151 MADISON AVENUE INVESTORS, LLC VS. CARE ONE AT MADISON, LLC (L-1852-19, MORRIS COUNTY AND STATEWIDE)

1
                                NOT FOR PUBLICATION WITHOUT THE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-1288-19T4

151 MADISON AVENUE
INVESTORS, LLC,

          Plaintiff-Appellant,

v.

CARE ONE AT MADISON, LLC,

     Defendant-Respondent.
____________________________

                   Argued telephonically May 13, 2020 –
                   Decided July 13, 2020

                   Before Judges Whipple, Gooden Brown, and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-1852-19.

                   Robert B. Rosen argued the cause for appellant
                   (Hellring Lindeman Goldstein & Siegal LLP, attorneys;
                   Robert B. Rosen, of counsel and on the briefs).

                   Patrick T. Collins argued the cause for respondent
                   (Skoloff & Wolfe, PC, attorneys; David Benjamin
                   Wolfe and Patrick T. Collins, on the brief).

PER CURIAM
      Plaintiff 151 Madison Avenue Investors, LLC appeals from an October

25, 2019 order denying plaintiff's application for confirmation of an arbitration

award and counsel fees, and granting defendant Care One at Madison, LLC its

application to disqualify Arthur Linfante from serving as arbitrator in future

arbitration proceedings, ordering both parties to designate arbitrators who are to

designate a third, and denying counsel fees to both parties. We affirm.

      Defendant is a commercial tenant operating a skilled nursing facility in

property owned by plaintiff. The lease agreement between the parties provides

that on the twenty-first anniversary of the lease, which fell on June 12, 2019, the

fixed rent would adjust to 110% of the annual fair market rental value

(AFMRV). Pursuant to the lease agreement, the AFMRV was to be initially

determined by defendant, who was then to propose it to plaintiff six months

before the computation date. If plaintiff disputed defendant's AFMRV, it was

to notice defendant within thirty days after receiving defendant's proposal.

      If the matter was not resolved between the parties within thirty days of the

notice of dispute, the AFMRV was to be "determined by arbitration," where each

party was to choose an "arbitrator," the two "arbitrators" were to agree on a third

"arbitrator," and then all three "arbitrators" were to "conduct such hearings as

they deem appropriate, making their determination in writing, and shall give


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notice to [plaintiff] and [defendant] of their determination as soon as practicable;

the concurrence of any two of said arbitrators shall be binding." Should no two

arbitrators render a concurrent determination, the determination of the third

arbitrator was to be binding on the parties. If the two arbitrators failed to agree

on a third arbitrator, "either party may apply to the American Arbitration

Association . . . for the designation of such arbitrator."

      If either party failed to choose an arbitrator within fifteen business days

of the expiration of the thirty-day period, the arbitrator chosen by the other side

was to make the determination alone. All the arbitrators were required to be

"real estate appraisers who are members of the Appraisal Institute or any

successor organization thereof and who have had at least fifteen [] years

continuous experience in the business of appraising real estate in the Morris

County, New Jersey area."

      Plaintiff did not agree with defendant's proposed AFMRV of $160,000,

which was belatedly submitted on February 4, 2019, and based off the

municipality's assessment, so plaintiff submitted its notice of dispute to

defendant on February 28.         Because plaintiff did not have experience

determining an AFMRV, it retained Arthur Linfante of Integra Realty

Resources, who had extensive experience appraising real estate in Morris


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County, in anticipation of negotiations with defendant in the hopes of coming to

an agreement "without having to go through the arbitration process

contemplated by the [l]ease [agreement]." Linfante had previously appraised

the property in October 2018, basing his appraisal on the value of the corporation

as of November 2017, after being appointed by the court to do so in a

shareholder dispute.

      The parties were unable to resolve the determination of the AFMRV by

March 30, and, pursuant to the lease agreement, were required to select

arbitrators by fifteen business days later, which was April 19. Plaintiff noticed

its chosen arbitrator on April 11; it chose Linfante. Defendant belatedly noticed

its chosen arbitrator on April 30, seven days after it was due, to which plaintiff

objected and stated by letter the AFMRV would be established solely by

Linfante.   After communications in May between both parties' counsel

discussing comparable sales, including comparable sales plaintiff told defendant

were provided to it by Linfante, by letter dated June 27 defendant objected to

Linfante serving as arbitrator "given [plaintiff's] ongoing discussions with him

as a consultant. Although a well-respected appraiser, [] Linfante's role as an

advocate and consultant disqualifies him as a neutral arbitrator." Defendant

indicated it would be willing to move forward with its belatedly-proposed


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arbitrator in a single arbitrator proceeding, or, if plaintiff would like to propose

a new arbitrator as contemplated by the lease, defendant requested it do so "as

soon as possible."

      Through a letter addressed only to plaintiff dated July 31, Linfante

submitted an appraisal report, the purpose of which was stated "to develop an

opinion of the market value of the fee simple interest in the property and the

[AFMRV]. The client for the assignment is [plaintiff] . . . , and the intended use

is for establishing the '[AFMRV]' as of . . . June 12, 2019." "Market value" was

defined in the report to be the "most probable" price a property should bring.

      The report disclosed, as required by the Uniform Standards of

Professional Appraisal Practice (USPAP), that "[w]e have previously appraised

the property that is the subject of this report . . . . In October of 2018 we

appraised the leased fee value of the property . . . to establish the 'fair value' of

the shares of stock of dissenting shareholders." The report also included a

paragraph explaining the "opinions of value" were based on "estimates and

forecasts that are prospective in nature" and subject to "considerable risk and

uncertainty," and "based partly on data obtained from interviews and third-party

sources," although the findings were thought to be "reasonable based on

available evidence." Linfante's "opinion" of the AFMRV was $529,550. This


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was higher than his October 2018 court-ordered appraisal because it was based

on the 178 beds reflected on the certificate of need defendant received from the

State of New Jersey, whereas his prior appraisal was based on around 120 to 140

beds.

        On August 2, plaintiff sent defendant's counsel a letter informing them

that since defendant designated its arbitrator out of time, "Linfante became the

sole arbitrator and determinant of the AFMRV."         It stated "Linfante has

determined the AFMRV for the subject property by . . . assessing the value of

comparable properties. Based on [] Linfante's appraisal, the AFMRV effective

June 12, 2019 is $529,550 . . . the annual rent is 110% of the AFMRV, or

$582,505." This was an increase of 224% of what defendant was currently

paying. Linfante's report was not attached.

        On August 15, defendant submitted a demand for arbitration to the

American Arbitration Association.      Plaintiff responded by letter asserting

defendant's demand for arbitration was moot as the issue of the AFMRV was

already considered and decided by Linfante, its chosen arbitrator, pursuant to

the lease agreement since defendant submitted its arbitrator after the deadline.

Plaintiff told defendant Linfante issued a report finding the AFMRV was




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$582,505 "after conducting his investigation," and attached a copy of Linfante's

appraisal report; this was the first time defendant saw the report.

      The next day, August 28, plaintiff filed a complaint seeking confirmation

of the arbitration award, counsel fees and costs, and dismissal of the arbitration

before the American Arbitration Association. The court entered an order to

show cause as to why plaintiff's arbitration award should not be confirmed.

Defendant opposed the relief sought by plaintiff and cross-moved for an order

disqualifying Linfante and directing that both parties designate respective party

arbitrators pursuant to the provisions of the lease agreement.         Defendant's

counsel certified Linfante never contacted defendant, and that defendant did not

submit any materials to Linfante or receive notice any arbitration proceeding

was occurring.    At least two underlying facts on which Linfante relied to

determine the AFMRV were in dispute—whether to rely on assisted-living

comparable sales versus skilled nursing facility comparable sales, and the

number of beds that should be used in calculating the AFMRV.

      Linfante certified he was initially retained by plaintiff in February 2019

"as a consultant in anticipation of future negotiations between [plaintiff] a nd its

tenant [defendant] with respect to [the subject] property." In April, he was asked

to be plaintiff's "expert real estate appraiser in connection with an arbitration


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proceeding to establish the AFMRV" of the property, and that in his "capacity

as a party-appointed arbitrator" he "fully understood that it was [his]

responsibility to act fairly and in good faith, and determine the AFMRV based

on established appraisal guidelines, including the [USPAP], the Code of

Professional Ethics and Standards of Professional Appraisal Practice of the

Appraisal Institute, and applicable state appraisal regulations." He certified he

"acted fairly and impartially" at all times and, while he did have "several

conversations" with plaintiff's counsel between February and April of 2019 "in

connection with the negotiations ongoing" between the parties, as well as "later

in the course of [his] independent research regarding the [p]roperty," he certified

"at no time did [he] allow [plaintiff's] counsel to influence [his] appraisal, cause

[him] to depart from the appraisal guidelines or prejudice [his] ultimate

determination of the AFMRV."

      He pointed out that his certification included in his report indicated he had

no bias with respect to the property, and that his engagement and compensation

for completing the assignment were not contingent on developing or reporting

pre-determined results or results in favor of plaintiff or anyone else. He certified

plaintiff's counsel "provided [him] with several comparable sales of the

[p]roperty that [he] underst[ood] were provided to [plaintiff]'s counsel by


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[defendant]'s counsel." He noted that in his report he "used the sales comparison

approach in developing an opinion of the value," and analyzed land sale

transactions "provided by [plaintiff's] and [defendant's] representatives in

addition to [his] typical primary research protocol," and that out of five

comparable sales used to determine the AFMRV, one of those was a property

referred to by defendant's counsel. He also denied disclosing his deliberations

or factors leading him to conclude the AFMRV, nor discussing any material

issues with plaintiff or its counsel after determining the AFMRV and preparing

the appraisal report.

      At the order to show cause hearing, defendant argued Linfante was not an

arbitrator, but an appraiser retained to assist plaintiff during negotiations

beginning in February, whom plaintiff "magically transformed into an

arbitrator," and that it was not in dispute defendant had "no notice of hearing,

arbitration statements, arbitration hearings, an opportunity to submit evidence,

an opportunity to be heard, an opportunity to submit expert testimony, an

opportunity to be represented by counsel, or an opportunity to submit briefs."

Defendant argued the plain language of the lease called for the AFMRV to be

determined by "arbitration," not by "appraisal." Defendant argued that just

because the arbitrators were required to have expertise in appraisal did not mean


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only an appraisal was required; rather, it noted arbitrators are frequently

appointed based on their specialized expertise. Defendant asserted Linfante

decided all facts on his own without an arbitration because he acted as an expert.

      The judge found that although Linfante had an excellent reputation as an

appraiser and was very highly regarded by both parties, there was no "'give and

take' that an arbitration process should, to some degree, take into account." The

judge found there was no "overture or invitation to representatives of

[defendant]" to either come to Linfante's office or to meet to exchange

information, "whether it be patient population, what are the actual number of

beds, versus the certified number of beds." The judge noted Linfante's appraisal

appeared to be thorough but "[did] not look like . . . what I would expect from

what I would define as an arbitration process, with equal input from all parties.

It's one thing to designate a sole arbitrator," and another to have that sole

arbitrator just go out and "do his thing," and that even if it were done as

professionally as possible, "there was no communication back and forth,

exchange of information," which the judge stated "ought to be present" as a

"keystone of the arbitration process."

      The judge determined the case needed a "fresh start with new faces, new

individuals involved," as Linfante had already articulated a position without a


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minimum appropriate level of input and involvement from defendant. He noted

that it could be problematic for an appraiser to "back off" his own prior appraisal

number and reach a lower number for the same property. Therefore, he ordered

each party to choose an arbitrator with no prior contact with the property, and

that, while the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32, does

not require a formal hearing, there should be some kind of conferring,

participatory process and "communication pipeline." He stated that had not been

done, and needed to "be done fairly." The parties were to follow the process as

set forth in the lease, and whatever AFMRV emerged from that process would

be retroactively effective to June 12, 2019. This appeal followed.

                                        I.

      We review orders to compel arbitration, which are deemed final for

purposes of an appeal under Rule 2:2-3(a), de novo. Hirsch v. Amper Fin.

Servs., LLC, 

215 N.J. 174

, 186 (2013). We also review a contract de novo,

owing no special deference to the trial court. Atalese v. U.S. Legal Servs. Grp.,

L.P., 

219 N.J. 430

, 445-46 (2014).

                                        A.

      A court may enforce an agreement to arbitrate under N.J.S.A. 2A:23B-

26(a), and there is a "strong preference to enforce arbitration agreements."


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Hirsch, 215 N.J. at 186

. Arbitration is, "at its heart, a creature of contract,"

Kimm v. Blisset, LLC, 

388 N.J. Super. 14

, 25 (App. Div. 2006), and "since a

submission to arbitration is essentially a contractual matter, the parties are

bound to the extent of their contract," Lakewood Twp. Mun. Utils. Auth. v. S.

Lakewood Water Co., 

129 N.J. Super. 462

, 473 (App. Div. 1974). A court may

not rewrite a contract "by substituting a new or different provision from what is

clearly expressed in the instrument." Rahway Hosp. v. Horizon Blue Cross Blue

Shield of N.J., 

374 N.J. Super. 101

, 111 (App. Div. 2005) (quoting E. Brunswick

Sewerage Auth. v. E. Mill Assocs., 

365 N.J. Super. 120

, 125 (App. Div. 2004)).

Further, a court may not "make a better contract for either party, or supply terms

that have not been agreed upon."

Ibid. (quoting Bar on

the Pier, Inc. v.

Bassinder, 

358 N.J. Super. 473

, 480 (App. Div. 2003)). "Where the terms of a

contract are clear and unambiguous there is no room for interpretation or

construction and the courts must enforce those terms as written." Karl's Sales

and Serv., Inc. v. Gimbel Bros., Inc., 

249 N.J. Super. 487

, 493 (App. Div. 1991)

(citations omitted).

      Plaintiff argues even though the words "arbitration" and "arbitrator" were

used in the lease agreement, the context of the lease indicates an arbitration in

the traditional sense was not contemplated, but intended an "appraisement" to


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fix a value, which does not require a give and take or equal input of the parties.

We disagree.

      Elberon, which plaintiff cites in support of its position, is distinguishable

in that the contract used the term "appraiser" instead of "arbitrator"; the parties

there entered into a fire insurance policy "agreement for submission to

appraisers," which is not governed by the Act, but is governed by N.J.S.A.

17:36-5.20, which is not applicable here. Elberon Bathing Co. v. Ambassador

Ins. Co., 

77 N.J. 1

, 5 n.1, 7, 17 (1978). 

Lakewood, 129 N.J. Super. at 474

, is

also distinguishable, in that the ordinance that set forth the agreement was

ambiguous because the terms "appraisers" and "arbitrators" were used

interchangeably, requiring the court to look beyond the plain language to discern

the intent of the parties. There, the court found appraisal was appropriate,

stating:

            [T]he general rule of construction of contracts for the
            proposed purchase or sale of property is said to . . . in
            the absence of indications to the contrary, . . .
            particularly if [the decision-makers] are selected
            because of their special knowledge of the subject matter
            . . . indicate an act of "appraisal" rather than
            "arbitration."

            [Ibid.]




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However, the Lakewood court did note that determining fair market value of

land where the contract called for an "[a]rbitrator" and submission to

"arbitration" if parties disagreed on the appraised value, had been found to be

an arbitrable issue.

Id. at 473

(citing Keppler v. Terhune, 

88 N.J. Super. 455

(App. Div. 1965)).

      Plaintiff also cites City of Omaha v. Omaha Water Co., 

218 U.S. 180

, 191

(1910) in support of its position, but there, the ordinance called for the

"appraised valuation" to be determined by the estimate of "three engineers." In

considering whether arbitration or appraisal was contemplated, the Court quoted

Sir John Romilly, who stated there was a "distinction between an existing

difference and one which may arise," and that "unless a difference has actually

arisen, it does not appear to . . . be an arbitration," but if

             after dispute and discussion respecting the price, they
             . . . agree that the matter shall be referred to his
             arbitration, that would appear to be an "arbitration," in
             the proper sense of the term . . .; but if they agree to a
             price to be fixed by another, that does not appear to me
             to be an arbitration.

             [Id. at 194-96 (quoting Collins v. Collins, 26 Beav.
             306).]

      The Court in Omaha noted that because there was no antecedent

disagreement as to price and the ordinance under which the purchase was to be


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made stated the estimation was to be made by "three engineers," appraisal was

appropriate.

Id. at 196.

      Here, however, in addition to clearly and unambiguously using the terms

"arbitrators" and "arbitration," the lease agreement only required arbitration in

the case of a dispute—if the landlord did not agree to the tenant's initial proposal

of the AFMRV.       Therefore, not only is Omaha distinguishable in that the

ordinance in Omaha did not use the word "arbitration" or "arbitrator" anywhere,

but also because here the arbitration was only to occur after an antecedent

disagreement on price. Therefore, that is further evidence, in addition to the

unambiguous language in the agreement at issue here, that an arbitration was

required versus a mere appraisal or arbitration in the form of an appraiseme nt.

The unambiguous use of the word arbitrators must be read plainly; even if the

"general" way to determine value or loss is appraisal, parties are free to contract

as they see fit, and here they unambiguously contracted to use "arbitrators" and

"arbitration" if plaintiff did not agree to defendant's initially-proposed AFMRV.

      We reject plaintiff's argument that because the "arbitrators" were required

by the lease agreement to be appraisal experts, only an appraisement was

necessary. To the contrary, "[a]rbitrators generally are laypersons who bring to

arbitral proceedings their technical expertise and professional skills," 6 C.J.S.,


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Arbitration § 89 (2020 update) (citations omitted), and "[o]ften, arbitrators are

purposely chosen from the same trade or industry as the parties in order to bring

special knowledge to the task of deciding," American Arbitration Association,

The Code of Ethics for Arbitrators in Commercial Disputes 1 (March 1, 2004);

see also Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 

86 N.J. 179

, 194

(1981) (recognizing that "arbitrators are often chosen precisely because they are

experienced in the industry in which the dispute has arisen"). Further, should

the two chosen arbitrators not agree on the third arbitrator, the third arbitrator

was to be appointed by the American Arbitration Society. Therefore, the

agreement called for an arbitration as it is plainly understood.

                                        B.

      Plaintiff argues that even if arbitration is required under the lease

agreement, the trial court erred in requiring a "give and take" because neither

the lease agreement nor the Act require a hearing, and the Act gives an arbitrator

wide discretion to conduct an arbitration in any manner the arbitrator considers

appropriate to dispose of the matter fairly and expeditiously. Plaintiff contends

Linfante's consideration of comparable sales submitted to plaintiff's counsel by

defendant was sufficient consideration of defendant's input. We disagree.




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      Under Rule 1:40-2(a)(1), arbitration is "[a] process by which each party

or its counsel presents its case to a neutral third party, who then renders a

specific award." The "arbitrator's role is evaluative, requiring the parties to

present their evidence for a final determination." Minkowitz v. Israeli, 433 N.J.

Super. 111, 144 (1981) (citing R. 1:40-2(b)(2)).

      The arbitration process is governed by both the parties' contract and by

statute; in New Jersey intrastate matters are governed by the Act. State Farm

Guar. Ins. Co. v. Hereford Ins. Co., 

454 N.J. Super. 1

, 5 (App. Div. 2018). An

arbitration agreement may define procedures to be used, the method for

initiating proceedings, and the manner in which the process is conducted, and

the Act authorizes courts to recognize and enforce arbitration agreements.

Minkowitz, 433 N.J. Super. at 133

(citing N.J.S.A. 2A:23B-5 to -6, -9, and -15).

Arbitrators have broad powers to resolve disputes, and judicial involvement is

limited—once parties contract for binding arbitration, the court may only

enforce orders or subpoenas issued by the arbitrator, confirm the arbitration

award, correct or modify an award, or, in limited circumstances, vacate an

award.

Id. at 134

(citing N.J.S.A. 2A:23B-17(g), -22, and -23 to -24).

      However, "a corollary of the support accorded arbitration by the

[L]egislature and courts of New Jersey is that arbitrators must adhere to high


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standards of honesty, fairness, and impartiality in exercising power." 7 N.J.

Pleading and Practice Forms § 57.2 (2019 update) (citing 

Barcon, 86 N.J. at 188

).

        Under N.J.S.A. 2A:23B-15(a), "[a]n arbitrator may conduct an arbitration

in such manner as the arbitrator considers appropriate for a fair and expeditious

disposition of the proceeding." (Emphasis added). While not required to hold

a hearing, State 

Farm, 454 N.J. Super. at 6

, the arbitrator may hold conferences

with the parties before a hearing and determine admissibility, relevance,

materiality, and weight of any evidence, N.J.S.A. 2A:23B-15(a).

        The Act's conferral of authority is broad, and "'does not require any

particular procedures, mandate discovery, compel the maintenance of a record,

command a statement by the arbitrator regarding his findings and conclusions,

or an expression of the reasons why he reached the result that he did[]' unles s

expressly required under the parties' arbitration agreement." 

Minkowitz, 433 N.J. Super. at 144-45

(quoting Johnson v. Johnson, 

204 N.J. 529

, 546 (2010)).

However, the hallmark of an arbitrator is neutrality, and an arbitrator should

have "the appearance of a neutral factfinder."

Id. at 142.

        N.J.S.A. 2A:23B-11(d) permits a party arbitrator to be predisposed toward

the appointing party, but "[f]rom and after the commencement of an arbitration,


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an arbitrator shall act in good faith and exercise the arbitrator's responsibilities

in a manner consistent with the authority placed in the arbitrator by the courts

of this State and this [A]ct." While an arbitrator designated by a party "may

approach the arbitration proceedings with some sympathy for the position of the

party designating him," the arbitrator "should conduct the proceedings in an

evenhanded manner and treat all parties with equality and fairness at all stages

of the proceedings." 

Barcon, 86 N.J. at 190

(citations and internal quotation

marks omitted).

      Here, Linfante did not have any direct contact with defendant, and

defendant did not have the opportunity to submit any materials or statements in

support of its position, other than a few comparable sales that were filtered

through plaintiff's counsel; defendant asserts it was not even aware Linfante had

started any proceeding. While an arbitrator does have wide latitude to conduct

an arbitration as he or she sees fit to dispose of the matter fairly and

expeditiously, defendant here was not treated evenhandedly, and while this was

certainly an expeditious way to dispose of the matter, it cannot be said to be fair.

      Linfante's process looked more like an appraisal than an arbitration, which

is not what was called for under the plain language of the lease agreement.

            A distinction is often drawn between an arbitration and
            a mere appraisal or valuation, [] or proceeding in the

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             nature of an appraisal. [] Although an appraisal may be
             used as another form of alternative dispute resolution,
             it is not arbitration. [] An appraisal is an informal,
             independent investigation conducted by individuals
             who base their decisions on their own knowledge. []

             [6 C.J.S., Arbitration § 2 (2020 update).]

"Arbitrators are not identical with, and hence are to be distinguished, at least in

some respects, from . . . appraisers. [] It has been stated that an arbitrator is more

than a mere appraiser, [] and an arbitrator is viewed, in effect, as a private

judge.[]"   6 C.J.S., Arbitration § 89 (2020 update) (citations omitted).

"Appraisers act on their own skill and knowledge, need not be sworn and need

hold no formal hearings so long as both sides are given an opportunity to state

their positions." 

Elberon, 29 N.J. at 17

. "The distinction between 'arbitration'

and 'appraisement' is significant."        

Lakewood, 129 N.J. Super. at 471

.

"[Appraisers] are not obliged to give the rival claimants any formal notice or to

hear evidence, but may proceed by ex parte investigation so long as the parties

are given opportunity to make statements and explanations with regard to

matters in issue."

Ibid. (citation omitted). Here,

Linfante conducted his investigation and compiled his report on his

own, and while he considered a few comparable sales that he received from

plaintiff's counsel that he "understood" were from defendant, even these were


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apparently without defendant's knowledge, as defendant did not even realize a

proceeding was occurring. Defendant was not permitted to submit a statement

on its position on the underlying disputed facts or the AFMRV, as is even

required under a mere appraisement. Therefore, Linfante's investigation and

report appear to be of the nature of an expert report prepared for plaintiff, and

no arbitration in any sense of the word appears to have been conducted.

      Neither did Linfante comply with other arbitration requirements, such as

disclosing potential conflicts of interest to both parties before proceedings began

and providing both parties with notice and a copy of the final determination and

award under N.J.S.A. 2A:23B-11, -12, and -19.

      N.J.S.A. 2A:23B-11(c) states that "[a]n individual who has a known,

direct, and material interest in the outcome of the arbitration proceeding or a

known, existing, and substantial relationship with a party may not serve as a

party arbitrator if such information has not been disclosed pursuant to section

[twelve] of this [A]ct. []"    Section twelve states that "[b]efore accepting

appointment," a potential arbitrator must disclose "to all parties" "any known

facts that a reasonable person would consider likely to affect the impartiality of

the arbitrator in the arbitration proceeding," which includes a financial or

personal interest in the outcome and an existing or past relationship with any of


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the parties. N.J.S.A. 2A:23B-12(a)(1) and (2) (emphasis added). Where an

arbitrator fails to disclose such facts, and a party timely objects, a judge may

vacate the arbitrator's award. N.J.S.A. 2A:23B-12(d).

      Here, Linfante made a "disclosure" in his report that he had appraised t he

property in October 2018. However, the report was well after his appointment

as arbitrator, was not sent to defendant, and defendant asserted it did not know

until Linfante's certification dated October 2019 that Linfante was serving as

plaintiff's consultant during negotiations since February, and not until the

hearing that he had previously appraised the property at a lower value using the

lower number of beds.      Linfante did not make the disclosures before any

"proceeding" began, did not make the disclosure directly to both parties, and did

not even send his report directly to defendant.

      Further, under N.J.S.A. 2A:23B-19(a), the arbitrator is required to make

a record of an award and to "give notice of the award, including a copy of the

award, to each party to the arbitration proceeding." (Emphasis added). This is

also called for in the lease agreement, where the arbitrators "shall give notice to

[plaintiff] and [defendant] of their determination as soon as practicable."

(Emphasis added). Here, defendant only received the report and notice of the

"award" through plaintiff's counsel; Linfante did not provide defendant with


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either notice or a copy of the award. That Linfante did not comply with these

requirements under the Act is further indication he was not acting as an

"arbitrator," but rather as plaintiff's expert appraiser and there was no

"arbitration."

                                          II.

      Plaintiff argues the method of choosing an arbitrator did not fail, and the

methodology whereby defendant waived its choice of arbitrator by submitting it

late must be upheld under N.J.S.A. 2A:23B-11(a). Plaintiff argues the judge

impermissibly modified the terms of the lease agreement by ruling a new

arbitration was to be held and that defendant has the right to designate an

arbitrator after waiving that right the first time. Plaintiff asserts if there is a new

proceeding, defendant should not get the benefit of a three-person arbitration

with one arbitrator designated by defendant, but that the arbitration should be

conducted solely by the arbitrator designated by plaintiff.

      N.J.S.A. 2A:23B-15(e) states that "[i]f an arbitrator ceases or is unable to

act during the arbitration proceeding, a replacement arbitrator shall be appointed

in accordance with section [eleven] of this [A]ct [] to continue the proceeding

and to resolve the controversy." N.J.S.A. 2A:23B-11(a) states if the parties'

agreed-to method of appointing an arbitrator fails, or if an appointed arbitrator


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fails, "the court, on application of a party to the arbitration proceeding, shall

appoint the arbitrator."

         Here, the agreed-upon method did fail—defendant was late submitting its

arbitrator and plaintiff's "arbitrator" did not actually arbitrate, but served in the

capacity of plaintiff's expert appraiser. However, neither party asked the court

to appoint an arbitrator. Because a court's powers related to arbitration are

limited, the arbitration agreement should be enforced, and the logical place to

do so is at the point in the agreement where each party did not properly adher e

to the agreement, which is in choosing an "arbitrator."

         Plaintiff had the opportunity to choose an arbitrator to conduct a fair,

expeditious, and evenhanded proceeding alone, but instead chose to use its

previously-retained     appraisal   consultant   and   to   filter   all   defendants'

communications through its own counsel. Linfante's report relied on only a few

comparable sales from defendant provided through plaintiff's counsel and did

not give defendant the opportunity to provide so much as a statement, which,

under Lakewood and Elberon, is required even where a mere appraisement is

conducted. Therefore, we agree with the judge's order directing the parties to

each choose an arbitrator and proceed pursuant to the lease agreement from

there.


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                                        III.

      Finally, plaintiff argues the judge erred by disqualifying Linfante as an

arbitrator going forward, because in the three-person arbitration the judge

ordered, plaintiff is permitted to designate its own arbitrator who would be

expected to formulate his or her own opinion, then meet and confer to attempt

to come to a consensus with the other arbitrators. Plaintiff notes the lease

agreement provides that should no consensus be reached, the third neutral

arbitrator is to make the determination, so Linfante's previously-formulated

opinion is not relevant to his ability to be a fair arbitrator in this three-person

procedure.

      The judge made no findings as to whether Linfante's communications with

plaintiff, and his failure to disclose them, were evident partiality warrantin g his

disqualification under N.J.S.A. 2A:23B-12(d) and N.J.S.A. 2A:23B-23(a)(2).

However, the judge did find that Linfante now has a self-interest in not

contradicting his own appraisal report, which was created without any direct

communication with and extremely limited input from defendant, which was not

the fairness and evenhandedness with which an arbitrator is required to act. This

is a fact that a reasonable person would consider likely to affect the impartiality

of Linfante in the arbitration proceeding, which could be grounds for vacating


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an award under N.J.S.A. 2A:23B-12(c), which gives a judge discretion to vacate

an award should a party timely object to the arbitrator based on the disclosure

of a personal interest or past relationship under N.J.S.A. 2A:23B-12(a). This

has the potential to further protract an already protracted process, and would not

promote the "fair and expeditious" goals of arbitration. Therefore, we discern

no abuse of discretion with the judge's disqualification of Linfante as plaintiff's

arbitrator going forward. However, it was not in dispute and both parties agreed

that Linfante was an experienced and qualified appraiser, so we see nothing to

preclude plaintiff's new arbitrator from considering Linfante's report for what it

is—an expert report that supports plaintiff's position—should he or she find its

consideration would contribute to reaching a fair and expeditious determination.

      Affirmed.




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