RICHARD MARANO v. THE HILLS HIGHLANDS MASTER ASSOCIATION, INC

NOT FOR PUBLICATION WITHOUT THE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.

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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.


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     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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