On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, C-20-98.
Before Judges Lintner, Parker and Bilder.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Samuel Weinstock, and his brother, defendant, Herman Weinstock, jointly owned three closely-held corporations, a partnership, and real estate, which ultimately became the subject matter of a suit instituted by Samuel in the Chancery Division, seeking, among other things, an accounting, dissolution, division of the assets, and appointment of a fiscal agent. Herman, by way of counterclaim, sought similar relief. A Special Fiscal Agent was appointed pursuant to a consent order entered in October 1999. On December 23, 1999, the Chancery judge signed an order for discovery and binding arbitration, which in part provides:
18. On February 29, 1999, the case shall be stayed pending completion of binding Arbitration, except solely for the right of a party to apply to the Court for relief relating to the Arbitration as allowed and restricted by law.
19. In the event that the parties cannot agree on an arbitrator, the Fiscal Agent shall appoint an arbitrator . . . .
21. The Arbitrator shall prepare Findings of Fact and Conclusions of Law.
22. The parties waive the right to appeal from any aspect of the Arbitrator's decision other then the Conclusions of Law (e.g., mistakes in Findings of Fact, evidence issues, against the weight of evidence, etc.). The appeal, if any, is to be made to the Superior Court, Appellate Division, as allowed by and in accordance with the Alternative Dispute Resolution Statute.
The Fiscal Agent appointed an arbitrator in June 2000. On July 21, 2000, the Fiscal Agent executed a ruling following a conference with the parties, the last paragraph of which provided:
The parties consent to modify the terms of the prior Consent Order For Arbitration in that all arbitrated issues (factual and legal) shall be appealable to the Appellate Division to the same extent and in the same manner as if appealed from a decision of the trial court of the Superior Court of New Jersey. The Fiscal Agent will prepare and file (and the parties' counsel will sign) an Amended Consent Order to be executed by the Court.
However, an amended consent order was never prepared by the Fiscal Agent, nor was one signed by the parties or submitted to the judge. On January 20, 2001, the judge entered an order dismissing the case without prejudice, but retained jurisdiction to resolve, among other things, arbitration-related disputes.*fn1
Arbitration hearings took place over a period of ten days. On May 16, 2002, the arbitrator issued a detailed forty-six-page opinion with his findings of fact and conclusions of law. On July 10, 2002, the arbitrator reviewed the parties' objections and motions for reconsideration and rendered a written Order on Application for Clarification and Reconsideration of Final Decision and Arbitration Award. On August 23, 2002, the parties appeared at a hearing before the judge to confirm the arbitration. At that time, representations were made to the judge concerning the parties alleged agreement to expand their rights of appeal as reflected in the Fiscal Agent's July 2000 ruling and whether the arbitrator had been made aware of the parties' purported change of the judge's December 13, 1999 order. Because there was some confusion concerning what the parties actually agreed to, the judge remanded the matter to the arbitrator to make that determination. In pertinent part, the judge's order sought clarification of his Award and Order, if deemed appropriate by him, as to whether the parties' rights to appeal any award from the arbitration proceedings were governed by (i) paragraph 21 of the Order . . . [of] December 13, 1999, (ii) paragraph 14 of the Rulings of Fiscal Agent . . . dated July 21, 2000 . . . or (iii) the agreement of the parties, if any, during the course of the arbitration proceedings relating to the above Order and Rulings, or relating to the appellate rights of the parties in general.*fn2
On October 21, 2002, the arbitrator issued a written report in which he found that both parties agreed to modify the terms of the December 13 order to expand the scope of review from issues raised respecting "conclusions of law" to "all arbitration issues (factual and legal)." Nevertheless, the arbitrator concluded that he did not "have the jurisdiction or power to modify the prior Court Order." The ...