446 BELLEVUE LLC VS. GLOBAL LIFE ENTERPRISES, LLC VS. PRITI PANDYA-PATEL (C-000030-15, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2018
• Docket: A-0730-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0730-17T2

446 BELLEVUE LLC,

Plaintiff,

v.

GLOBAL LIFE ENTERPRISES, LLC,

Defendant-Appellant,

and

CHAI PROPERTY DEVELOPMENT, LLC, RAFAEL LEVY; MUNI KAZMIR; JOHN KALLIS, STEVE MITNICK, as Assignee For the Benefit of Creditors of Global Life Enterprises LLC,

Defendants,

BASEL TERMANINI and SAMIR AYASSO,

Defendants/Third-Party Plaintiffs-Respondents,

PRITI PANDYA-PATEL; RAJESH GROVER; SATYASAGAR MORISETTY; PRG CONSULTING CORP., BOOND INT'L and MVP OF PALMS, LLC, Third-Party Defendants- Appellants,

HEMANT MEHTA,

Third-Party Defendant. _______________________________________

Argued June 28, 2018 – Decided July 16, 2018

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-000030-15.

H. Matthew Taylor argued the cause for appellant (Gordon & Rees Scully Mansukhani, attorneys; Alexander Nemiroff and H. Matthew Taylor, on the briefs).

Thomas M. Kenny argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Frank J. Vitolo, of counsel and on the brief; Thomas M. Kenny, on the brief).

PER CURIAM

Appellants Global Life Enterprises, LLC (GLE), Priti Pandya-

Patel, Rajesh Grover, Satyasagar Morisetty, PRG Consulting Corp.

(PRG), Boond Int'l LLC (Boond), and MVP of Palms LLC (MVP) appeal

from the October 10, 2017 Chancery Division order denying their

motion to compel arbitration in their dispute with respondents

Basel Termanini and Samir Ayasso. Because the trial judge

neglected to make any meaningful findings of fact or conclusions

2 A-0730-17T2 of law in support of the October 10, 2017 order, we are constrained

to reverse and remand for further proceedings.

In order to attempt to give some context to the issues

presented by the parties on appeal, which we will ultimately not

be able to resolve, we rely upon the allegations contained in

respondents' third-party complaint against appellants. In doing

so, we note that appellants contest a number of respondents'

assertions and that the judge did not resolve any of these

disputes.

In May 2013, Patel, Grover, Morisetty, Termanini, and Ayasso

formed GLE1 for the purpose of purchasing several properties in

Trenton that were formerly part of a hospital campus. They

intended to develop the site "into a health and wellness one-stop

shop" with a number of health services available on site.

The five partners signed a written Operating Agreement

(Agreement) setting forth the terms by which GLE would be operated.

Termanini and Ayasso signed the Agreement as individuals and each

owned 20% of the shares of GLE in their own names. The three

1 GLE is a Florida member-managed limited liability company.

3 A-0730-17T2 other partners, who also each owned 20% of the company, placed

their shares in the name of corporations they controlled.2

Of significance to the present case, Article 10.8 of the

Agreement set forth an arbitration provision, which stated:

All disputes arising under this [A]greement shall promptly be submitted to arbitration in Pittsburgh, Pennsylvania before one arbitrator in accordance with the rules of the American Arbitration Association. The arbitrator may assess costs, including counsel fees, in such manner as the arbitrator deems fair and equitable. The award of the arbitrator shall be final and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction.

Article 10.6 further stated that the "[A]greement shall be governed

by and interpreted and enforced in accordance with the substantive

laws of the Commonwealth of Pennsylvania"; and Article 10.12

required that "[a]ny suit involving any dispute or matter arising

under this Agreement may only be brought to binding arbitration

through the Court of Common Pleas of [the] Commonwealth of

Pennsylvania in Pittsburgh."3

2 Patel's shares were owned by MVP; Grover's shares were owned by PRG; and Morisetty's shares were owned by Boond. 3 At the time the Agreement was signed, respondents Termanini and Ayasso resided in Pennsylvania, as did appellant Satyasgar. Patel and Grover lived in New Jersey.

4 A-0730-17T2 In September 2013, GLE purchased the properties. Respondents

assert they contributed $2 million to finance the purchase, which

was secured by a mortgage on one of the properties.

Thereafter, GLE's development plans did not go well. In

September 2014, the five partners agreed to attempt to sell the

properties, and they retained an agent to assist them in this

effort.

The agent put the partners in touch with Hemant Mehta, who

offered to buy the properties for $1.5 million. Mehta formed a

company called 446 Bellevue LLC (Bellevue) to complete the

purchase. Respondents allege that Mehta then changed the terms

of his offer and the deal fell apart. Later in 2014, Patel located

another potential purchaser, Munir Kazmir, who was a principal in

a company called Chai Property Development LLC (Chai). In April

2015, Chai agreed to purchase the properties for $4.5 million.

Bellevue then filed a complaint against GLE, alleging that

it had an agreement to buy the properties, which GLE breached by

attempting to sell them to Chai. While this litigation progressed,

GLE failed to pay taxes on the properties, and they became subject

to a tax lien. At an auction, a company called NJNY Lien purchased

one of the properties, located at 446 Bellevue Avenue in Trenton.

Respondents allege that Bellevue had an agreement with this company

to transfer this property to Bellevue.

5 A-0730-17T2 In February 2016, four of the partners agreed to liquidate

all of GLE's assets and dissolve the company.4 GLE made a general

assignment for the benefit of creditors and retained an attorney

to act as its assignee for the purpose of selling the assets.

Respondents Termanini and Ayasso allege that in June 2016,

GLE entered into a fraudulent settlement agreement of its

litigation with Bellevue. Under the terms of the settlement, GLE

admitted that it breached, and tortuously interfered with, the

agreement Bellevue alleged it had with GLE to purchase all the

properties. GLE also agreed to convey three of the properties to

Bellevue for $10, and consented to the entry of a $7 million

judgment against GLE in Bellevue's favor. This judgment

purportedly represented compensatory damages to Bellevue in

connection with the costs it incurred in acquiring the 446 Bellevue

Avenue property from NJNY Lien.

On August 12, 2016, the trial judge entered a consent judgment

incorporating the terms of the settlement between Bellevue and

appellants. Respondents alleged that the consent judgment was

void because appellants lacked the authority to consummate it

under the parties' Agreement.

4 Patel cast the lone dissenting vote.

6 A-0730-17T2 In February 2017, Bellevue filed its third amended complaint

in the still extant litigation. In this pleading, Bellevue named

respondents Termanini and Ayasso as defendants for the first time,

and sought damages against them for allegedly inducing GLE to

commit the breach and other wrongs that were the subject of the

settlement agreement. Bellevue did not name the three appellants

as individual defendants. Respondents allege that appellants made

a secret deal with Bellevue that if they agreed to the settlement,

Bellevue would not pursue any claims against them in their

individual capacities.

In June 2017, respondents responded by filing an eight-count,

third-party complaint against appellants and their three

companies, with additional claims directed against Bellevue and

Mehta. Specifically, respondents asserted that appellants

breached their fiduciary duty and duty of loyalty to them (counts

one and two); breached the terms of the Agreement (count three);

and committed legal and equitable fraud (count eight). In count

four, respondents alleged that appellants, Bellevue, and Mehta

conspired against them. In the remainder of their third-party

complaint, respondents raised separate claims against Bellevue and

Mehta, including tortious interference (counts five and six), and

legal and equitable fraud (count seven).

7 A-0730-17T2 In August 2017, appellants filed a motion to compel

arbitration pursuant to Article 10.8 of the Agreement. They

asserted that the matters raised in respondents' third-party

complaint involved "disputes arising under" the Agreement and,

therefore, arbitration was required.

Respondents opposed the motion, and asserted that the

arbitration provision in the Agreement did not apply to any of the

matters in dispute between the parties. Respondents also alleged

that because Bellevue and Mehta were not parties to the Agreement,

the counts of the complaint that pertained to them could not be

arbitrated. Therefore, respondents argued that no part of the

dispute should be referred to arbitration because doing so would

lead to "piecemeal litigation."

The task presented to the trial judge by the parties'

competing positions was clear. When a motion to compel arbitration

is filed, a court must conduct "a two-step inquiry into (1) whether

a valid agreement to arbitrate exists and (2) whether the

particular dispute falls within the scope of that agreement."

Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir.

2005). "Although arbitration is traditionally described as a

favored remedy, it is, at its heart, a creature of contract." Kimm

v. Blisset, LLC, 388 N.J. Super. 14, 25 (App. Div. 2006) (citations

omitted). "Thus, courts examine arbitration provisions 'on a

8 A-0730-17T2 case-by-case basis.'" Waskevich v. Herold Law, P.A., 431 N.J.

Super. 293, 298 (App. Div. 2013) (quoting Rockel v. Cherry Hill

Dodge, 368 N.J. Super. 577, 580 (App. Div. 2004)).

The trial judge did not perform this required analysis and,

instead, simply denied appellant's motion to compel arbitration.

His short oral decision does not quote, or even cite, Article 10.8

of the Agreement. The judge made no fact findings at all, thus

leaving the parties' disputed factual allegations completely

unresolved. The judge did not review any of the claims respondents

raised in their third-party complaint that appellants alleged were

subject to arbitration. The judge also failed to consider whether

the motion should be "governed by and interpreted and enforced in

accordance" with Pennsylvania law as stated in Article 10.6 of the

Agreement, or brought in the first instance in the Court of Common

Pleas in Pittsburgh under Article 10.12.

Instead, the judge listed two conclusory bases for his

decision denying the motion. First, the judge referred to this

court's unpublished decision in Kaufman v. Maresca, No. A-3611-04

(App. Div. Jan. 3, 2006), and stated:

In terms of looking at the arbitration, of course, arbitration is highly favored, and there's always a presumption that there should be arbitration, but it's not absolute. Obviously, we have the Kaufman case here. It's an unpublished case, but it's a case that makes a lot of sense and talks about the party

9 A-0730-17T2 – "When the party seeking enforcement of an arbitration clause does so with less than clean hands" – I'm not saying there weren't clean hands here, but what I'm saying . . . obviously is that this operating agreement wasn't complied with, so there's an analogy there – "where arbitration will not fully resolve the entire controversy," – which it wouldn't do – "and where equity jurisprudence is particularly adapted to do complete justice in the situation."

We disagree with the judge's analysis. First, an unpublished

opinion has no prejudicial value. Badiali v. N.J. Mfrs. Ins.

Grp., 220 N.J. 544, 559 (2015); see also R. 1:36-3. Just as

importantly, Kaufman is completely distinguishable from the facts

of this case, as we have been able to discern them. In Kaufman,

the party seeking to compel arbitration initially filed his action

in the Law Division. (slip op. at 3). Thus, unlike appellants

in the present case, this party "ignored the very terms of the

operating agreement on which he relie[d] to compel arbitration."

Id. at 8.

In addition, the party waited to seek to compel arbitration

until after the court had set a trial date. Id. at 4. In this

case, however, appellants filed their motion within two months of

their receipt of respondents' third-party complaint.

Under these "unique circumstances[,]" where "the party

seeking enforcement of the arbitration clause [did] so with less

than clean hands," the Kaufman court held that the trial court

10 A-0730-17T2 properly denied the party's motion. While the judge relied upon

Kaufman in this case, he also contradictorily stated, "I'm not

saying there weren't clean hands here[.]" Thus, Kaufman provided

no support for the judge's denial of appellants' motion to compel

arbitration.

The other basis for the judge's decision was his belief that

because certain of the claims, which he did not specifically

identify,5 might not be subject to arbitration, none of the matters

raised in respondent's third-party complaint could be referred to

arbitration even if they fell under the broad terms of Article

10.8 of the Agreement.6 The judge stated:

So obviously, this would be piecemeal litigation. There's no dispute about that. There's conspiracy and fraud claims here involving multiple parties, some of whom – one of whom would be part of the arbitration. So there's really no way that this case can be litigated through Superior Court and through

5 We presume the judge was referring to the counts of respondents' third-party complaint that solely involved Bellevue and Mehta. Again, however, we cannot be sure because of the absence of fact findings. 6 It appears that the judge also incorrectly relied upon the unpublished Kaufman decision for this conclusion. In addition to concluding that the party seeking arbitration in that case did not act with clean hands, the Kaufman panel noted that "arbitration [would] not resolve the entire controversy," and that "equity jurisprudence [was] particularly adapted to do complete justice in the situation," as additional grounds for affirming the trial court's decision in that case to deny the motion to compel arbitration. (slip op. at 10).

11 A-0730-17T2 an arbitration. They have to be combined. And even though it's a favored provision, the Court's going to deny the application to enforce the arbitration clause.

This ruling is contrary to the Federal Arbitration Act (FAA),

9 U.S.C.A. §§ 1 to 16, which "was enacted 'to abrogate the then-

existing common law rule disfavoring arbitration agreements[.]'"

Hirsch v. Amper Financial Services, LLC, 215 N.J. 174, 187 (2013)

(also noting that the New Jersey Arbitration Act, N.J.S.A. 2A:23B-

1 to -32, "is similar in nature to the FAA" and likewise favors

the enforcement of arbitration agreements). Importantly, the FAA

"requires piecemeal resolution when necessary to give effect to

an arbitration agreement." EPIX Holdings Corp. v. Marsh & McLennan

Companies, Inc., 410 N.J. Super. 453, 479 (App. Div. 2009) (quoting

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

20 (1983); see also Waskevich, 431 N.J. Super. at 300.

Thus, when a trial court is faced with a situation where some

of the claims are subject to arbitration and some are not, the

court should bifurcate the claims, sending those covered by the

parties' agreement to arbitration, while keeping jurisdiction of

those that are not. Waskevich, 431 N.J. Super. at 300. The court

may also stay the litigation pending the conclusion of the

arbitration. Hirsch, 215 N.J. at 196 n.5. In addition, "if any

claim is severable from the claims proceeding to arbitration"

12 A-0730-17T2 between the parties, the court "may limit the stay to certain

claims." Ibid. (citations omitted).

These rules apply "even where the result would be the possibly

inefficient maintenance of separate proceedings in different

forums." EPIX, 410 N.J. Super. at 479-80 (quoting Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985)). Thus, the fact

that one of the parties could be inconvenienced by proceeding in

two forums, this "is not a sufficiently compelling ground to

overcome New Jersey's strong public policy favoring arbitration

where the parties have expressly agreed to this method of dispute

resolution." Id. at 480. Accordingly, "our courts have routinely

permitted litigation in separate forums where a plaintiff alleges

claims against multiple defendants, some of whom have agreed to

arbitrate their disputes and others have not, even where common

questions of law and fact create significant overlap." Ibid.

The judge did not consider any of these established precedents

in denying appellant's motion to compel arbitration, and this

appeal followed.7 On appeal, appellants argue that the judge

should have submitted all of the issues between the parties to

arbitration or, in the alternative, severed the claims involving

7 In a separate ruling, the judge granted respondents' motion to vacate the consent judgment between Bellevue and GLE. None of the parties have appealed that determination and, therefore, it is not before us.

13 A-0730-17T2 only Bellevue and Mehta, while sending the remaining claims to

As already noted, we are unfortunately unable to address

appellants' contentions and respondents' opposition to same

because the judge did not make adequate findings of fact or

conclusions of law. No one – not the parties and not this court

– can properly function or proceed without some understanding of

why a judge has rendered a particular ruling. See Curtis v.

Finneran, 83 N.J. 563, 569-70 (1980) (requiring trial court to

clearly state its factual findings and correlate them with the

relevant legal conclusions). The failure to provide findings of

fact and conclusions of law "constitutes a disservice to the

litigants, the attorneys and the appellate court." Ibid. (quoting

Kenwood Assocs. v. Bd. of Adjustment, Englewood, 141 N.J. Super.

1, 4 (App. Div. 1976).

In this case, we cannot be sure whether the facts respondents

allege in their third-party complaint are accurate or whether, as

appellants assert, their factual allegations are neither complete

nor correct. The judge did not analyze any of the individual

counts of the complaint, other than to note that "[t]here's

conspiracy and fraud claims here involving multiple parties[.]"

The brief explanation for the judge's ruling is not grounded in

the applicable law. Thus, there is nothing for us to review.

14 A-0730-17T2 We acknowledge that our review of an order denying a motion

to compel arbitration is de novo. Hirsch, 215 N.J. at 186.

However, as the court recently stated, "our function as an

appellate court is to review the decision of the trial court, not

to decide the motion tabula rasa." Estate of Doerfler v. Federal

Ins. Co., ___ N.J. Super. ___ (App. Div. 2018) (slip op. at 5).

Under these circumstances, we have no alternative but to reverse

the October 10, 2017 order, and remand this matter to the trial

court for further proceedings. In remanding this matter, we do

not suggest a preferred result, but only that the trial court

reconsider the matter and fulfill its duty to the parties to fully

address the factual and legal arguments presented in this case.

On remand, we suggest that the court promptly conduct a

conference with the parties to determine whether additional

briefing and oral argument is necessary to enable the court to

address the issues raised. The court should then consider

appellants' motion anew and render a decision that includes

detailed findings of fact and comprehensive conclusions of law.

By discharging its duty in this regard, the court will ensure that

"the litigants have been heard and their arguments considered.

Justice requires no less." Bailey v. Bd. of Review, 339 N.J.

Super. 29, 33 (App. Div. 2001).

15 A-0730-17T2 Reversed and remanded. We do not retain jurisdiction.

16 A-0730-17T2