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Heffner v. Jacobson

Decided: October 8, 1985.

STEPHEN A. HEFFNER, PLAINTIFF-APPELLANT,
v.
JOEL E. JACOBSON, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 192 N.J. Super. 299 (1983).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For Reversal -- None.

Per Curiam

[100 NJ Page 551] This appeal raises the question whether the prevailing party in an arbitration is limited to seeking confirmation of the award in a summary proceeding commenced within three months of the award as required by N.J.S.A. 2A:24-7. In the instant case, plaintiff, Stephen A. Heffner, sold his accounting practice to defendant, Joel E. Jacobson, in a contract that contained a restrictive covenant and an arbitration clause. Shortly after the sale of the business, Jacobson alleged that Heffner had breached the covenant not to compete, and the parties submitted the dispute to arbitration. The arbitrator found that Heffner had breached his covenant and awarded $4,897.45 to Jacobson. Unfortunately, however, Jacobson failed to move to confirm the award within the three-month period provided by N.J.S.A. 2A:24-7. Nonetheless, the Chancery Division allowed Jacobson to file a counterclaim for confirmation and subsequently entered an order for judgment confirming the award. 185 N.J. Super. 524 (1982). The Appellate Division affirmed. 192 N.J. Super. 299 (1983). We granted Heffner's petition for

certification, 97 N.J. 628 (1984), and now affirm the judgment of the Appellate Division.

I

Heffner and Jacobson are public accountants, and on August 11, 1976, Heffner sold his accounting practice to Jacobson. The contract of sale contained a covenant by Heffner not to compete, the validity of which is not in dispute. In addition, the contract also contained the following arbitration clause:

9. Arbitration. Any and all disagreements as to the terms, conditions or performance of this Agreement, except the remedies described above for monies that are agreed to be due, shall be submitted to binding arbitration by the American Arbitration Association. Cost of arbitration shall be borne jointly by the parties.

On February 4, 1980, believing that Heffner had violated the covenant, Jacobson filed a demand for arbitration with the American Arbitration Association. Heffner filed an answer and counterclaim in the arbitration proceeding. He also initiated an action in the Chancery Division to stay the arbitration, alleging that the dispute concerning the restrictive covenant was not arbitrable. The trial court rejected that allegation, but the resulting order did not deny the stay. Instead, the order dismissed the cause with prejudice. Heffner did not appeal, and the parties proceeded to arbitrate the matter before an arbitrator, who found that Heffner owed Jacobson $4,897.45.

Neither party commenced any kind of proceeding within three months of receiving the arbitration award. Four days out-of-time, on March 16, 1981, however, Heffner filed a motion to vacate the award in the same proceeding that had been dismissed with prejudice. That motion was denied, but no order of denial was ever entered. Apparently both the court and Heffner's attorney expected that Jacobson's attorney, as the prevailing party, would prepare the order of denial.

More than a year later, on April 27, 1982, Jacobson's attorney moved to confirm the award. On May 26, 1982, the trial court denied Jacobson's motion to confirm, but nevertheless permitted

him to file a counterclaim seeking confirmation. Although the trial court attributed the failure to move in a timely fashion to the attorney's ill health, 185 N.J. Super. at 526 n. 1, before us the attorney explained that the reason for his failure to move to confirm within the three months' limit of N.J.S.A. 2A:24-7 was that he was unaware of the existence of the statute. Thereafter, on July 6, 1982, Jacobson's attorney filed a motion to confirm, and on August 13, 1982, the Chancery Division entered an order for judgment confirming the award of $4,897.45, plus interest and costs.

In affirming, the Appellate Division refused to consider, as out-of-time, Heffner's claim that the breach of the restrictive covenant was not arbitrable under paragraph 9 of the contract. 192 N.J. Super. at 300. As previously indicated, the trial court, in effect, had rejected this claim in its June 12, 1980 order dismissing the request to stay arbitration, and Heffner had not brought a timely appeal from that order. For similar reasons, the Appellate Division also declined to review the trial court's denial of Heffner's motion to vacate the award. We find that a more fundamental reason supports the Appellate Division's refusal to consider Heffner's request to vacate the arbitration award. No order has ever been entered denying the motion to vacate. An appeal lies not from a written or oral decision of a court, but only from a judgment or order. Credit Bureau Collection Agency v. Lind, 71 N.J. Super. 326, 328 (App.Div.1961); Homeowner's Taxpayer's Ass'n of So. Plainfield, Inc. v. South Plainfield Sewerage Auth., 60 N.J. Super. 321, 323 ...


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