Sammerah Tutt v. Parker 149 LLC

NOT FOR PUBLICATION WITHOUT THE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-0137-22

SAMMERAH TUTT,

Plaintiff-Respondent,

v.

PARKER 149 LLC,

Defendant-Appellant.
_________________________

Submitted November 14, 2023 – Decided December 5, 2023

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0059-21.

Lewis Brisbois Bisgaard & Smith, LLP, attorneys for
appellant (Colin P. Hackett, of counsel and on the
briefs).

John J. Pisano, attorney for respondent.

PER CURIAM

Defendant Parker 149, LLC, appeals from an August 8, 2022 Law

Division order confirming an arbitration award and denying as untimely its
request for a trial de novo. Because we conclude Rules 4:21A-5 and -6(b)(1)

must be read together such that the thirty-day period in which a party must

demand a trial de novo commences only when the court provides a copy of the

award to the parties, we reverse and remand.

I.

While a tenant in a Newark residence owned by defendant, plaintiff

alleges she slipped and fell on ice or snow, causing her "severe and permanent

injuries." She subsequently filed a complaint asserting defendant was negligent

in failing to remove the ice and snow, to warn plaintiff of the dangerous

condition, or to "exercise that degree of care and caution required to keep the . . .

premises in a safe condition." In its answer, defendant denied liability and

asserted various defenses.

Both parties participated in non-binding arbitration by phone on June 14,

2022, as required by Rule 4:21A-1.1 The arbitrator found plaintiff twenty-five

percent liable and defendant seventy-five percent liable and, based on gross

damages of $50,000, awarded plaintiff $37,500. Both parties' counsel

"authorized the arbitrator to sign [thei]r names to the report of the arbitration

1
Rule 4:21A-1(a)(2) provides in relevant part, "all actions for personal injury
not arising out of the operation, ownership, maintenance or use of an automobile
shall be submitted to arbitration in accordance with these rules."
A-0137-22
2
award," which was filed with the court the same day, June 14, 2022. Defendant's

counsel received an email from the eCourts system the next morning, June 15,

2022, advising all parties the award had been filed the previous day. Consistent

with that email, the case summary from eCourts reflects a "filed date" of June

14, 2022 and an "entry date" of June 15, 2022.

Defendant moved for a trial de novo pursuant to Rule 4:21A-6 on July 15,

2022.2 Initially, the Law Division clerk refused to accept defendant's trial de

novo demand, deeming it untimely because the thirty-day period set forth in the

Rule expired the day before, on July 14, 2022. Defendant then filed, the same

day, another motion requesting its demand for a trial de novo be processed. In

response, plaintiff moved to confirm the arbitration award.

The court heard oral arguments on both plaintiff's and defendant's

motions. Defendant noted it did not receive the filed arbitration award from the

eCourts system until June 15, 2022, and therefore, under America's Pride

Construction v. Farry, 175 N.J. 60 (2002), in which the Supreme Court held "the

time periods set out in Rule 4:21A-6(b) do not begin to run until the arbitrator

2
Rule 4:21A-6(b)(1) states "[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 . . . and serves on all other
parties a notice of rejection of the award and demand for a trial de novo . . . ."

A-0137-22
3
has filed the written award with the [court] and the parties," id. at 65, it argued

the thirty-day period for requesting a trial de novo did not commence until it

received notice of the award on June 15, 2022. Defendant also relied on Farrell

v. TCI of North N.J., 378 N.J. Super. 341 (App. Div. 2005), in which we referred

to America's Pride when interpreting the one-year period applicable to a motion

seeking relief from judgment under Rule 4:50-1(a), id. at 346, 348-51.

On August 8, 2022, the court issued a written order granting plaintiff 's

application and denying defendant's. The court found defendant's request for a

trial de novo, filed on July 15, 2022, was "one-day out of time" because the

current version of "[Rule] 4:21A-6(b) eliminate[d] the mailing or notice

requirement and [required] the trial de novo request . . . be made 'within [thirty]

days after the filing of the arbitration award.'" The arbitration award here, the

court noted, was "docketed on eCourts on June 14, 2022."

In a rider to its written order, the court determined the Court's holding in

America's Pride was abrogated by the change to Rule 4:21A-5(a) and, in support,

relied on SWH Funding Corp. v. Walden Printing Co., 399 N.J. Super. 1 (App.

Div. 2008), in which we found the amendment of Rules 4:21A-4 and -5 "signaled

the Court's clear intention to depart from the scenario addressed in America's

Pride," id. at 17. Therefore, it concluded, defendant's reliance on America's

A-0137-22
4
Pride, 175 N.J. at 65, and Farrell, 378 N.J. Super. at 348-51, was misplaced as

each relied upon language in Rule 4:21A-5(a), which was later modified and

thus inapplicable to the facts before the court.

Finally, the court determined there were no extraordinary circumstances

warranting a tolling of the thirty-day period, as required under Hartsfield v.

Fantini, 149 N.J. 611, 618 (1997) (holding "courts must determine that

'extraordinary circumstances' exist [to relax the thirty-day rule in Rule 4:21A-

6(b)] and that those circumstances did not arise from an attorney 's 'mere

carelessness' or 'lack of proper diligence.'" (quoting In re T., 95 N.J. Super. 228,

235 (App. Div. 1967))). The court also found Rule 1:1-2, which permits

relaxation of other rules, was not applicable here as it "was not meant as a 'cure-

all' . . . [and] should be sparingly resorted to," the court added, citing Romagnola

v. Gillespie, Inc., 194 N.J. 596, 606 (2008) and Robertelli v. Office of Attorney

Ethics, 224 N.J. 470, 483 (2016). This appeal followed.

II.

Before us, defendant argues the court erred in denying its request for a

trial de novo. In support, it reprises its argument the thirty-day period under

Rule 4:21A-6 should not have commenced until the court provided it with a copy

A-0137-22
5
of the arbitration award, on June 15, 2022. Accordingly, it asserts its request

filed on July 15, 2022 was timely.

Defendant again relies on America's Pride as well as an unpublished

opinion from our court, to support its position the thirty-day period in the Rule

does not commence "until the court provides the parties a copy of the award."

Defendant stresses neither we, nor our Supreme Court, have deemed America's

Pride "no longer good law," contrary to the court's determination. Further, it

contends strictly construing the time period to begin upon filing is illogical,

because it would unreasonably shorten the time period if the award were filed

but not served on the parties until days or weeks later. Finally, defendant asserts

Rule 1:1-2, which informs that our Rules "shall be construed to secure a just

determination, simplicity in procedure, fairness in administration and the

elimination of unjustifiable expense and delay," fully supports its argument the

court erred in interpreting Rule 4:21A-6.

In requesting we affirm, plaintiff notes defendant's demand for a trial de

novo was not filed until thirty-one days after the arbitration award was filed on

June 14, 2022, and therefore, the demand was untimely under the clear language

A-0137-22
6
of N.J.S.A. 2A:23A-263 and its implementing rule, Rule 4:21A-6(b)(1).

Plaintiff asserts the "plain and unambiguous terms of Rule 4:21A-6(b)(1) and

N.J.S.A. 2A:23A-26 provide a limitations period for the filing of a demand for

a trial de novo that is thirty . . . days from the 'filing' of the arbitration award."

In contrast, she argues, the language used in other Rules clearly states when a

limitations period is calculated according to the date of notice or service .

As an example, plaintiff points to Rules 2:4-1(b), permitting appeals from

administrative agencies within forty-five days "from the date of service of the

decision"; 2:5-6(a), providing a motion seeking leave to appeal an interlocutory

order shall be made within twenty days "after the date of service of such order";

and 4:49-2, requiring motions to reconsider or amend final judgments be made

within twenty days "after service of the judgment or order upon all parties."

Thus, plaintiff concludes, the language of Rule 4:21A-6 demonstrates the thirty-

day period was intended to begin "to run upon the filing of the arbitration award"

and not upon service. We disagree with all these arguments.

3
N.J.S.A. 2A:23A-26 provides "[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 . . . ."
A-0137-22
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 We first identify the standard of review governing our analysis. An

interpretation of court Rules governing mandatory arbitration involves a

question of law which is reviewed de novo. Vanderslice v. Stewart, 220 N.J.

385, 389 (2015). Under this standard, "[a] trial court's interpretation of the law

and the legal consequences that flow from established facts are not entitled to

any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)

(alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

We apply "ordinary principles of statutory construction" when

interpreting court rules. State v. Robinson, 229 N.J. 44, 66 (2017). "We look

first to the plain language of the Rules and give the words their ordinary

meaning." Robertelli, 224 N.J. at 484. Additionally, we must read the language

used "in context with related provisions so as to give sense to the [court Rules]

as a whole." Ibid. (alteration in original) (quoting Wiese v. Dedhia, 188 N.J.

587, 592 (2006)). "If a . . . rule is ambiguous, courts may ascertain the intent of

the drafters by looking to extrinsic sources such as the . . . rule's underlying

purpose and history." First Resol. Inv. Corp. v. Seker, 171 N.J. 502, 512 (2002).

As our Supreme Court noted, "[t]he general intent of [a] statute [or Rule]

controls the interpretation of its component parts." Ibid. (alterations in original)

A-0137-22
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(quoting Nat'l Waste Recycling, Inc. v. Middlesex Cnty. Improvement Auth.,

150 N.J. 209, 223 (1997)). "If . . . a literal interpretation of a provision would

lead to an absurd result or would be inconsistent with the [Rule]'s overall

purpose, 'that interpretation should be rejected' and 'the spirit of the [Rule]

should control.'" Pfannenstein v. Surrey, 475 N.J. Super. 83, 95 (App. Div.

2023) (quoting Hubbard v. Reed, 168 N.J. 387, 392-93 (2001)).

With these principles in mind, we turn to the statutes and Rules at issue.

The Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1

through -30, was enacted "'to provide a speedier and less expensive process for

resolution of disputes than traditional civil litigation' . . . [and] to provide 'a

formal method of resolving disputes with predictable rules, procedures, and

results.'" N.J. Mfrs. Ins. Co. v. Specialty Surgical Ctr. of New Brunswick, 458

N.J. Super. 63, 69 (App. Div. 2019) (quoting Mt. Hope Dev. Assocs. v. Mt. Hope

Waterpower Project, L.P., 154 N.J. 141, 145 (1998)).

Both N.J.S.A. 2A:23A-26 and Rule 4:21A-6(b)(1) fix the deadline to

demand a trial de novo as within thirty days of the filing of the arbitration award.

"Rule 4:21A-6(b)(1) 'set[s] a short deadline for filing a [trial] de novo demand'

to 'ensure[] that the court will promptly schedule trials in cases that cannot be

resolved by arbitration.'" Vanderslice, 220 N.J. at 392 (alterations in original)

A-0137-22
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(quoting Nascimento v. King, 381 N.J. Super. 593, 597 (App. Div. 2005)). The

thirty-day period is "intended . . . to be strictly enforced" and may be extended

by the court only upon a showing of "extraordinary circumstances." Hartsfield,

149 N.J. at 616-17 (quoting Hart v. Prop. Mgmt. Sys., 280 N.J. Super. 145, 147

(App. Div. 1995)). This policy "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." Id. at 619 (quoting Behm

v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996)).

First, we are not persuaded by the court's conclusion America's Pride has

effectively been abrogated by changes to Rule 4:21A-5(a). The issue in

America's Pride was "whether the arbitrator's failure to provide the [defendants]

with a copy of the arbitration award as prescribed by Rule 4:21A-5(a) is a

sufficient basis to toll the filing deadlines set forth in Rule 4:21A-6(b)." 175

N.J. at 63. Under the version of Rule 4:21A-5(a) in effect at the time, the

arbitrator was required to "mail a copy [of the award] to each of the parties." Id.

at 64. The Court concluded, "[r]eading Rules 4:21A-5(a) and -6(b) together, . . .

the time periods set out in Rule 4:21A-6(b) do not begin to run until the arbitrator

has filed the written award with the civil division manager and the parties." Ibid.

(emphasis added). It explained its "interpretation of the mailing requirement

A-0137-22
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under Rule 4:21A-5(a) is consonant with other [c]ourt Rules that condition a

filing deadline on the receipt of notice that a judgment, order, or decision has

been entered against a party." Ibid.

Rule 4:21A-5(a) was altered as part of the Best Practices Rule

amendments in 2000, replacing the word "mail" with "provide" and shifting

responsibility for providing a copy of the award from the arbitrator to the court.

Contrary to the court's interpretation, this change did not remove the principle

upon which America's Pride grounded its decision, but merely modified the

manner by which any award is transmitted to the parties. Instead of the arbitrator

providing a copy of the award, the court is now obligated to do so. R. 4:21A-

5.4

In essence, we fundamentally disagree with plaintiff's interpretation of

Rules 4:21A-5 and -6 as well as the court's conclusion that from the minor

change in the Rule, the holding in America's Pride was abrogated. As noted, the

Court's holding was not dependent on the arbitrator serving the award, but rather

the underlying "purpose of a notice requirement . . . to apprise a party of some

4
We note our conclusion is supported by the March 1, 2000 Supplemental
Report of the Supreme Court Committee on Civil Practice recommending the
change to Rule 4:21A-5(a) which characterized it as merely a "housekeeping
amendment." 2000 Sup. Ct. Civ. Prac. Comm. Suppl. Rep. § I(A), at 5.
A-0137-22
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fact that he or she has a right to know and that the communicating party has a

duty to communicate." America's Pride, 175 N.J. at 63-64. That principle

survives the housekeeping amendment to Rule 4:21A-5. Although we

acknowledge in America's Pride, one of the parties failed to appear for the

arbitration, contrary to the circumstances here, we find the Court's interpretation

of Rules 4:21A-5 and -6 equally applicable to the facts before us we discuss at

pp. 13-16, infra.

We also find the court's reliance on SWH Funding to be misplaced. That

case involved an order denying a motion to vacate an arbitration award entered

by default under Rule 4:21A-4(f). 399 N.J. Super. at 17. Paragraph (f), added

in 2000, provides, in part:

If a party defending against a claim of damages does
not appear, that party's pleading shall be stricken, the
arbitration shall proceed and the non-appearing party
shall be deemed to have waived the right to demand a
trial de novo . . . . Relief from any order entered
pursuant to this rule shall be granted only on motion
showing good cause . . . .

[R. 4:21A-4(f).]

In SWH Funding, we noted the modifications to Rules 4:21A-4 and

4:21A-5 "denied the non-appearing party the right to file for a trial de novo."

399 N.J. Super. at 17. The primary issue in SWH Funding was whether

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defendant's failure to appear at the arbitration hearing constituted "good cause"

to grant relief from an arbitration award entered by default under Rule 4:21A-

4(f). Ibid. In America's Pride, defendants also failed to appear at the arbitration

hearing, 175 N.J. at 62, but were permitted to move for a trial de novo because

Rule 4:21A-4(f) had not yet been enacted. This is the "scenario addressed in

America's Pride" from which SWH Funding found the amendment of Rules

4:21A-4 and -5 "signaled the Court's clear intention to depart." 399 N.J. Super.

at 17. Indeed, SWH Funding did not consider Rule 4:21A-6 at all, aside from

noting that its thirty-day requirement did not apply to a motion seeking relief

under Rule 4:21A-4(f). Id. at 11.

We are also unpersuaded by plaintiff's arguments comparing Rule 4:21A-

6 to Rules 2:4-1(b), 2:5-6(a), and 4:49-2. While we agree each of these

references the applicable time period by the date of service or notice, and not

the date of filing, we cannot separate Rule 4:21A-6 from its context. As the

Court advised in America's Pride, that Rule must be read together with Rule

4:21A-5 and thus, it follows the time periods set forth in Rule 4:21A-6(b) do not

begin to run until the parties receive a copy of the arbitration award from the

court. 175 N.J. at 64. In fact, the Court referred specifically to Rules 2:4-1(b)

and 4:49-2 in utilizing the mailing requirement in Rule 4:21A-5 to inform the

A-0137-22
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thirty-day period in Rule 4:21A-6(b), finding its interpretation "consonant with

other [c]ourt Rules that condition a filing deadline on the receipt of notice that

a judgment, order, or decision has been entered against a party." Id. at 64. As

noted, we are obligated to read the Rules "in context with related provisions so

as to give sense to the [court rules] as a whole," Robertelli, 224 N.J. at 484

(alteration in original) (quoting Wiese, 188 N.J. at 592), and to avoid "absurd"

results and inconsistency with the Rule's overall purpose, Pfannenstein, 475 N.J.

Super. at 95.

Further, nothing in our decision or interpretation of Rule 4:21A-6(b) or

N.J.S.A. 2A:23A-26 is inconsistent with their purpose, "to provide 'a formal

method of resolving disputes with predictable rules, procedures, and results ,'"

N.J. Mfrs. Ins. Co., 458 N.J. Super. at 69 (quoting Mt. Hope Dev. Assocs., 154

N.J. at 145), and to "ensure[] that the court will promptly schedule trials in cases

that cannot be resolved by arbitration," Vanderslice, 220 N.J. at 392 (alteration

in original) (quoting Nascimento, 381 N.J. Super. at 597). Particularly where,

as here, the parties attended arbitration by phone and did not receive a copy of

the written arbitration award before it was filed, it would be unfair to start the

thirty-day clock before the parties had an opportunity to review the award.

Although the parties do not dispute the arbitrator stated his decision the day of

A-0137-22
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the hearing, it is not inconceivable a written award could diverge from an oral

decision, whether accidentally or otherwise.

Therefore, for the reasons detailed, we agree with defendant that the

thirty-day period within which it could seek a trial de novo began on June 15,

2022, when it received a copy of the arbitrator's award from the court, and its

July 15, 2022 filing was therefore timely. Because we determine the filing was

timely, we need not, and do not, reach the issue of whether defendant has

demonstrated extraordinary circumstances to extend the thirty-day period under

Hartsfield, 149 N.J. at 618.

In reaching our decision, we acknowledge defendant was aware of the

arbitrator's award on June 14, 2022, when the arbitrator made an oral decision

and the parties consented to the arbitrator placing their signatures on the award.5

We are nevertheless satisfied these facts do not warrant deviation from the

principles we have discussed, as our interpretation of the Rules confirms a party

seeking a trial de novo should base their decision on the actual award filed with

5
Although the award includes a provision advising "[p]arties desiring to reject
this award and obtain a trial de novo must file with the division manager a trial
de novo request . . . within thirty (30) days of today" and "unless otherwise
expressly indicated this award will be filed today," it is undisputed the arbitrator
did not provide a copy of the award directly to the parties on June 14, 2022.
A-0137-22
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the court, not an arbitrator's oral representations prior to filing the written award.

As noted, a variety of circumstances could lead to differences between the two.

Further, our decision ensures the applicable time period is no less than

thirty days, even when there is a delay between an arbitrator's filing and the

court's provision of the award, as a contrary interpretation would unfairly

truncate the brief period to demand a trial de novo. For example, if we were to

adopt plaintiff's interpretation, a party that did not receive a copy of an award

from the court until twenty-nine days after its filing would have only one day to

review the written award for accuracy and demand a trial de novo. We find such

an interpretation contrary to America's Pride, Rules 4:21A-5 and -6, and

inconsistent with the "fairness in administration" our Rules are intended to

secure. R. 1:1-2.

Reversed.

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