WILLIAM R. HIGGINS VS. GREGORY S. SAYLOR (L-0044-18, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1586-18T3
WILLIAM R. HIGGINS,
Plaintiff-Respondent,
v.
GREGORY S. SAYLOR,
Defendant-Appellant,
and
ABATIS HOLDINGS, LLC,
and ABATIS SECURITY, LLC,
Defendants.
____________________________
Submitted August 1, 2019 – Decided August 8, 2019
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Docket No. L-0044-18.
Paul A. Leodori, attorney for appellant.
Martin Law Firm, LLC, attorneys for respondent
(Joseph A. Martin, on the brief).
PER CURIAM
Defendant Gregory S. Saylor appeals from a November 9, 2019 order
entered by Judge James R. Swift denying his motion to terminate arbitration.
Because the orders under review do not resolve all of the claims between the
parties, we dismiss the appeal as interlocutory.
I.
Plaintiff William R. Higgins, a retired state trooper, and defendant became
embroiled in a business dispute involving two companies, Abatis Security, LLC,
which provides private security services to businesses in the Atlantic City area,
and Abatis Holdings, LLC, which was a corporate shell company having no
operations. Plaintiff was the sole member of Abatis Security and defendant was
employed by that company but had no ownership interest. Both parties were
members of Abatis Holdings. Defendant failed to disclose to plaintiff that he
filed a petition in bankruptcy prior to the formation of Abatis Holdings and that
defendant could not be licensed to perform security services.
In early 2016, plaintiff discovered that defendant and two employees,
Graff and Tejada, who are not parties to this appeal, were stealing money from
Abatis Security, totaling approximately $200,000. Defendant and Graff
admitted to the theft, resulting in plaintiff notifying them of their termination of
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employment with Abatis Security. Plaintiff, defendant, and Graff subsequently
entered into a Stand Still Agreement, which allowed defendant and Graff to
retain their positions within Abatis Security, continuing their weekly paychecks
and an automobile allowance, until they could resolve their dispute through
mediation or arbitration. Plaintiff and Graff subsequently settled their dispute
amongst themselves, resulting in Graff relinquishing his ownership interest in
Abatis Holdings, but the dispute between the parties was unresolved. The
Agreement, in pertinent part, provided:
2. Arbitration. If the parties are unable to resolve their
disputes through mediation, any remaining disputes
will be submitted to binding arbitration before retired
[J]udge Eugene Serpentelli. If Judge Serpentelli is
unavailable, the parties will confer and agree on a
replacement arbitrator. The arbitration shall proceed on
an expedited basis and will be binding.
3. Interim Measures. In the interim, and until this
matter is fully and finally concluded through mediation
or arbitration, or until the parties agree otherwise or the
arbitrator so rules, the following terms shall remain in
effect:
a. Messrs. Graff and [defendant] may
return to work at the [c]ompany's 520
Pacific Avenue corporate offices . . . on
May 6, 2016, and [plaintiff] will return the
computers they use in the business of
Abatis Security and take such steps as may
be necessary to restore their email access
and return everything removed from the
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[o]ffice to restore the [o]ffice to the same
condition it was in prior to Thursday, May
5, 2016. The [c]ompany's bookkeeper . . .
is to work in the [o]ffice but will be
available to [plaintiff] to assist him with
event operations and other duties as
needed.
b. Messrs. Graff and [defendant] will
continue to receive their salary and
automobile allowance payments. Salary
payments to Messrs. Graff and [defendant]
will be made weekly each Tuesday.
Automobile allowance payments will be
paid on the first day of the month.
c. Messrs. Graff and [defendant] will
return to and continue in their respective
positions with Abatis Security.
....
e. [Plaintiff] will remain as sole signatory
on the TD Bank account for Abatis
Security, however, [plaintiff] will not send
out any Abatis Security checks, with the
exception of the parties' payroll and
automobile allowance payments, without
first advising Messrs. Graff and
[defendant] of the checks and seeking their
approval.
[(Emphasis added).]
Pursuant to the Agreement, plaintiff made five $2000 weekly payments to
defendant on July 2, August 2, September 7, September 17, and September 20,
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2016; and two $735 payments on August 1 and September 1, 2016. Defendant
certified the last payment he received from Abatis was in March 2017, and he
claims he is owed $148,760 for the pay periods between April 4, 2017 and
August 14, 2018. Defendant also asserts plaintiff violated section (e) of the
parties' Agreement by writing checks to himself and to his attorney's offices
without seeking prior approval from defendant.
Plaintiff claims he ceased making weekly payments to defendant because
he did not continue to work, as required by the Agreement, and defendant only
appeared at the office on Tuesdays, which were paydays. Plaintiff sought to
remove the matter from arbitration and transfer the case to the Law Division for
adjudication, but the trial court enforced the arbitration clause in the Agreement
and referred the parties back to arbitration. Thereafter, defendant filed a motion
in the Law Division, and before the arbitrator, seeking to compel plaintiff to
compensate defendant for the missed payments and to resume making weekly
payments. Both motions were denied, and both orders are appealed from.
Because of plaintiff's failure to pay defendant's weekly salary, he argues
that he was held in contempt for failure to pay his child support obligation, a
bench warrant was issued for his arrest, and his driver's license was temporarily
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suspended. Defendant's previous counsel was relieved from further representing
him due to defendant's failure to pay his fees. The trial court stated:
And I know the argument is [the parties] also agreed
that [defendant] would get paid, but . . . we're just
ignoring the fact that [defendant] was supposed to
work. The whole idea underlying this [S]tand[-][S]till
[A]greement was that the parties would continue to
work out these problems as this business was ongoing.
The trial court denied counsel's request to establish a discovery schedule,
stating: "I can't do that. The agreement provides for arbitration. I've ruled that
there needs to be arbitration, twice now. And [the case is] going to arbitration."
Abatis Security became defunct in February 2018, when plaintiff decided to
pursue another business opportunity.
II.
The Rules that warrant dismissal of interlocutory appeals are clear. We
consider appeals from final orders of a trial court and other orders expressly
designated as final for purpose of appeal. R. 2:2-3(a)(1) and (3). "To be a final
judgment, an order generally must 'dispose of all claims against all parties.'"
Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007)
(quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87
(App. Div. 1998)). This "final judgment rule, reflects the view that 'piecemeal
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[appellate] reviews, ordinarily, are [an] anathema to our practice.'" Id. at 550
(alterations in original) (quoting S.N. Golden Estates, 317 N.J. Super. at 87).
If an order is not final, or among those orders expressly designated as final
for purposes of appeal, a party must seek leave to appeal from the Appellate
Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is
left to the discretion of this court, and that discretion is exercised sparingly and
"in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky, 396 N.J. Super. at
550. Here, defendant did not seek leave to appeal from the orders under review.
It is clear that we will not decide an appeal from an interlocutory order
merely because the appellant's notice of appeal mischaracterized the order, the
respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza
v. James, 397 N.J. Super. 516, 519 (App. Div. 2008) (recognizing but declining
to follow cases in which the court has granted leave to appeal nunc pro tunc even
though appeal was fully briefed on the ground that the practice invites disregard
of the Rules).
We recognize that we may, in appropriate cases, grant leave to appeal
nunc pro tunc. R. 2:4-4(b)(2); see e.g., Yuhas v. Mudge, 129 N.J. Super. 207,
209 (App Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of
prompt disposition of the matter"). However, such relief is not automatic and
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should not be presumed. In dismissing an appeal as interlocutory after it was
fully briefed, we stated:
[I]f we treat every interlocutory appeal on the merits
just because it is fully briefed, there will be no
adherence to the Rules, and parties will not feel there is
a need to seek leave to appeal from interlocutory orders.
At a time when this court struggles to decide over
[7000] appeals a year in a timely manner, it should not
be presented with piecemeal litigation and should be
reviewing interlocutory determinations only when they
genuinely warrant pretrial review.
[Parker v. City of Trenton, 382 N.J. Super. 454, 458
(App. Div. 2006).]
A "grant of leave to appeal nunc pro tunc is most extraordinary relief[.]"
Hallowell v. Am. Honda Motor Co., Inc., 297 N.J. Super. 314, 318 (App. Div.
1997) (quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div.
1975)). This case does not warrant such relief. We add the following comments.
N.J.S.A. 2A:23B-8(b)(1) provides:
b. After an arbitrator is appointed and is authorized and
able to act:
(1) the arbitrator may issue orders for
provisional remedies, including interim
awards, as the arbitrator finds necessary to
protect the effectiveness of the arbitration
proceeding and to promote the fair and
expeditious resolution of the controversy,
to the same extent and pursuant to the same
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conditions as if the controversy were the
subject of a civil action[.]
Further, the Act allows an arbitrator to "conduct an arbitration in such
manner as the arbitrator considers appropriate for a fair and expeditious
disposition of the proceeding. The authority conferred upon the arbitrator
includes the power to hold conferences with the parties . . . and, among other
matters, determine the admissibility, relevance, materiality, and weight of any
evidence." N.J.S.A. 2A:23B-15(a).
During oral argument before the arbitrator, plaintiff argued that
defendant's motion was premature because he was asking Judge Serpentelli "to
make a ruling on a claim without the benefit of discovery or even a factual
record, which . . . is not permissible, particularly where, as here, the facts are
substantially in dispute." Plaintiff also argued that defendant breached the
Agreement first "by engaging in these interminable delays and stall tactics
during the arbitration, not producing discovery, raising issues which were
resolved and kind of churning the case along so that he can continue receiving
his paycheck when he wasn't even working for it."
We have noted that "[a] party seeking to vacate an arbitration award must
first obtain trial court review of the award." Manger v. Manger, 417 N.J. Super.
370, 376 (App. Div. 2010). Here, defendant did not move before the trial court
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to vacate Judge Serpentelli's order on these grounds. Instead, defendant's
motion before Judge Swift asserted plaintiff breached the agreement to arbitrate
by not paying defendant's weekly salary, but defendant did not move before the
trial court to vacate same on the basis of fraud, corruption, or other undue means.
Saliently, defendant's third argument, that we should determine there was fraud,
corruption, or other undue means in the arbitration process likewise is not
cognizable because we have no jurisdiction.
Defendant also argues Judge Serpentelli refused to enforce a clearly-
written contract between the parties, thereby exceeding his authority as an
arbitrator. N.J.S.A. 2A:23B-23(a)(4) also allows the trial court to vacate an
arbitration award if the arbitrator exceeded his or her powers. "[J]udicial inquiry
must consider more than whether a mere mistake occurred." Minkowitz v.
Israeli, 433 N.J. Super. 111, 150 (App. Div. 2013). Rather, "the arbitrator[] must
have clearly intended to decide according to law, must have clearly mistaken the
legal rule, and that mistake must appear on the face of the award." Id. at 150-
51 (alteration in original) (quoting Tretina v. Fitzpatrick & Assocs., 135 N.J.
349, 357 (1994)). Additionally, the error must be "fatal" and "result in a failure
of intent or be so gross as to suggest fraud or misconduct." Id. at 151 (quoting
Tretina, 135 N.J. at 357).
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Our careful review of the record reveals the trial court was well within its
authority to compel the parties to continue arbitrating their dispute with Judge
Serpentelli. Both parties consented to arbitrate their respective claims and
agreed to a binding decision by the arbitrator. Judge Serpentelli is the factfinder
and shall render a final decision. Therefore, Judge Swift properly declined to
consider the parties' mutual bad faith claims. "[O]nce the trial court ordered the
parties to proceed in arbitration and dismissed the complaint, that decision ended
the litigation in the Superior Court. There [is] nothing left for the trial court to
decide between the parties." Wein v. Morris, 194 N.J. 364, 379 (2008).
Plaintiff argues Judge Swift did not err in denying defendant's request for
payment in the Superior Court because defendant was, in effect, forum shopping
and is now barred by the doctrine of collateral estoppel. Moreover, plaintiff
claims defendant fought to have this matter remain in arbitration after plaintiff
filed a verified complaint in the Superior Court, and when defendant became
"unhappy" with Judge Serpentelli's interlocutory ruling, defendant "ran" back to
Judge Swift in an attempt to achieve a different outcome.
"In appropriate circumstances, arbitration awards may be given collateral
estoppel effect in subsequent judicial proceedings." Barker v. Brinegar, 346
N.J. Super. 558, 566 (App. Div. 2002) (quoting Konieczny v. Micciche, 505 N.J.
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Super. 375, 384 (App. Div. 1997)). Our Supreme Court has "recognized the
potential preclusive effect of an arbitration if the party to be bound has had its
day in court." Habick v. Liberty Mut. Fire Ins. Co., 320 N.J. Super. 244, 258
(App. Div. 1999). Collateral estoppel may only be invoked after an issue of law
or fact has been litigated and determined by a final and valid judgment, however.
Id. at 258. In order for the doctrine to apply, the asserting party must show:
(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was
actually litigated in the prior proceeding; (3) the court
in the prior proceeding issued a final judgment on the
merits; (4) the determination of the issue was essential
to the prior judgment; and (5) the party against whom
the doctrine is asserted was a party to or in privity with
a party to the earlier proceeding.
[Selective Ins. Co. v. McAllister, 327 N.J. Super. 168,
173-74 (App. Div. 2000) (emphasis added) (quoting In
re Estate of Dawson, 136 N.J. 1, 20 (1994)).]
At oral argument, Judge Serpentelli stated he would "get to a[n] [arbitration]
trial. . . on contested issues and . . . decide [them] then." His order denying
defendant's request was not a final order because Judge Serpentelli declined
deciding the motion absent a full record. Collateral estoppel, therefore, cannot
be applied here.
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We conclude that the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Appeal dismissed.
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