November 13, 2013
IN THE MATTER OF THE ESTATE OF JOSEPHINE ADORNETTO (DECEASED).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 216833.
Thomas F. Adornetto, appellant, argued the cause pro se.
Antonio Inacio argued the cause for respondent Lucy Gallo.
David B. Rubin argued the cause for respondent Carmela Dietze.
Before Judges Reisner and Carroll.
This matter arises out of a protracted probate dispute between siblings over their late mother's estate. Plaintiff, Thomas Adornetto, appeals from the December 13, 2012 order of the Chancery Division, Probate Part, confirming an arbitrator's award, after the parties agreed to a settlement which dismissed the probate litigation and submitted their remaining disputes to binding arbitration. We affirm.
We briefly summarize the relevant facts and procedural history. Decedent, Josephine Adornetto, passed away on April 6, 2007. She was survived by five children, plaintiff Thomas Adornetto, Charles Adornetto, Joseph Adornetto, and defendants Lucy Gallo and Carmela Dietze. One child, Sam Adornetto, predeceased decedent. In January 2008, plaintiff filed a verified complaint, seeking to invalidate decedent's purported will and pre-death transfers of assets, and related relief. Following the exchange of written discovery, depositions, and significant motion practice, on October 5, 2010, the parties entered into a handwritten settlement agreement. The settlement was then memorialized in a November 4, 2010 Consent Order, which provided, in relevant part, that (1) decedent would be deemed to have died intestate; (2) plaintiff and Gallo would be appointed to serve as co-administrators of decedent's estate; (3) decedent's residence would be sold, and the proceeds distributed in accordance with certain agreed-upon percentages; (4) all claims with respect to various United States Treasury bonds were preserved; (5) the court retained jurisdiction to resolve any disputes concerning the terms of sale of decedent's residence, and reimbursement of the parties' attorney's fees; (6) any other disputes were to be submitted to binding arbitration before a retired Middlesex County judge; and (7) the verified complaint and all counterclaims were dismissed with prejudice.
Following the sale of decedent's residence, application was made to Judge Frank M. Ciuffani for an award of counsel fees. On January 20, 2012, the judge ordered the payment of fees, in varying amounts, to the attorneys for the respective parties. While plaintiff now asserts that this award resulted in a $1770 overpayment to one of the attorneys, we note that no appeal was taken from this order.
In February 2012, plaintiff moved to modify certain provisions of the Consent Order, citing a number of unresolved issues. Defendants cross-moved to enforce the settlement and Consent Order. On May 8, 2012, Judge Ciuffani denied both applications, finding no basis to invalidate the settlement agreement, and ordered that the parties submit all current and future disputes to the arbitrator, consistent with the Consent Order. Again no appeal was taken, despite the fact that the May 8, 2012 order was appealable as of right. R. 2:2-3(a)(3). Thus, because plaintiff thereafter fully participated in the arbitration process, we do not address any contention by plaintiff that the court abused its discretion in ordering that all issues raised in his motion be submitted to arbitration. See GMAC v. Pitella, 205 N.J. 572, 586 (2011) ("[A] timely appeal on the issue must be taken then or not at all. A party cannot await the results of the arbitration and gamble on the results.")
The arbitration hearing took place before a retired judge on July 30, 2012. On September 5, 2012, the arbitrator issued a final award, embodied in a comprehensive twelve-page written decision. The arbitrator's decision listed the eight issues that were submitted to him, as well as his detailed resolution of each issue. The arbitrator also specifically referenced the parties' arbitration statements, including exhibits and deposition transcripts, the sworn testimony of the five witnesses who testified at the arbitration hearing, and the parties' written summations, all of which he considered in arriving at his arbitration award.
Gallo then moved to confirm the arbitration award, partially joined in by Dietze. Plaintiff opposed the motion, and cross-moved to vacate it. Judge Ciuffani heard argument on the motions on November 30, 2012, and on December 13, 2012, entered judgment on the arbitration award. In his written opinion accompanying the December 13, 2012 order, the judge concluded:
There is no evidence to support [plaintiff's] argument that there was evident partiality by the arbitrator; corruption by the arbitrator; or misconduct by the arbitrator. The arbitrator did not exceed his powers and did not refuse to postpone the hearing upon a showing of sufficient cause for a postponement, did not refuse to consider material evidence to the controversy, or otherwise conduct the hearing contrary to Section 15 of the New Jersey Arbitration Act. Accordingly, the application to confirm the arbitration award to enter same as a judgment of this Court is granted.
Plaintiff now appeals from the December 13, 2012 order. He challenges the arbitration award on various grounds, including that it was procured by undue means, N.J.S.A. 2A:23B-23(a)(1), that the arbitrator displayed evident partiality, N.J.S.A. 2A:23B-23(a)(2), and that the arbitrator exceeded his powers, N.J.S.A. 2A:23B-23(a)(4). We deem these arguments to be without merit, and affirm substantially for the reasons set forth in Judge Ciuffani's written opinion. See R. 2:11-3(e)(1)(A). We add the following comments.
The New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32, as revised in 2003, L. 2003, c. 95, which governs this matter, grants arbitrators extremely broad powers, N.J.S.A. 2A:23B-15, and "extends judicial support to the arbitration process subject only to limited review." Barcon Assoc. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981) (interpreting predecessor Act, N.J.S.A. 2A:24-1 to -11). Generally, an arbitration award is presumed valid. Del Piano v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 372 N.J.Super. 503, 510 (App. Div. 2004), certif. granted, 183 N.J. 218, appeal dismissed, 195 N.J. 512 (2005).
As noted, "the scope of review of an arbitration award is narrow[, ]" lest "the purpose of the arbitration contract, which is to provide an effective, expedient, and fair resolution of disputes . . . be severely undermined." Fawzy v. Fawzy, 199 N.J. 456, 470 (2009). Consequently, arbitration awards may be vacated only if:
(1) the award was procured by corruption, fraud, or other undue means;
(2)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;
(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
(4)an arbitrator exceeded the arbitrator's powers;
(5) there was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant to subsection c. of section 15 of this act not later than the beginning of the arbitration hearing; or
(6) the arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act so as to substantially prejudice the rights of a party to the arbitration proceeding.
We, like the trial judge, reject plaintiff's reliance upon N.J.S.A. 2A:23B-23(a)(1) and (2), i.e., that the award was procured by undue means, and that the arbitrator, a retired judge, demonstrated partiality in favor of defendants. Courts have interpreted "undue means" as a "clearly mistaken view of fact or law." Local Union 560, I.B.T. v. Eazor Express, Inc., 95 N.J.Super. 219, 227-28 (App. Div. 1967). This "does not include situations, . . . where the arbitrator bases his decision on one party's version of the facts, finding that version to be credible." Local No. 153, Office & Prof'l Employees Int'l Union v. Trust Co. of N.J., 105 N.J. 442, 450 n.1 (1987). Rather, the mistake of fact must appear on the face of the award or by the statement of the arbitrator, Office of Employee Relations v. Commc'ns Workers of Am., 154 N.J. 98, 111 (1998), and be so gross as to suggest fraud or corruption. Trentina Printing, Inc. v. Fitzpatrick & Assoc., Inc., 135 N.J. 349, 358 (1994).
Plaintiff's arguments, taken as a whole, basically express dissatisfaction with the arbitration award. Plaintiff essentially maintains that, with respect to several issues, the arbitrator's rulings were against the weight of the evidence. However, because the arbitration proceedings were not transcribed, we cannot consider claims that are based on the record of the arbitration. Nor do we discern any mistake of fact, much less one so gross as to justify overturning the arbitration award, from the face of the arbitrator's detailed written findings and conclusions.
Next, plaintiff argues that the arbitrator exceeded his powers, contrary to N.J.S.A. 2A:23B-23(a)(4). Plaintiff contends that the arbitrator erred in awarding counsel fees of $10, 000 to one of the parties. In his ruling, the arbitrator specifically noted that the issue of counsel fees for the litigation, up to the time of the settlement, was resolved by the court. "However, in an effort to save time and additional expense, I did agree with the consent of the parties to consider and decide" these additional counsel fee requests. The arbitrator further approved plaintiff's counsel fees of $4099.66 that were "inadvertently omitted from the [m]otion . . . that resulted in the January , 2012 [o]rder approving counsel fees." Counsel fees were included in the list of issues to be decided by the arbitrator, and it thus appears that the parties consented to the arbitrator's determination of this issue. In any event, having successfully sought an award of counsel fees, plaintiff cannot now be heard to complain that the arbitrator exceeded his authority in similarly awarding counsel fees to another party.
Plaintiff's remaining arguments are of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).