HARRY LEVIN v. LEONARD GREEN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1981-05T1

HARRY LEVIN,

Plaintiff-Appellant,

v.

LEONARD GREEN,

Defendant-Respondent.
_______________________________

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June 19, 2007

Submitted: October 31, 2006 - Decided:

Before Judges Kestin, Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, L-265-05.

David A. Krenkel and Fox, Charles & Kowalewski, attorneys for appellant (Mr. Krenkel and Laurence I. Fox, of counsel and on the brief).

L'Abbate, Balkan, Colavita & Contini, attorneys for respondent (Noah Nunberg, of counsel and on the brief).

 
PER CURIAM

Plaintiff appeals from an order granting defendant's motion for summary judgment and dismissing the complaint with prejudice. We affirm.
The complaint, in two counts, alleges causes of action for tortious interference with contract and with prospective economic advantage. In adjudicating the motion for summary judgment, the trial court was obliged to view the facts indulgently in favor of plaintiff, the non-movant. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). We are governed by the same standard. See Prudential Property Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
Plaintiff, a rabbi, had been retained in June 1998 by Congregation B'nai Israel of Rumson (the Congregation) to serve as spiritual leader for a term beginning on August 25, 1998, and ending on June 30, 2003. The contract specified that, as the conclusion of the term approached, either party was obliged to serve the other with nine months' termination notice. Plaintiff's total annual compensation was to be $105,000 in the first year of the contract, rising to $141,000 in the final year.
Paragraph 23 of the contract entitled "Arbitration" provided for the resolution of "[a]ny dispute arising out of or in connection with this agreement, including but not limited to controversy over the roles and responsibilities of the parties," to be submitted to a "bet din," a religious tribunal, "convened by the Rabbinical Assembly," a body associated with the United Synagogue of Conservative Judaism, with which the Congregation was affiliated.
In May 2002, at a duly constituted meeting, and pursuant to a vote taken, the Congregation expressed a positive attitude regarding renewal of the contract and authorized a committee to enter into negotiations with plaintiff for a new agreement. Defendant, soon to become the president of the Congregation, was appointed to chair the negotiating committee initially. According to the complaint, "the first face[-]to[-]face meeting of the Rabbi's representative with [a small subcommittee of] the Congregation's negotiating committee" occurred on January 26, 2003.
The complaint alleges that defendant "predicated any new agreement on the harsh insistence that [] plaintiff must first yield on certain contested issues and severe requirements with regard to the role of the Rabbi as spiritual leader of the Congregation." The complaint goes on to allege particulars regarding defendant's conduct, labeled as "improper influence" and acts "in excess of his authority," summarized as "an unauthorized and malicious course of conduct in an effort to assure that no new agreement would be reached."
The allegations of the complaint continue with descriptions of efforts by defendant to delay negotiations and engender a "revers[al of] the mandate of the May 20, 2002 congregational vote and . . . prevent the consummation of a new agreement." According to the complaint, those efforts included "the promoting of false, misleading and inflammatory information concerning [p]laintiff's character" and the nature of his proposals, as well as "the progress of negotiations [and] the ability of the Congregation to afford a renewed contract[.]" This recitation concludes with the allegation that, at defendant's instance, the Congregation breached the contract by a vote, on March 10, 2003, less than four months before the expiration date, not to continue in renewal discussions.
The complaint concludes with two ad damnum clauses. The first, asserting tortious interference with contract, alleges that, by reason of having been denied a renewed contract, plaintiff "has been damaged by the above[-]mentioned breaches of the Congregation by loss [sic] earnings and benefits and competitive standing in his calling as religious leader." The second statement of a cause of action, tortious interference with prospective economic advantage, repeats that "[d]efendant's conduct was intentional, malicious, wanton and willful" and that, as a result, "plaintiff has suffered damages."
After the relationship between plaintiff and the Congregation broke down, the Congregation, on October 20, 2003, filed a complaint in the Chancery Division seeking rescission of the contract. Plaintiff, as the defendant in that suit, moved "to dismiss complaint and/or to compel arbitration." The court ordered the parties to proceed before the bet din as provided in the contract, staying the matter pending the determination to be made, and retaining jurisdiction. *
On June 3, 2004, the Joint Bet Din of the Conservative Movement rendered its decision in four findings, the first of which stated: "Rabbi Levin's claims concerning abusive and inappropriate treatment of the Rabbi and his family are not actionable, and no punitive damages are awarded." In the second finding, the tribunal found an absence of good faith on the part of the Congregation in its failure to engage in any negotiations between May 20, 2002, when the first vote on renewal was taken, and September 30, 2002, when negotiations actually began. The tribunal also found an absence of good faith following September 30, 2002. Based on these findings, the bet din concluded that the provision of the contract requiring a nine-month notice of intent to terminate had been breached. It determined that the effect of the breach had been to deprive Rabbi Levin of the opportunity to seek employment elsewhere for the following year.
The bet din awarded Rabbi Levin an amount equaling the specified salary for the last year of the contract, plus what the parties might agree was due for accrued vacation time, plus the legal fees plaintiff incurred in defending the Chancery Division suit. Fees and costs incurred in the arbitration were divided equally between the parties.
On September 22, 2004, plaintiff signed a document acknowledging that he had received $184,646.87 in full payment and satisfaction of the arbitration award. He filed the instant complaint on January 18, 2005.
The trial court, in an order entered on June 23, 2005, denied defendant's early motion "to dismiss the complaint and/or to compel arbitration, stating in a handwritten addition to the order: "Nothing in this denial shall preclude the defendant from making application to the Bet Din for clarification of their ruling on the arbitration held before them, in particular their findings in paragraph 1 of their ruling." Counsel acted on the suggestion and, in an August 22, 2005 letter addressed to the attorneys for both parties, the head of the bet din replied on behalf of that tribunal:

Upon undertaking to adjudicate the matter of Levin v. Congregation B'nai Israel we considered ourselves empowered to determine all of the matters brought before us that were related to the case, whether directly related to the contract itself or not, and perceived ourselves to have jurisdiction over all of them. We expected our decision to be implemented in its entirety, and were convinced that with the rendering of our decision, the case would be at an end, because we had determined all of the matters brought to our attention and before us.

We heard lengthy testimony and received numerous documents intended to demonstrate the allegedly "abusive and inappropriate treatment of the Rabbi and his family." When we said of that material that it was not actionable, it was not our intention to claim that we had no jurisdiction over the matter or that we were relinquishing our jurisdiction. We meant that we found the claims not worthy of any financial award, damages or punitive, to Rabbi Levin.

In the opinion of the Bet Din there is no real possibility in this case (in fact, in most cases) of distinguishing between the actions taken by an individual who was the President of the synagogue and the actions of the congregation. The individual acts on behalf of the congregation of which he is the President, and in its name. It was our conclusion that neither the congregation, nor any individual member of it who might have been involved in the matter of the dispute with Rabbi Levin, was liable for any restitution to Rabbi Levin for "abusive and inappropriate treatment of the Rabbi and his family."

I have seen the complaint filed by Rabbi Levin against Mr. Green in the [instant] case . . . and I find no substantive difference between it and that filed by Rabbi Levin against the Congregation before the Bet Din. Indeed, in many places the very wording is identical. We handled those matters in our adjudication of the dispute between Rabbi Levin and the Congregation and consider them to have been resolved.

In all of the above we acted on the basis of Jewish Law, which guided us in reaching the decision announced to the parties.

When a subsequent motion for summary judgment was considered, the motion judge, in rendering his ruling, summarized the factual background of the matter and read the letter of August 22, 2005 into the record. He then continued with his ruling, noting that, based on the letter, he was "satisfied . . . that . . . the exact issues presented in this lawsuit were previously adjudicated in the arbitration[;]" observing that plaintiff had "chose[n] the forum of the Bet[] Din" as provided in the parties' contract; and stating that the trial court applied principles of "res judicata and collateral estoppel in a different forum" in declining to adjudicate the same issues a second time. Accordingly, the trial court entered the November 3, 2005 order, from which this appeal is taken, granting defendant's motion for summary judgment and dismissing the complaint with prejudice.
We need not determine whether, in the circumstances, the motion judge's application of claim preclusion principles was correct. There are other grounds for reaching the conclusion that the complaint should be dismissed.
The current defendant was not, individually, a party to the contract between plaintiff and the Congregation, which established arbitration as the mode for resolving all issues between the parties arising from the contract. Because defendant was not a party to the contract, the right and obligation to arbitrate as established in that document cannot be applied to defendant or to anyone with a putative claim against him. See Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 132 (2001). The claims plaintiff asserts against defendant in this action do not arise from the contract, but are based upon the alleged personal conduct of defendant. It is of no consequence that the bet din, as articulated in its post-decision letter, perceived its subject matter jurisdiction in the arbitration to have been broad enough to embrace the claims made in this proceeding. In the absence of a contract between plaintiff and defendant establishing an alternative mode of adjudicating issues between them, neither party can be deemed to have foresworn his right to seek relief in a civil action. See Ibid.
Nevertheless, the trial court's dismissal of the complaint was appropriate. No claim in that pleading may fairly be seen to allege damages beyond those submitted to and awarded by the bet din. Assertions of conduct suggesting incipient defamation claims were, simply, not adequately fleshed out, and no clear statement was made, in a separate count or otherwise, that plaintiff alleged a cause of action for defamation. Even an indulgent reading of the complaint in plaintiff's favor does not disclose an allegation of damages beyond the "deni[al of] a renewed contract," a "loss [of] earnings and benefits and competitive standing in [plaintiff's] calling as religious leader," and an "interfere[nce] with [p]laintiff's prospective contractual and economic advantage[,]" in addition to an entitlement to punitive damages and counsel fees and costs. Manifestly, nothing within the assertions made, by way of right or remedy pleaded, goes beyond the bases of the arbitration award plaintiff has received. It is axiomatic that a party will not be heard to prosecute civil action claims such as those asserted here if he has not suffered a loss or has been fully compensated for such losses as may have been incurred. See Rosenau v. City of New Brunswick, 51 N.J. 130, 138 (1968); see also Wolverine Ins. Co. v. Tower Iron Works, Inc., 370 F.2d 700, 703 (1st Cir. 1966); Welter v. Seton Hall University, 128 N.J. 279, 302-03 (1992); Ochs v. Public Serv. R.R. Co., 81 N.J.L. 661, 662 (E. & A. 1911); Rector, etc. of Church of Holy Communion v. Paterson Extension R.R. Co., 66 N.J.L. 218, 226, 230 (E. & A. 1901).
The trial court's order is affirmed.
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