ANITA WALSH v. PROSPECT EOGH, 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NOT FOR PUBLICATION WITHOUT THE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-3218-17T2

ANITA WALSH,

         Plaintiff-Respondent,

v.

PROSPECT EOGH, INC., d/b/a
EAST ORANGE GENERAL
HOSPITAL, and PROSPECT
MEDICAL HOLDINGS, INC.,

     Defendant-Appellants.
______________________________

                   Argued on October 31, 2018 – Decided November 21, 2018

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-7912-17.

                   Ivan R. Novich argued the cause for appellant
                   (Littler Mendelson, PC, attorneys; Ivan R. Novich, of
                   counsel and on the brief; Lauren J. Marcus, on the
                   briefs).

                   Arthur L. Raynes argued the cause for respondent
                   (Wiley Malehorn Sirota & Raynes, attorneys; Arthur L.
            Raynes, of counsel and on the brief; Courtney A. Reed
            Keren, on the brief).

PER CURIAM

      Plaintiff Anita Walsh sued her former employer, Prospect EOGH, Inc.

d/b/a East Orange General Hospital and Prospect Medical Holdings, Inc.

(defendants) claiming she was wrongfully discharged under the New Jersey

Conscientious Employee Protection Act (CEPA),  N.J.S.A. 34:19-1 to -14.

      Defendants filed a motion to compel arbitration pursuant to an arbitration

agreement (Agreement) that plaintiff admits signing. Plaintiff claims that the

Agreement was not explained to her, she does not recall signing it, and argues

for the first time on appeal that it is not enforceable because defendants did not

sign the document. Without allowing the requested oral argument, the motion

court issued an order denying defendants' motion, writing on it only: "Plaintiff

did not agree to give up right jury [sic] trial." We reverse and remand for

reconsideration, with oral argument.

      Plaintiff signed the Agreement on September 8, 2016, three days before

she began work, in connection with her employment as Vice President of

Operations. The Agreement is labeled "East Orange General Hospital Mutual

Agreement to Arbitrate." Although there was a signature line for defendants,

they did not sign the Agreement. The Agreement states:

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            To the fullest extent allowed by law, any controversy,
            claim or dispute between you and Prospect EOGH, Inc.
            dba East Orange General Hospital and/or any of its
            related entities, holding companies, parents,
            subsidiaries,    divisions,    officers, shareholders,
            directors, employees, agents, vendors, contractors,
            doctors, patients, insurers, predecessors, successors,
            and assigns (collectively, "the Company") relating to or
            arising out of your employment or the cessation of that
            employment will be submitted to final and binding
            arbitration.

The Agreement covers "all employment related claims including, but not limited

to . . . violation of public policy, discrimination . . . or any other employment -

related claim under any state or federal statutes or laws relating to an employee’s

relationship with his/her employer . . . ." The Agreement also states, directly

above the signature lines, in capital letters: "BY AGREEING TO THIS

BINDING MUTUAL ARBITRATION PROVISION, BOTH YOU AND THE

COMPANY GIVE UP ALL RIGHTS TO A TRIAL BY JURY. BY SIGNING

BELOW, I CONFIRM THAT I HAVE READ, UNDERSTAND, AND AGREE

TO THIS ARBITRATION AGREEMENT."

      Defendants terminated plaintiff's employment on March 15, 2017, for

reasons that she asserts in her November 2017 complaint were pretextual in

nature.   Plaintiff alleges that she was terminated, contrary to CEPA, because

she voiced her objections to the hospital's practices.


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      Defendants argue on appeal that their request for oral argument was

denied improperly. They rely on Raspantini v. Arocho,  364 N.J. Super. 528,

531 (App. Div. 2003) (stating that "because defendants' initial motion sought

dispositive relief, plaintiffs' request for oral argument should have been granted

as of right"). Defendants argue that although a trial court may deny a request

for oral argument on a substantive motion, "the reason for the denial of the

request, in that circumstance, should itself be set forth on the record," which the

trial court did not do here. Id. at 531-32. We agree with defendants that oral

argument, or the reason for not affording oral argument, must be provided by

the court.

      Defendants urge us not to remand the matter to the motion court because

of the lack of oral argument, but rather to review the motion de novo. The

reasons for the court's decision, however, are also lacking. The trial court must

provide reasons with its decisions, either on the record or in writing. As we said

more than twenty years ago,

             Unfortunately, the judge made no findings of fact or
             legal conclusions as required by Rule 1:6-2(f). An
             articulation of reasons is essential to the fair resolution
             of a case. A trial judge has a duty to make findings of
             fact and conclusions of law "on every motion decided
             by written orders that are appealable as of right." R.
             1:7-4. Failure to perform this duty "'constitutes a
             disservice to the litigants, the attorneys and the

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            appellate court.'" Curtis v. Finneran,  83 N.J. 563, 569-
            70 (1980) (quoting Kenwood Assocs. v. Bd. of
            Adjustment of Englewood,  141 N.J. Super. 1, 4 (App.
            Div. 1976)); see id. at 570 ("Naked conclusions do not
            satisfy the purpose of Rule 1:7-4.").

            [Italiano v. Rudkin (Italiano),  294 N.J. Super. 502, 505
            (App. Div. 1996).]

      "Moreover, the appellate court ordinarily cannot perform its review

function in the absence of findings." Filippone v. Lee,  304 N.J. Super. 301, 306

(App. Div. 1997). Although we review the grant of a motion for summary

judgment de novo, we cannot review the decision of the trial court on a blank

slate. Estate of Doerfler v. Fed. Ins. Co.,  454 N.J. Super. 298, 301-02 (App.

Div. 2018). The court wrote one sentence on the order, finding no evidence of

a waiver of a jury trial, although such a waiver is set forth clearly in the

Agreement. We are thus unclear as to whether the motion court reviewed the

proper material. Additionally, the court gave no reason for not allowing oral

argument.

      We reverse and remand to the court for oral argument and a reasoned

decision. In the interest of completeness, the parties should be allowed to

supplement their motion papers.

      Reversed and remanded. We do not retain jurisdiction.



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