of the accident differed
from Wallace's. (pp. 5-6)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
119 September Term 1996
STEWART G. WALLACE,
Plaintiff-Respondent,
v.
JFK HARTWYCK AT OAK TREE, INC.,
Defendant-Appellant,
and
JOHN DOES A THROUGH Z,
fictitious names,
Defendants.
Argued March l7, l997 -- Decided June 27, 1997
On certification to the Superior Court,
Appellate Division.
Russell L. Hewit argued the cause for
appellant (Dughi and Hewit, attorneys; Louis
John Dughi, Jr., on the brief).
Wayne D. Greenfeder argued the cause for
respondent (Kraemer, Burns, Mytelka & Lovell,
attorneys; Waldron Kraemer, of counsel and on the
brief).
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, as in Hartsfield v. Fantini, ___ N.J. ___,
also decided today, defendant JFK Hartwyck at Oak Tree, Inc.
(Hartwyck) asks us to decide when an attorney's mistake,
resulting in failure to appeal an arbitration decision within
thirty days, constitutes "extraordinary circumstances" sufficient
to allow a party to file for a trial de novo out of time. As in
Hartsfield, we find that an attorney's "mere carelessness" or
"lack of proper diligence" is insufficient to relax the thirty-day rule under the "extraordinary circumstances" exception. __
N.J. at __ (slip op. at 8).
On October l6, l992, plaintiff, Stewart Wallace, was employed by Cornell Medicare, Inc., as a nurse's aide. He was assigned to work at Hartwyck, a nursing facility. As Wallace walked around a patient's bed, he slipped and fell, injuring his right knee and back. Wallace claims that after the fall he observed a "slippery liquid substance appearing to be soap" on the floor where he had fallen.
At the time of the fall, another aide, Theodore Satter, was in the room. He saw plaintiff fall and helped plaintiff stand up. In a report written after the accident, Satter indicated that he had not observed any liquid on the floor and that it had appeared to him that plaintiff's knee had "just buckled under the weight of his own body." After the fall, plaintiff refused treatment at John F. Kennedy Medical Center and requested
transportation to Muhlenberg Hospital. The Muhlenberg Emergency
Room physicians took x-rays, which indicated that Wallace had
suffered lower back and right knee injuries. Plaintiff has
undergone three surgeries on his knee and received physical
therapy on both his back and knee.
On September 30, 1994, plaintiff filed a negligence action
against Hartwyck. On January 18, 1996, nonbinding arbitration
was held. The arbitrators found Hartwyck 100" liable for the
injuries and awarded plaintiff $275,000 in damages. Although the
witness to the accident, Satter, was unavailable to testify at
the arbitration proceeding, the arbitrators were aware of his
version of the accident.
Following the arbitration, defendant's counsel, Christopher
Weber, told plaintiff's attorney that he would most likely file
for a trial de novo. The attorneys agreed to continue discovery
in preparation for trial, and Weber noted that he would wait
until the end of the thirty-day period to file because, in Union
County, trial is often scheduled to begin soon after a trial de
novo request is granted by the court.
Weber missed the February 20, 1996, deadline for filing for
a trial de novo. He had written a reminder on a post-it note and
stuck it on his calendar on the incorrect date of February 29,
1996. He had continued to work on the case, reviewing medical
records, forwarding medical authorization forms to plaintiff's
counsel, refining interrogatory answers, and arranging deposition
dates. Three weeks after the hearing, he advised his client by
letter of the results of the arbitration proceeding. He failed,
however, to reach defendant's insurance representative during
this time period, although he attempted to reach him twice. On
February 5, 1996, he received a telephone call from plaintiff's
attorney that he returned; however, he was unable to reach
opposing counsel. He did not try to call plaintiff's attorney
again. On February 26, l996, Weber prepared and mailed the trial
de novo notice, six days out of time. The court returned it to
him on March 3, 1996.
On February 28, 1996, plaintiff's counsel filed a motion to
confirm the award, which was served on Weber on March 4, 1996.
On March 21, 1996, defendant's counsel filed a cross-motion to
permit the filing of a notice of demand for a trial de novo.
After hearing arguments on both motions, the trial court entered
an order granting the motion to confirm the arbitration award of
$275,000 and denying the motion to permit the filing for a trial
de novo out of time. The trial court found that an honest
mistake had been made by defense counsel, but concluded that more
than an ordinary mistake is required to grant a motion for a
trial de novo out of time.
Defendant appealed. The Appellate Division affirmed the
trial court's decision and issued an order granting plaintiff's
motion for summary disposition, for the reasons expressed by the
trial court in its March 29, l996, oral opinion. We granted
defendant's petition for certification, l
46 N.J. 567, and now
affirm.
Following the filing of an arbitration award, each party has thirty days within which to demand a trial de novo. Rule 4:21A-6(b)(1). When a party fails to file within thirty days, the trial court may extend the deadline if "extraordinary circumstances" exist. See Hartsfield, supra, __ N.J. at __ (slip op. at 8). That determination is fact sensitive and should be made on a case-by-case basis. Ibid.
No such circumstances exist in this case. Hartwyck's attorney failed to file for a trial de novo within the thirty-day period, because he marked the wrong date in his calendar. That mistake, characterized as an "honest mistake" by the trial court, was the result of mere carelessness on the part of the attorney. As we stated in Hartsfield, supra, ___ N.J. ___ (slip op. at 8), "mere carelessness" on the part of an attorney cannot give rise to extraordinary circumstances capable of relaxing the thirty-day rule.
We disagree with Hartwyck's assertion that the trial court's ruling essentially denies it the opportunity to mount a proper defense against Wallace's claim. Although Satter was unable to testify at the arbitration, the arbitrators were aware that his eyewitness account of the accident differed from Wallace's. The
trial court's confirmation of the arbitrators' award, therefore,
was not incompatible with the interests of justice.
The trial court correctly denied Hartwyck's motion to demand
a trial de novo out of time. The Appellate Division's judgment
is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-119 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STEWART G. WALLACE,
Plaintiff-Respondent,
v.
JFK HARTWYCK AT OAK TREE, INC.,
Defendant-Appellant,
and
JOHN DOES A THROUGH Z,
fictitious names,
Defendants.
DECIDED June 27, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY