PHILIP PONIZ v. WELLS FARGO BANK, N.A

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2249-18T3

PHILIP PONIZ,

          Plaintiff-Respondent,

v.

WELLS FARGO BANK, N.A.,
HOPE HANNA, LISETTE SOBA,
ASHLEY SMITH, MARK ILARDI,
THERESA WRIGHT, LORETTA
SPOSATO, KAREN MCGEE, and
CYNTHIA ROBINSON,

     Defendants-Appellants.
________________________________

                    Argued October 17, 2019 – Decided November 1, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-0163-17.

                    Amy S. Rubin (Fox Rothschild LLP) of the Florida bar,
                    admitted pro hac vice, argued the cause for appellants
                    (Fox Rothschild LLP, attorneys; Barry Joseph Muller
                    and Amy S. Rubin, of counsel and on the briefs).
            Craig Allen Borgen argued the cause for respondent
            (Miller & Borgen, attorneys; Craig Allen Borgen, on
            the brief).

PER CURIAM

      Defendants appeal from a November 26, 2018 order denying their motion

to compel arbitration and a January 25, 2019 order denying their motion for

reconsideration. 1 We affirm.

      Plaintiff is a trained watchmaker and horologist. He receives expensive

watches, clocks, timepieces, and other items for evaluation and restoration.

Because the items he receives are valuable, plaintiff leased a safe deposit box,

Box 105, at the Highland Park branch of First Union National Bank (First Union)

pursuant to a September 18, 1998 written agreement (1998 Agreement). The

1998 Agreement did not contain an arbitration clause.

      First Union merged with another bank in 2001 to form Wachovia Bank,

N. A. (Wachovia). Plaintiff continued to lease Box 105 and other safe deposit

boxes from Wachovia after the merger. He was not required to sign a new

contract for any of the existing safe deposit boxes he leased at the time of this

merger. In 2008, Wachovia merged with Wells Fargo Bank, N.A. (Wells Fargo).


1
  On appeal, defendants failed to brief denial of their motion for reconsideration.
An issue not briefed on appeal is deemed waived. See Woodlands Cmty. Ass'n
v. Mitchell,  450 N.J. Super. 310, 318-19 (App. Div. 2017).
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      Plaintiff did his banking, including the leasing of safe deposit boxes, at

the Wachovia branch in Highland Park and the Wells Fargo branch in Princeton.

Plaintiff signed agreements with Wells Fargo for additional safe deposit boxes

at various branches: Box 291 on July 17, 2013; Box 178 on April 7, 2014; and

Box 147 on August 15, 2014.

      Prior to leasing Box 291, plaintiff was required to review and

acknowledge Wells Fargo's updated safe deposit box lease terms effective

October 15, 2011 (2011 Agreement), as well as Wells Fargo's Safe Deposit Box

Lease Agreement (SDBLA). The 2011 Agreement contained an arbitration

clause, which purported to apply to all Wells Fargo safe deposit boxes.

      The SDBLAs executed by plaintiff for Boxes 291, 178, and 147 contained

blank spaces for a box number and an effective date, incorporating the 2011

Agreement for the box. If completed, the document superseded any prior safe

deposit box agreements.     However, the spaces on the SDBLAs signed by

plaintiff for boxes 291, 178, and 147 remained blank.

      In April 2014, Wells Fargo drilled through the lock on Box 105 without

informing plaintiff. Plaintiff claimed over $10,000,000 worth of goods were

stored in Box 105 at the time. According to plaintiff, Wells Fargo personnel

improperly removed, damaged, or misplaced the items from Box 105.


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      On January 9, 2017, plaintiff filed a complaint against Wells Fargo and

its employees to recover the value of the items removed from Box 105.

Defendants filed a motion to dismiss the complaint and compel arbitration. The

motion judge denied the motion without prejudice, and ordered the parties to

conduct discovery.

      Defendants' renewed motion to compel arbitration, filed after the

completion of discovery, was denied without prejudice. The judge ordered a

plenary hearing on various issues. The issue relevant to this appeal, as framed

by the judge, was whether plaintiff assented to arbitration of all disputes as to

all safe deposit boxes, including Box 105, upon leasing additional Wells Fargo

safe deposit boxes in 2013 and 2014.

      At the conclusion of the testimony, the judge rendered an oral decision

denying defendants' motion.     The judge rejected defendants' argument that

plaintiff's lease of safe deposit boxes in 2013 and 2014 indicated his assent to

arbitration of all disputes concerning all safe deposit boxes. The judge found,

"[t]he fact that [plaintiff] opened other accounts later on in '13 and '14 in

Princeton at Wells Fargo does not in any way give Wells Fargo the ability to

claim that he's bound by the arbitration clause" related to Box 105. The judge

determined each safe deposit box was considered a separate agreement and


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therefore the 1998 Agreement was the governing agreement for Box 105.

Because the 1 998 Agreement for Box 105 lacked an arbitration clause, the judge

denied defendants' motion to compel arbitration.

      The judge also rejected defendants' argument that the United States

Supreme Court's decision in Henry Schein, Inc. v. Archer & White Sales, Inc.,

____ U.S. ______,  139 S. Ct. 524 (2019) compelled submission of the dispute

to arbitration to determine whether plaintiff's claim against Wells Fargo was

arbitrable under the 2011 Agreement. The judge found Schein inapplicable

because the 1 998 Agreement for Box 105 did not contain an arbitration clause.

      On appeal, defendants argue the following: 1) the 2011 Agreement was

incorporated into the agreement for Box 291 leased by plaintiff in July 2013,

and the 2011 Agreement, which contained an arbitration provision, applied to

all disputes with Wells Fargo, including disputes regarding Box 105; and 2) a

2019 decision issued by the United States Supreme Court compelled arbitration

to determine whether the dispute was arbitrable in the first instance.

      According to defendants, plaintiff assented to arbitration of all disputes

related to all safe deposit boxes upon leasing additional safe deposit boxes in

2013 and 2014. Defendants contend the language of the 2011 Agreement, which

plaintiff received when he leased the additional safe deposit boxes in 2013 and


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2014, compels arbitration of any and all disputes, including the dispute related

to Box 105.

      Plaintiff responds the 2011 Agreement is inapplicable to Box 105 because

the subsequently signed lease agreements for different safe deposit boxes did

not alter the terms of the 1998 Agreement. Plaintiff contends Wells Fargo's

SDBLAs, which included the following sentence, "This Agreement replaces a

Lease Agreement with a commencement date of _____ for Box Number ____,"

remained blank and therefore he had no notice that the 1 998 Agreement for Box
 105 was replaced by the 2011 Agreement.

      We review a trial court's order granting or denying a motion to compel

arbitration de novo because the validity of an agreement to arbitration presents

a question of law. Kernahan v. Home Warranty Adm'r of Fla., Inc.,  236 N.J.
 301, 316 (2019).

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

submit to arbitration any dispute which he has not agreed to so submit." AT&T

Techs., Inc. v. Commc'ns Workers of Am.,  475 U.S. 643, 648 (1986) (quoting

Steelworkers v. Warrior & Gulf Navigation Co.,  363 U.S. 547, 582 (1960)); see

also Atalese v. U.S. Legal Servs. Grp., L.P.,  219 N.J. 430, 442 (2014). In

treating arbitration agreements as contracts, an arbitration agreement "must be


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the product of mutual assent," which "requires that the parties have an

understanding of the terms to which they have agreed." Atalese,  219 N.J. at 442

(quoting NAACP of Camden Cty. E. v. Foulke Mgmt.,  421 N.J. Super. 404, 424

(App. Div. 2011)). A contractual waiver of the right to pursue a claim in court

must be "clearly and unmistakably established." Id. at 444 (quoting Garfinkel

v. Morristown Obstetrics & Gynecology Assocs., P.A.,  168 N.J. 124, 132

(2001)).

      Whether there is mutual assent to arbitrate depends on "the intent

expressed or apparent in the writing," Leodori v. CIGNA Corp.,  175 N.J. 293,

300 (2003), considering "the contractual terms, the surrounding circumstances,

and the purpose of the contract." Marchak v. Claridge Commons, Inc.,  134 N.J.
 275, 282 (1993). A party will not be deemed to waive his or her rights without

clear and unambiguous language. See Garfinkel,  168 N.J. at 136.

      Having reviewed the record, we are satisfied the judge properly denied the

application to compel arbitration. Plaintiff's execution of lease agreements in

2013 and 2014 for other safe deposit boxes at Wells Fargo did not indicate

plaintiff's clear and unambiguous assent to arbitrate disputes related to Box 105.

Nothing in the 2011 Agreement, purportedly incorporated by reference when

plaintiff leased additional safe deposit boxes from Wells Fargo in 2013 and


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2014, expressly and unequivocally conveyed to plaintiff that he was

surrendering his right to file suit related to his lease of Box 105 and was agreeing

to submit to arbitration.

       Because plaintiff did not clearly and unambiguously contract to arbitrate

his claim regarding Box 105, the judge properly declined to apply the United

States Supreme Court decision in Henry Schein, Inc. v. Archer & White Sales,

Inc.

       Affirmed.




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