ESTATE OF DEBORAH WATSON VS. JOY PIDDINGTON (L-1230-19, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0423-19T3
ESTATE OF DEBORAH
WATSON, individually and
on behalf of GOOSE LANE
ENTERPRISES, LLC, and
ANTIQUES ONLY, LLC,
Plaintiffs-Respondents,
v.
JOY PIDDINGTON,
Defendant-Appellant.
__________________________
Argued telephonically May 6, 2020 –
Decided May 26, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1230-19.
Joel Wayne Garber argued the cause for appellant
(Garber Law, PC, attorneys; Joel Wayne Garber, on the
briefs).
Rubenstein Business Law, attorneys for respondent
(David Joshua Rubenstein, on the brief).
PER CURIAM
In 1999, Deborah Watson and Joy Piddington formed two limited liability
companies: Antiques Only, LLC, to facilitate their business of selling antiques,
and Goose Lane Enterprises, LLC, to manage the real estate in Blackwood on
which the antiques store operated. The LLCs' operating agreements called for
arbitration if, among other things, there arose:
 "at any time during the existence of this [LLC] or after
[its] dissolution . . ., any question, disagreement, or
difference resulting from a deadlock";
 a dispute about the "meaning or interpretation of this
Operating Agreement"; or
 a dispute about "the [parties'] rights, duties, or
obligations."
Such differences, according to the agreements, "shall be submitted to and finally
determined by arbitration by a single arbitrator in Camden County . . ., in
accordance with [American Arbitration Association] rules then in force."
Deborah Watson died in July 2018, causing her interests in the companies
to pass on to her estate, which commenced this action in May 2019, claiming
Piddington breached her fiduciary duties, engaged in waste and mismanagement
of the companies and their interests, and converted company assets. The estate
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seeks, among other things, to compel a buy-out and an accounting, as well as
damages.
Piddington promptly moved to dismiss, arguing the parties were obligated
to arbitrate the claims asserted in the complaint. The trial judge denied
Piddington's motion. The judge relied on Atalese v. U.S. Legal Services Group,
L.P., 219 N.J. 430, 442-43 (2014), in holding that the parties' arbitration
provisions lacked language that would clearly and unambiguously reveal their
waiver of statutory rights, including the right to pursue their claims in court.
The judge also rejected Piddington's arguments that the 2014 Atalese holding
should not apply to a 1999 arbitration agreement and that Atalese only applies
to consumer contracts.
In appealing, Piddington argues:
I. THE ARBITRATION PROVISION MUST BE
ENFORCED BECAUSE PARTIES TO A CONTRACT
MUST BE BOUND BY THE TERMS OF THEIR OWN
CONTRACTS.
II. NEW JERSEY LAW REQUIRES THAT AN
AGREEMENT TO ARBITRATE MUST BE THE
PRODUCT OF MUTUAL ASSENT FOR IT TO BE
ENFORCEABLE AND SUCH ASSENT WAS PRESENT
IN THE CASE SUB JUDICE.
III. NEW JERSEY LAW FAVORS THE ARBITRATION
OF LEGAL DISPUTES.
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IV. THE ATALESE DECISION SHOULD BE APPLIED
PROSPECTIVELY, AND ACCORDINGLY, THE
ARBITRATION PROVISION AT ISSUE HEREIN
SHOULD CONTROL AND THIS MATTER SHOULD BE
TRANSFERRED TO ARBITRATION.
We find insufficient merit in Piddington's arguments to warrant further
discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for
the reasons set forth in the oral opinion of Judge John C. Porto . We add only
the following brief comments.
While the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 - 16, was enacted
by Congress to reflect federal policies favoring the arbitration of disputes and
to "reverse the longstanding judicial hostility" towards arbitration, its intention
was to "place arbitration agreements upon the same footing as other contracts."
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-25 (1991); see also
Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 581 U.S. __, __, 137 S. Ct. 1421,
1424 (2017).1 In adhering to those intentions, it is well established that state
courts may determine "whether a valid agreement to arbitrate exists," Hojnowski
v. Vans Skate Park, 187 N.J. 323, 342 (2006); Flanzman v. Jenny Craig, Inc.,
456 N.J. Super. 613, 621 (App. Div. 2018), and those courts are expected to
1
We assume without deciding that the FAA applies to the parties' operating
agreements, although the parties have not briefed or addressed that question.
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apply "ordinary state-law principles that govern the formation of contracts,"
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In light of these
principles, Judge Porto concluded the operating agreements' arbitration
provisions failed to express a clear and unambiguous waiver of the right to sue.
Atalese, 219 N.J. at 443; Kleine v. Emeritus at Emerson, 445 N.J. Super. 545,
550-51 (App. Div. 2016). We agree with his observations about the language of
the provisions; nowhere in the agreements was there a statement that the right
to sue was being waived. We agree as well that the absence of such an
understanding precluded enforcement of the arbitration provisions. 2
We also reject the argument that Atalese should be given only prospective
effect. The general rule is that a change in the common law – even when a past
precedent is overruled – applies retrospectively. See Fischer v. Canario, 143
N.J. 235, 243 (1996). To be sure, there are times when a new rule will be given
only prospective effect depending on "what is just and consonant with the public
policy considerations in the situation presented." Rutherford Educ. Ass'n v.
2
In arguing that the parties should be bound to the terms of the agreements,
Piddington contends that the drafting attorney asserted that he went over the
agreements with both contracting parties prior to their execution. Assuming the
attorney's representations should be considered – they were presented not by
way of sworn statement but only in a letter – the drafting attorney nowhere stated
in his letter that he advised the parties that the arbitration clauses precluded them
from seeking relief in court.
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Rutherford Bd. of Educ., 99 N.J. 8, 22 (1985). In other words, "[t]he primary
concern with retroactivity questions is with 'considerations of fairness and
justice, related to reasonable surprise and prejudice to those affected.'"
Accountemps Div. of Robert Half of Phila., Inc. v. Birch Tree Grp., Ltd., 115
N.J. 614, 628 (1989) (quoting N.J. Election Law Enf't Comm'n v. Citizens to
Make Mayor-Council Gov't Work, 107 N.J. 380, 388 (1987)).
The difficulty posed in ascertaining whether new case law should be
applied retroactively or prospectively – often one of the more difficult problems
that face courts, see Chicot Cty. Drainage Distrib. v. Baxter State Bank, 308
U.S. 371, 374 (1940) – arises when a new decision expresses "a new rule." After
careful consideration, we do not view Atalese as having taken a sharp turn from
prior precedents. To the contrary, the Atalese Court unmistakably recognized
not only the time-honored right to sue, but also a long line of authorities
preceding the 1999 formation of the parties' agreement here that required a
contractual waiver of rights to be clear and unambiguous. See Atalese, 219 N.J.
at 442-45. Indeed, if we are to look to principles that would have been in the
parties' contemplation or the contemplation of their counsel at the time these
operating agreements were formed, certainly the Supreme Court's decision in
Marchak v. Claridge Commons, Inc., 134 N.J. 275 (1993) would have strongly
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suggested a need for greater clarity as to the alleged waiver of the right to sue
than appears in the arbitration provisions before us now. Although we conclud e
that the enforceability of the arbitration provisions is to be governed by the
jurisprudence existing at the time a party sought their enforcement and not the
time of formation, we nevertheless conclude that Atalese was a logical extension
of Marchak and other cases that followed and does not represent the type of sea
change that would call into question the fairness of its application to existing
contracts.
Affirmed.
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