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Avitecture, Inc. v. Explore Atlantic City

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 19, 2008

AVITECTURE, INC., PLAINTIFF-RESPONDENT,
v.
EXPLORE ATLANTIC CITY, L.L.C., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-542-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 28, 2008

Before Judges A. A. Rodríguez and Kestin.

Explore Atlantic City, L.L.C. f/k/a ITA Atlantic City, L.L.C. (Explore) appeals from the May 4, 2007 order confirming an arbitration award in favor of Avitecture, Inc. (Avitecture) in the amount of $193,984 plus costs in the amount of $5,725. We affirm.

A detailed recitation of the facts is not necessary. In March 2003, Explore entered into a contract with Audiovisual Washington, Inc. (AVW) for the design and sale of certain equipment and to provide installation, warranty and maintenance services on the equipment. The agreement contained a prohibition against AVW assigning "its rights or obligations . . . to any third party, except with prior written consent from [Explore]." Subsequently, a dispute arose between Explore and AVW as to whether the requisite work had been performed and whether the contractual payments had been made.

Pursuant to the terms of the contract, Avitecture filed a demand for arbitration. Richard H. Woods, Esq., was designated as the arbitrator. He presided over a hearing that culminated with the above-mentioned award. At the arbitration hearing, Alger B. Doland, Avitecture's Chief Financial Officer, testified that Avitecture is AVW's "successor corporation." Doland indicated that the corporate structure remained the same and that this was merely a name change, because in 2004, incorporation changed from Delaware to Virginia. He also acknowledged that AVW did not seek Explore's permission to assign its rights to Avitecture.

Avitecture then filed an action against Explore in the Law Division and sought an order to show cause why the arbitration award should not be enforced. Explore sought to vacate the arbitration award on the grounds that Woods refused to consider evidence material to a breach of the anti-assignment clause. Following briefing and oral argument, Judge Daryl F. Todd, Sr. entered the order under review. The judge found as follows:

Explore moves to vacate the arbitration award on the ground that the arbitrator, Mr. Woods, refused to consider evidence material to the controversy - the relationship between Audiovisual and Avitecture - so as to substantially prejudice Explore's rights.

N.J.S.A. 2A:23B-23(a)(3). This contention is negated by the record. The issue concerning the nature of the relationship between Audiovisual and Avitecture within the context of the non-assignability provision was directly addressed at the arbitration hearing during the questioning of [Doland].

On appeal, Explore contends that: (1) "the arbitration award must be vacated because Explore was substantially prejudiced as a result of the arbitrator's refusal to consider evidence material to the controversy;" and (2) "the entire dispute is premised on the contract and, therefore, Avitecture is not a proper party to bring the instant action."

We affirm substantially for the reasons expressed by Judge Todd in his April 13, 2007 Memorandum of Decision. We concur with his analysis and conclusion that, "Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators." Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc., 135 N.J. 349, 358 (1994) (quoting Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 548 (1992) (Wilentz, C. J., concurring)). Errors of law or fact made by the arbitrator are "not correctable." Selective Ins. Co. v. National Continental Ins. Co., 385 N.J. Super. 62, 67 (App. Div.), certif. denied, 188 N.J. 218 (2006). Here, there is no showing of wrongdoing by the arbitrator.

Affirmed.

20080219

© 1992-2008 VersusLaw Inc.



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