April 7, 2011
WU & ASSOCIATES, INC., PLAINTIFF-APPELLANT,
LARRY CLARK AND L. CLARK COMPANY, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4318-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2011
Before Judges Lisa and Reisner.
Plaintiff Wu & Associates, Inc. appeals from a March 5, 2010 order denying its motion to return its complaint to the trial list. We affirm.
In April 2007, plaintiff filed a lawsuit against defendants Larry Clark and L. Clark Company, Inc., for breach of a construction contract. In December 2008, the parties agreed to submit their dispute to binding arbitration. They also agreed that defendants would deposit $5000 into their attorney's trust account pending the arbitration award. By letter dated January 6, 2009 to Judge Ronald J. Freeman, plaintiff's attorney advised that "[t]his matter has resolved in favor of . . . binding arbitration. Thus, the pending motions should be marked as withdrawn, and the pending case management conference may be cancelled."
On October 19, 2009, plaintiff filed a motion to "relist" the case. By order dated November 6, 2009, Judge Michael J. Kassel denied the motion, noting that plaintiff "may file [a] motion to enforce arbitration." Instead, plaintiff filed yet another motion to "relist" the case. Plaintiff contended that defendants were refusing to proceed with arbitration and that defendants' attorney had "paid the escrow monies to himself." In response, defendants claimed to be "ready, willing and able to participate in a binding arbitration" with the parties' chosen arbitrator; they accused plaintiff of failing to proceed with the arbitration and urged that the arbitration should proceed pursuant to N.J.S.A. 2A:23B-7 (authorizing the court to compel arbitration).
In an oral opinion issued March 5, 2010, Judge Kassel denied plaintiff's motion, noting that "both sides contend they want to proceed to arbitration" and therefore one of the parties should "file a motion to compel the arbitration for a date certain. . . . That's the relief that should be entertained." We agree.*fn1 See N.J.S.A. 2A:23B-7a. As part of that motion, plaintiff may ask the court to order defendants' attorney to return the $5000 to escrow. Plaintiff's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).