ELIEC. JONES v. TOWNSHIP OF TEANECK

NOT FOR PUBLICATION WITHOUT THE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-1734-16T4

ELIE C. JONES,

        Plaintiff-Respondent,

v.

TOWNSHIP OF TEANECK; TEANECK
POLICE DEPARTMENT; and LT.
THOMAS TULLY,

     Defendants-Appellants.
________________________________

              Submitted December 13, 2017 – Decided January 31, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-4596-16.

              Chasan, Lamparello, Mallon & Cappuzzo, PC,
              attorneys for appellants Township of Teaneck
              and Teaneck Police Department (John L.
              Shahdanian, II, of counsel; Dennis G. Harraka
              and Lori A. Johnson, on the brief).

              Galantucci, Patuto, De Vencentes, Potter &
              Doyle, LLC, attorneys for appellant Lt. Thomas
              Tully, join in the brief of appellants
              Township of Teaneck and Teaneck Police
              Department.

              Respondent has not filed a brief.
PER CURIAM

     Defendants,      the      Township   of      Teaneck,      the     Teaneck    Police

Department, and Lt. Thomas Tully, appeal from the Law Division's

order   denying       their     motion       to    dismiss       the     complaint       or

alternatively,      to   compel       arbitration.              After    a   review      of

defendants'    arguments        in   light    of    the    record       before    us   and

applicable principles of law, we reverse.

     Plaintiff Elie C. Jones              is a resident of the                 Township.

Defendants assert that he has "a protracted history of instituting

meritless claims against [the Township]" and its entities and

departments.       With the intent of avoiding similar future claims,

the parties entered into a settlement agreement in October 2010,

under which plaintiff received consideration, to resolve a then

pending matter.        The settlement agreement provided that in the

event   of   any    future      dispute   between         the    parties,      plaintiff

"voluntarily agree[d] to first submit the claim to arbitration in

accordance     with      the     rules       of    the     American          Arbitration

Association."       Under this provision, the arbitrator would review

the allegations at a hearing to determine if there was sufficient

evidence to support the claim.            "If the arbitrator determines that

there is sufficient evidence to support the claim, [plaintiff] may

file a complaint. . . . However, if the arbitrator determines that


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there is insufficient evidence to support the claim, [plaintiff]

shall not initiate the action."

      In July 2016, plaintiff filed a complaint against defendants

alleging harassment and discrimination claims against Lt. Tully,

without first submitting his claims to arbitration.            Defendants

filed a motion to dismiss or alternatively, to compel arbitration

pursuant to the settlement agreement. In a certification submitted

in opposition to the motion, plaintiff stated that he had spoken

to   the   Township   clerk   several   times   in   an   "[a]ttempt[]    to

[a]rbitrate" as required under the settlement agreement.

      During oral argument, plaintiff advised the judge that he had

agreed to arbitration at the time he executed the settlement

agreement, and he remained willing to arbitrate, however he did

not think he should be responsible for paying the filing fee to

initiate the proceedings.1        Plaintiff told the judge that he

understood he had waived certain rights including an initial right

to file his complaint in court.     Plaintiff continued to state that

he desired to proceed to arbitration.           The judge noted several

times that plaintiff was "willing to go" to arbitration.           At the

conclusion of argument, at the request of defendants, the court



1
   The settlement agreement required plaintiff to pay the initial
filing fee.    Thereafter, the parties would equally split the
arbitration costs.

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agreed to carry the motion for two weeks so that defendants could

present plaintiff's settlement demand to the Township council and

make a determination regarding arbitration costs.        The record is

devoid of information as to what occurred thereafter.

     On November 18, 2016, the judge issued a written decision

denying   defendants'   motion,   concluding    that   the   arbitration

provision was "devoid of any language sufficiently clear and

unambiguous to put plaintiff on notice that he [wa]s surrendering

his statutory right to seek relief in a court of law."

     On appeal, defendants contend that the judge erred in failing

to compel submission of plaintiff's claims to arbitration.              We

review the court's order de novo. See Hirsch v. Amper Fin. Servs.,

LLC, 
215 N.J. 174, 186 (2013).    The strong "public policy of this

State favors arbitration as a means of settling disputes that

otherwise would be litigated in a court."        Badiali v. N.J. Mfrs.

Ins. Grp., 
220 N.J. 544, 556 (2015); accord Hojnowski v. Vans

Skate Park, 
187 N.J. 323, 343 (2006).          The Federal Arbitration

Act, 9 U.S.C. §§ 1-16, "expresses a national policy favoring

arbitration," Morgan v. Sanford Brown Inst., 
225 N.J. 289, 304

(2016), and requires courts to "place arbitration agreements on

an equal footing with other contracts and enforce them according

to their terms," AT&T Mobility LLC v. Concepcion, 
563 U.S. 333,

339 (2011) (citations omitted).        The New Jersey Arbitration Act,

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4 N.J.S.A. 2A:23B-1 to 32, follows these same principles.      Leodori

v. CIGNA Corp., 
175 N.J. 293, 302 (2003).

     The parties negotiated a settlement agreement, for which

plaintiff received consideration, to resolve prior litigation.

The settlement agreement contained a provision providing that, in

the event of any future claims by plaintiff against defendants,

plaintiff agreed to submit the issues to arbitration first, for a

determination by an arbitrator as to whether sufficient evidence

existed to support the claim.        Plaintiff acknowledged that he

understood this provision when he agreed to it and the record

demonstrates that plaintiff was well aware of the terms of the

settlement agreement, and specifically, that any future claims

would be submitted to an arbitrator for consideration prior to a

filing in court.

     Plaintiff certified in his opposition to defendants' motion

that he "made several [a]ttempts to [a]rbitrate" with defendants

prior to filing his complaint.       At oral argument on the motion,

plaintiff reiterated that he was willing to go to arbitration, but

objected to paying the entire filing fee as required under the

settlement agreement.   In response to the judge's statement that

he had waived all of his rights by agreeing to the arbitration

provision, defendant corrected her, stating that "the arbitration

[provision] says that the arbitrator would only decide if the

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matter could proceed into the Law Division.      It didn't say that

they would settle the matter to conclusion." The agreement allowed

the institution of suit upon a determination by the arbitrator

that there was sufficient evidence to support the claim.

     Plaintiff's   actions    in   seeking   arbitration,   and   the

statements in his certification and at oral argument demonstrate

not only his understanding of the settlement agreement, but also

his willingness to have an arbitrator evaluate the sufficiency of

his claims against defendants prior to filing a suit in court.

Moreover, the arbitration provision in the settlement agreement

sufficiently conveys plaintiff's rights and the effect of electing

to have an arbitrator determine if there is sufficient evidence

to support plaintiff's claims against defendants.    See Morgan, 
225 N.J. at 294 (reasoning that Atalese v. U.S. Legal Servs. Grp., LP,


219 N.J. 430, 436 (2014), simply requires a contract "to explain

in some minimal way that arbitration is a substitute for [the]

right to pursue relief in a court of law" (emphasis added)).

     It is well settled that a court "will 'not rewrite [a]

contract[] in order to provide a better bargain than contained in

the parties['] writing.'"    Kaur v. Assured Lending Corp., 
405 N.J.

Super. 468, 477 (App. Div. 2009) (quoting Grow Co. v. Chokshi, 
403 N.J. Super. 443, 464 (App. Div. 2008)).          A court's role in

interpreting contracts "is to consider what is 'written in the

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context of the circumstances' at the time of drafting and to apply

a   'rational      meaning     in    keeping   with   the    expressed    general

purpose.'"    Sachau v. Sachau, 
206 N.J. 1, 5-6 (2011) (quoting Atl.

N. Airlines, Inc. v. Schwimmer, 
12 N.J. 293, 302 (1953); accord

Dontzin v. Myer, 
301 N.J. Super. 507 (App. Div. 1997)).

      A   review    of   the    record    demonstrates      that   at   all     times

plaintiff understood and assented to the terms of the settlement

agreement requiring the submission of any future claims against

defendants to arbitration.              We, therefore, reverse the court's

order and remand to the trial court for an entry of dismissal and

order compelling arbitration.

      Reversed and remanded for an entry of dismissal and order

compelling arbitration.             We do not retain jurisdiction.




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