ASPHALT PAVING SYSTEMS, INC. VS. ASSOCIATED ASPHALT PARTNERS, LLC (L-0978-16, ATLANTIC 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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1267-19T4
    ASPHALT PAVING SYSTEMS,
    INC.,
    Plaintiff-Appellant,
    v.
    ASSOCIATED ASPHALT
    PARTNERS, LLC, and
    ASSOCIATED ASPHALT
    TRANSPORT, LLC,
    Defendants-Respondents.
    ____________________________
    Argued October 15, 2020 – Decided November 16, 2020
    Before Judges Ostrer, Accurso, and Vernoia.
    On appeal from the Superior Court of New Jersey, Law
    Division, Atlantic County, Docket No. L-0978-16.
    Colin G. Bell argued the cause for appellant (Hankin
    Sandman Palladino Weintrob & Bell, attorneys; Colin
    G. Bell, on the briefs).
    Kathleen F. Beers argued the cause for respondents
    (Westmoreland Vesper Quattrone & Beers, attorneys;
    Kathleen F. Beers, on the brief).
    PER CURIAM
    Plaintiff Asphalt Paving Systems, Inc. appeals from an order denying its
    request to vacate an arbitration award entered in favor of defendants Associated
    Asphalt Partners, LLC and Associated Asphalt Transport, LLC.                 Plaintiff
    contends the court erred by failing to find there was an appearance of
    impropriety concerning the arbitrator that required vacation of the award under
    N.J.S.A. 2A:23B-23(a)(2). Based on our review of the record, we are convinced
    plaintiff failed to sustain its burden of establishing evident partiality of the
    arbitrator requiring vacation of the award under N.J.S.A. 2A:23B-23(a)(2), and
    plaintiff otherwise waived its right to challenge the award under the statute by
    failing to assert its claim prior to its receipt of the unfavorable arbitration award.
    We therefore affirm.
    I.
    The facts and procedural history are well-known to the parties and have
    been previously summarized in our decision on plaintiff's initial appeal, Asphalt
    Paving Systems, Inc. v. Associated Asphalt Partners, LLC, (Asphalt Paving I),
    No. A-5487-15 (App. Div. Oct. 19, 2017), and in our decision on plaintiff's
    appeal from the court's order following the remand hearing we ordered in
    Asphalt Paving I, Asphalt Paving Systems, Inc. v. Associated Asphalt Partners,
    A-1267-19T4
    2
    LLC, (Asphalt Paving II), No. A-5730-17 (App. Div. Aug. 7, 2019). We restate
    the pertinent facts to provide context for our discussion of plaintiff's arguments.
    In 2012, defendants sold plaintiff asphalt emulsion, which was delivered
    in two tankers. The tankers remained on plaintiff's property while plaintiff used
    the emulsion as needed. The tankers were stolen from plaintiff's property, and
    defendants filed suit claiming plaintiff was responsible for the loss of the
    tankers.
    With the assistance of a mediator, the parties resolved their dispute and
    reached a settlement requiring that plaintiff provide defendants with
    replacement tankers. The parties agreed to submit any disputes arising under
    the settlement agreement to binding arbitration, and they agreed the mediator
    would serve as the designated arbitrator for any disputes submitted to
    arbitration.
    A dispute between the parties arose and was arbitrated. Plaintiff later
    alleged that as the arbitration ended, the arbitrator asked the parties and their
    counsel, "What would be the result if I determined the agreement is too
    A-1267-19T4
    3
    ambiguous to enforce?" Plaintiff also alleged that, in response, defendants'
    counsel replied, "I will tell you what happens. You get sued for malpractice."1
    It is this exchange between the arbitrator and defendants' counsel that is
    at the center of plaintiff's claim the arbitration award, which was subsequently
    rendered by the arbitrator and was unfavorable to plaintiff, should be vacated.
    At the time it occurred, however, plaintiff did not object to the exchange, make
    any comments concerning it, or request the recusal or disqualification of the
    arbitrator based on any alleged appearance of impropriety or evident partiality.
    Instead, plaintiff opted to await the issuance of the arbitrator's written arbitration
    award—which was unfavorable to plaintiff—to file a complaint and order to
    show cause requesting vacation of the award in accordance with N.J.S.A.
    2A:23B-23(a)(2). Plaintiff claimed the award was secured by undue means. See
    Asphalt Paving I, slip op. at 7. More particularly, plaintiff alleged defendants'
    counsel threatened legal action against the arbitrator, and, in response, the
    arbitrator ruled in defendants' favor. See ibid.
    The trial court rejected plaintiff's request to vacate the arbitration award
    based in part on the court's personal knowledge of the arbitrator. See ibid. We
    1
    We note that defendants' counsel at the arbitration is not their counsel of record
    on this appeal.
    A-1267-19T4
    4
    determined the court erred by relying on its personal knowledge of the arbitrator,
    and we found there were factual issues as to "whether [defendants' counsel]
    made a material threat against the arbitrator and, if so, whether such threat
    influenced [the arbitrator's] decision." Ibid. We reversed the court's order,
    remanded for an evidentiary hearing, and found it unnecessary to address
    plaintiff's remaining claims at that time. Id. at 8.
    The remand hearing was conducted by a different judge, who found that
    at the conclusion of the arbitration, the arbitrator posed the following question
    to the parties: "What would be the result if I determined the agreement is too
    ambiguous to enforce?" Asphalt Paving II, slip op. at 4. The court further found
    that in response, defendants' counsel stated, "[W]ell, you'll get sued." Ibid.
    (alteration in original).
    As we explained in Asphalt Paving II, the trial court noted defendants'
    counsel described the exchange as "banter" and "witticism," and testified that
    when it occurred, "[he] was laughing, [and] so was" the arbitrator. Id. at 5
    (alterations in original). The court found the exchange "wholly inappropriate"
    and "unsuitable behavior that calls into question the very quality and
    professionalism of [the] proceedings." Ibid. (alteration in original). However,
    the court determined it was "clear from the testimony that [the arbitrator] did
    A-1267-19T4
    5
    not view [defendants' counsel's] comments as a threat, but rather something said
    in jest and made in response to [the arbitrator's] own ill-chosen question." Ibid.
    (first and second alterations in original). The court also found defendants '
    counsel's statement did "not constitute a 'material threat,'" and the exchange was
    not "of such a nature that it affected [the arbitrator's] decision-making process."
    Ibid. (alteration in original). The court concluded plaintiff did not sustain its
    burden of demonstrating undue influence requiring vacation of the arbitration
    award.
    The court did not address plaintiff's claim that the award should be vacated
    due to an alleged appearance of impropriety. The court determined the argument
    had not been raised on plaintiff's initial appeal and was not addressed in our
    decision in Asphalt Paving I. The court found our remand was limited to
    consideration of whether defendants' counsel threated the arbitrator and, if so,
    whether the threat affected the arbitrator's decision. Asphalt Paving II, slip op.
    at 5-6.
    Plaintiff moved for reconsideration, arguing the court erred by finding
    plaintiff had not previously raised its appearance of impropriety claim. Id. at 6.
    The court agreed it mistakenly found plaintiff had not raised the claim, and the
    court noted plaintiff asserted the claim during the proceeding before the first
    A-1267-19T4
    6
    judge. The remand court, however, declined to address the issue based on its
    conclusion our remand order did not authorize it to do so. Ibid. The court denied
    the reconsideration motion.
    On plaintiff's appeal from the remand court's orders, we affirmed the
    court's rejection of plaintiff's claim the award should be vacated because it was
    procured through undue means.         Id. at 14. We found the court's findings
    defendants' counsel's statement was "made in jest, did not constitute a threat and
    did not affect the arbitrator's decision-making on the matters at issue at the
    arbitration" were supported by "substantial credible record evidence." Ibid. We
    remanded, however, for the court to consider and decide plaintiff's claim that
    the arbitration award should be vacated due to an alleged appearance of
    impropriety resulting from the exchange between defendants' counsel and the
    arbitrator. Ibid. We explained plaintiff had raised the issue before the first judge
    and the remand court, but the issue had never been addressed or decided. Id. at
    14-15. We remanded to provide the trial court with the opportunity to consider
    the issue in the first instance. Id. at 15.
    On our second remand, the court considered plaintiff's appearance of
    impropriety claim and rejected plaintiff's reliance on an appearance of
    impropriety standard. The court determined the award could be vacated in
    A-1267-19T4
    7
    accordance with N.J.S.A. 2A:23B-23(a)(2) only upon a showing of "evident
    partiality" and concluded plaintiff failed to sustain that burden. The court found
    the record was bereft of evidence defendants' counsel's statement had any impact
    on the arbitrator's decision. The court also determined the arbitration award
    provided an in-depth analysis of the evidence and arguments of the parties, and
    the record lacked any evidence the arbitrator's decision reflected "evident
    partiality." The court entered an order denying plaintiff's request to vacate the
    arbitration award. This appeal followed.
    II.
    A trial court's decision to confirm or vacate an arbitration award is "a
    decision of law" that we review de novo. Minkowitz v. Israeli, 
    433 N.J. Super. 111
    , 136 (App. Div. 2013) (quoting Manger v. Manger, 
    417 N.J. Super. 370
    ,
    376 (App. Div. 2010)). "A trial court's interpretation of the law and the legal
    consequences that flow from established facts are not entitled to any special
    deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    We first reject plaintiff's assertion the remand court did not comply with
    our directive that it address plaintiff's argument that the arbitration award should
    be vacated due to a purported appearance of impropriety. Plaintiff claims the
    A-1267-19T4
    8
    court ignored the remand directive by rejecting its reliance on the appearance of
    impropriety standard and applying the evident partiality standard under N.J.S.A.
    2A:23B-23(a)(2). We are not persuaded.
    Plaintiff misinterprets our decision in Asphalt Paving II and misstates the
    nature of the remand. Plaintiff's argument is founded on the erroneous premise
    that our remand constituted a determination the appearance of impropriety
    standard controlled the disposition of the issue.       We did not make that
    determination and our remand was not so limited. In Asphalt Paving II, we
    noted plaintiff's argument that there was an "appearance of impropriety"
    requiring "vacation of the arbitration award," and found that argument had not
    been addressed by the trial court in the first instance or following our initial
    remand. Slip op. at 14. We remanded for the court to address plaintiff's
    argument, and we expressly stated our decision did "not constitute an opinion
    on the merits, if any, of the claim and [was] not intended to define or limit the
    procedure the court shall employ for the resolution of the claim." Id. at 15.
    In Asphalt Paving II, we did not direct that the court accept plaintiff's
    argument concerning the applicable standard, and we reject plaintiff's attempt
    to convert our decision into a holding on an issue that was not before us and
    which we did not decide. Our remand order required only that the court consider
    A-1267-19T4
    9
    plaintiff's argument, and that is precisely what the court did. We therefore
    discern no basis to find the court failed to honor our directive that it consider
    plaintiff's argument that an appearance of impropriety requires vacation of the
    arbitrator's award. Cf. Jersey City Redev. Agency v. Mack Props. Co. No. 3,
    
    280 N.J. Super. 553
    , 562 (App. Div. 1995) (explaining remand courts have a
    "peremptory duty . . . to obey the mandate of the appellate tribunal precisely as
    it is written").
    Plaintiff also contends the court erred by failing to vacate the award based
    on an appearance of impropriety allegedly created by the exchange between
    defendants' counsel and the arbitrator. Plaintiff avers the court erroneously
    rejected the appearance of impropriety standard as the benchmark upon which
    its request to vacate the award should be measured, and the court incorrectly
    concluded the exchange between defendants' counsel and the arbitrator did not
    result in an appearance of impropriety requiring vacation of the award.
    "An arbitrator acts in a quasi-judicial capacity and must render a faithful,
    honest and disinterested opinion upon the testimony submitted to him [or her]. "
    Barcon Assocs. v. Tri-County Asphalt Corp., 
    86 N.J. 179
    , 188 (1981) (quoting
    Fred J. Brotherton, Inc. v. Kreielsheimer, 
    8 N.J. 66
    , 70 (1951)). Arbitrators are
    granted broad powers to subpoena witnesses and evidence and decide issues of
    A-1267-19T4
    10
    fact and law, and "the determinations of arbitrators are given collateral estoppel
    effect by reviewing courts." 
    Id. at 187
     (citation omitted). In Barcon, the Court
    observed that arbitrators are granted "extensive powers subject to judicial review
    limited to" the statutory grounds permitting vacation of an arbitration award. 
    Id. at 187-88
    . The Court explained that "[a] necessary corollary of the fact that
    arbitrators function with the support, encouragement and enforcement power of
    the state is the requirement that they adhere to high standards of honesty,
    fairness and impartiality." 
    Id. at 188
    .
    In its discussion of an arbitrator's authority, the Court in Barcon cited to
    the statutory authority of arbitrators found in the New Jersey Arbitration Act
    (Act), N.J.S.A. 2A:24-1 to -11, which was in effect at the time the arbitration
    agreement in that case was executed. 
    Id. at 187-88
    . The Act "was amended,
    effective January 1, 2003," and the amendment was codified at N.J.S.A.
    2A:23B-1 to -32. Van Duren v. Rzasa-Ormes, 
    394 N.J. Super. 254
    , 257 n.1
    (App. Div. 2007) (citations omitted); see also L. 2003, c. 95, §§ 3(a) and 31.
    The amended Act governs all arbitration agreements made after January 1, 2003,
    other than those arising out of collective bargaining agreements. Ibid. at 257;
    see also N.J.S.A. 2A:23B-3. Both the old Act and the amended Act provide that
    an arbitration award shall be set aside upon a showing of evident partiality of
    A-1267-19T4
    11
    the arbitrator. Compare N.J.S.A. 2A:24-8(b) (providing a court shall vacate an
    arbitration award "[w]here there was . . . evident partiality . . . in the arbitrators,
    or any thereof"), with N.J.S.A. 2A:23B-23(a)(2) (providing a court shall vacate
    an arbitration award if it "finds evident partiality by an arbitrator").
    In Barcon, the Court affirmed a trial court order vacating 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).    
    86 N.J. at 182-83
    .       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, 
    id. at 191
    , and the
    Court concluded the "relationship create[d] too great an appearance of partiality
    to be permitted," 
    ibid.
    The Court in Barcon did not adopt what plaintiff characterizes as an
    appearance of impropriety standard as the benchmark for determining if an
    arbitration award should be vacated under N.J.S.A. 2A:24-8(b). 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 [or
    A-1267-19T4
    12
    her]" 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 [or her] to maintain 'broad public confidence in the integrity and
    fairness of the [arbitration] process.'" 
    86 N.J. at 190
     (fifth alteration in original)
    (citation omitted).    Thus, what might be argued to be an appearance of
    impropriety—an arbitrator's sympathy for a party to the arbitration
    proceeding—does not by itself establish the evident partiality requiring vacation
    of an arbitration award under N.J.S.A. 2A:24-8(b). Ibid.; see, e.g., Arista Mktg.
    Assocs., Inc. v. Peer Grp., Inc., 
    316 N.J. Super. 517
    , 532 (App. Div. 1998)
    (finding "[t]he mere fact that a party-designated arbitrator discloses a prior
    relationship with the party will not necessarily disqualify the arbitrator ").
    In Barcon, the court explained arbitrators are required to "avoid . . . actual
    partiality" and "the appearance of partiality." 
    86 N.J. at 189
     (citation omitted).
    The United States Supreme Court has similarly declared that "any tribunal
    permitted by law to try cases and controversies not only must be unbiased but
    also must avoid even the appearance of bias." Commonwealth Coatings Corp.
    v. Cont'l Cas. Co., 
    393 U.S. 145
    , 150 (1968).
    The Court in Barcon quoted with approval the trial court's finding that
    "the law simply cannot allow any judicially enforceable arbitration proceeding
    A-1267-19T4
    13
    to be anything other than an impartial proceeding which has appropriate
    appearances of impartiality." 
    86 N.J. at 191
     (quoting Barcon Assocs. 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
    arbitrators disclose "any relationship or transaction that he [or she] has had with
    the 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.
    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) (explaining
    N.J.S.A. 2A:23B-23 "retains" the evident partiality standard set forth in N.J.S.A.
    2A:24-8(b)). A party seeking to vacate an arbitration award pursuant to N.J.S.A.
    2A:23B-23(a)(2) must prove the evident partiality of the arbitrator by a
    preponderance of the evidence under the Barcon standard. Del Piano, 372 N.J.
    A-1267-19T4
    14
    Super. at 509. 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 remand court's determination that plaintiff failed
    to sustain its 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 the premise that the exchange between
    defendants' counsel and the arbitrator constituted a threat which caused the
    arbitrator to have a personal interest in the outcome of the arbitration. That
    premise is undermined by the trial court's findings on our initial remand. After
    considering the evidence, the first remand court determined defendants'
    counsel's statement to the arbitrator was not a threat and the statement was
    understood by the arbitrator as being made "in jest." See Asphalt Paving II, slip
    op. at 4-5.
    Plaintiff offers no basis to revisit those factual determinations, which we
    have affirmed. Id. at 8-9. The findings require rejection of plaintiff's claim the
    exchange resulted in actual partiality by the arbitrator. See Barcon, 
    86 N.J. at 189
    . Plaintiff cannot establish actual partiality of the arbitrator because the first
    remand court found as a matter of fact the exchange did not affect the arbitrator's
    decision-making process. Asphalt Paving II, slip op. at 5.
    A-1267-19T4
    15
    The record also does not support a finding of an appearance of partiality
    constituting evident partiality under N.J.S.A. 2A:23B-23(a)(2).         The facts
    determined by the first remand court do not support either an inference of
    partiality or a finding that a reasonable person would perceive the arbitrator as
    interested in the outcome of the arbitration. See Barcon, 
    86 N.J. at 192
    . Again,
    plaintiff's appearance of partiality claim is founded on a purported threat the
    remand court determined was not a threat at all. An inference of partiality
    cannot be logically based on a purported threat that has been found as fact not
    to have been a threat but instead constituted nothing more than a statement made
    in jest.
    Plaintiff's inaction when the challenged exchange took place further
    confirms that despite its current arguments to the contrary, it did not perceive or
    consider defendants' counsel's statement to the arbitrator as a threat of any kind.
    Plaintiff's post-arbitration-award indignation and outrage concerning the
    exchange, and its present contention that the exchange was of such an
    outrageous nature that any reasonable person would have recognized it as
    establishing the arbitrator's evident partiality, see ibid., is unconvincing. If
    defendants' counsel's statement would have "suggest[ed] to a reasonable person
    that the arbitrator [had become] interested in the outcome of the arbitration
    A-1267-19T4
    16
    or . . . reasonably support[ed] an inference of partiality," ibid., plaintiff and its
    counsel would have objected or otherwise acted immediately. 2 Their failure to
    do so supports the conclusion that defendants' counsel's inappropriate, but
    innocuous, attempt at humor did not result in any actual partiality or, under the
    circumstances present, an appearance of partiality constituting evident partiality
    under N.J.S.A. 2A:23B-23(a)(2). Because plaintiff failed to establish either the
    actual partiality or appearance of partiality required to satisfy the Barcon
    standard for evident partiality, the remand court correctly determined plaintiff
    did not satisfy its burden for vacating the arbitration award. For that reason
    alone, we affirm the court's order from which plaintiff appeals.
    There is an alternative, but equally dispositive, ground upon which we
    affirm. Plaintiff waived its right to claim the award should be vacated due to
    the alleged evident partiality of the arbitrator under N.J.S.A. 2A:23B-23(a)(2).
    In Barcon, the Court found that where a party is aware of grounds
    supporting the claim an arbitrator on an arbitration panel should be disqualified
    based on alleged evident partiality, the party shall "object at that time" or "that
    party will be held to have waived any right later to object to the designation of
    2
    We note that plaintiff's counsel of record at the arbitration is not its counsel
    of record on this appeal.
    A-1267-19T4
    17
    the arbitrator on [such] grounds." 
    Id. at 195
    . The Court explained that the
    waiver rule "is simply a procedural rule of litigation necessary to avoid
    unfairness to the other party and waste of adjudicatory resources." 
    Id. at 197
    .
    The Court further observed:
    It would be inequitable and wasteful to allow a party to
    withhold its objections until after the panel has
    rendered an unfavorable decision. While we do not
    condone arbitration awards made by a panel whose
    members are not impartial, we see a greater evil in
    permitting parties that are aware of grounds for
    objection to put the other party and the panel through
    the time and expense of arbitration proceedings before
    challenging the proceedings.
    [Ibid.]
    The exchange between the arbitrator and defendants' counsel that plaintiff
    now claims resulted in the appearance of partiality of the arbitrator was
    immediately known to plaintiff and its counsel. The exchange took place in the
    presence of the parties and their counsel as the arbitration concluded. As noted,
    plaintiff did not object at that time, request that the arbitrator recuse himself, or
    in any other manner seek the disqualification of the arbitrator. Instead, plaintiff
    opted to silently await the arbitrator's decision, and it was only when plaintiff
    received an unfavorable award days later that it decided to claim the exchange
    required vacation of the award based on an alleged appearance of impropriety.
    A-1267-19T4
    18
    Plaintiff claims we need not address its delay in asserting its appearance
    of impropriety claim because we have previously held plaintiff was not required
    to first raise the issue with the arbitrator. Plaintiff relies on our statement in
    Asphalt Paving I that "[t]here [was] no requirement a party first seek the kind of
    relief sought here from the arbitrator before resorting to the court." Slip op. at
    8. Plaintiff, again, misinterprets our prior opinion.
    Our statement was not, as plaintiff contends, a declaration that plaintiff
    did not have an obligation to immediately raise its appearance of impartiality
    claim before the arbitrator, or that plaintiff did not waive the claim by delaying
    its assertion until it received the unfavorable arbitration award. Those issues
    were not before us on plaintiff's first appeal and, as we explained in Asphalt
    Paving II, plaintiff's appearance of impropriety claim had not been addressed by
    the trial court in either of the two prior trial court proceedings. Slip op. at 14-
    15. In other words, we did not address the merits of plaintiff's appearance of
    impropriety claim in our prior decisions because the claim had not been
    addressed by the trial court, and we remanded the case in Asphalt Paving II for
    that reason. See 
    ibid.
    Plaintiff also ignores the context in which we made the statement in
    Asphalt Paving I upon which it relies. In the paragraph of the decision in which
    A-1267-19T4
    19
    the statement is made, we addressed the trial court's "suggest[ion] plaintiff
    should have sought a modification of the award from the arbitrator," pursuant to
    N.J.S.A. 2A:23B-20, "before seeking relief from the court." Asphalt Paving I,
    slip op. at 8. N.J.S.A. 2A:23B-20 provides for the modification or correction of
    an arbitration award. Kimm v. Blisset, LLC, 
    388 N.J. Super. 14
    , 27 (App. Div.
    2006). It does not provide for the relief sought by the plaintiff here—vacation
    of an award—which is available under N.J.S.A. 2A:23B-23. In Asphalt Paving
    I, we noted "[o]ur reading of [N.J.S.A. 2A:23B-20] differs from that of the trial
    court" and stated nothing more than a party is not required to first seek
    modification or correction of an award under that statute before seeking vacation
    of the award based on a claimed appearance of partiality under N.J.S.A. 2A:23B-
    23(a)(2). Slip op. at 8.
    In Barcon, the Court determined that where a party believes there are
    grounds for the recusal or disqualification of an arbitrator based on evident
    partiality, the party must timely assert the claim, and cannot await an
    unfavorable outcome to do so. 
    86 N.J. at 197
    . A failure to assert the claim is
    "inequitable and wasteful" and constitutes a waiver. 
    Ibid.
     As we explained in
    Arista Marketing, the Court in Barcon determined that "under the 'rule of
    waiver . . . adopted for these arbitration proceedings,' a 'timely objection'" to an
    A-1267-19T4
    20
    arbitrator based on evident partiality "was one advanced before the [arbitrator]
    'has rendered an unfavorable decision.'" 
    316 N.J. Super. at 530
     (quoting Barcon,
    
    86 N.J. at 197
    ).
    Here, plaintiff did not timely assert its claim.       It waited until the
    arbitrator's decision was rendered and, as noted, made its claim only after it
    received an unfavorable award. Under these circumstances, plaintiff waived its
    claim that the arbitration award should be vacated based on the arbitrator's
    purported evident partiality, and, for that reason we also affirm the court's order
    denying plaintiff's request to vacate the award pursuant to N.J.S.A. 2A:23B-
    23(a)(2).
    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-1267-19T4
    21