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(NOTE: The status of this decision is Published.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5833-04T5

FLORENCE TOLLGATE CONDOMINIUM ASSOCIATION, INC.,

Plaintiff-Respondent,

v.

JOE ORDINI'S POOLS & SPAS, INC., and JOSEPH ORDINI, jointly, severally and in the alternative,

Defendants-Appellants.

____________________________________ February 16, 2006 Submitted January 10, 2006 - Decided

Before Judges Skillman and Payne.

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On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1952-03.

Kwasny Reilly Haft & Sacco, attorneys for appellants (Richard J. Kwasny, on the brief).

Robert A. Gleaner, attorney for respondent (Mr. Gleaner and Jeffrey S. Walters, on the brief).

PER CURIAM This is an appeal from a final judgment of the Law Division confirming an arbitration award and entering judgment in the amount of the award plus prejudgment interest. The award arose out of a contract entered into in May 1999 between plaintiff condominium association and defendant for the construction of a new swimming pool on the condominium association's premises. The contract price was $52,487.50, $13,121.88 of which was required to be paid as a down payment before the commencement of construction. The contract contained broad arbitration provisions, which stated in pertinent part: 5.1 Any controversy or claim between the Contractor and the Owner arising out of or related to this Contract, or the breach thereof, shall be settled by arbitration. The arbitration shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.

....

5.3 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

After defendants failed to obtain the required permits and begin construction within what plaintiff considered to be a reasonable period of time, plaintiff terminated the contract. Defendants failed to return plaintiff's $13,121.88 deposit, taking the position that the purported termination of the contract constituted
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a breach. The parties' conflicting assertions regarding the circumstances of the termination of the contract are set forth in detail in the arbitrator's decision and need not be recounted here. Plaintiff filed an action in the Special Civil Part seeking the return of its $13,121.88 deposit. Plaintiff's complaint also asserted various claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. On the eve of trial before the Special Civil Part, defendant filed a motion to dismiss the complaint on the ground that the contract required plaintiff's claims to be submitted to arbitration. The court granted the motion and entered an order dismissing plaintiff's complaint and directing the parties to submit their dispute to arbitration. An initial arbitration award in plaintiff's favor was rendered on June 1, 2003. Plaintiff subsequently brought this action in the Law Division for confirmation of the award. The matter was brought before the trial court by cross-motions for confirmation and vacation of the award. The court granted defendants' motion to vacate the award on the ground that defendants had not received proper notice of the arbitration hearing. A second arbitration hearing was held on February 24, 2004. At the conclusion of the hearing, the parties were directed to file briefs. Subsequent to the hearing, plaintiff changed attorneys, and plaintiff's attorney requested an extension of time for the submission of plaintiff's post-hearing brief. By letter dated March 24, 2004, the arbitrator notified the parties that the time for the filing of the post-hearing briefs was extended to May 28, 2004. On January 21, 2005, the arbitrator made his award. He found that defendant had breached the contract and violated the Consumer Fraud Act. The arbitrator awarded as damages the $13,121.88 deposit plaintiff had paid defendant for the swimming pool, $6,724.60 for interest paid by plaintiff on a loan for the deposit, and $5,000 for pool maintenance. The arbitrator trebled those damages pursuant to the Consumer Fraud Act. The arbitrator also awarded plaintiff $8,933.00 for attorneys' fees and $267.24 in costs. Thus, the total award was $83,739.68. On May 27, 2005, the trial court entered judgment in favor of plaintiff for $108,041.26, which apparently consists of both the amount of the arbitration award and prejudgment interest. Defendant's counsel has submitted a document entitled "statement of proceedings in lieu of transcript," which states that counsel appeared in court on May 27, 2005 and "were told that the preliminary decision had become final and that

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no oral argument would be taken." However, defendant's appendix does not contain any trial court opinion, and an inquiry by the clerk of this court to the parties and the judge's chambers confirmed that the court did not issue any written or oral opinion in this case. Rule 1:7-4 states in pertinent part that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." The trial court was required under this rule to decide the crossmotions for confirmation and vacation of the arbitration award by written or oral opinion because an order confirming or vacating an arbitration award is a final judgment that is appealable as of right. A trial court's "[f]ailure to perform [its] duty [under this rule] 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Ordinarily, we would remand for the required findings and conclusions of law. However, because six-and-a-half years have elapsed since the breach of contract and violations of the Consumer Fraud Act that are the subject of the arbitration award, and the issues presented by the appeal are purely legal, we have elected to decide the merits without a remand. On appeal, defendant presents the following arguments: I. THE ARBITRATOR FAILED TO COMPLY WITH THE CONTRACTUAL OBLIGATIONS REQUIRED OF HIM.

II. THE AWARD EXCEEDS THE AUTHORITY GIVEN TO THE ARBITRATOR.

III. THERE IS EVIDENCE OF PARTIALITY ON THE PART OF THE ARBITRATOR.

IV. THE AWARD WAS RENDERED BY UNDUE MEANS.

We reject these arguments and affirm the judgment in plaintiff's favor. An arbitration award may be vacated only: a. Where the award was procured by corruption, fraud or undue means;

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b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;

d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.

[N.J.S.A. 2A:24-8.]

1

Under this statute, arbitration awards are "final, not subject to judicial review absent fraud, corruption, or similar wrongdoing on the part of the arbitrators." Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 357 (1994) (quoting Perini v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 519 (1992) (Wilentz, C.J., concurring)); see also Mt. Hope Dev. Assocs., EAJ, Inc. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998). Thus, an award may not be vacated "even though it might be based on a mistake of law." Tretina Printing, supra, 135 N.J. at 357. Applying these principles, defendant has failed to show grounds for vacating the arbitration award in plaintiff's favor. Defendant argues that the arbitrator lost jurisdiction because he failed to render an award within the time agreed by the parties. In support of this argument, defendant relies upon Rule 42 of the Construction Industry Arbitration Rules, which states in pertinent part: The award shall be made promptly by the arbitrator and, unless otherwise agreed by the parties or specified by law, no later than 30 calendar days from the date of closing the hearing[.]

Defendant also relies upon Rule 39, which provides in pertinent part: The parties may modify any period of time by mutual agreement. The AAA or the arbitrator may for good cause extend any period of time established by these rules, except the time for making the award.
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[Emphasis added.]

Defendant contends that the arbitration hearing was closed on May 28, 2004, which was the date set by the Arbitrator for the receipt of final briefs, and therefore the award was required to be issued no later than thirty days thereafter. Plaintiff does not question the applicability of Rules 42 and 39 to the arbitration of its dispute with defendant, but contends that defendant waived any objection it may have had to the untimeliness of the award. Plaintiff relies upon Rule 38, which provides: Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection in writing shall be deemed to have waived the right to object.

"Generally, whenever the agreement, applicable rules or statute fixes a time within which the award is to be made, an award made by the arbitrators after such time is a nullity and void." Pub. Util. Constr. & Gas Appliance Workers of N.J. v. Pub. Serv. Elect. & Gas Co., 35 N.J. Super. 414, 417 (App. Div.), certif. denied, 19 N.J. 333 (1955). However, a party may waive the right to the rendering of an arbitration award within the time provided by the applicable arbitration rule by failing to state an objection to such delay. Zervos v. Freedman Props., Ltd., 223 N.J. Super. 599, 604-05 (Ch. Div. 1987). We conclude that defendant's failure to state any objection to the delay in the arbitrator rendering an award constituted a waiver under Rule 38. Defendant was plainly aware of the deadline for the award and that the arbitrator had exceeded that deadline. Yet defendant did not express any objection to the delay until it received the award in plaintiff's favor. We agree with Zervos that a party that withholds an objection to the timeliness of an arbitration award until it has an opportunity to determine whether the award is favorable or unfavorable should be deemed to have waived the objection. See id. at 605. Defendant also argues that the arbitrator exceeded his authority in determining that defendant had violated the Consumer Fraud Act and awarding treble damages and attorneys fees in accordance with that Act. The arbitration clause of the contract states: "Any controversy or claim between the Contractor and the Owner

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arising out of or related to this Contract, or the breach thereof, shall be settled by arbitration." We are satisfied that this provision is worded broadly enough to encompass not only a breach of contract claim but also a claim of violations of the Consumer Fraud Act arising out of the execution or performance of the contract. We also reject defendant's argument that the record does not support a finding of a causal relationship between defendant's violations of the Consumer Fraud Act or the regulations adopted thereunder and the damages incurred by plaintiff. Under Tretina, this court has no authority to review an arbitration award to determine whether the arbitrator's factual findings are supported by the record or whether the arbitrator's legal conclusions reflect an erroneous view of the governing law. 135 N.J. at 356-59.
2

Lastly, defendant argues that there was evident partiality on the part of the arbitrator. This argument is clearly without merit and does not warrant discussion. R. 2:11-3(e)(1)(E). Affirmed.

1 The vacation of arbitration awards is now governed by N.J.S.A. 2A:23B-23, which was enacted in 2003. L. 2003, c. 95,

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