JOAN A. ANTONELLI, Executrix of the Estate of Americo Antonelli et al. v. LIPMAN, ANTONELLI, BATT, DUNLAP, WODLINGER AND GILSON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2611-04T22611-04T2

JOAN A. ANTONELLI,

Executrix of the Estate of

Americo Antonelli and

JOAN A. ANTONELLI,

Individually,

Plaintiff-Appellant,

v.

LIPMAN, ANTONELLI, BATT,

DUNLAP, WODLINGER AND GILSON,

A New Jersey Professional

Services Corporation; GERALD

J. BATT, GARY WODLINGER AND

WILLIAM GILSON, Individually.

Defendants-Respondents.

_________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Civil Division, Gloucester

County, Docket No. L-1100-00.

Louis D. Fletcher, attorney for appellant.

Youngblood, Corcoran, Lafferty, Stackhouse,

Hyberg & Waldman, PA, attorneys for respondents

(Randolph C. Lafferty, on the brief).

PER CURIAM

Plaintiff Joan A. Antonelli, individually, and in her capacity as executrix of the estate of Americo Antonelli, appeals from the order of the Law Division dismissing her breach of contract cause of action against defendant law firm, and referring the matter to arbitration. Plaintiff argues that the court erred because: (1) the arbitration provision in the law firm's shareholder agreement does not cover all of the issues raised by her suit; (2) defendant waived arbitration as a forum for adjudicating this dispute; and (3) defendant should be estopped from invoking the arbitration provisions of the shareholder agreement.

We reject plaintiff's arguments and affirm. We gather the following facts from the record developed before the trial court.

The law firm of Lipman, Antonelli, Batt, Dunlap, Wodlinger and Gilson was organized and established as a Professional Services Corporation. The attorneys who make up the firm entered into a shareholder agreement that provides a mechanism for the valuation of stock; and the transfer of stock in the event of the death, personal insolvency, or termination of the shareholder's employment. The agreement also contained an arbitration provision which reads as follows:

Any controversy, claim or dispute arising out of or relating to this Agreement, or the failure or refusal to perform the whole or any part hereof, shall be settled by arbitration at Philadelphia, Pennsylvania in accordance with the Rules, then obtaining, of the American Arbitration Association. The parties, and each of the, [sic] hereby submit themselves to the jurisdiction of the courts of New Jersey in any proceeding for the enforcement of this Agreement to arbitrate or for the enforcement of the award rendered by the arbitrators, and agree that judgment upon such award may be entered in any court, in or out of New Jersey, having jurisdiction thereof.

All of the provisions of the agreement were "binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns."

Americo Antonelli died on August 11, 1998. It is undisputed that, at the time of his death, he was the majority shareholder in the firm. On June 26, 2000, plaintiff filed a complaint in the Law Division against the firm, seeking: (1) death benefits; (2) back wages allegedly owed to decedent; (3) to compel the firm to purchase decedent's outstanding shares of stock; (4) the proceeds of a life insurance policy; (5) money allegedly paid by decedent to the firm; and (6) consequential damages.

After four years of acrimonious and contentious litigation, Judge McDonnell held that the enumerated items of damages listed by plaintiff constituted claims "arising out of" the shareholder agreement and were thus subject to the arbitration provision in the shareholder agreement. We agree.

We start our analysis by reaffirming our State's strong public policy favoring arbitration as a tool for resolving private disputes. Kamaratos v. Palias, 360 N.J. Super. 76, 82 (App. Div. 2003); Jansen v. Salomon Smith Barney, Inc., 342 N.J. Super. 254, 257 (App. Div.), certif. denied, 170 N.J. 205 (2001), and Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 389 (App. Div. 1997). Here, it is clear that the claims made by plaintiff arise out of decedent's relationship with the firm. Wasserstein v. Lodewyck Construction Co., 261 N.J. Super. 277, 286 (App. Div.), certif. denied, 133 N.J. 440 (1993). As noted by Judge McDonnell in her oral decision:

The language of the arbitration clause is such that it does, in my view, encompass the claims arising out of the death benefit agreement; the issue of back pay, and the insurance proceeds issue. As I understand it, Mr. Antonelli changed the beneficiary on these insurance policies, the result of which was that the proceeds were used to pay off some of -- substantial debt of both the firm and his personal debt. I think that this is a case that cries out for a businesslike solution as offered by the American Arbitration Association despite the fact that in some ways the parties, each of them, still are emotionally involved and want to vent in front of a jury.

And for these reasons, I do determine that the matter should proceed to binding arbitration as agreed by the parties.

Plaintiff's fall back argument, that defendant waived its right to enforce the arbitration agreement, is without merit. Waiver of an otherwise enforceable arbitration agreement will be found, when the party invoking arbitration engages in deliberate delay or inaction, in order to frustrate the right of the other party to arbitrate. Duerlein v. New Jersey Auto. Full Ins. Underwriting Ass'n, 261 N.J. Super. 634, 640 (App. Div. 1993). The record here is devoid of any evidence that defendant engaged in this type of dilatory tactic.

 
Affirmed.

The record does not include any indication as to how Batt, Wodlinger and Gilson, individually, became parties to the action. There is no indication in the record as to whether these individuals filed a separate cause of action that was consolidated with the existing claim or whether they joined the action as intervenors. The three shareholders first appear in the record in the Answer to the Second Amended Complaint and identify themselves as defendants.

(continued)

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A-2611-04T2

October 14, 2005