CHARLENE UHRMANN, ETC. VS. COLLEN LABOW (L-0706-19, MORRIS COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0932-19T3
    CHARLENE UHRMANN,
    an individual residing in
    Mt. Olive Township, New Jersey,
    Plaintiff-Appellant,
    v.
    COLLEN LABOW,
    LISA LASHWAY,1
    DAVID SCAPICCHIO, THE
    TOWNSHIP OF MOUNT OLIVE, 2
    and THE TOWNSHIP OF MOUNT
    OLIVE COUNCIL,3
    Defendants-Respondents.
    _______________________________
    Submitted November 12, 2020 – Decided December 22, 2020
    Before Judges Fuentes, Rose, and Firko.
    1
    Improperly pled as Lisa Laswhay.
    2
    Improperly omitted.
    3
    Improperly pled as The Township of Mount Olive Council and Mayor.
    On appeal from the Superior Court of New Jersey, Law
    Division, Morris County, Docket No. L-0706-19.
    Charlene Uhrmann, appellant pro se.
    Methfessel & Werbel, attorneys for respondents (Eric
    L. Harrison, on the brief).
    PER CURIAM
    Plaintiff Charlene Uhrmann appeals pro se from the August 2, 2019 Law
    Division order denying her motion to vacate an arbitration award and request
    for a declaratory judgment, and granting the motion of defendants Collen
    Labow, Lisa Lashway, David Scapicchio, the Township of Mount Olive
    (Township) and the Township of Mount Olive Council (Township Council) to
    dismiss her complaint. 4 Plaintiff primarily argues the motion judge erred by
    refusing to find the arbitrator failed to disclose a potential conflict of interest
    and exceeded the scope of his authority. Plaintiff further claims the award was
    procured by fraud, corruption and undue means. We disagree and affirm.
    4
    Plaintiff's "complaint" was not provided on appeal. It appears, however, that
    defendants treated her request for a declaratory judgment, which is styled
    similarly to a pleading, as a complaint.
    A-0932-19T3
    2
    I.
    The underlying facts and lengthy procedural history are well known to the
    parties and accurately summarized in the motion judge's comprehensive written
    statement of reasons. We highlight only those facts that are pertinent to our
    analysis.
    The genesis of the parties' disputes is the October 11, 2013 settlement
    agreement that resolved two Law Division actions filed by plaintiff in 2011
    against: (1) the Township, Labow and Lashway; and (2) Labow, Lashway,
    Scapicchio and the Township Council. Plaintiff apparently alleged violations
    of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and her civil
    rights stemming from allegedly disparaging remarks that were posted on the
    Township's website.5 Both matters were assigned to the same judge, who is now
    retired.
    Pursuant to the terms of the October 11, 2013 settlement agreement,
    plaintiff primarily agreed to dismiss both lawsuits and forgo: filing OPRA
    requests; attending Township Council meetings; and communicating with
    defendants, subject to some exceptions. In exchange, defendants agreed, among
    other things, to compensate plaintiff $150,000; remove certain links from the
    5
    Plaintiff's 2011 complaints were not provided on appeal.
    A-0932-19T3
    3
    Township's website; remove the highlighting of plaintiff's name from certain
    OPRA logs; and destroy certain documents that referenced plaintiff and her
    family members. The parties mutually consented "not to disparage the other or
    use surrogates to do the same."
    In 2018, plaintiff, through counsel, served a demand for arbitration on
    defendants, alleging multiple breaches of the settlement agreement. Plaintiff
    claimed defendants requested Township employees to create certifications and
    documents, breached confidentiality, and disparaged plaintiff.      Defendants
    asserted a counterclaim against plaintiff, alleging she breached the settlement
    agreement by attending a Township Council meeting. Pursuant to the terms of
    the settlement agreement, the parties attempted to agree upon an arbitrator to
    resolve their disputes.   When those efforts failed, the court appointed an
    arbitrator. The parties did not object to that appointment.
    Following an extensive document exchange, plaintiff subpoenaed various
    Township employees to testify at the hearing. The arbitrator granted, in part,
    defendants' motion to quash the subpoenas.        As the motion judge noted:
    "Plaintiff's then counsel did not formally object to or seek reconsideration of
    this ruling." The arbitrator also denied plaintiff's motion to compel additional
    discovery from defendants. Instead, the arbitrator required defense counsel to
    A-0932-19T3
    4
    certify that "the Township produced all written communications by and between
    [T]ownship officials relevant to each parties' breach of contract claims."
    The arbitrator conducted a two-day hearing, which included the testimony
    of plaintiff and two defense witnesses. The hearing was not transcribed or
    otherwise recorded. On December 3, 2018, the arbitrator issued a thirty -one-
    page written decision, finding neither party violated the agreement. Notably,
    one-third of the arbitrator's decision detailed plaintiff's testimony.
    In her ensuing motion to vacate the arbitration award, plaintiff primarily
    argued the award was "procured by fraud, corruption, or other undue means."
    In that regard, plaintiff contended defendants "intentionally destroyed evidence
    relevant to the litigation"; the arbitrator "demonstrated partiality and misconduct
    by failing to disclose his relationship with [the retired judge]" who now is
    employed at the same law firm as the arbitrator; and the arbitrator refused to
    consider relevant material evidence, which prejudiced her rights.
    In his cogent statement of reasons, the motion judge rejected plaintiff's
    arguments, finding they were unsupported by the voluminous record. In doing
    so, the judge squarely addressed all issues raised in view of the governing legal
    principles.   Recognizing his limited role under the New Jersey Uniform
    Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32, the judge analyzed the
    A-0932-19T3
    5
    statutory criteria for vacating the award under subsection 23(a), in light of the
    arbitrator's duties under section 12, and found plaintiff failed to meet her burden .
    The judge also found the award did not violate a clear mandate of public policy.
    This appeal followed.
    On appeal, plaintiff raises the following points for our consideration:
    POINT I
    THE ARBITRATION AWARD IN THIS CASE
    SHOULD       BE     VACATED        BECAUSE    THE
    ARBITRATOR FAILED TO DISCLOSE A
    POTENTIAL CONFLICT OF INTEREST.
    [A]. The Arbitrator Was Obligated to Disclose His
    Relationship With [the Retired Judge].
    [B]. The Court Erred When Providing Testimony.
    POINT II
    THE FORUM LACKED A MEETING OF THE
    MINDS.
    POINT III
    THE ARBITRATOR EXCEEDED HIS AUTHORITY
    DECIDING THE CASE . . . By Denying Discovery
    Which Was Permitted Under The New Jersey Rules of
    Evidence.
    POINT IV
    THE ARBITRATOR EXCEEDED HIS AUTHORITY
    . . . By Adding Language to an Existing Contract to
    Benefit the Offending Party.
    POINT V
    THE TRIAL COURT ERRED BY NOT FINDING
    THAT THE AWARD WAS PROCURED BY
    CORRUPTION, FRAUD, OR UNDUE MEANS.
    A-0932-19T3
    6
    [A]. False Swearing of . . . Scott Gaskill.
    [B]. False Swearing of Jill Daggon.
    [C]. Intentional Omission Of Evidence and Testimony
    Constitutes As Corruption, Fraud Or Other Undue
    Means.
    [D].    Intentional Concealment of Destruction of
    Documents and Fraudulent Inducement Constitutes
    corruption and fraud.
    [E]. The Destruction of Evidence Violated N.J.S.A.
    47:3-29.
    POINT VI
    EVIDENT PARTIALITY                 CONTROLLED          THE
    PROCEEDINGS.
    II.
    Well-established principles guide our analysis. "[T]the scope of review
    of an arbitration award is narrow." Minkowitz v. Israeli, 
    433 N.J. Super. 111
    ,
    136 (App. Div. 2013) (citation omitted).            Our Supreme Court has held
    "[a]rbitration can attain its goal of providing final, speedy and inexpensive
    settlement of disputes only if judicial interference with the process is minimized;
    it is, after all, 'meant to be a substitute for and not a springboard for litigation.'"
    Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 
    86 N.J. 179
    , 187 (1981)
    (quoting Korshalla v. Liberty Mut. Ins. Co., 
    154 N.J. Super. 235
    , 240 (Law Div.
    1977)).
    With that goal in mind, "[a]rbitration should spell litigation's conclusion ,
    rather than its beginning . . . ." Borough of E. Rutherford v. E. Rutherford PBA
    A-0932-19T3
    7
    Local 275, 
    213 N.J. 190
    , 201 (2013) (quoting N.J. Tpk. Auth. v. Local 196,
    I.F.P.T.E., 
    190 N.J. 283
    , 292 (2007)). Indeed, "[t]he public policy of this State
    favors arbitration as a means of settling disputes that otherwise would be
    litigated in a court." Badiali v. N.J. Mfrs. Ins. Grp., 
    220 N.J. 544
    , 556 (2015).
    In sum, arbitrators are granted broad powers to decide issues of fact and
    law, and their decisions "are given collateral estoppel effect by reviewing
    courts." Barcon, 
    86 N.J. at 187
     (citation omitted). As a result, "courts grant
    arbitration awards considerable deference." E. Rutherford PBA Local 275, 213
    N.J. at 201. Because a trial court's decision to affirm or vacate an arbitration
    award is a decision of law, however, our review is de novo. Minkowitz, 433
    N.J. Super. at 136.
    As the motion judge recognized, the Act provides limited circumstances
    under which courts may vacate, modify, or correct arbitration agreements. See
    Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 
    135 N.J. 349
    , 358 (1994).
    Those circumstances include: (1) "the award was procured by corruption, fraud,
    or other undue means"; (2) the arbitrator was partial or corrupt, or committed
    misconduct thereby prejudicing the parties' rights; (3) the arbitrator refused to
    postpone the hearing when there was sufficient cause to do so, failed to consider
    material evidence, or otherwise inappropriately conducted the hearing so as to
    A-0932-19T3
    8
    prejudice the rights of the parties; (4) the arbitrator exceeded his or her powers;
    (5) "there was no agreement to arbitrate"; or (6) the arbitration was conducted
    without sufficient notice, substantially prejudicing the rights of the parties. See
    N.J.S.A. 2A:23B-23(a).
    A court may also modify or correct an award if (1) there was an evident
    mathematical mistake; (2) the arbitrator made an award on a claim not submitted
    to arbitration; or (3) "the award is imperfect in a matter of form not affecting the
    merits of the decision . . . ." N.J.S.A. 2A:23B-24(a). Generally, a court may
    only confirm, vacate, modify, or correct arbitration awards on the grou nds
    provided in the statute. See N.J.S.A. 2A:23B-20 to - 24.
    In "rare circumstances," however, a court may overturn an arbitration
    decision if it is against public policy. N.J. Tpk. Auth., 
    190 N.J. at 294
    . The
    "public policy sufficient to vacate an award must be embodied in legislative
    enactments, administrative regulations, or legal precedents, rather than based on
    amorphous considerations of the common weal." Borough of Glassboro v.
    Fraternal Order of Police, Lodge No. 108, 
    197 N.J. 1
    , 10 (2008) (citation
    omitted).
    Against that legal backdrop, we turn to plaintiff's contentions raised on
    this appeal. Subsumed within plaintiff's points and subpoints are a litany of
    A-0932-19T3
    9
    issues impugning the arbitrator's impartiality and his decision. In essence,
    plaintiff seeks to relitigate the claims raised at the arbitration hearing, during
    which she was afforded a full opportunity to present testimony and argument
    before the arbitrator. Having conducted a review of the extensive record, we
    conclude plaintiff has failed to establish any of the statutory grounds to vacate
    the award.
    We therefore conclude plaintiff's appeal lacks merit and affirm
    substantially for the reasons articulated by the motion judge in his
    comprehensive statement of reasons. We add only the following remarks as to
    the issues raised in point I.
    Plaintiff cites our Supreme Court's decision in Barcon to support her
    assertion that the motion judge erred by failing to vacate the award based on an
    appearance of impropriety. In that regard, plaintiff posits that because the
    arbitrator and the retired judge were "employed by the same law firm" they
    "enjoyed a personal and financial relationship" that was "never disclosed to
    [her]." Plaintiff further argues that by finding this issue was not raised b efore
    the arbitrator, the motion judge improperly shifted the burden to her,
    "constitut[ing] reversible error." We disagree.
    A-0932-19T3
    10
    In Barcon, the Court affirmed a trial court order that vacated an arbitration
    award rendered by a tri-partite panel because a panel member's business dealings
    with a party to the arbitration constituted "evident partiality" under N.J.S.A.
    2A:24-8(b), the predecessor of N.J.S.A. 2A:23B-23(a)(2).6 
    86 N.J. at 182-83
    .
    The Court explained arbitrators are required to "avoid . . . actual partiality" and
    "the appearance of partiality." 
    Id. at 189
     (citation omitted). The Court found
    evident partiality was established because the panel member "was engaged in
    business dealings with and was owed substantial sums by" a party to the
    arbitration, and the Court concluded the "relationship create[d] too great an
    appearance of partiality to be permitted." 
    Id. at 191
    .
    In reaching its decision, the Court quoted with approval the trial court's
    finding that "the law simply cannot allow any judicially enforceable arbitration
    proceeding to be anything other than an impartial proceeding which has
    appropriate appearances of impartiality." 
    Id. at 191
     (quoting Barcon Assocs.,
    Inc. v. Tri-County Asphalt Corp., 
    160 N.J. Super. 559
    , 570-71 (Law Div. 1978)).
    Consistent with that standard, the Court established the requirement that an
    arbitrator disclose "any relationship or transaction that he has had with the
    6
    Effective January 1, 2003, N.J.S.A. 2A:24-1 to -11 was amended and codified
    at N.J.S.A. 2A:23B-1 to -32. See L. 2003, c. 95, §§ 3(a) and 31.
    A-0932-19T3
    11
    parties or their representatives as well as any other fact which would suggest to
    a reasonable person that the arbitrator is interested in the outcome of the
    arbitration or which might reasonably support an inference of partiality." Id. at
    192.
    Importantly, however, the Court in Barcon did not adopt what plaintiff
    characterizes as "perceived conflict" as the benchmark for determining if an
    arbitration award should be vacated under the statute then in effect. Instead, the
    Court relied on the statute's plain language requiring vacation of an award on a
    showing of "evident partiality." N.J.S.A. 2A:24-8(b). For example, the Court
    explained a party-appointed arbitrator that "approach[es] the arbitration
    proceeding with . . . sympathy for the position of the party designating him"
    does not possess evident partiality requiring vacation of an award under the
    statute, as long as the arbitrator "remain[s] faithful to the obligation which rests
    upon him to maintain 'broad public confidence in the integrity and fairness of
    the [arbitration] process.'" 
    86 N.J. at 190
     (third alteration in original) (citation
    omitted).
    Accordingly, what might be viewed as an appearance of impropriety does
    not by itself establish the evident partiality requiring vacation of an arbitration
    award under N.J.S.A. 2A:24-8(b). 
    Ibid.
     Further, we have held "[t]he mere fact
    A-0932-19T3
    12
    that a party-designated arbitrator discloses a prior relationship with the party
    will not necessarily disqualify the arbitrator." Arista Mktg. Assocs., Inc. v. Peer
    Grp., Inc., 
    316 N.J. Super. 517
    , 532 (App. Div. 1998) (citing Barcon, 
    86 N.J. at 194
    ).
    In the present matter, plaintiff sought vacation of the arbitration award
    under N.J.S.A. 2A:23B-23(a)(2), which was adopted following the Court's
    decision in Barcon, but which incorporates the evident partiality standard as a
    basis for vacating an arbitration award. L. 2003, c. 95, § 23; see also Del Piano
    v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 
    372 N.J. Super. 503
    , 505 n.1,
    (App. Div. 2004).      A determination concerning "evident partiality can be
    decided only on the facts of each case." Barcon, 
    86 N.J. at 191
    .
    The record supports the motion judge's determination that plaintiff failed
    to sustain her burden of establishing evident partiality of the arbitrator requiring
    vacation of the arbitrator's award under N.J.S.A. 2A:23B-23(a)(2). Plaintiff's
    evident partiality claim is based on her unsupported premise that the arbitrator
    and the retired judge necessarily discussed the matter because they were both
    "employed by" the same firm. That premise is undermined by the motion judge's
    finding that the certification of plaintiff's arbitration counsel "ma[d]e no mention
    A-0932-19T3
    13
    of whether the [a]rbitrator commented on having either a professional or friendly
    relationship with [the retired judge]."
    Moreover, as the motion judge recognized, the retired judge "was not an
    arbitrator for any part of this litigation."       See N.J.S.A. 2A:23B-12(a)(2)
    (requiring the arbitrator to disclose "an existing or past relationship with any of
    the parties . . . their counsel or representatives, a witness or other arbitrators ").
    Noting the retired judge had no interest in the litigation and his rulings from the
    2011 litigation that was settled in 2013 "were not at issue given that the
    underlying matter was settled," the motion judge further found the arbitrator had
    no duty to disclose that he worked at the same firm with the retired judge . See
    N.J.S.A. 2A:23B-12(a)(2(b) (requiring an arbitrator to disclose "any facts" that
    "a reasonable person would consider likely to affect the impartiality of the
    arbitrator").
    Finally, we agree with the motion judge's conclusion that plaintiff "failed
    to present any facts or evidence that suggests the [a]rbitrator's place of
    employment would somehow affect his impartiality." See N.J.S.A. 2A:23B-
    12(a)(2(e) (providing, in pertinent part, an arbitrator's failure to disclose a
    "known, direct and material interest in the outcome of the arbitration proceeding
    . . . is presumed to act with evident partiality . . . "). Because plaintiff failed to
    A-0932-19T3
    14
    establish either the actual partiality or appearance of partiality required to satisfy
    the Barcon standard for evident partiality, the motion judge correctly determined
    plaintiff did not satisfy her burden for vacating the arbitration award.
    Any arguments made in support of plaintiff's appeal that we have not
    expressly addressed are without sufficient merit to warrant discussion in a
    written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-0932-19T3
    15