VINCENZO GALLINA v. ADRENALINE FAMILY ENTERTAINMENT INC.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3992-16T2
VINCENZO GALLINA and
MARIA GALLINA,
Plaintiffs-Appellants,
v.
ADRENALINE FAMILY ENTERTAINMENT,
INC., CLEMENTON LAKE OPERATIONS,
LLC, CLEMENTON LAKE MANAGEMENT,
LLC, CLEMENTON LAKE HOLDINGS, LLC,
CLEMENTON LAND, LLC, and
BOB'S SPACE RACERS, INC.,
Defendants-Respondents.
___________________________________
Argued April 12, 2018 – Decided June 6, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2764-12.
Michael Confusione argued the cause for
appellants (Hegge & Confusione, LLC,
attorneys; Michael Confusione, of counsel
and on the brief).
Charles C. Daley, Jr., argued the cause for
respondents Adrenaline Family Entertainment
and Clementon Lake (Barnaba & Marconi, LLP,
attorneys; Dennis M. Marconi and Tyler L.
Williams, on the brief).
Law Office of Peter A. Callahan, attorneys
for respondent Bob's Space Racers, Inc.,
join in the brief of respondents Adrenaline
Family Entertainment and Clementon Lake.
PER CURIAM
Plaintiffs, Vincenzo Gallina and his wife Maria Gallina,
appeal from the Law Division's April 28, 2017 order denying
their motion to reinstate their complaint against defendants,
Adrenaline Family Entertainment, Inc., Clementon Lake
Operations, LLC, Clementon Lake Management, LLC, Clementon Lake
Holdings, LLC, Clementon Land, LLC and Bob's Space Racers, Inc.
The complaint sought damages for injuries sustained by Vincenzo1
on an amusement attraction, allegedly due to defendants'
negligence in their ownership or operation of the ride or park
at which the attraction was available to the public.
After plaintiffs filed suit, the parties participated in an
arbitration of plaintiffs' claims that resulted in a "no cause"
determination and the dismissal of their complaint. Plaintiffs
then filed a motion to reinstate their complaint, arguing that
they did not agree to waive their right to a trial in court
1
We refer to plaintiffs by their first names to avoid any
confusion caused by their common last name. No disrespect is
intended.
2 A-3992-16T2
before a judge or jury, despite their participation in the
arbitration. The motion judge denied the application without a
hearing, finding that, like a party who agreed to a bench trial
and after an unsatisfactory verdict demanded a new trial by
jury, plaintiffs were bound by the result of the arbitration
because they participated in it, without objection.
On appeal, plaintiffs contend that the motion judge should
have conducted an evidentiary hearing before deciding whether
the agreement to arbitrate bound them in light of their claim
that they did not know they were waiving their right to a trial.
For the reasons that follow, we vacate the order and remand for
a hearing.
The facts derived from the motion record are summarized as
follows. Vincenzo sustained injuries at Clementon Park when he
fell off of "The Ladder Climbing Rope" attraction. After
plaintiffs filed their complaint, the parties engaged in
discovery including depositions. Later, according to Vincenzo,
his attorney, Daniel B. Zonies, "told [him] we have to go to
arbitration," which the lawyer explained was being "in one room
with an arbitrator or retired judge" where "lawyers [and the
arbitrator] were going to ask [him] questions . . . ."
It was undisputed that plaintiffs never signed any
agreement to arbitrate. The only document indicating that there
3 A-3992-16T2
would be arbitration was the arbitrator's retainer letter that
stated counsel "agreed to retain [the arbitrator] to conduct a
binding arbitration . . . ." After setting forth the details
about the location, cost, timing for a decision and payment by
counsel, the letter concluded with a statement signed by counsel
that read "We agree to the terms and conditions set forth above
and understand that this agreement is made between and among the
[a]rbitrator and the attorneys and not the [a]rbitrator and the
parties."
Although there was no written agreement, Clementon Park's
attorney, Kathi Peisner, certified that "[c]ounsel for all
parties entered into a binding [a]rbitration [a]greement[.]"
Additionally, counsel stated that many letters were exchanged
"between and among counsel and [the arbitrator.]" Counsel
averred, "[t]here [could] be NO doubt that plaintiffs' original
attorney knew the arbitration was binding."
Vincenzo claimed that he "never personally understood that
[he was giving] up [his] right to go before judges or [a]
jury[.]" Maria, too, asserted that Zonies never told her that
she was giving up her rights by going to arbitration.
Before the arbitration, counsel for the parties made
submissions to the arbitrator. Plaintiffs and the parties'
attorneys appeared for the arbitration on September 28, 2016 and
4 A-3992-16T
2 December 21, 2016. According to Peisner, on the first day of
the arbitration hearing, "plaintiffs appeared with their
attorney, . . . an interpreter, and [their] relatives[,]" and
the arbitrator explained "to all that the arbitration was on
consent and binding." Further, the arbitrator asked "plaintiffs
through their counsel if they knew that arbitration was INSTEAD
of a trial and that he would be deciding the case instead of a
jury, and if they were ready to proceed." Peisner stated,
"[p]laintiffs expressed an understanding, and consent, and their
attorney stated that plaintiffs understood the consequences."
On January 4, 2017, the arbitrator entered an award in
favor of defendants, finding no cause for the action. A week
later, Zonies advised Vincenzo that "the arbitrator ruled
against [him,] and that [he] was not going to receive any
damages for [his] injuries," or be able to "continue with [his]
claims in court . . . ." Vincenzo asserted that he was
"shocked" as he "never agreed to such an arrangement[,]" or to
"give up [his] right to [his] court case."
After plaintiffs filed their motion to reinstate and the
parties made written submissions, the motion judge considered
counsels' oral argument on April 28, 2017, and denied
plaintiffs' motion without a plenary hearing. In an oral
5 A-3992-16T2
decision placed on the record on that date, the judge explained
why he believed an evidentiary hearing was not necessary.
In his decision, the judge stated that if he ordered a
hearing he would "have to assume that [he] might actually
believe the plaintiff[s] and believe that they truly didn't
think they were waiving anything, Zonies didn't explain it to
them[,] and they had no idea as to what was going on."
Regardless of his beliefs about the plaintiffs' assertions, the
judge concluded that Zonies' agreement to arbitrate bound
plaintiffs to the same agreement. The judge stated that if he
questioned whether plaintiffs understood the agreement, it would
"substantially undercut[] the efficient working of the [c]ourt
system where when the attorney, on behalf of the client signs a
document agreeing to go to binding arbitration, it's enforced."
While the judge was satisfied that at a hearing, if the
arbitrator testified in accordance with the facts stated in
Peisner's certification, plaintiffs would lose, the judge made
clear that his ruling was not based upon whether the arbitrator
explained to plaintiffs anything about the arbitration before it
began, but rather, upon his finding that the situation was
similar to a litigant who was not happy with a result after a
bench trial. The judge explained:
6 A-3992-16T2
The important thing here is that unlike the
settlement that was not authorized, [where]
a plaintiff who won't sign a release, it's a
different plaintiff than a plaintiff that
proceeded to binding arbitration, lost and
now wants their case heard before a jury.
Those are apples and oranges.
And I think this case is closer to the . . .
bench trial situation . . . because no
plaintiff could plausibly say in [c]ourt
when their case is tried before a judge,
gee, I thought we were [going to] get
another trial a year later before a jury.
The motion judge ultimately found that to allow a
dissatisfied plaintiff to raise an objection to the arbitration
after it was completed would cause havoc in litigation. He
stated that at a hearing, "if I believe the plaintiffs and said
basically their no-cause at binding arbitration is worthless, is
meaningless, that [would be] the precedent I don't want to
establish." This appeal followed.
A trial court confronted with a motion to reinstate a
complaint must determine whether good cause has been shown
warranting that the "order dismissing [the] matter . . . be set
aside and the case restored[.]" ASHI-GTO Assocs. v. Irvington
Pediatrics, PA,
414 N.J. Super. 351, 359 (App. Div. 2010).
"Whether to grant or deny a motion to reinstate a complaint lies
within the sound discretion of the trial court." Sullivan v.
Coverings & Installation, Inc.,
403 N.J. Super. 86, 93 (App.
7 A-3992-16T
2 Div. 2008). "We will 'decline to interfere with [such] matters
of discretion unless it appears that an injustice has been
done.'" Ibid. (quoting Cooper v. Consol. Rail Corp.,
391 N.J.
Super. 17, 23 (App. Div. 2007)). While the "'abuse of
discretion' standard defies precise definition," we may find an
abuse of discretion "when a decision is 'made without a rational
explanation, . . . rest[s] on an impermissible basis[,]'" or was
"an arbitrary, capricious, whimsical, or manifestly unreasonable
judgment." Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571
(2002) (citations omitted).
To the extent the trial court's decision involves, as here,
a decision regarding the validity of an arbitration agreement,
our review is de novo. Atalese v. U.S. Legal Servs. Grp.,
219 N.J. 430, 445-46 (2014).
Applying these standards, we conclude that it was a
mistaken exercise of the judge's discretion to decide
plaintiff's motion without a plenary hearing in light of the
conflicting certifications presented to the judge concerning
plaintiffs' alleged agreement to waive their right to a trial in
court.
At the outset, we acknowledge that our State's public
policy favors the resolution of disputes through arbitration.
Id. at 440. The strong "public policy of this State favors
8 A-3992-16T2
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). The preference for arbitration is not
without limits. Atalese,
219 N.J. at 441. For example, "[a]n
agreement to arbitrate, like any other contract, 'must be the
product of mutual assent, as determined under customary
principles of contract law.'" Id. at 442 (citation omitted).
"Mutual assent requires that the parties have an understanding
of the terms to which they have agreed." Ibid.
"Our state-law jurisprudence makes clear 'that when a
contract contains a waiver of rights - whether in an arbitration
or other clause - the waiver "must be clearly and unmistakably
established."'" Morgan v. Sanford Brown Inst.,
225 N.J. 289,
308-09 (2016) (quoting Atalese,
219 N.J. at 444). When the
agreement is written, "[n]o magical language is required to
accomplish a waiver of rights in an arbitration agreement." Id.
at 309. Because arbitration involves a waiver of the right to
pursue a case in a judicial forum, courts take particular care
"in assuring the knowing assent of both parties to arbitrate,
and a clear mutual understanding of the ramifications of that
assent." NAACP of Camden Cty. E. v. Foulke Mgmt. Corp.,
421 N.J. Super. 404, 425 (App. Div. 2011), appeal dismissed,
213 N.J. 47 (2013).
9 A-3992-16T2
"This requirement of a 'consensual understanding' about the
rights of access to the courts that are waived in the agreement
has led our courts to hold that clarity is required." Moore v.
Woman to Woman Obstetrics & Gynecology, LLC,
416 N.J. Super. 30,
37 (App. Div. 2010) (citation omitted). "By its very nature, an
agreement to arbitrate involves a waiver of a party's right to
have her claims and defenses litigated in court." Atalese,
219 N.J. at 442 (citation omitted). Any contractual waiver-of-
rights provision must reflect that the party has agreed "clearly
and unambiguously" to its terms. Leodori v. Cigna Corp.,
175 N.J. 293, 302 (2003), cert. denied,
540 U.S. 938 (2003). "[A]n
average member of the public may not know — without some
explanatory comment — that arbitration is a substitute for the
right to have one's claim adjudicated in a court of law."
Atalese,
219 N.J. at 442.
The need for clarity about the rights being waived in an
arbitration agreement does not mean that it must be in writing.
An agreement to arbitrate in lieu of litigation "do[es] not need
to be in writing to be enforceable." Leodori,
175 N.J. at 305
(addressing an employee's agreement to arbitrate absent a
written agreement with his employer). There must be, however,
evidence that "otherwise explicitly indicate his or her
agreement to" arbitrate, id. at 306, including "some other
10 A-3992-16T2
unmistakable indication that [a litigant] affirmatively had
agreed to arbitrate his claims," id. at 307, and waived his
right to trial, Atalese,
219 N.J. at 442.
Here, the only evidence of plaintiffs' decision to waive
their right to a trial that was presented to the motion judge
was the undisputed fact that the parties participated in the
arbitration and their conflicting certifications. Plaintiffs
contended they did not understand that participating in the
arbitration meant there would be no trial. Peisner's
certification relied upon her hearsay statement about what the
arbitrator allegedly explained to plaintiffs and her unqualified
conclusion that plaintiffs understood what they were told. In
addition, the one written agreement presented to the court – the
arbitrator's retainer agreement was signed only by counsel, and
did not mention a waiver of plaintiffs' right to trial. There
was no certification from the arbitrator explaining what he said
to plaintiffs or even from their former attorney refuting
Vincenzo's description of what he was told. And, there was no
certification from the interpreter who assisted at the
arbitration.
While we share the motion judge's concern about the need
for courts to be able to rely on counsels' agreement to
arbitrate, and the impact upon litigation of allowing
11 A-3992-16T2
dissatisfied litigants to reopen cases after they participated
in an arbitration that does not go well for them, we believe
under the unique circumstances of this case, that there was
insufficient evidence for the motion judge to have decided the
issue presented, without a hearing. See Lederman v. Prudential
Life Ins. Co. of Am., Inc.,
385 N.J. Super. 324, 347 (App. Div.
2006).
The order under review is vacated and the matter remanded
for a plenary hearing as to whether plaintiffs knowingly waived
their right to trial by a judge or jury.
Vacated and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
12 A-3992-16T2
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