ASPHALT PAVING SYSTEMS, INC. VS. ASSOCIATED ASPHALT PARTNERS, LLC (L-0978-16, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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