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Deciding not to show up for a hearing is usually the act of a desperate — or despondent — party, but such desperados now have friends on the New Jersey Supreme Court. In a Dec. 19 decision, the court ruled that when a party fails to attend arbitration and a default award is entered, the absent party still has a right to demand a full trial if the arbitrator fails to notify him or her of the award. Justice James Zazzali was joined by the other justices in reversing the trial court and Appellate Division rulings in America’s Pride Construction v. Farry, A-87. A contractor sued a couple, John and Eileen Farry, who had become unhappy with work done on their house and had refused to pay the bills before the project was complete. The couple counterclaimed, adding the construction boss and an architect’s firm as parties. Everyone retained counsel, but America’s Pride’s attorneys withdrew and the firm was told to find new lawyers. Before that happened, an arbitration date was set. On the morning of the meeting, the Farrys’ lawyer, Bartholomew Sheehan, called the architect’s attorney, Stephen Davis. Sheehan, of Dempsey, Dempsey & Sheehan in Summit, N.J., told Davis, of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer in Warren, N.J., that he assumed the meeting would be canceled because America’s Pride had not retained counsel. According to Sheehan, Davis told him “it would be taken care of.” The arbitrator — who is not identified in the ruling — had other ideas, and informed Sheehan that the hearing would go ahead with or without him. Sheehan decided to forgo the advantage of facing his pro se opponent, expecting instead either to be notified that the hearing was adjourned — for a sixth time — or that he had to file for a trial de novo. “The architect [and his attorney] was there, so there would have been no real advantage to be pursued [by attending],” Sheehan says. The arbitrator found for the plaintiff construction firm but, in an unexplained move, failed to send Sheehan or his clients notice of the award. Sheehan says he cannot remember the name of the arbitrator; Davis did not return a call at press time. When Davis moved successfully in court to confirm the award, Sheehan demanded a reconsideration, arguing that the deadline for confirming or challenging awards had not passed because Rule 4:21A-5(a), which requires notification of parties, had not been obeyed. Without that rule being followed, Sheehan argued, the clock does not start ticking. The trial court and the Appellate Division both disagreed. Sheehan’s lack of diligence in attending the hearing or following up on the award did not constitute the type of “extraordinary circumstances” required to delay the deadlines in the rule, both courts said. When the Farrys filed their petition challenging the Appellate Division, the justices remanded the case to the appeals court for reconsideration in light of the deadline rules, rather than the “extraordinary circumstances” rules. In an apparent battle of wills, on remand the Appellate Division again affirmed the trial court. With the Farrys’ second petition, Zazzali finally reversed the decision for good. The rule that controls deadlines for challenging or affirming arbitration awards is Rule 4:21A-6(b). It does not specifically state that the time period begins to run once the parties are informed. Rather, it says the period begins once the award is filed as per Rule 4:21A-5(a). Rule 4:21A-5(a), on the other hand, indicates that a filing must occur at the same time as notification of the parties. “Reading Rules 4:21A-5(a) and -6(b) together, we find that the time periods set out in 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,” Zazzali wrote. Zazzali placed primacy on Rules 4:21A-5(a) and 6(b) over Rule 4:21A-4(f), on which the Appellate Division relied. The latter rule states that if a party fails to appear at arbitration, “the arbitration shall proceed and the non-appearing party shall be deemed to have waived the right to demand a trial de novo.”

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