On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-000274-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2012 -
Before Judges Parrillo, Skillman and Hoffman.
Defendant, Brett Prince, Ph.D., appeals from the December 17, 2010 order of the Chancery Division confirming an arbitrator's award dismissing his claim for lost salary and benefits and awarding attorney's fees of $6,500 to his former employer, plaintiff Comprehensive Psychology System, P.C. (CPS). We affirm.
This matter arises from an employment relationship between the parties. CPS is a corporation providing professional neuropsychological services to individuals under the trade name LifeSpan. Defendant, a licensed psychologist, was employed by CPS from July 1, 1996 to September 2, 2003. The initial term of the employment contract was for one year and renewed automatically each year thereafter unless either party gave notice at least ninety days prior to the end of the term. The contract could be terminated without cause "by mutual agreement" or "for cause" for any number of specified reasons.
The contract also contained a restrictive covenant limiting the ability of the former employee from practicing his profession within ten miles of CPS's facility or from soliciting CPS's patients for two years following date of termination. Lastly, the contract called for all disputes thereunder to be resolved by binding arbitration and that "the non-prevailing party shall pay all reasonable attorney's fees incurred by the prevailing party in connection with such arbitration . . . ." As to the former, the contract specifically provided:
(d) Finality. The parties agree that the arbitrator(s) shall have the broadest power to conclusively resolve all such disputes, including without limitation, the power to decide issues arbitrarily and to allow reasonable limited discovery and that, except as review of binding arbitration is permitted by law, no judicial review shall be made of the arbitrator's decision on any grounds, including grounds of public policy.
The circumstances surrounding the termination of this employment relationship were the subject of litigation and ultimately arbitration, which is the focus of this appeal. The procedural history is rather long and involved, but briefly stated, CPS's attempts to enforce the employment contract's non-compete clause were unsuccessful in both the Chancery Division and on appeal. Comprehensive Psychology Sys., P.C. v. Prince, 375 N.J. Super. 273 (App. Div. 2005). Thereafter, on April 7, 2005, defendant demanded arbitration by the American Arbitration Association (AAA). The matter was temporarily suspended on January 23, 2006 as the parties had not submitted the required deposits. While reinstated on February 9, 2006, the matter was administratively closed on November 5, 2007, as a result of defendant's lack of prosecution.
Defendant made a second demand for arbitration on November 16, 2007, which CPS unsuccessfully challenged in the Chancery Division. Thereafter, a new arbitrator, retired Judge Murray Brochin, was appointed on June 18, 2009, but a scheduling conference did not take place until February 23, 2010, a delay defendant's counsel attributed to "an unexpected hiatus[,]" and AAA attributed to defendant's counsel's illness and recovery period.*fn1 The next scheduling order, issued on April 5, 2010, directed the parties to comply with reasonable discovery requests submitted by April 15, 2010, and set the final hearing for June 7, 2010, which was not to be postponed except for a "strong showing of good cause." The order was followed by one dated May 6, 2010, narrowing the claims to be arbitrated.*fn2
Further, in response to CPS's complaint that defendant was still non-compliant with discovery, the order directed defendant to provide "the first page or pages of his income tax returns as filed that show his or his entity's gross profit from the practice of his profession during calendar years 2003 and 2004" and if the documents were not provided to CPS, "the Arbitrator [would] draw an inference that the document would fully support CPS's case." The order also provided that discovery was not to delay the final hearing which was to occur on June 7, 2010.
Prior to the final hearing, CPS notified the arbitrator that defendant had failed to provide discovery and requested the matter be dismissed. By order of June 2, 2010, the arbitrator denied CPS's dismissal motion, explaining:
[t]he determination of the dispute between [the] parties has been unduly delayed. The cessation of employment that engendered the dispute is alleged to have occurred in September 2003. The subject matter of this arbitration was also the subject of a suit in Superior Court and an appeal to the Appellate Division. This arbitration was previously dismissed administratively and then refiled. Because of these circumstances, I am unwilling to dismiss the ...