NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5538-15T1
RICHARD MARANO and EILEEN
MARANO,
Plaintiffs-Respondents,
v.
THE HILLS HIGHLANDS MASTER
ASSOCIATION, INC.,
Defendant-Appellant.
_______________________________________
Argued October 3, 2017 – Decided November 16, 2017
Before Judges Fisher, Sumners and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-0697-16.
Gregg S. Sodini argued the cause for appellant
(Cutolo Barros LLC, attorneys; Mr. Sodini and
Andrew Stein, of counsel and on the brief).
Jeffrey S. Wilson argued the cause for
respondents (Hedinger & Lawless LLC,
attorneys; Richard E. Wenger, on the brief).
PER CURIAM
The Hills Highlands Master Association, Inc., appeals an
order that confirmed a retired superior court judge's disposition
of the parties' disputes. The Association chiefly argues that the
motion judge erred in determining that what the retired judge
issued was an arbitration award. Having closely examined the
parties' arguments in this unusual circumstance, we conclude that
the parties did in fact submit their disputes to binding
arbitration and that the motion judge correctly confirmed that
award.
The underlying dispute has its genesis in a flooding condition
in the backyard of plaintiffs Richard and Eileen Marano.
Plaintiffs' property is contained within the Hills Highland
development in Basking Ridge; their property and their
relationship with the Association is governed by the Association's
bylaws, which arguably include an arbitration provision. The
parties eventually agreed to a resolution of their disputes through
the involvement of a retired judge. After those proceedings were
completed, the retired judge rendered an arbitration award, which,
among other things, directed that the Association hire a contractor
to make the repairs described in an engineering report and advance
the funds for the work subject to reimbursement from numerous
other affected lot owners who were not parties to any of the prior
proceedings.
The Maranos thereafter commenced this summary action for the
confirmation of the arbitration award. In confirming the award,
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the motion judge concluded, as stated in her letter-opinion, that
although at times the parties' use of the words "arbitration" and
"mediation" in the record had been inconsistent, there was no
question but that the parties engaged in binding arbitration before
the retired judge.
The Association appeals, arguing:
I. THE NEW JERSEY ARBITRATION ACT AND N.J.S.A.
2A:23B-22 DO NOT APPLY IN THIS MATTER.
A. The ADR Procedure Invoked By the
Maranos Does Not Apply to the
Association.
B. The Association Never Entered
Into An Agreement to Arbitrate.
II. EVEN IF NEW JERSEY ARBITRATION ACT APPLIED
THE DECISION OF [THE RETIRED JUDGE] MUST BE
VACATED UNDER N.J.S.A. 2A:23B-23(a)(2) AND
(4).[1]
III. EVEN ASSUMING THE TRIAL COURT WAS CORRECT
TO CONFIRM [THE RETIRED JUDGE'S] DECISION THE
TRIAL COURT'S ORDER IMPERMISSIBLY EXPANDS THE
DECISION AND THE RESPONSIBLE PARTIES.
IV. ASSUMING A VALID, BINDING ARBITRATION
AWARD, THE TRIAL COURT COULD NOT CONFIRM AN
AWARD ASSESSING DAMAGES AGAINST NINETY-EIGHT
HOMEOWNERS WHERE THE MARANOS FAILED TO INCLUDE
NINETY-SEVEN OF THEM AS PARTICIPANTS IN THE
ADR PROCEEDINGS.
1
In Point II, the Association argues that plaintiffs' property-
damage claim was time-barred. The Association recognized in its
point heading that this statute-of-limitations argument was not
raised in the trial court.
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We find insufficient merit in Points I, II and IV to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E). We
add only the following brief comments about: (1) the Association's
contention that the parties did not arbitrate but instead merely
mediated their disputes; and (2) whether the arbitration award or
the order under review may bind those property owners who were not
parties to either the arbitration or confirmation proceedings.
I
We first consider whether the parties agreed to submit their
disputes to binding arbitration as argued by plaintiffs, or whether
they merely agreed to mediate as asserted by the Association. To
the extent there is a colorable argument as to what the Association
bylaws compel, the record is clear that the parties agreed to
arbitrate, not mediate.
On March 11, 2014, plaintiffs' attorney wrote to the
Association's attorney to demand "arbitration" regarding their
disputes about the flooding situation. When no response was
received within the few weeks that followed, plaintiff's attorney
wrote again on April 1, 2014, stating that unless he received
confirmation that the Association's attorney was "in the process
of arranging for the arbitration proceeding as requested, [his]
clients will have no alternative but to commence a summary action
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pursuant to N.J.S.A. 2A:23B-7 to have the [c]ourt order the
Association to arbitrate" (emphasis added). On that same date, the
Association's attorney responded by contesting certain of
plaintiffs' factual allegations and by asserting that the
Association was not obligated to participate in arbitration, but
nevertheless, while reserving the Association's rights, counsel
stated its willingness to "participate in ADR to permit an
objective third party to clarify what is already known to all
parties involved: the true dispute lies between the Maranos and
Molanders."2
When nothing immediately occurred, plaintiffs' attorney wrote
to the Association's attorney on April 21, 2014, seeking
information regarding the status of their contemplated proceeding,
"confirm[ing] that we [will] go forward with an ADR proceeding,"
and identifying that procedure as "an arbitration hearing to be
conducted . . . by a [h]earing [o]fficer who serves as an
arbitrator" (emphasis added). On May 8, 2014, the Association's
attorney responded by suggesting, among other things, that it was
the Association that had the authority to appoint the hearing
officer; he proposed either an identified attorney or the retired
2
The Molanders were other property owners in the development that
were given notice of the arbitration and the proceedings that
followed.
5 A-5538-15T1
judge, who was later retained for that purpose. On June 16, 2014,
the Association's attorney wrote to the retired judge to inquire
as to his availability and willingness to serve as "the arbitrator"
in the process described in the Association's resolution for
alternate dispute resolution.
Certainly, everything up to this chronological point
demonstrates the parties agreed to arbitrate. The uncertainty,
unfortunately, arose after the retired judge accepted the
appointment, when he forwarded a form agreement that called for
mediation. Indeed, that document, which was entitled "civil
mediation agreement," was what the parties executed. But
plaintiffs' counsel, in returning this executed document on July
16, 2014, wrote to the retired judge to point out that although
the document "refer[red] to this proceeding as a 'mediation,'"
plaintiffs "believe[d] that it is properly an arbitration
proceeding for which you will be asked to render an award." The
Association's counsel never responded or questioned plaintiffs'
assertion as to the nature of the retired judge's undertaking.
The record also contains numerous other communications, all
of which referred to the proceeding before the retired judge as
an arbitration. The Association never disputed or quarreled with
those references. Indeed, on February 10, 2015, the Association's
attorney wrote to an engineer retained by the parties to determine
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the cause of the flooding problem; therein, the Association's
attorney referred to the fact that "the parties are currently in
the middle of an arbitration" and requested certain information
"in the near future so that the parties may resume arbitration"
(emphasis added).
When the proceedings were completed, the retired judge
rendered a decision which was entitled "Award In Arbitration."
There is no evidence in the record on appeal to suggest that the
Association ever asserted that the parties were merely mediating
and were not arbitrating their disputes.
Consequently, the motion judge properly rejected the
Association's argument that the parties had never arbitrated their
disputes. With the exception of the retired judge's mistake in
having the parties execute a document memorializing the terms of
a "civil mediation," there is no doubt that the parties agreed to
and in fact participated in binding arbitration.
II
The Association poses interesting questions about the impact
of the arbitration award and the order under review on individual
property owners who were not parties to either proceeding. We do
not, however, reach those issues if for no other reason than the
fact that those nonparties are not parties to this appeal as well.
7 A-5538-15T1
If any nonparty is aggrieved by the fact or manner in which
their rights have been adjudicated by either the arbitrator or the
motion court, whether they are so bound will be determined when
or if they ever present those grievances.
Affirmed.
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