JANG WON SO v. EVERBEAUTY, INC

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3560-16T4

JANG WON SO,

        Plaintiff-Respondent,

v.

EVERBEAUTY, INC.,

     Defendant-Appellant.
______________________________

              Submitted December 12, 2017 – Decided January 2, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              7491-16.

              Cole Schotz, PC, attorneys for appellant
              (Edward S. Kiel and Eric S. Latzer, of counsel
              and on the briefs).

              Najib, Kim, Feliz and Bullwinkel, LLC,
              attorneys for respondent (Yoonki Kim, on the
              brief).

PER CURIAM

        Defendant EverBeauty, Inc. appeals from an order dated March

17, 2017, denying its motion to compel arbitration of a lawsuit

filed by plaintiff Jang Won So.             For the reasons that follow, we
reverse the order on appeal and remand this matter to the trial

court with direction to enter an order submitting the matter to

binding arbitration.

      The essential facts are undisputed.                On October 19, 2016,

plaintiff filed a complaint alleging that defendant, his employer,

violated his rights under the New Jersey Law Against Discrimination

and   the   Workers'      Compensation   Law.       In   a   December   16,   2016

conversation       with    plaintiff's       counsel,    defendant's    attorney

asserted    that    the    matter   should     be   submitted   to   arbitration

pursuant to a clause in plaintiff's employment contract.                        On

December 20, 2016, plaintiff's counsel sent defense counsel an

email stating that his law firm was "leaning towards . . . going

to arb" but needed to speak with plaintiff, who was away on a

trip.   Defendant's counsel followed up on December 29, 2016, with

an email asking plaintiff's counsel if his client would agree to

arbitration.       On December 30, 2016, plaintiff's counsel sent a

responding email, stating: "I was able to speak to my client and

we will proceed to arbitration.          I can draft a stip of dismissal."

      More than two weeks later, on January 16, 2017, defendant's

counsel sent a follow-up email inquiring whether the stipulation

had been filed.        Plaintiff's counsel sent a responding email on

January 25, 2017, stating that plaintiff "has had a change of

heart and has instructed me to make efforts to avoid arbitration."

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Apparently anticipating a motion to enforce arbitration, the email

concluded, "we'll be awaiting your motion."

     In    its   enforcement      motion,        defendant    conceded     that    the

arbitration      provision   in    the       employment       agreement    was     not

sufficiently specific and, therefore, was unenforceable.                   However,

defendant asserted that the phone call and subsequent exchange of

emails between the attorneys created a separate, binding agreement

to arbitrate.

     The    trial   court    denied      the     motion,     reasoning     that    the

attorneys' communications did not "evidence a bargain[ed] for

exchange but only a statement by [p]laintiff's counsel as to what

his intentions were going forward in response to inquiries from

defense counsel."      The court concluded that "any 'agreement' to

proceed to arbitration was not supported by consideration."                        The

court also reasoned, by analogy with Rule 4:35-1(d), which governs

bench trials, that giving up the right to a jury trial by agreeing

to arbitration required proof "that the promise was actually

bargained for."

     Our review of an order denying a motion to compel arbitration

is de novo.      See Hirsch v. Amper Fin. Servs., LLC, 
215 N.J. 174,

186 (2013); Barr v. Bishop Rosen & Co., Inc., 
442 N.J. Super. 599,

605 (App. Div. 2015).          Both federal and state law reflect a

preference    for   arbitration     and      a    strong     policy   in   favor    of

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enforcing      arbitration    agreements.        Hirsch,         
215 N.J.     at      186;

Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 
445 N.J.    Super.     173,     179   (App.       Div.     2016).            Nevertheless,

"[a]rbitration is a matter of contract and a party cannot be

required to submit to arbitration any dispute which he has not

agreed so to submit."        Bernetich, 
445 N.J. Super. at 179 (citation

omitted).

       Courts apply "ordinary state-law principles that govern the

formation of contracts" to decide whether the parties agreed to

arbitration.      Id. at 179-80 (citation omitted).                      Courts should

not, however, "subject an arbitration agreement to more burdensome

requirements      than    those   governing          the       formation       of     other

contracts."      Id. at 180 (quoting Leodori v. CIGNA Corp., 
175 N.J.
 293, 302 (2003)).

       "Basic    contract    principles       render       a   promise     enforceable

against the promisor if the promisee gave some consideration for

the promise." Martindale v. Sandvik, Inc., 
173 N.J. 76, 87 (2002).

"[A]    very    slight    advantage   to       one     party,       or     a    trifling

inconvenience to the other, is a sufficient consideration to

support a contract . . . ."           Id. at 87-88 (citation omitted).

Courts will not "inquire into the adequacy of consideration in

determining whether to enforce a contract."                     Seaview Orthopedics



                                          4                                         A-3560-16T4
ex rel. Fleming v. Nat'l Healthcare Res., Inc., 
366 N.J. Super.
 501, 508-09 (App. Div. 2004).

    In light of those principles, we cannot agree with the trial

court's reasoning in this case.             An agreement to arbitrate is

analogous   to   the   settlement      of   litigation.     N.J.    Mfrs.    v.

O'Connell, 
300 N.J. Super. 1, 7 (App. Div. 1997).                  By analogy

here, if defendant's counsel had emailed plaintiff's counsel,

stating   that   "we   will   settle    this   case   for   $1000,"   and    if

plaintiff's counsel had sent a responding email stating that "we

agree to settle the case for $1000," that exchange would have

created a binding settlement agreement.          Plaintiff's later change

of heart could not vitiate the agreement.

    This case is no different in substance.                 Defense counsel

communicated to plaintiff's counsel his client's willingness to

submit the matter to arbitration.           After first stating that his

client needed time to consider the matter, plaintiff's counsel

later emailed defense counsel his client's unequivocal agreement

to arbitrate and offered to draft a stipulation of dismissal of

the lawsuit.      At that point, the parties had agreed on the

essential terms and "manifested an intention to be bound by those

terms," thus creating a binding contract to resolve the case by

arbitration and file a stipulation of dismissal with the court.

See Weichert Co. Realtors v. Ryan, 
128 N.J. 427, 435 (1992).

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Plaintiff's change of heart a few weeks later could not undo the

contract.   "A party is bound to the contract it made at the time,

even if it turns out to be a poor deal."   Ibid.

     In addition to finding that the promise to arbitrate was

bargained for, we cannot agree with the trial court's reasoning

that the agreement lacked consideration.    Because arbitration is

faster and less expensive than a trial, the agreement provided

benefits to both parties.   See Garfinkel v. Morristown Obstetrics

& Gynecology Assocs., P.A., 
168 N.J. 124, 131 (2001).     Further,

by agreeing to arbitration, each side gave up its right to a jury

trial.   That was sufficient consideration to support the formation

of a contract.   See Martindale, 
173 N.J. at 87.   Accordingly, we

reverse the order on appeal and remand this matter to the trial

court for entry of an order submitting the matter to binding

arbitration.

     Reversed and remanded.   We do not retain jurisdiction.




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