October 25, 2010
MATTHEW T. RINALDO, PLAINTIFF-APPELLANT,
JOSEPH A. SCHAAD, INDIVIDUALLY, AND JAS JUNIOR, LLC, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5279-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 3, 2010
Before Judges Payne, C.L. Miniman and Waugh.
Plaintiff Matthew T. Rinaldo appeals from two orders, one denying his motion to vacate an arbitration award in favor of defendants Joseph A. Schaad and JAS Junior, LLC, and another granting the cross-motion of defendants to confirm the arbitrator's award. At issue is a home-improvement contract requiring arbitration. We affirm.
On March 6, 2004, the parties entered into a home-improvement contract for renovation and expansion of plaintiff's home in Spring Lake Heights. The home had been constructed in the 1880s. The contract price was $215,790, and the contract required defendants to construct an addition on the existing dwelling home . . . including excavation and construction with utilization of masonry and concrete footing to establish full basement cellar; and on this residential building to alter, repair, renovate and otherwise replace and/or recondition and reconfigure the interior of the dwelling home.
The contract*fn1 provided for arbitration of disputes under the contract:
[T]he Owner or the Contractor may submit any dispute related to this Contract to Arbitration in accordance with the American Arbitration Association's [AAA] Construction Industry Arbitration Rules. The decision will be binding upon both the Owner and the Contractor.
The contract also contained a provision stating that defendants would, "at [their] cost, deliver to the OWNER at the time of final payment a home warranty satisfying the requirements of New Jersey law." Construction was to be completed "in a good and workmanlike manner" in accordance with the plans and specifications set forth in an addendum to the contract. Work was to be completed by July 6, 2004. Under the contract's payment schedule, the final balance due under the contract was to be paid within ten days of the issuance of a certificate of occupancy together with any other required government approvals.
As part of the construction, defendants demolished a portion of the existing structure and constructed a new foundation under one-third of the house. After construction was substantially complete, on December 2, 2004, plaintiff issued a "punch list" that he prepared regarding items of concern. Specifically, plaintiff expressed concern about cracks in the foundation, which began to appear shortly after the foundation was poured and continued to materialize thereafter. Additionally, he alleged that the foundation was sinking at one end of the house. Plaintiff demanded that defendants repair the items on his "punch list."
The certificate of occupancy was issued on December 23, 2004. On December 31, 2004, Schaad wrote to plaintiff stating that all items listed in plaintiff's December 3, 2004, fax had been rectified, and "punch list" items would be addressed after his January 13, 2005, return from vacation. He enclosed his final bill. In January 2005, defendants completed the "punch list" items, but the repairs were not to plaintiff's satisfaction. As a result, he refused to make final payment and notified defendants that he was terminating the contract.
On February 18, 2005, defendants' lawyer demanded the final payment of $26,580.05 and filed a Notice of Unpaid Balance -- Right to File Lien and a demand for arbitration with the AAA, serving the demand on plaintiff. Defendants based their demand for arbitration on the New Jersey Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38. On March 2, 2005, plaintiff filed an arbitration answer, a counterclaim, and a demand for setoff in the amount of $250,000. On March 9, 2005, defendants withdrew their petition for arbitration under the CLL without objection from plaintiff. The AAA closed its file.
On November 20, 2006, plaintiff filed a complaint against defendants alleging negligence, breach of contract, and violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -106, including a demand for treble damages. He sought the return of the $253,700*fn2 that he claimed he paid to defendants under the contract. On February 5, 2007, defendants filed an answer, which included a counterclaim requesting that the matter be transferred to arbitration pursuant to the parties' contract.
On May 14, 2007, defendants filed a motion to dismiss the complaint and transfer the matter to arbitration. Plaintiff opposed the motion, arguing that defendants had waived their right to arbitrate by filing and then withdrawing their first demand for arbitration. He also expressed concern that he would not be eligible for CFA treble damages in arbitration. Further, arbitration would deprive him of his right to a jury trial.
The parties argued the motion on July 5, 2007. On July 12 and 16, 2007, the first motion judge placed his oral decision on the record. The judge viewed the question to be decided as whether there was a knowing and intentional waiver of the contractual arbitration provision by defendants. He found:
Now, if perhaps I had been given a document that says I am withdrawing the arbitration with prejudice and I do not intend to proceed to arbitration, I would feel perhaps somewhat differently than I do currently. It would appear to me that this is nothing more than somewhat withdrawing the complaint in a negligence case without prejudice, which doesn't bar them from the right of coming back, as long as they're within the statute.
So for all those reasons, the public policy favoring arbitration, the contractual language which makes it binding and the absence of a clear relinquishment of that right or a surrender of that right, based on the record that I have, I'm going to grant the motion to dismiss the complaint and transfer the matter to arbitration.
The judge also found that there was no basis for plain-tiff's claim that the arbitrator would not be able to award treble damages under the CFA. On July 16, 2007, he entered an order dismissing the complaint and transferring the matter to arbitration. On August 14, 2007, plaintiff filed a motion for reconsideration. After oral argument on October 5, 2007, the judge denied the motion and signed an order to that effect. On October 24, 2007, plaintiff filed a notice of appeal, and defendants thereafter moved to dismiss the appeal. On January 22, 2008, we granted defendants' motion by order dismissing the appeal as improvidently filed.
The matter proceeded to arbitration, and after several adjournments, hearings were held before Arbitrator John Steigerwald on October 28*fn3 and 30, 2008 at defendants' counsel's office. Two additional dates were scheduled in November at plaintiff's counsel's office. The notice of hearing advised the participants that "[a]ny party wishing a stenographic record must make arrangements directly with the stenographer and notify the other party(s) of the arrangements in advance of the hearings in accordance with the rules."
During arbitration, plaintiff submitted an engineering report prepared by Michael Natoli. He found sixty-six deficiencies in defendants' construction and concluded that the deficiencies were the direct result of substandard construction methods and material. He called for corrective measures to "restore the residence to acceptable levels and meet with applicable codes and standards for the industry."
The deficiencies he found included, among other defects: misalignment of the front door and a gap between the door trim and the adjoining wall surface; a 3.7% transverse slope gradient of the flooring close to the entry door; "a significant disparity in both wood grain and surface colors between the original and new floor surface"; misalignment of several of the doors in the house; misalignment of the cabinets and the pantry interior in the kitchen; crack formations between the ceiling and wall in a second floor bedroom; roof shingles which extended beyond the structure; and failure to waterproof the foundation walls. Natoli found these to be construction defects, and most were violations of the New Home Warranty Act regulations, N.J.A.C. 5:25. He estimated that it would cost $300,000 to make the repairs.
Defendants submitted an expert engineering report prepared by Joseph Greco. He found nineteen workmanship defects, including: the basement door hit the dropped ceiling when opened; there was a crack on the ceiling in front of the staircase leading up from the basement; there was loose ceramic tile close to the entrance of one of the bathrooms; nails had popped in the ceiling in the main entrance hall; there was an uneven door; the cabinet door covering the trash compactor was not securely mounted; there were cracks in a bedroom ceiling; and there was an uneven reveal between the kitchen marble backsplash and cabinet. Greco also expressed concern regarding the drainage and waterproofing in the basement. However, he found that many of Natoli's concerns were subjective and also criticized his reliance on N.J.A.C. 5:25 as establishing a standard for construction because those regulations only applied to new home warranties, and this was a renovation project.
Greco admitted that the house sloped and the flooring was not level. In his testimony before the arbitrator, Greco stated that leveling the floor would require jacking up the house, but doing that could compromise the structural integrity of the entire building. This was consistent with Schaad's arbitration testimony that, when an addition is placed on a house that is over 100 years old, "you try to get it as close to level without jacking up [the house] and undermining the integrity of the structure."
Greco opined that none of the defects "represents situations that could not be reasonably resolved between the homeowner and the builder." In addition, he said that although the defects were not cited as code violations by the local inspectors, he believed they should be addressed to ensure safety. However, he did not believe the New Home Warranty and Builders' Registration Act (Act), N.J.S.A. 46:3B-1 to -20, applied because this was a renovation to an existing building. He stated that the home warranty referred to in the contract was not the home warranty under the Act. After Greco's testimony was substantially complete, the parties agreed to resume at defense counsel's office to permit an inspection of plaintiff's home if the arbitrator believed it would be helpful.
On December 1, 2008, the AAA advised the parties that the next hearing would be held on December 2, 2008, and on eight additional specified dates in December and January. Sometime later on December 1, 2008, the AAA advised that the arbitrator had postponed the December 2, 2008, hearing because "the deposits have not been paid pursuant to the Rules." It advised that the payments could be made by credit card "via AAA's WebFile." On December 1, 2008, plaintiff acknowledged that the AAA had postponed the hearing scheduled for December 2, 2008, and advised that his son-in-law had just been involved in a fatal accident. The deposits apparently having been made, the AAA then advised plaintiff's law firm that Steigerwald had directed that the arbitration would be held at defendants' counsel's office at 9:30 a.m. on December 2, 2008. Steigerwald apparently remarked that he would see who would show up. Steigerwald's adherence to the December 2 hearing date led plaintiff to demand that Steigerwald be removed as arbitrator "due to his arbitrary, biased and capricious decision to conduct a hearing on less than one (1) day's notice."
The next day, the hearing took place without plaintiff. No stenographer was present, and the hearing lasted five minutes, consisting of the introduction of a copy of a check into evidence. Steigerwald stated that he was unaware of plaintiff's postponement request. After requesting a response from defendants, on December 8, 2008, the AAA, without stating a reason, denied plaintiff's request to remove Steigerwald as the arbitrator.
Another hearing was held on January 15, 2009. At the hearing, plaintiff said that he did not want to proceed because he claimed that Steigerwald was partial to defendants and had decided to hold the December 2 hearing despite the death in plaintiff's family. Ultimately, plaintiff stated he was "walking out of the proceedings" because of Steigerwald's "extreme hostil[ity]."
Although Steigerwald considered the hearings to be closed at that point, on January 28, 2009, he offered to reopen them to give plaintiff an opportunity to present his case and requested a response by February 4, 2009. Apparently not receiving such a response, on February 13, 2009, Steigerwald issued an award of $30,790.33 to defendants, $26,580.05 plus interest for forty-eight months at .33% per month. Steigerwald did not issue a decision in support of his award.
In mid-February 2009 before plaintiff was aware of the arbitral award, he filed a motion in the Law Division to remove the matter from arbitration or, in the alternative, for the removal of Steigerwald as arbitrator and transfer of the matter back to arbitration before a new arbitrator. He alleged that Steigerwald was "incompetent, . . . biased and prejudice[d]" in favor of defendants. He also alleged that he failed to take notes on October 28, 2008, and made no evidential rulings. Subsequently, in an amended motion, plaintiff sought to litigate rather than arbitrate the dispute and sought an order declaring the award void ab initio. Defendants filed a cross-motion to confirm the arbitration award and for sanctions.
On March 20, 2009, the second motion judge signed two orders: one denying plaintiff's motion to vacate the arbitration award, and another granting defendants' cross-motion to confirm the arbitrator's award. Final judgment on the award was entered at that time. The judge explained on the record that she rejected plaintiff's claim of bias on the part of Steigerwald insofar as he denied plaintiff's request to adjourn the December 2, 2008, hearing because: this denial does not appear to demonstrate bias on the part of the arbitrator. . . .
[T]here were multiple adjournment requests and requests for accommodations which were granted in favor of both parties.
[The c]ircumstances of the December 2, 2008[,] hearing are unfortunate and unique. There is an issue with regard to the timeliness of the notification to the arbitrator that plaintiff's counsel had had an emergency in the family. It is not certain from the papers whether the arbitrator was aware of the events surrounding the request for adjournment. In any event, the failure to adjourn the . . . hearing did not visit any prejudice on the plaintiff. . . .
It is clear from the motion record that the plaintiff was given an opportunity to strike any testimony that was presented on December 2, 2008[,] and . . . did not avail himself of that opportunity.
The judge also rejected plaintiff's claim that Steigerwald showed bias as a result of his facial expressions and overall demeanor:
With respect to the plaintiff's other allegations regarding whether or not the arbitrator . . . appear[ed] to demonstrate impartiality because of facial expressions, voice tone or sarcastic comments, the Court finds that there is no evidence in the record that plaintiff was prejudiced by any of those events.
. . . [A]ny aspect of demeanor can be presented during the course of days of hearings and the fact that someone may become frustrated or may be subject to facial expressions or voice tones could be interpreted in any number of ways. I don't find that that, in and of itself, can support a claim of partiality.
In rejecting plaintiff's claim that the venue for the arbitration hearings and Steigerwald's failure to visit the subject property evidenced bias and a lack of competence, the judge stated:
[T]he issue of the venue for the hearings does not constitute evidence of partiality. . . . [T]he initial suggestion for the location was on the basis that there may be a need to visit the property, which dovetails into the plaintiff's argument that by failing to visit the property, this was also evidence of the arbitrator's partiality, bias and competence . . . .
It is clearly within the discretion of the arbitrator to decide whether or not, based upon the evidence presented, he feels that a site visit is warranted or will assist in reaching his decision. The fact that he chose not to do that or the fact that one location over another was chosen for conducting the arbitration in no way is evidence of bias, impartiality or incompetence.
The judge further found that plaintiff was not prejudiced by any failure on Steigerwald's part to take notes. She also rejected plaintiff's challenges to Steigerwald's competency based on his alleged failure to make evidentiary rulings:
With respect to the allegations of the arbitrator's competence, the plaintiff alleges that the arbitrator did not make rulings with respect to certain evidential arguments that were made. However, it is firmly established that the expeditious nature of arbitration proceedings does not require strict adherence to the rules of evidence. They do not apply strictly in arbitration. And the very purpose of arbitration is to expedite the matter and to allow relaxation of rules to the end that the parties achieve the goal of arbitration. . . .
So the fact that evidential rulings were not made or rules of evidence may have been relaxed does not warrant vacation of the order.
Finally, with regard to the sufficiency of the award, the judge found:
[T]he [arbitration] defendant offered no defense in the arbitration and the arbitration award was based upon the proofs presented by the [arbitration] plaintiff. In that circumstance, I find that the award is sufficient. Plaintiff [in arbitration] presented testimony and evidence sufficient to sustain the findings as set forth in the award and the amounts awarded.
When a party chooses not to participate in an arbitration, they do so at their peril. And one's voluntary decision to absent himself from the hearing, particularly as in this case where a notice was given, the opportunity to be heard was given, and the plaintiff simply walked out. The plaintiff cannot either in law or in equity come back now after the award is entered and seek a new hearing based upon what he perceives to be an unfair result.
. . . . . . . [T]here is no basis for vacating the award based upon the facts and circumstances of this case. To the extent that plaintiff's lack of appearance on December 2, 2008[,] could have been seen as precluding the award, the plaintiff was offered an opportunity to remedy the matter but instead decided to absent himself from the proceedings.
An amended order was entered on March 31, 2009, clarifying that defendants were entitled to $26,580.05 plus interest. On April 7, 2009, plaintiff filed a notice of appeal from the July 16 and October 5, 2007, orders, as well as the March 20 and 31, 2009, orders. On May 6, 2009, the second motion judge signed an order granting plaintiff's motion for a stay pending appeal.
Plaintiff raises a multiplicity of issues for our consideration. Initially, he contends that the 2007 dismissal of his complaint, the remand to arbitration, and the denial of reconsideration constitute reversible error because defendants waived their contractual right to arbitrate by filing and then withdrawing their demand for arbitration under the CLL. He also contends that arbitration might jeopardize his right to CFA treble damages because the language of the statute only authorizes courts to treble CFA damages, N.J.S.A. 56:8-19.
Defendants urge that their decision to withdraw from arbitration under the CCL did not waive their contractual right to arbitrate. Further, they contend that the first motion judge was correct when he found that contractual arbitration can encompass any claim, including one under the CFA.
"It is well-established that this State has a strong public policy 'favoring arbitration as a means of dispute resolution and requiring a liberal construction of contracts in favor of arbitration.'" Caruso v. Ravenswood Developers, Inc., 337 N.J. Super. 499, 504 (App. Div. 2001) (quoting Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 389 (App. Div. 1997)). "However, the scope of arbitration is governed by the agreement of the parties." Ibid. (citations omitted).
We have held that CFA claims may be heard and resolved through arbitration. Cybul v. Atrium Palace Syndicate, 272 N.J. Super. 330, 335 (App. Div.), certif. denied, 137 N.J. 311 (1994). In light of this case law, it seems unlikely that an arbitrator's award of treble damages on a CFA claim would be overturned on the ground that the arbitrator had no jurisdiction to make such an award. However, if the arbitrator, on the other hand, declined to treble CFA damages on the ground that it was an issue reserved to the courts under N.J.S.A. 56:8-19, a claimant seeking to confirm a CFA award could simply apply to the judge for trebling of the CFA damages when entering judgment. Plaintiff's concerns in this respect certainly do not justify a refusal to arbitrate.
The law governing a contractual obligation to arbitrate is clear:
Basic contract principles apply when a court interprets an arbitration clause, Singer [v. Commodities Corp.], 292 N.J. Super. [391,] 402 [(App. Div. (1996)], because "a submission to arbitration is essentially a contract, and the parties are bound to the extent of that contract." Local 462, Int'l Brotherhood of Teamsters v. Charles Schaefer & Sons, Inc., 223 N.J. Super. 520, 525 (App. Div. 1988); see Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 270 (App. Div.), certif. denied, 165 N.J. 527 (2000). Courts are generally obligated to enforce contracts based on the intent of the parties, the express terms of the contract, surrounding circumstances and the underlying purpose of the contract. Marchak [v. Claridge Commons, Inc.], 134 N.J. [275,] 282 [(1993)]; Jacobs v. Great Pac. Century Corp., 104 N.J. 580, 586 (1986); Vasquez v. Glassboro Serv. Ass'n, Inc., 83 N.J. 86, 101 (1980). If there is an ambiguity in the language of the arbitration clause, it should be construed against the party that drafted it. Quigley, supra, 330 N.J. Super. at 271. [Caruso, supra, 337 N.J. Super. at 505-06.]
We find no ambiguity in the language of the arbitration clause before us. It requires arbitration of "any dispute related to this Contract." The CFA claim, the breach of contract claim, and the negligent construction claim each constitutes such a dispute and must be arbitrated unless defendants waived their right to compel arbitration.
Generally speaking, "[w]aiver is the voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003) (citation omitted). A party may waive the contractual right to arbitrate by either expressed or implied acts or omissions. Duerlein v. N.J. Auto. Full Ins. Underwriting Ass'n, 261 N.J. Super. 634, 640 (App. Div. 1993). Arbitration is not waived by the institution of legal proceedings but remains revocable "until either a court proceeding goes to judgment or an arbitration proceeding [results] in an award." Wasserstein v. Kovatch, 261 N.J. Super. 277, 290 (App. Div.) (citations omitted), certif. denied, 133 N.J. 440 (1993). A court has the power to refer the dispute to arbitration at any time prior to judgment. Ibid. Until a lawsuit has reached a point at which it can be said that arbitration was abandoned, which is "usually judgment," a court may refer the matter to arbitration.
Id. at 291 (citation omitted). Defendants' contractual demand for arbitration was clearly timely.
Plaintiff offers no legal support for his contention that defendants, who withdrew their CLL arbitration petition, but then later demanded arbitration after a court action had been filed against them, have thus waived their contractual right to arbitration. Defendants urge that their first arbitration request was not contractual, but statutory. As a consequence, they claim, they are entitled to arbitrate under the contract.
Defendants were entitled to, and in fact did, file a Notice of Unpaid Balance-Right to File Lien. N.J.S.A. 2A:44A-3, -21 (b)(1). In so doing, "[u]nless the parties have otherwise agreed in writing to an alternative dispute resolution mechanism," the lien claimant is required to simultaneously serve a demand for arbitration with the AAA when the construction is residential. N.J.S.A. 2A:44A-21(b)(3). A contractor must strictly comply with the requirements of N.J.S.A. 2A:44A-20 and -21 for notice of unpaid balance, demand for CLL arbitration, and the filing of a lien upon residential property. See N.J.S.A. 2A:44A-5(c) ("No lien shall attach nor shall a lien claim be filed . . . [f]or work, services, material or equipment furnished pursuant to a residential construction contract unless there is strict compliance with sections 20 and 21 of this act."
(footnote omitted)). The CLL arbitrator is to decide within thirty days of the demand for arbitration whether a lien may be filed. N.J.S.A. 2A:44A-21(b)(6). His sole function is to determine whether a lien may be filed and, if so, its amount. See N.J.S.A. 2A:44A-21(b)(4), (5), (8). His decision "shall not be considered final in any legal action or proceeding, and shall not be used for purposes of collateral estoppel, res judicata, or law of the case to the extent applicable." N.J.S.A. 2A:44A-21(b)(9) ("Any finding of the arbitrator pursuant to the provisions of this act shall not be admissible for any purpose in any other action or proceeding.").
There certainly could have been many reasons why defendants decided to withdraw from CLL arbitration, not the least of which might have been a failure to strictly comply with N.J.S.A. 2A:44A-20 and -21. Their expressed reason was a desire to avoid the expense of the arbitration. Defendants' withdrawal from arbitration resulted in their inability to file a lien claim. See N.J.S.A. 2A:44A-20 to -21. It may be that their withdrawal constituted a waiver of CLL arbitration, an issue we need not reach. However, we are not persuaded by plaintiff's argument that waiver of CLL arbitration, limited in scope as it is, constitutes a waiver of defendants' right to demand contractual arbitration.
In a similar case, Orifice v. ADR, 315 N.J. Super. 493, 495 (App. Div. 1998), the builder filed a demand for arbitration under the CLL. The arbitrator determined that the builder's claim was valid. Id. at 497. The builder later filed a demand for arbitration under the arbitration clause of its contract with the homeowners. Ibid. The homeowners sought to enjoin the contract arbitration. Ibid. We affirmed the trial court's determination that it was not improper for the builder to seek alternative remedies, and that the builder was not barred from contractual arbitration by the CLL. Id. at 497-98.
Accordingly, we affirm the orders of July 16 and October 5, 2007, requiring plaintiff to submit all "disputes related to the Contract" to AAA arbitration. Defendants did not waive their contractual right to arbitrate those disputes under the arbitration clause of the contract. Furthermore, the scope of arbitration is determined by the underlying claim, not the parties' legal characterization of that claim. Caruso, supra, 337 N.J. Super. at 507. "To hold otherwise would permit a party to frame its complaint in language which frustrates or avoids the scope of the arbitration clause." Id. at 507-08 (citation omitted). Specifically, claims under the CFA may and must be heard and resolved through arbitration, id. at 505, under the contract language before us.
Plaintiff next asserts that the second motion judge erred in denying plaintiff's application to remove the matter from arbitration. He contends that Steigerwald (1) was reluctant to make evidentiary rulings; (2) failed to take notes on October 28, 2008, which demonstrated that he had prejudged the matter; (3) demonstrated partiality, or at least the appearance of it; and (4) subjected plaintiff to "shabby treatment." Plaintiff also contends that Steigerwald's scheduling of the December 2, 2008, hearing on less than five days notice and his failure to adjourn that hearing, which deprived plaintiff of his right to be heard, required vacation of the award pursuant to N.J.S.A. 2A:23B-23(a)(3). Finally, plaintiff asserts that Steigerwald's "adamant refusal" to see the "shoddy workmanship" by inspecting the property, which was seven blocks from defendants' counsel's office where the arbitration was being conducted, violated N.J.S.A. 2A:23B-23(a)(3) because he failed "to consider the most persuasive and material evidence of all."
Defendants maintain that Steigerwald was neither incompetent nor unfair; offered to strike the evidence from the December 2 hearing; did not refuse to make evidentiary rulings; and was not partial to defendants. Therefore, the matter should not have been removed from arbitration, and the award was properly affirmed.
Arbitrators must adhere to high standards of honesty, fairness, and impartiality. Barcon Assocs., Inc. v. Tri-Cnty. Asphalt Corp., 86 N.J. 179, 188 (1981). The party alleging that an arbitrator has violated these standards has the burden of proving that allegation by a preponderance of the evidence. Id. at 191. An arbitration award shall be vacated if "the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding." N.J.S.A. 2A:23B-23(a)(2). In addition, an award shall be vacated if the "arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement" or "refused to consider evidence material to the controversy . . . so as to substantially prejudice the rights of a party to the arbitration proceeding." N.J.S.A. 2A:23B-23(a)(3).
With respect to plaintiff's claim that Steigerwald took no notes during the October 28, 2008, hearing, which appears to be undisputed, we are not persuaded that the failure to take notes demonstrates that the arbitrator had prejudged the case. We do not know whether the arbitrator returned to his office and summarized the evidence from that day. Furthermore, plaintiff has failed to show how he was substantially prejudiced rather than defendants.
With respect to Steigerwald's alleged failure to make evidentiary rulings, plaintiff does not point specifically to instances where that failure occurred. We have examined the record and note that almost all objections were resolved by dialogue between counsel without any need for a ruling. Nevertheless, the rules of evidence are not strictly applied in arbitration proceedings. Fox v. Morris Cnty. Policemen's Ass'n, 266 N.J. Super. 501, 515 n.7 (App. Div. 1993), certif. denied, 137 N.J. 311 (1994). Plaintiff has simply failed to sustain his burden of proving that he was substantially prejudiced by Steigerwald's alleged failure to make evidentiary rulings.
We are not persuaded that there was any impropriety at the December 2, 2008, hearing that substantially prejudiced plaintiff. The December 2 hearing apparently lasted only five minutes during which defendants introduced a copy of a check into evidence. The matter was then carried to January 15, 2009. At that time, Steigerwald offered to strike the testimony taken at the December 2 hearing. Plaintiff responded, "Possibly," and indicated that he wanted to speak to the AAA first. We find nothing in the record that demonstrates the conduct of the December 2 hearing was an intentional effort to harm plaintiff's case. Steigerwald sought to remedy the situation; thus, plaintiff was not substantially prejudiced because he was not present at the December 2, 2008, hearing. Plaintiff was not deprived of his right to be heard and is not entitled to have the award vacated pursuant to N.J.S.A. 2A:23B-23(a)(3).
With respect to plaintiff's claim that he received "shabby treatment" from Steigerwald, we have found nothing in the record to support this claim. There is also nothing in the record to indicate that plaintiff asked the stenographer to make a note of such acts. These broad allegations simply fail to carry plaintiff's burden of proof on this issue.
Last, with respect to Steigerwald's alleged failure to view the site in question, he stated that he had a background in construction and architecture. He declined an inspection because it had "already been done by professionals." However, he added that if there was something specific at issue that needed to be examined, he would visit the site. He also scheduled the third hearing at the office of defense counsel in order to facilitate an inspection if the testimony established the necessity of a site inspection. There is nothing in the record to indicate that plaintiff thereafter made such a request. Instead, he elected not to participate further in the arbitration. We can- not find on the record before us that the arbitrator violated N.J.S.A. 2A:23B-23(a)(3).
Plaintiff raises five additional issues for our consideration. He contends that (1) he was deprived of due process of law when the second motion judge forced him into arbitration with a biased and incompetent arbitrator, causing him to lose his right to sue in court and enjoy the discovery permitted in that forum; (2) the arbitrator erred in failing and refusing to allow him to return to arbitration after his failed to prevail on his motion for disqualification; (3) the second motion judge erred in failing to remove the matter from arbitration after Steigerwald refused to reopen the arbitration record; (4) the arbitrator and the second motion judge erred in declining to examine the provisions of the homeowner's warranty in the contract; and (5) the arbitral award violated the arbitration statute, proving bias, because it awarded the full amount sought by defendants when even their expert admitted to multiple defects and poor workmanship.
Defendants contend that they substantially performed. As such, they were entitled to the full award. They urge that plaintiff had no basis to complain regarding the counterclaim because he walked out of the arbitration proceedings.
The scope of judicial review of a private sector arbitration award is quite limited. Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 357-58 (1994); S. Plainfield Bd. of Educ. v. S. Plainfield Educ. Ass'n, 320 N.J. Super. 281, 287 (App. Div.), certif. denied, 161 N.J. 332 (1999). Such awards may be vacated, among other circumstances, where "an award was procured by corruption, fraud, or other undue means" on the part of the arbitrator, N.J.S.A. 2A:23B-23(a)(1); where the court finds evident partiality, corruption, or misconduct prejudicing the rights of a party, N.J.S.A. 2A:23B-23(a)(2); or the arbitrator refused to postpone the hearing, refused to consider evidence, or conducted the hearing contrary to N.J.S.A. 2A:23B-15, N.J.S.A. 2A:23B-23(a)(3).
With respect to plaintiff's first claim, he potentially lost the right to litigate, obtain discovery, and have a jury trial when he agreed to arbitrate. Once defendants demanded arbitration under the contract, plaintiff in actuality lost those rights. The loss of the benefits of litigation was not a result of any erroneous action by either motion judge.
With respect to his second and third claims, plaintiff has not shown that he responded to Steigerwald on or before February 4, 2008, asking him to hold the record open until the motion had been decided. When plaintiff did not respond after receiving notice that the record would be closed, Steigerwald properly made an award. Plaintiff cites no authority for the proposition that Steigerwald's action was contrary to any rule or law. The judge also did not err in refusing to remove the matter from arbitration after the arbitrator allegedly failed to reopen the record.
With respect to his fourth claim, plaintiff has not met his burden to prove that the arbitrator and the second motion judge erred in failing to consider the contractual home warranty. Plaintiff withdrew from the contractual arbitration before he presented evidence on his counterclaim. If Steigerwald failed to consider the contractual home warranty, that was the fault of the plaintiff, not the arbitrator or the judge.
If a party chooses to ignore arbitration proceedings and await an action upon the award, he or she takes the risk of being bound by the award. Battle v. Gen. Cellulose Co., 23 N.J. 538, 543-44 (1957). That is what plaintiff chose to do here. Because he voluntarily abandoned the arbitration proceedings, he is entitled to no relief. Plaintiff simply waived his right to challenge the arbitrator's alleged failure to consider his counterclaim.
Finally, given plaintiff's decision to walk out of the arbitration, no one could evaluate his claim regarding the defects conceded by Greco. Plaintiff failed to quantify the defects below, and does not do so here. In short, plaintiff has failed to establish any "evident mathematical miscalculation" or "evident mistake" on the arbitrator's part under N.J.S.A. 2A:23B-24(a)(1) to warrant modifying or reversing the award. Because he walked out of the proceedings, the arbitrator could not fairly evaluate his counterclaim and make an award thereon.