On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket No. C-321-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson, and Ostrer.
Plaintiff, T & Beer, Inc., appeals the March 18, 2011 order removing to arbitration the portion of its amended verified complaint asserting claims against defendant Wine Source Selections, L.L.C. (Wine Source).*fn2 The complaint seeks injunctive relief to enforce a restrictive covenant and reformation, and it alleges tortious interference with contract. The trial judge concluded that in accordance with the terms of a Distribution Agreement ("the Agreement") executed between the parties, the disputes raised in the complaint were subject to arbitration. The trial court retained jurisdiction over the remaining claims in the complaint asserted against the other named defendants, who are not participants in this appeal. In addition, the court continued the temporary restraints it previously imposed upon defendant to maintain the status quo, and it directed that upon appointment of an arbitrator, defendant could file a motion to dismiss the litigation as to it. The present appeal followed.*fn3 We now reverse.
Plaintiff is engaged in the wholesale distribution of beer and wine, primarily in New York and New Jersey. Defendant is a supplier and importer of wine and other alcoholic beverages, including Riondo brand wines. Its chief executive officer at all relevant times in the present matter was Charles Massie. Under the Agreement, defendant agreed to sell to plaintiff, as a distributor, the products listed in the Agreement's appendix in New York and New Jersey "on an exclusive basis." The term of the Agreement was from July 1, 2007 through June 30, 2012. The Agreement contained the following clause related to the resolution of disputes:
The parties agree that any and all disputes between them, including, but not limited to, disputes arising out of or relating to the instant Agreement, will be subject to resolution only through final and binding arbitration through the American Arbitration Association ("AAA") in accordance with the Commercial Litigation rules of the AAA, as modified by applicable law and the terms of this Agreement. . . . By entering this Agreement, the parties understand and recognize that they are waiving their right to have any disputes decided by a court or presented to a jury.
The Agreement also contained a "Waivers and Modifications" clause, stating that "[n]o modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties."
Plaintiff claims that contrary to the terms of the Agreement, other retailers and wholesale distributors were distributing products in New York and New Jersey that were subject to its exclusive distributorship with defendant. Plaintiff, in accordance with the Agreement, demanded arbitration.
Arbitration did not immediately occur. Instead, through their respective attorneys, the parties engaged in negotiations, which were memorialized in a series of emails exchanged between counsel. In one such email from defense counsel dated September 24, 2010, defense counsel consented to having the claims asserted by T & Beer removed from arbitration and heard in the Superior Court. Defense counsel also consented to personal jurisdiction. In addition, defense counsel agreed to accept service of the "Summons and Complaint via regular mail and/or email."
A second email from defense counsel, dated September 27, 2010, stated:
As per our conversation, we propose the following:
1. T & Beer withdraws its Demand for Arbitration ...