A state appellate court declined to confirm a $5 million arbitration award to the plaintiffs in a civil suit for damages on behalf of a victim of childhood sexual assault despite the defense counsel's "comedy of errors," such as not showing up for arbitration and missing filing deadlines afterward.

In Damms v. Damms, a three-judge Appellate Division panel on Wednesday said Mercer County-based attorney David Schroth acted carelessly through a series of missteps: missing filing deadlines, failing to appear at a Rule 4:21-A arbitration meeting in July 2019; failing to oppose a motion to confirm the arbitration award; and failing to file a notice for a new trial within the required 30-day timeline.

Schroth, of Destribats Campbell Staub & Schroth in Hamilton, represents an elderly woman facing allegations of negligent supervision resulting in the sexual assault of a minor by her husband over the course of several years.

Despite all of Schroth's mistakes, the Appellate Division, illustrating the principal that "the sins of the attorney" should not be visited upon a "blameless client," said Mercer County Assignment Judge Mary Jacobson did not abuse her discretion in granting relief and issuing a Nov. 12, 2019, order that called for a January 2020 trial date.

"We affirm but only on the narrowest of grounds," Judges Clarkson Fisher Jr., Robert Gilson and Lisa Rose ruled in the 15-page per curiam decision, which is unpublished.

"In considering whether to vacate the order that confirmed the arbitration award, the judge was required at that time to ascertain the reasons—and the sufficiency of the reasons—for the lack of an appearance by either defendant or defense counsel at the arbitration. The record is replete with evidence—including defense counsel's acknowledgement—that notice of the arbitration date was timely received but mis-diaried by his office," said the opinion.

The panel referenced William Shakespeare's "Comedy of Errors" in describing Schroth's multiple missteps in the case.

"In such matters, judges and lawyers like to invoke the title of one of Shakespeare's early plays. But we find no humor in defendant's comedy of errors. Indeed, at first blush, there is a strong tendency to view defendant's situation like the Duke viewed the condemned Aegeon in the play's first act: 'For we may pity though not pardon thee," the court said.

"Yet, like the Duke, we too find in this play's last act a reason to grant relief and, so, we sustain the trial judge's determination that defense counsel's errors do not require dismissal," the court said.

The case, filed on June 9, 2017, involves plaintiffs Joyce Damms and a minor, referred to by the court as "S.D." The two sued Santa Damms, described as an octogenarian confined to a wheelchair, for failing to protect S.D. from yearslong sexual abuse by her paternal grandfather.

The suit claims Santa Damms knew her husband was a pedophile but failed to supervise S.D. during visits. She has maintained that she had no knowledge of any sexual abuse. The husband, William Damms, 86, was paroled in February after serving five months of a 12-month sentence for endangering the welfare of a child, according to the state Department of Corrections.

Robbinsville solo Edward Harrington Heyburn represents Joyce Damms and S.D. Schroth  represents Santa Damms. Heyburn could not be reached for comment. Schroth, in a phone call early Thursday, said, "I am pleased with the decision."

In May 2019, the trial court sent a notice to counsel scheduling arbitration for July 9, 2019, which neither Santa Samms nor Schroth appeared for, according to the decision.

Schroth, the court said, would later claim that his absence at arbitration was due to having to appear before the U.S. Court of Appeals for the Third Circuit in Philadelphia on the same day, and that he attempted unsuccessfully to seek an adjournment. Arbitrators awarded Joyce Damms and S.D. $5 million on July 9, 2019, and that their attorney Heyburn emailed a copy of the award to Schroth the same day. The next day, the plaintiffs moved to confirm the arbitration award. No opposition was filed, and the motion was granted on July 26, 2019.

Three days later, on July 29, Santa Damms moved to vacate the confirmation order. Jacobson determined there was good cause to vacate the order of confirmation, and that she would not require the parties to return to arbitration.

The Appellate Division said Schroth's failure to oppose the confirmation motion apparently resulted from "some glitch in the electronic filing system," and there is "no reason to question the judge's determination that there were reasonable grounds to excuse that failure."

A Sept. 18, 2019, order vacated the arbitration award and provided that Schroth was granted leave to file a notice for a trial de novo by Oct. 16, 2019, under an agreed-on, 30-day deadline.

But Schroth filed a notice one day late.

Joyce Damms and S.D. again moved to confirm the arbitration award, which Schroth opposed, seeking relaxation of the time frame set in the earlier order.

The Appellate Division panel was less sympathetic about Schroth's late filing of the trial de novo notice. Jacobson said she would give him 30 days to file, but then her order was filed two days later, giving him 28 days from the order's entry. He argued that he relied on the judge's oral decision, but the appeals court called his actions "pure carelessness."

Schroth "apparently neglected to read the entire order, since there was no ambiguity about the time within which the notice of trial de novo had to be filed and yet counsel was somehow off by a day," the panel said.

Jacobson deemed the late-filed submission timely based on her recognition that she contributed to the confusion by intending to give Schroth 30 days but giving him 28. She admonished Schroth but still granted the request based on "concern[] … about the impact on this defendant of not allowing the case to go forward," she said.

In affirming, the Appellate Division, after granting the plaintiffs leave for interlocutory appeal, said: "By filing the notice on the 29th day following the order's entry, it can be said defense counsel substantially complied even though the deadline imposed by the judge's order was breached."

"While our courts have said an attorney's 'carelessness and inadvertence' is insufficient to constitute excusable neglect, Burns v. Belafsky, we have also repeatedly held that 'the sins of the attorney' should not be visited 'upon [the] blameless client,' Jansson v. Fairleigh Dickinson University," the opinion said.

The panel said Jacobson recognized this balance in granting relief and letting the case move forward. "Although counsel's failure to appear was the product of carelessness or inadvertence, we cannot say that the judge abused her discretion in providing relief under Rule 4:21A-4(f). … Any prejudice to plaintiff was ameliorated by the judge's award of counsel fees."

The panel did note, "Defense counsel flirted with disaster by pushing things off until what he thought was the deadline."