NOT FOR PUBLICATION WITHOUT THE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-5635-18T1
AUGUST BARTZ and
LAURA BARTZ,
Plaintiffs-Respondents,
v.
WEYERHAEUSER COMPANY,
SCHAEFFER FAMILY HOMES, LLC,
SCHAEFFER CONSTRUCTION, LLC,
and DAYSTAR CONSTRUCTION, LLC,
Defendants-Appellants.
______________________________________
Argued telephonically May 7, 2020 –
Decided August 26, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4736-18.
Scott P. Martin (Perkins Coie, LLP) of the Washington
bar, admitted pro hac vice, argued the cause for appellants
(Scott P. Martin and Daniel P. Ridlon (Perkins Coie, LLP),
of the Washington bar, admitted pro hac vice, and Duane
Morris, LLP, attorneys; Scott P. Martin and Daniel P.
Ridlon, Patrick Kearney, Trevor H. Taniguchi, and
Andrew R. Sperl, on the brief).
David J. Novack argued the cause for respondents (Marin
Goodman, LLP, attorneys; David J. Novack, on the brief).
PER CURIAM
Defendants Weyerhaeuser Company, Schaeffer Construction LLC, Schaeffer
Family Homes LLC, and Daystar Construction LLC1 (defendants) appeal the August
2, 2019 order that denied their motion to compel binding arbitration of the claims
made by plaintiffs August and Laura Bartz arising from the construction of a new
home. We affirm the order because the arbitration clause lacked mutuality of assent,
rendering it unenforceable.
I.
In April 2016, plaintiffs contracted with defendant Schaeffer Construction
LLC (Schaeffer) to construct their new home. The April 15, 2016, Construction
Agreement between plaintiffs and Schaeffer included an arbitration clause at
paragraph 21.
Any controversy or claim arising out of or related to this
Agreement, or the breach thereof, or any dispute relating
to an alleged event of Default shall be resolved by
arbitration subject to the terms and conditions set forth
herein . . . . The arbitration, any litigation and all
proceedings relating thereto shall take place at a location
. . . as selected by the Arbitrator or venued in the Superior
Court . . . . The arbitration shall be conducted in
1
Defendants Schaeffer Family Homes, LLC and Daystar Construction, LLC are
affiliates of Schaeffer Construction (collectively referred to as "Schaeffer").
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accordance with the Commercial Arbitration Rules of the
American Arbitration Association as modified herein.
The Arbitrator shall resolve disputes as to what can be
arbitrated and the validity of the arbitration clause . . . .
The Arbitrator . . . shall not have the power to make a
legally erroneous award . . . . The decision and award
rendered by the Arbitrator shall be final.
Plaintiffs and Schaeffer signed an addendum to the Construction Agreement
(Addendum) on May 14, 2016, which provided:
Buyers and Seller re-iterate their intention to use Binding
Arbitration in the event of any dispute arising out of the
Agreement of Sale, as noted in the Arbitration Clause
attached to the said Agreement as page 5 and signed by the
Parties.
Plaintiffs allege the wooden floor joists used to support the new house were
"TJI Joists with Flak Jacket Protection" for fire resistance manufactured, marketed,
sold and distributed by defendant Weyerhaeuser. They claim these joists "emit[ted]
noxious and toxic gases that are harmful to humans[,]" and "'off-gass[ed]' . . .
formaldehyde far in excess of acceptable levels" rendering the house
"uninhabitable." Plaintiffs assert Schaeffer selected and installed the joists. The
formaldehyde smell was present during their walkthrough in June 2017. The
Township construction official would not issue a certificate of occupancy.
Schaeffer filed a construction lien against plaintiffs. It also assigned the
Construction Agreement and lien claim to Weyerhaeuser, which then filed an
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arbitration action against plaintiffs before the American Arbitration Association for
the balance of the purchase price owed.
On December 19, 2018, plaintiffs filed a complaint in the Law Division
against defendants, alleging causes of action for breach of express warranty (count
one); violation of the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1
to -11, based on manufacture and design defect (count two), and PLA failure to warn
(count three); violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20
(count four); unjust enrichment (count five); and determination the arbitration clause
is unenforceable, N.J.S.A. 2A:23B-7 (count six).
Plaintiffs claim they cannot occupy the house because of the joists. Their
lender declared a default and commenced foreclosure. Plaintiffs requested damages
for costs "associated with removing and replacing the [j]oists," and for any related
damages. They also requested a stay of the arbitration proceedings and an award of
pre- and post-judgment interest.
Defendants filed a motion to require plaintiffs to arbitrate their claims and to
stay the litigation pending arbitration. Plaintiffs argued the arbitration clause was
unenforceable, citing Atalese v. United States Legal Services Group, 219 N.J. 430
(2014), because it did not state they "would be waiving their right to pursue their
claims in a judicial forum[,]" or that they "waived their right to a trial by jury."
Plaintiffs also claimed the arbitration clause font was too small, violating the New
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Jersey Plain Language Act (NJPLA), N.J.S.A. 56:12-1 to -13. Plaintiffs argued they
never agreed to arbitrate their claims against Weyerhaeuser.
The trial court denied defendants' motion to compel arbitration and the stay
on August 2, 2019. The trial court found the arbitration clause failed to satisfy
Atalese, which requires the agreement "to be clear," "to be understandable" and
"precise." The trial court stated the arbitration clause, "needs to notify the person
who [is] giving up their rights, that this is a waiver of a jury trial and provide some
type of explanation." It further noted the contract was "in the smallest of fonts," and
the arbitration provision "d[id] not stand out from the other numbered paragraphs
and d[id not] explain that this is a waiver of a jury trial . . . ." The court found the
Addendum did not cure the problem because it also "[did] not make it clear . . . that
someone is waiving their right to a jury trial." The court granted a stay pending
appeal.
On appeal defendants argue:
I. THE ARBITRATION PROVISION REQUIRES THE
ARBITRATOR RATHER THAN THE TRIAL COURT
TO RESOLVE THRESHOLD ARBITRABILITY
QUESTIONS[.]
II. THE TRIAL COURT ERRED IN REFUSING TO
ENFORCE THE PARTIES' ARBITRATION
PROVISION[.]
A. The Arbitration Provision Is Enforceable Under
Atalese.
5 A-5635-18T1
B. The New Jersey Plain Language Act Does Not Render
The Arbitration Provision Unenforceable.
II.
Defendants appeal the trial court's order that the arbitration provision is not
enforceable. They also argue the arbitrator and not the trial court should have
decided the arbitrability issue. We review these issues de novo. "Whether a
contractual arbitration provision is enforceable is a question of law, and we need not
defer to the interpretative analysis of the trial . . . court[] unless we find it
persuasive." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316
(2019).
Agreements to arbitrate are to be treated "upon the same footing as other
contracts." Ibid. (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24
(1991)). This is required both by the Federal Arbitration Act (FAA), 9 U.S.C. § 2
and by the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32. Id. at 318-19.
They are enforceable unless "grounds . . . exist at law or in equity" to revoke a
contract. Id. at 317 (quoting 9 U.S.C. § 2). "[S]tate law governs whether parties to
a consumer contract have agreed to arbitrate their disputes." Morgan v. Sanford
Brown Inst., 225 N.J. 289, 294 (2016). Therefore, an arbitration provision can be
invalidated on grounds that apply to invalidate any contract, but not by grounds that
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apply just because arbitration is at issue. Kernahan, 236 N.J. at 317 (quoting AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
"An arbitration agreement is valid only if the parties intended to arbitrate
because parties are not required 'to arbitrate when they have not agreed to do so.'"
Ibid. (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
489 U.S. 468, 478 (1989)). A consumer who accepts arbitration "is surrendering her
common-law and constitutional right of access to the courthouse." Morgan, 225 N.J.
at 294.
To determine enforceability, courts "apply ordinary state-law principles that
govern the formation of contracts." Kernahan, 236 N.J. at 318 (quoting First Options
of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). The "initial inquiry" is whether
the contract is based on "mutual assent." Id. at 319 (quoting Atalese, 219 N.J. at
442). No "talismanic recitations" are required. Id. at 320 (citing Atalese, 219 N.J.
at 445, 447).
These principles stated, defendants contend here that the trial court did not
have the authority to resolve the issue of enforceability in the first instance because
the arbitration clause empowered the arbitrator, and not the court, to resolve disputes
"as to what can be arbitrated and the validity of the arbitration clause."
Defendants made brief reference to this argument in the motion before the
trial court, but focused on the enforceability of the agreement, not the trial court's
7 A-5635-18T1
alleged lack of decision-making authority. The issue was not raised in oral argument
before the trial court. Arguably, defendants waived the issue. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding "[i]t is a well-settled principle that
our appellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is available
. . . .") (quoting Reynolds Offset Co., Inc. v. Summer, 38 N.J. Super. 542, 548 (App.
Div. 1959)). Even if the issue were not waived, we reject defendants' argument that
the trial court lacked authority to address it.
"[T]he law presumes that a court, not an arbitrator, decides any issue
concerning arbitrability." Morgan, 225 N.J. at 304 (citing First Options, 514 U.S. at
944) (providing there must be "clea[r] and unmistakabl[e]" evidence to overcome
the presumption that a court will resolve these issues). Unless there is a clear
delegation, the "issue is for a court to resolve." Id. at 295-96. Even if there is a
delegation clause, it, too, must "satisfy the elements necessary for the formation of
a contract under state law." Id. at 295.
These "gateway" questions of arbitrability are "simply an additional,
antecedent agreement the party seeking arbitration asks the . . . court to enforce
. . . ." Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ____, 139 S. Ct.
524, 529 (2019) (quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70
(2010)). These provisions must "delegate threshold arbitrability questions" with
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"clear and unmistakable" evidence. Id. at 530 (quoting First Options, 514 U.S. at
944).
Defendants rely on language from the arbitration clause that provides "[t]he
[a]rbitrator shall resolve disputes as to what can be arbitrated and the validity of the
arbitration clause." We find the issue of enforceability of this arbitration clause
should be decided by the court and not by an arbitrator. Plaintiffs expressly
challenged the delegation clause. In count six of their complaint, plaintiffs expressly
referenced N.J.S.A. 2A:23B-6(b), which provides, "[t]he court shall decide whether
an agreement to arbitrate exists or a controversy is subject to an agreement to
arbitrate." We think the reference is sufficient to include a direct challenge to the
delegation sentence. In addition, the delegation sentence does not say anything
about "enforceability." It was included in the center of the arbitration clause in a
font making it difficult to read. It did not explain the import of this delegation. Thus,
we find because the language used is not clear and unmistakable about delegating to
the arbitrator traditional notions of judicial authority to interpret contracts on the
issue of mutuality of assent, we find the issue about enforceability is reserved to the
court. See Rent-A-Center, 561 U.S. at 78 n.2 (Stevens, J., dissenting).
Certainly, there is nothing in this arbitration clause to clarify the arbitrator
would decide whether legal or statutory issues could be arbitrated, or that the
arbitrator would decide whether the entire clause was enforceable based on
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mutuality of assent. Thus, it was not explained that once plaintiffs signed this
contract, the courts effectively had no role for them in any dispute with Schaeffer
until the binding arbitration was over. We do not find this was clear and
unmistakable evidence required by Schein.
Defendants argue the trial court erred by not enforcing the arbitration
provision. They argue that Atalese was satisfied or alternatively that Atalese
violated the FAA.
Atalese involved debt adjustment servicing in a consumer contract which
included an arbitration agreement. 219 N.J. at 435. The Court found this
unenforceable because it had no "explanation that plaintiff [was] waiving her right
to seek relief in a court for a breach of her statutory rights." Id. at 446. To validly
waive the right to trial, Atalese held that an arbitration clause must include "in some
general and sufficiently broad way, [and] must explain that the plaintiff is giving up
her right to bring her claims in a court or have a jury resolve the dispute." Id. at 447.
Also, to effectively waive rights, a party must "have full knowledge of [these] legal
rights and intent to surrender those rights." Id. at 442 (quoting Knorr v. Smeal, 178
N.J. 169, 177 (2003)). In Atalese, the arbitration clause was not enforceable because
it did not explain what arbitration was, how that differed from litigation nor explain
to plaintiff she was waiving her right to seek relief in court. Id. at 446-47.
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Paragraph 21 of the Construction Agreement here suffers from the same
deficiencies. It does not mention waiving the right to trial by jury or the right of
access to the courts. It did not clarify that plaintiffs were giving up their ability to
have their claims raised in a court of law and have a jury decide the issues. There is
no explanation about arbitration or how that differs from proceeding in court. The
reference to "litigation" in this section contemplated exactly the issue raised, that
certain issues were for the arbitrator and some for the Superior Court. The arbitration
clause is not set forth prominently; it is in paragraph 21 and is in a font2 that is
extremely hard to read. The provision that purports to give authority to the arbitrator
to resolve enforceability is located in the center of the paragraph without
highlighting. There is no indication these broad powers could be operative in an
assignment. The Addendum did not cure these problems. It did not address any of
the issues that make the clause unenforceable. Because of this the arbitration clause
did not satisfy Atalese or Kernahan.
Defendants also argue that the trial court's interpretation of Atalese conflicts
with federal law. We reject this. Both Atalese and Kernahan recognize there are no
talismanic statements required when evaluating the enforceability of an arbitration
2
Under the NJPLA, a consumer contract should be "easily readable" and written in
"at least [ten] point type." N.J.S.A. 56:12-10. The Construction Agreement does
not satisfy this as the font is Times Roman 6.5.
11 A-5635-18T1
clause. Rather, both cases are tethered to basic contract principles about the lack of
mutuality of assent.
To the extent we have not specifically addressed any of defendants' remaining
claims, we conclude they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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