LYNN E. WELCH v. STEVEN E. KOTCH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0390-05T30390-05T3

LYNN E. WELCH,

Plaintiff-Appellant,

v.

STEVEN E. KOTCH and

CATHLEEN S. COHEN,

Defendants-Respondents.

_____________________________

 

Submitted May 9, 2006 - Decided June 2, 2006

Before Judges Kestin, Seltzer and

Humphreys.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, L-5856-02.

Coulter K. Richardson, attorney for

appellant.

Bury and Associates, attorneys for

respondent Kotch (Bradford Bury,

on the brief).

Iaciofano, Fiamingo and Perrone,

attorneys for respondent Cohen

(Kathi F. Fiamingo, on the brief).

PER CURIAM

Plaintiff appeals from orders denying her application to vacate an arbitration award; confirming the arbitrators' decision; and, pursuant to that decision, entering a judgment for $20,000 in favor of defendant Cohen. We affirm.

Plaintiff was a stockbroker, employed by First Union Securities (now Wachovia Securities), who was dismissed as the result of complaints made by defendants about her conduct. Each defendant asserted that plaintiff had failed to obtain adequate information respecting that defendant's investment experience and goals and, consequently, had mishandled the account by recommending unsuitable investment vehicles. After her termination, plaintiff filed an action in Superior Court seeking damages for libel. As the result of procedural machinations not relevant here, the civil suit was stayed and plaintiff instituted an arbitration action. That action was filed pursuant to a National Association of Stock Dealers (NASD) Agreement. No party suggests that arbitration of the claim was improper.

A panel of arbitrators heard testimony over four days and concluded that plaintiff's libel claims were without basis. The panel also awarded $20,000 in counsel fees to defendant Cohen pursuant to N.J.S.A. 2A:15-59.1. Both defendants sought confirmation of the award and plaintiff sought to vacate the award. Plaintiff claimed the arbitrators had improperly refused a request to adjourn the arbitration, that the award was the result of "complete irrationality," and was rendered with "manifest disregard of law."

We have analyzed the arguments of counsel in light of the record presented on this appeal and conclude that Judge Joseph P. Quinn correctly rejected each of plaintiff's contentions. As to the last two arguments, Judge Quinn specifically found

"that [the arbitrators'] decision is reasonable and could have been reached based on the evidence and the testimony presented. And, that under both the statute and case law, there is no reason for this court to vacate the arbitrators' award."

The judge was correct in rejecting plaintiff's claim that the decision was irrational and the result of a misapplication of New Jersey law. "This was not a public sector arbitration matter and, thus, unless agreed by the parties (not here contended), the appropriate judicial scope of review does not encompass errors of law or facts." Empire Fire and Marine Ins. Co. v. GSA Ins. Co., 354 N.J. Super. 415, 421 (App. Div. 2002)(citing Tretina Printing Inc. v. Fitzpatrick & Associates, Inc., 135 N.J. 349, 357-58 (1994)). Plaintiff's citation to Liberty Mutual Insurance Ins. Co. v. Open MRI of Morris & Essex, L.P., 356 N.J. Super. 567 (Law Div. 2002) is misplaced because the arbitration agreement in that case required the arbitrator "to decide issues in accordance with New Jersey law." Id. at 580. Although the arbitration agreement governing this dispute is not contained in the record before us, plaintiff does not suggest that the agreement allows judicial review of the arbitrators' findings of fact or conclusions of law.

The award may be vacated only for one of the specified grounds set out in N.J.S.A. 2A:23B-23a. The decision of the arbitrators, which Judge Quinn appropriately found to be reasonable on the evidence presented, provides no hint of the "corruption, fraud, or other undue means" that would justify vacating the award. N.J.S.A. 2A:23B-23a(1).

Finally, the judge correctly rejected plaintiff's claim that the award must be set aside because the arbitrators "refused to postpone the hearing upon a showing of sufficient cause for postponement [or] refuse[d] to consider evidence material to the controversy[.]" N.J.S.A. 2A:23B-23a(3). Immediately before the arbitration began, plaintiff sought an adjournment because she had not yet received documents in discovery. The arbitrators denied the request. Judge Quinn considered, and rejected, plaintiff's claim that the request should have been granted:

There was a discussion with the arbitrators. It certainly appeared that most of the documents at issue were documents controlled by Wachovia Securities which was not a party to either this lawsuit or the arbitration in question. There's apparently another proceeding either a lawsuit or an arbitration involving Wachovia Securities.

. . .

In this case, as I made reference to both at the beginning of the arbitration proceeding and also at the end prior to an award that was rendered, Mr. Richardson [plaintiff's counsel] indicated that he was ready to proceed. And it appeared to me in reviewing the April 4th transcript that discovery had proceeded and there were multiple documents that were exchanged. Numerous documents that were exchanged.

And by proceeding with the hearing and certainly by indicating at the end of the hearing that Mr. Richardson had received a fair hearing, I think that clearly the plaintiff has waived any of the arguments [that the adjournment was improperly denied].

. . .

Clearly, the arbitrators found that there was adequate pre-arbitration disclosure of discovery materials, number one. Number two, the materials were principally in the control of Wachovia who was not a party to the arbitration but who was available and could have been subpoenaed to appear at the arbitration.

 
We are in substantial agreement with the Judge's analysis and with his ultimate conclusion, set out in his August 10, 2005, oral decision.

Affirmed.

(continued)

(continued)

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A-0390-05T3

June 2, 2006