VICTORY ENTERTAINMENT, INC. VS. RICHARD D. SCHIBELL (C-000046-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3388-16T2
VICTORY ENTERTAINMENT, INC.
and NICHOLAS PANACCIONE,
Plaintiffs-Appellants,
v.
RICHARD D. SCHIBELL, LEONARD
CASIERO and THE DEN, INC.,
Defendants-Respondents,
and
PAGIOTIS DRAGONAS, JOSEPH
FORSTER, SALVATORE SCHIBELL
and TERENCE MARTIN,
Defendants.
______________________________
Argued April 18, 2018 – Decided June 21, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. C-000046-15.
Paul V. Fernicola argued the cause for
appellants (Paul V. Fernicola & Associates,
LLC and Eugene D. Roth, attorneys; Paul V.
Fernicola, on the brief).
Joseph B. Fiorenzo argued the cause for
respondents Richard D. Schibell and Leonard
Casiero (Sills Cummis & Gross, PC, attorneys;
Joseph B. Fiorenzo, of counsel; Andrew W.
Schwartz, on the brief).
Wendy M. Crowther argued the cause for
respondent The Den, Inc. (Schibell & Mennie,
LLC, attorneys, join in the brief of
respondents Richard D. Schibell and Leonard
Casiero).
PER CURIAM
Plaintiffs Victory Entertainment, Inc. (VEI) and Nicholas
Panaccione appeal from a March 29, 2017 order dismissing their
complaint with prejudice, compelling the parties to arbitrate
their dispute, and discharging the special fiscal agent for
defendant The Den, Inc. and from a February 28, 2017 order sealing
the trial court record and deposition transcripts. We affirm the
order dismissing the complaint and compelling the parties to
arbitrate their dispute and reverse the order sealing the record.
I.
We glean the following facts from the record. Prior to 2012,
Joseph Shamy was the majority owner of a series of adult
entertainment clubs that operated under the trade name Delilah's
Den.
Panaccione was the General Manager of several of Shamy's
clubs. Defendant Richard D. Schibell began his business
relationship with Panaccione in 1997 or 1998. At that time,
2 A-3388-16T2
Schibell was providing legal services to Shamy as he sought to
open a Delilah's Den in Toms River. Shamy offered Schibell a
thirty-three percent interest in both Delilah's Den of Toms River
(DDTR), a real estate company, and 1640 Lakewood Road Associates
(1640 LRA), an operating company, for $150,000. The business
opportunity interested Schibell but being an owner of record of
an adult entertainment club concerned him. Due to his concern,
Schibell decided he would be a "passive owner," using Panaccione
as a nominee to hold his shares. Panaccione agreed and, in
exchange for keeping Schibell's ownership interest confidential,
received a ten percent ownership interest in both DDTR and 1640
LRA.
On December 13, 2002, after Schibell and Panaccione had
commenced their business relationship, VEI was formed. Panaccione
received a 17.5 percent ownership interest in VEI. VEI opened
another adult entertainment club in Sayreville, New Jersey, with
Shamy as its majority owner. The club operated under the alternate
name, Delilah's Den, consistent with Shamy's other clubs.
On October 14, 2010, Panaccione was arrested for discharging
a gun in his home while his wife and children were present. On
November 27, 2010, Shamy suspended Panaccione for breaching
company policies. Panaccione's misconduct included harassing the
entertainers and abusing drugs and alcohol.
3 A-3388-16T2
As a result of Panaccione's erratic behavior, Shamy took
steps to separate his business interests from Panaccione. This
culminated in a reorganization of ownership interests completed
on February 5, 2012. The following individuals were parties to
the reorganization agreement: Panagiotis Dragonas, Sherrie
Terrell, Leonard Casiero, Panaccione, and Shamy. Before
reorganization, the ownership interests in the various clubs were
as follows:
VEI: Panaccione 17.5%, Shamy 67.5%, Terrell
5%, and Dragonas 10%.
DDTR: Panaccione, individually and as nominee,
33.3%; Shamy 56.7%; Terrell 5%; and Margaret
Angelo 5%.
1640 LRA: Panaccione, individually and as
nominee 33.3%; Shamy 56.7%; Terrell 5%; and
Margaret Angelo 5%.
Frank's of Millville, LLC: Casiero 10%,
Panaccione 17.5%, Terrell 5%, and Shamy 67.5%.
18-22 Washington Ave, LLC: Casiero 30.77%,
Panaccione 53.85%, and Terrell 15.38%.
After reorganization, the ownership interests in the various clubs
were as follows:
VEI: Panaccione 80%, individually and as
nominee; and Dragonas and Casiero 20%.
DDTR: Shamy 85%, Terrell 10%, and Margaret
Angelo 5%.
1640 LRA: Shamy 85%, Terrell 10%, and Margaret
Angelo 5%.
4 A-3388-16T2
Frank's of Millville, LLC: Shamy 90% and
Terrell 10%.
18-22 Washington Ave, LLC: Shamy 90% and
Terrell 10%.
Panaccione, Schibell, and Casiero essentially traded all of their
combined interests across the various clubs for a 100% interest
in VEI and, by extension, the club in Sayreville.1
As part of the reorganization, Schibell, Casiero, and
Panaccione agreed they would transfer ownership of the Sayreville
club to a new entity so that the owners of VEI would remain liable
for its prior debts and the new owners of the Sayerville club
would not be responsible. On February 17, 2012, Casiero and
Pannaccione incorporated The Den, Inc. (The Den) to accomplish
that goal. Casiero owned a twenty percent interest in The Den,
while Panaccione owned the remaining eighty percent, individually
and as a nominee.2
The certificate of incorporation filed by Schibell authorized
the corporation to issue 2500 shares of stock without par value,
designated Panaccione as the sole director of the initial Board
of Directors, and named Panaccione as the corporation's registered
1
Dragonas shared a twenty percent interest in VEI with Casiero.
Casiero acted as Dragonas's agent.
2
Panaccione owned forty-nine percent outright, and Schibell owned
thirty-one percent.
5 A-3388-16T2
agent. The shares were distributed to Joseph Forster, The Den's
manager.
The parties never prepared or executed a formal plan of
reorganization. However, at least Schibell and Casiero were under
the impression that, due to The Den's incorporation, the entity
had assumed all of VEI's interests and VEI was no longer an
operating entity or a viable company.
In June 2014, Panaccione was hospitalized for mental health
issues. During the period leading up to his hospitalization,
Panaccione began to suffer increasingly frequent delusions,
"accusing certain people of trying to kill him," which negatively
impacted the operation of The Den. During Panaccione's
hospitalization, Schibell and Casiero took over management of The
Den and became aware of Panaccione's mismanagement. Schibell
certifies "[d]uring many spells of delusion, Panaccione would give
inconceivable and incomprehensible orders to employees and
entertainers, making them extremely uncomfortable in the workplace
environment." Schibell further certifies Panaccione would often
"threaten employees and entertainers, brandishing a gun and
otherwise making threats of physical harm against those who would
not accede to his ways." Panaccione also allegedly refused to
follow standard record keeping practices, let several policies
6 A-3388-16T2
lapse, converted money, failed to remit payments to various
vendors, used narcotics, and sexually harassed the entertainers.
Upon his release from the hospital, Panaccione sought to
resume management of The Den. Wary of allowing Panaccione to
reassume his role as manager, Schibell and Casiero informed
Panaccione he could not "come back to run the bar" "[u]ntil he got
better and got treatment." To this end, several communications
were sent between the parties regarding Panaccione's role at The
Den.
In August 2014, Schibell and Casiero met with Panaccione to
discuss conditions that would be "imposed if he were to come back
into the bar."3 During the meeting, Panaccione offered to buy out
Schibell's thirty-one percent interest in The Den for $900,000.
Panaccione also agreed to buy out Casiero's twenty percent interest
in The Den for $600,000. Panaccione, Schibell, and Casiero agreed
to the buyout terms and shook hands on the deal.
On September 4, 2014, Schibell wrote to Panaccione to remind
him the three men had agreed to a price for their combined
interests in The Den and confirmed the agreement with a handshake.
In his letter, Schibell also suggested Panaccione retain an
attorney so they could properly document their agreement.
3
Forster, Terence Martin, and John Catania, Schibell's driver,
also attended the meeting.
7 A-3388-16T2
Panaccione consulted with several attorneys after the parties made
this agreement.
Panaccione was unable to raise the funds necessary to complete
the purchase. As a result, the parties agreed to negotiate a
revised agreement (the Sales Agreement) whereby Terence Martin,4
Panaccione's "trusted" associate, would serve as a nominee to
complete the purchase on behalf of Panaccione.
As Panaccione described the arrangement to his then-wife,
Cindy Styron, "he was going to have [Terence Martin] buyout Lenny
[Casiero] and Richard [Schibell] and basically it was for him. He
was going to end up with the whole 100 percent of the clubs using
[Terence]." Styron also testified it was Panaccione's idea to use
Martin as the buyer.
At Panaccione's insistence, Schibell and Casiero agreed
Panaccione would have a fifty percent interest in The Den as
opposed to the forty-nine percent interest he previously held.
However, this change had the potential to lead to deadlocks between
Panaccione on one side and Schibell and Casiero on the other. To
resolve potential impasses, the parties agreed to negotiate a
separate Shareholder/Stakeholder (Deadlock) Agreement (the
Deadlock Agreement).
4
Martin's first name is spelled "Terence" in the documents but
"Terrance" in the transcripts.
8 A-3388-16T2
Ultimately, the parties agreed to the terms of the Sales
Agreement and Deadlock Agreement. On November 7, 2014, Panaccione
and Martin appeared together at Schibell's home. Panaccione
brought a folder containing the agreements, which the parties
signed that day.
Following the meeting at Schibell's home, Panaccione and
Martin went to The Den and informed Forster they "just bought out
Richard [Schibell] and Lenny [Casiero]." Later that night, the
parties signed additional copies of the Sales Agreement and
Deadlock Agreement. All interested parties were present. The
parties also signed stock certificates, and Panaccione and Martin
executed new shares in The Den. The shares in The Den are expressly
subject to the terms and conditions of the Sales Agreement and the
Deadlock Agreement.
The parties to the Sales Agreement are Schibell, Casiero, and
Martin. The Sales Agreement requires Martin to remit payment of
the purchase price plus interest over a ten-year term. It further
provides:
3. It is further agreed and understood
that unless the sums provided for within; to
wit, $1.5 Million, have been fully and timely
paid, Buyer shall nominate and irrevocably
appoint Richard D. Schibell and Lenny Casiero
as its/his appointees under separate
"deadlock/voting" agreement.
9 A-3388-16T2
The parties to the Deadlock Agreement are Martin and
Panaccione. The agreement identifies the relevant entity as "The
Den, Inc." and provides in relevant part:
WHEREAS, the parties hereto have agreed
to a workout agreement wherein stock ownership
and voting rights have been established to
avoid issues of deadlock; and
WHEREAS, the parties hereto have had
opportunity to consult with independent legal
counsel and fully understand the terms and
conditions hereafter set forth;
BE IT RESOLVED AND AGREED, AS FOLLOWS:
1. Nicholas Panaccione agrees that his
shareholder interest [in] The Den . . . shall
be set at and deemed to be 50% . . . ;
2. Terence Martin agrees that his
shareholder interest in The Den . . . shall
be set and deemed to be 50% . . . ;
3. So as to avoid deadlock, it is agreed
and understood that . . . Martin shall
nominate two nominees who shall vote on any
and all issues in the ordinary course or
otherwise, with any two of the three assignees
constituting a majority or quorum for voting
purposes, i.e., . . . Panaccione with one of
the Martin nominees, or two of the Martin
nominees constituting a majority or quorum for
voting purposes. . . .
4. It is further agreed and understood
that the aforesaid mechanism is to break
deadlock by virtue of the even split of share
hold interest.
. . . .
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7. It is expressly agreed and understood
that the within voting process shall apply to
any expenditure in excess of $200 and any and
all other matters in the extraordinary and
ordinary course of conduct of the within
business. By way of illustration and not
limitation: hiring and firing of employees,
setting standards in operation, modality of
operation, opening bank accounts, signing
checks, making deposits.
. . . .
10. It is further agreed and understood
that the within writing shall be governed in
accordance with the laws obtaining in the
State of New Jersey and that should there be
any dispute hereunder, the same shall be
submitted to binding arbitration wherein . .
. Panaccione and . . . Martin may select
arbitrators of their own designation within
two weeks of the demand thereof, which
arbitrators in turn shall select a third, or
neutral, arbitrator within thirty days
thereafter. Agreement by
shareholder/shareholders representatives two
of three shall be binding and not subject to
arbitration; only when two of three cannot
agree is this clause operable.
Casiero testified he discussed the arbitration provision with
Panaccione who did not object to its inclusion, agreeing they did
not "want their dirty laundry out there."
After the execution of the agreements, Panaccione resumed a
limited role at The Den with Martin still operating the bar.
However, Panaccione quickly began causing problems again – "the
same issues that were [occurring] prior to [the parties] signing
[the] agreement." As a result, in January 2015, Schibell and
11 A-3388-16T2
Casiero exercised their authority and removed Panaccione from all
dealings with The Den until he could demonstrate he had the
capacity to properly manage the business.
After being removed from management because of his
misconduct, Panaccione commenced this civil action in March 2015.
In the complaint, Panaccione alleged Schibell had all of The Den's
mail "'forwarded' to himself so as to seize control of all
accounting functions . . . , and otherwise engaged in conduct to
frustrate Panaccione's ability to enjoy the fruits of The Den's
business, including distribution of profits and monies due and
owing to Panaccione for services provided." Panaccione also
claimed Schibell removed funds from The Den's bank accounts,
transferred The Den's funds to his own trust account, determined
when to make distributions, otherwise made unilateral decisions
to pay invoices, and gifted certain of The Den's assets to "loyal"
employees. Panaccione further alleged Schibell "advised in
certain correspondence that he considered Panaccione's interest
in The Den to somehow be less than a majority at fifty (50%)
percent."
The complaint primarily sought to compel Schibell and Casiero
"to sell at fair value their membership interests, if any, in
Victory Entertainment and/or The Den to plaintiffs [VEI and
Panaccione]." Among the causes of action in the complaint,
12 A-3388-16T2
Panaccione alleges: minority oppression in violation of N.J.S.A.
14A:12-7 (count one), fraudulent conveyance of assets (count two),
tortious interference with prospective economic advantage (count
three), and breach of fiduciary duty (count five). Notably, each
of the alleged supporting facts postdate the execution of the
Deadlock Agreement.
On May 26, 2015, the trial court dismissed the complaint and
ordered "all claims between and among all parties" to be
arbitrated. Panaccione appealed. We found several factual and
corresponding legal issues remained unresolved. Victory
Entertainment, Inc. v. Schibell, No. A-4334-14 (App. Div. July 28,
2016). Specifically, we raised the following issues for
consideration by the trial court on remand: (1) the transfer of
interest in the Sayerville club from VEI to The Den, (2)
Panaccione's knowledge of the Sales Agreement, (3) Schibell and
Casiero's designation as agents of Martin and/or as third-party
beneficiaries under the Deadlock Agreement, and (4) the nature of
allegations pre- and post-Deadlock Agreement and whether they are
within the scope of the arbitration provision. We vacated the
dismissal of the complaint in favor of arbitration and remanded
for further proceedings. Id. (slip op. at 19). We added,
"[s]hould defendants file a formal motion to dismiss the complaint
and compel arbitration, we leave to the trial court, in the
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exercise of its discretion, whether to conduct a hearing to make
an appropriate record." Ibid.
On September 14, 2016, defendants renewed their motion to
dismiss the complaint and compel arbitration. In February and
March 2017, the trial court held a six-day plenary hearing to
address the issues on remand. During the hearing, defendants
presented the testimony of six witnesses: Schibell, Casiero,
Panaccione, Styron, Forster, and Dan Silva, a friend Panaccione
had attempted to borrow money from in order to purchase the shares
for The Den. Plaintiffs presented one witness: Martin. The judge
found Panaccione to not be credible, stating, "Mr. Panaccione's
testimony was replete with inconsistencies and numerous
falsehoods." In contrast, the judge found Schibell and Casiero's
testimony "were consistent with each other, the documentation,
evidence, and other witnesses who testified at the haring – Mr.
Forster, Mr. Panaccione's former wife (Cindy [Styron]) and Mr.
Silva."
The judge determined, after the 2012 reorganization, "Mr.
Panaccione, Mr. Schibell and Mr. Casiero were left with 100%
ownership of The Den, Inc." The judge found Martin, Schibell, and
Casiero executed the Sales Agreement, by which Schibell and Casiero
agreed to sell their fifty percent interest in the Den to
Panaccione through his nominee, Martin. The judge also found
14 A-3388-16T2
Martin and Panaccione signed a Deadlock Agreement, under which
Schibell and Casiero were appointed as Martin's nominees.
The judge held the Deadlock Agreement and Sales Agreement
arose from a single transaction because they were executed on the
same day, pertain to the control and management of the same
company, and contain numerous cross-references. As a result, the
judge held Schibell and Casiero, as parties to the Sales Agreement,
have standing to enforce the arbitration clause. Moreover, the
judge found the Deadlock Agreement was designed, in part, to
protect the interest of Schibell and Casiero pending the completion
of the sale of their interest to Panaccione (using Martin as a
nominee). The judge also determined Schibell and Casiero could
enforce the arbitration provision either as third-party
beneficiaries or Martin's agents.
Finally, the judge held plaintiffs' claims were within the
scope of the arbitration provision. He concluded plaintiffs'
claims either implicate the Deadlock Agreement explicitly or, to
the extent plaintiffs seek compensatory damages, the alleged
conduct occurred after the parties signed the Deadlock Agreement
or related to the execution of the Deadlock Agreement.
The judge dismissed the complaint and ordered plaintiffs to
arbitrate their claims against defendants. This appeal followed.
On appeal, plaintiffs raise the following points:
15 A-3388-16T2
POINT I
THE PRIOR RULING BY THE APPELLATE DIVISION IN
THIS MATTER CONFIRMS APPELLANTS' CLAIMS ARE
NOT SUBJECT TO ARBITRATION
POINT II
THE TRIAL COURT ERRED IN DISMISSING
APPELLANTS' CLAIMS WITH PREJUDICE AND
COMPELLING THE PARTIES TO PROCEED TO
ARBITRATION
POINT III
THE TRIAL COURT ERRED IN SEALING THE TRIAL
COURT RECORD
II.
Plaintiffs contend we previously ruled their claims are not
subject to arbitration. Plaintiffs base this claim on our not
addressing whether the arbitration clause "is part of a unitary
agreement to which they are signatories." Plaintiffs further
claim we previously determined an agency relationship did not
exist between Schibell, Casiero, and Martin. Additionally,
plaintiffs argue defendants did not provide the trial court with
sufficient evidence regarding Schibell and Casiero's role as
Martin's agent. In light of the record created during the plenary
hearing on remand, we are unpersuaded by these arguments.
In our prior opinion, we reviewed an order granting
defendants' motion to dismiss the complaint in favor of
arbitration. The trial court entered the order without conducting
16 A-3388-16T2
an evidentiary hearing despite there being disputed facts. We
stated we were unable to discern from the "somewhat sparse" motion
record "whether an enforceable arbitration agreement existed among
the parties as to the issues raised in the complaint." Victory
Entertainment, slip op. at 2, 14. We noted "there is no evidence
in the record Pannaccione was aware of the Sales Agreement, let
alone that he assented to its terms." Id. at 16. We also noted
"the trial court did not address the argument that Schibell and
Casiero were third-party beneficiaries of the Deadlock Agreement."
Id. at 18. As a result, we vacated "those parts of the orders
dismissing the complaint in favor of arbitration" and remanded for
further proceedings consistent with the opinion. Id. at 19. We
contemplated defendants might renew their motion to dismiss. Ibid.
On remand, the trial court conducted a lengthy plenary hearing
following defendants' renewed motion to dismiss the complaint and
compel arbitration. The judge heard testimony from seven
witnesses, considered the exhibits admitted in evidence, and
issued a comprehensive ten-page written opinion. Based on this
greatly expanded record, we consider the issues presented in this
matter anew.
"Final determinations made by the trial court sitting in a
non-jury case are subject to a limited and well-established scope
of review." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)
17 A-3388-16T2
(quoting Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169
(2011)). Although our review of legal determinations made by the
trial court is de novo, we do not disturb the factual findings of
the trial court "unless we are convinced that they are so
manifestly unsupported by[,] or inconsistent with[,] the
competent, relevant[,] and reasonably credible evidence as to
offend the interests of justice." Ibid. (quoting Seidman, 205
N.J. at 169). Additionally, we defer to the trial court's
credibility determinations because it "'hears the case, sees and
observes the witnesses, and hears them testify,' affording it 'a
better perspective than a reviewing court in evaluating the
veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
Plaintiffs argue the arbitration clause is unenforceable
because it does not contain a recitation of the rights being waived
or outline an understanding that rights are being waived.
Plaintiffs further argue Panaccione did not agree to waive his
right to trial with respect to Schibell and Casiero and they should
not be permitted to enforce an arbitration clause contained in a
contract to which they are not parties. We are unpersuaded by
these arguments.
In our prior opinion, we found "the record is devoid of
evidence of any corporate action taken by directors, officers, or
18 A-3388-16T2
shareholders resulting in a change of ownership – from one legal
entity to a separate legal entity – of assets and operations of a
viable business, namely the gentleman's club." Victory
Entertainment, slip op. at 15. After considering the extensive
record of the plenary hearing following remand, the judge rejected
plaintiffs' argument that VEI owned the Sayerville club through
The Den as a subsidiary, finding it was directly refuted by the
Deadlock Agreement, which Panaccione signed.
While a formal plan of reorganization was never executed, the
record plainly establishes The Den acquired VEI's ownership
interest in the Sayerville club. Panaccione's contends The Den
is a wholly owned subsidiary of VEI. The judge found this argument
to be "directly refuted by the Deadlock Agreement." The record
amply supports this conclusion, as Panaccione's position is wholly
inconsistent with the terms of the Deadlock Agreement which
provides Panaccione owned fifty percent of The Den's stock, with
Martin owning the remaining fifty percent. The record further
demonstrates VEI has never owned any of The Den's stock.
We next address the enforceability of the arbitration clause.
"Because of the favored status afforded to arbitration, '[a]n
agreement to arbitrate should be read liberally in favor of
arbitration.'" Griffin v. Burlington Volkswagen, Inc., 411 N.J.
Super. 515, 518 (App. Div. 2010) (quoting Garfinkel v. Morristown
19 A-3388-16T2
Obstetrics & Gynecology Assoc., 168 N.J. 124, 132 (2001)).
Accordingly, courts apply a 'presumption of arbitrability' unless
it is clear "that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute." Curtis v. Cellco
P'ship, 413 N.J. Super. 26, 34 (App. Div. 2010) (quoting Epix
Holdings Corp. v. Marsh & McLennan Cos., 410 N.J. Super. 453, 471
(App. Div. 2009), overruled in part on other grounds, Hirsch v.
Amer. Fin. Servs., LLC, 215 N.J. 174, 193 (2013)).
When evaluating an arbitration agreement, a court must
undertake a two-pronged analysis: First, the court must determine
whether the parties have entered into a valid and enforceable
agreement to arbitrate disputes. Martindale v. Sandvick, Inc.,
173 N.J. 76, 86 (2002). Second, the court must determine whether
the dispute falls within the scope of the agreement. Id. at 92.
Plaintiffs argue, to be enforceable, an arbitration agreement
must state in "clear and unmistakable language:"
(1) that the parties understand their
entitlement to a judicial adjudication of
their dispute and are willing to waive that
right; (2) that the parties are aware of the
limited circumstances under which a challenge
to the arbitration award may be advanced and
agree to those limitations; (3) that the
parties have had sufficient time to consider
the implications of their decision to
arbitrate; and (4) that the parties have
entered into the arbitration agreement freely
and voluntarily, after due consideration of
the consequences of doing so.
20 A-3388-16T2
[Fawzy v. Fawzy, 199 N.J. 456, 482 (2009).]
Plaintiffs' reliance on Fawzy is misplaced. The requirements
stated in Fawzy were intended for – and have only been applied to
– arbitration provisions related to child custody issues. See
Johnson v. Johnson, 204 N.J. 529, 533 (2010) (holding Fawzy set
forth "the prerequisites for an enforceable arbitration agreement
and the methodology by which an arbitration award in the child
custody setting may be judicially reviewed").
Plaintiffs also argue all arbitration clauses must contain
an express waiver of the right to trial, citing Atalese v. U.S.
Legal Serv. Group, 219 N.J. 430 (2014). However, Atalese involved
a "consumer contract" and not a commercial contract among
businessmen. Id. at 444. Atalese did not extend the requirement
of an express waiver of the right to pursue a claim in court to
commercial contracts. See id. at 447 ("Whatever words compose
an arbitration agreement, they must be clear and unambiguous that
a consumer is choosing to arbitrate disputes rather than have them
resolved in a court of law. In this way, the agreement will assure
reasonable notice to the consumer." (emphasis added)); see also
Van Duren v. Rzasa-Ormes, 394 N.J. Super. 254, 257 (App. Div.
2007) (enforcing an arbitration agreement "between two
21 A-3388-16T2
sophisticated business parties, each represented by counsel"),
aff'd o.b., 195 N.J. 230 (2008).
Additionally, plaintiffs did not waive their right to pursue
statutory claims in court. Cf. Atalese (waiver of right to pursue
claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 and
the Truth-in-Lending Contract, Warranty and Notice Act, N.J.S.A.
56:12-14 to -18, in court); Garfinkel, 168 N.J. at 135 (waiver of
right to pursue claims under Law Against Discrimination, N.J.S.A.
10:5-1 to -42, in court).
To determine arbitrability, "[a] court must first apply
'state contract-law principles . . . [to determine] whether a
valid agreement to arbitrate exists.'" Hirsch, 215 N.J. at 187
(second alteration in original) (quoting Hojnowski v. Vans Skate
Park, 187 N.J. 323, 342 (2006)). Fundamentally, a court must
determine a party agreed to submit to arbitration. Ibid. "In
evaluating the existence of an agreement to arbitrate a court
'consider[s] the contractual terms, the surrounding circumstances,
and the purpose of the contract.'" Id. at 188 (alteration in
original) (quoting Marchak v. Claridge Commons, Inc., 134 N.J.
275, 282 (1993) (citation omitted)).
Here, the Deadlock Agreement arose from a lengthy negotiation
process. Unlike the plaintiff in Atalese, plaintiffs were not
"average member[s] of the public." Atalese, 219 N.J. at 442. VEI
22 A-3388-16T2
is a corporation and Pannaccione is an experienced businessman
with interests in several commercial operations. He negotiated
the terms of the Deadlock Agreement with the advice of counsel.
The agreement clearly and unambiguously indicates the intention
of the parties to submit any disputes regarding The Den to binding
arbitration. For these reasons, the arbitration clause is valid,
binding, and enforceable. See Van Duren, 394 N.J. Super. at 257.
With regard to whether there are issues that predate the
Deadlock Agreement and, as such, would not be subject to
arbitration, the record amply supports the trial court's
determination that the issues raised by plaintiffs post-date the
Deadlock Agreement and are within the scope of the arbitration
provision.
The principle relief sought by plaintiffs is the forced sale
of the interests of Schibell and Casiero to obtain complete
ownership of The Den. The underlying dispute falls squarely within
the scope of the arbitration provision. Additionally, it was
Schibell and Casiero's exercise of authority, removing Panaccione
from the Sayerville club after his inappropriate behavior, which
triggered the filing of the complaint. Because these issues arose
after execution of the Deadlock Agreement, they fall within the
scope of the arbitration provision.
23 A-3388-16T2
Plaintiffs further contend Schibell and Casiero are not
entitled to enforce the arbitration clause because they are not
parties to the agreement. For several reasons, we disagree.
The trial court determined the Deadlock Agreement and the
Sales Agreement are a unitary agreement. Where "two documents
were separate pieces of paper but it was obvious . . . that they
were interrelated parts of a single transaction," the documents
are treated as a unitary contract. Gen. Inv. Corp. v. Angelini,
58 N.J. 396, 400 (1971); accord In re Resnick, 284 N.J. Super. 47,
60 (App. Div. 1995) (explaining because decedent's will and its
attendant contract refer to one another and are closely related,
the two documents "must be read in pari materia"); James Talcott,
Inc. v. Roto American Corp., 123 N.J. Super. 183, 210 (Ch. Div.
1973) (stating "a binding contract may be gathered from separate
writings where 'the writings are so interrelated that they may be
fairly considered to constitute collectively the material and
essential elements of the final bargain'"); Sampson v. Pierson,
140 N.J. Eq. 524, 527 (Ch. 1947) (holding "a complete contract .
. . may be gathered from letters between the parties relating to
the subject-matter and substantive terms, where the writings are
so interrelated that they may be fairly considered to constitute
collectively the material and essential elements of the final
bargain").
24 A-3388-16T2
The record demonstrates Panaccione purchased the interests
of Schibell and Casiero through his nominee, Martin. Panaccione
was fully aware of, and helped to orchestrate, the Sales Agreement.
Not only was Panaccione present at the execution of the agreement,
but he was also the true purchaser. In order to protect themselves
during the period while the purchase was pending, the parties also
agreed to a Deadlock Agreement, whereby Schibell and Casiero would
be designated as Martin's representatives to manage The Den. Thus,
the Deadlock Agreement was constructed as a safeguard; the two
agreements were dependent on each other. As noted by the trial
court, because the two agreements "were executed on the same day,
pertain to the control and management of the same company, and
contain . . . cross-references, the two agreements" should be
considered "part and parcel of the same transaction."
The record amply supports the judge's conclusion that the
Sales Agreement and the Deadlock Agreement "were interrelated
parts of a single transaction" and should be treated as a unitary
contract. Angellini, 58 N.J. at 400. Therefore, Schibell and
Casiero are entitled to enforce the arbitration clause.
Alternatively, the trial court held Schibell and Casiero are
able to enforce the arbitration provision as third-party
beneficiaries or as Martin's agents under the Deadlock Agreement.
The record supports these additional bases for enforceability.
25 A-3388-16T2
Typically a non-party to an agreement lacks standing to compel
arbitration of claims. Garfinkel v. Morristown Obstetrics &
Gynecology Assoc., 333 N.J. Super 291, 308 (App. Div. 2000), rev'd
on other grounds, 168 N.J. 124 (2001). However, "[n]onsignatories
of a contract . . . may compel arbitration or be subject to
arbitration if the nonparty is an agent of a party or a third
party beneficiary to the contract." Ibid. (first alteration in
original) (quoting Mutual Benefit Life Ins. Co. v. Zimmerman, 783
F.Supp. 853, 865-66 (D.N.J.), aff'd, 970 F.2d 899 (3d Cir. 1992)).
We apply the following test to determine whether an individual
is a third-party beneficiary of a contract:
When a court determines the existence of
"third-party beneficiary" status, the inquiry
"focuses on whether the parties to the
contract intended others to benefit from the
existence of the contract, or whether the
benefit so derived arises merely as an
unintended incident of the agreement."
Broadway Maint. Corp. v. Rutgers, 90 N.J. 253,
259 (1982); see also Rieder Cmtys. v. Twp. of
N. Brunswick, 227 N.J. Super. 214, 222 (App.
Div. 1988). As the former Court of Errors and
Appeals stated,
[t]he determining factor as to the
rights of a third party beneficiary
is the intention of the parties who
actually made the contract. They
are the persons who agree upon the
promises, the covenants, the
guarantees; they are the persons who
create the rights and obligations
which flow from the contract. . . .
Thus, the real test is whether the
26 A-3388-16T2
contracting parties intended that a
third party should receive a benefit
which might be enforced in the
courts; and the fact that such a
benefit exists, or that the third
party is named, is merely evidence
of this intention.
[Borough of Brooklawn v. Brooklawn
Hous. Corp., 124 N.J.L. 73, 76-77
(E. & A. 1940).]
If there is no intent to recognize the
third party's right to contract performance,
"then the third person is only an incidental
beneficiary, having no contractual standing."
Broadway Maint., 90 N.J. at 259 (citing
Standard Gas Power Corp. v. New England Cas.
Co., 90 N.J.L. 570, 573-74 (E. & A. 1917)).
[Ross v. Lowitz, 222 N.J. 494, 513 (2015)
(alteration in original).]
Here, Schibell and Casiero agreed to sell their aggregate
fifty percent interest in The Den to Pannaccione. Because
Pannaccione owned the other fifty percent of The Den, the potential
for an impasse existed. In order to both protect their respective
interests during the pendency of the sale and to create a mechanism
to resolve deadlocks, the parties negotiated and executed the
Deadlock Agreement. In case of an impasse or disagreement, Martin
would appoint Schibell and Casiero as his nominees under the
Deadlock Agreement. Given the purpose of the Deadlock Agreement
and Panaccione and Martin's agreement to this assignment of
authority in the event of an impasse, Schibell and Casiero are
27 A-3388-16T2
third-party beneficiaries of the Deadlock Agreement. For this
additional reason, they have standing to compel arbitration.
Schibell and Casiero can also compel arbitration under the
agency exception. "An agency relationship is created 'when one
person (a principal) manifests assent to another person (an agent)
that the agent shall act on the principal's behalf and subject to
the principal's control, and the agent manifests assent or
otherwise consents so to act.'" N.J. Lawyers' Fund for Client
Protection v. Stewart Title Guaranty Co., 203 N.J. 208, 220 (2010)
(quoting Restatement (Third) Agency, § 101 cmt. f(1) (Am. Law.
Inst. 2006). In our prior opinion, we noted there was no evidence
Schibell and Casiero, when acting in their capacities as nominees,
were subject to Martin's control. However, direct control over
an agent by the principal is not necessary to establish an agency
relationship. See Sears Mortgage Corp. v. Rose, 134 N.J. 326, 338
(1993). In fact, the principal can be said to still have "control
even if the principal has previously agreed with the agent that
the principal will not give interim instructions to the agent or
will not otherwise interfere in the agent's exercise of
discretion." Restatement (Third) Agency, § 101 cmt. f(1).
Martin appointed Schibell and Casiero as his nominees/agents.
Because Schibell and Casiero would only act on Martin's behalf,
subject to the Deadlock Agreement, albeit within their own
28 A-3388-16T2
discretion, Schibell and Casiero are deemed to be Martin's agents
and subject to the exception whereby nonsignatories may enforce
an arbitration provision.
III.
Finally, we address plaintiffs' argument that the trial court
erred by sealing the record and deposition transcripts. Plaintiffs
contend the trial court made no factual findings or conclusions
of law that defendants met the "good cause" standard imposed by
Rule 1:38-11(b). Specifically, plaintiffs contend the trial court
did not address whether allowing public access to the trial record
would cause a "clearly defined and serious injury" to Schibell and
that his interest "in privacy substantially outweighs the
presumption that all court . . . records are open for public
inspection." R. 1:38-11(b).
Plaintiffs further contend the motion to seal the record was
procedurally deficient, having been filed nearly two years into
the litigation. Plaintiffs allege Schibell violated the order to
seal the record by "divulging verbatim a portion of the trial
court's March 29, 2017 written opinion" in his April 5, 2017 letter
to the owner of the property on which the Sayerville club is
29 A-3388-16T2
located.5 Plaintiffs also contend defendants had the trial record
sealed for "nefarious reasons."
There is a presumption of public access to documents and
materials filed in a civil action. Hammock by Hammock v. Hoffman-
Laroche, 142 N.J. 356, 375 (1995). The presumption of access may
be rebutted by showing "society's interest in secrecy outweighs
the need for access." Spinks v. Twp. of Clinton, 402 N.J. Super.
454, 460 (App. Div. 2008). However, "[a] personal interest in
privacy and freedom from annoyance and harassment, while important
to the litigant, will not outweigh the presumption of open judicial
proceedings even in relatively uncomplicated and non-notorious
civil litigation." Verni v. Lanzaro, 404 N.J. Super. 16, 24 (App.
Div. 2008).
The sealing of documents is "addressed to the trial court's
discretion," but "that discretion must be structured." Hammock,
142 N.J. at 380. A court must state, with particularity, the
facts that "currently persuade the court to seal the document[s]."
Id. at 382. The court must "examine each document individually
and make factual findings" with regard to why the interest in
5
The letter stated the trial judge found Pannaccione's
"fraudulent allegations untruthful and dismissed his case." It
also disclosed the trial court stated "Pannaccione's testimony was
replete with inconsistencies and numerous falsehoods.".
30 A-3388-16T2
public access is outweighed by the interest in nondisclosure.
Keddie v. Rutgers, 148 N.J. 36, 54 (1997).
Here, the judge did not provide a particularized factual
basis for sealing the record. He simply stated it is "in the
interest of all the parties" because "[t]heir reputations are
important." He did not provide any further reasons nor did he
include an event-by-event or document-by-document review.
Defendants have not demonstrated sufficient cause for sealing
the trial record and deposition transcripts. Their personal
interest in privacy does not outweigh the presumption of public
access. Accordingly, we reverse the February 28, 2017 order and
direct the trial court to unseal the record.
Affirmed in part and reversed in part.
31 A-3388-16T2