SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3992

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VINCENZO GALLINA and MARIA GALLINA, Plaintiffs

- Appellants,

v.
A DRENALINE FAMILY ENTERTAINMENT, INC., CLEMENTON LAKE OPERATIONS, LLC, CLEMENTON LAKE MANAGEMENT, LLC, CLEMENTON LAKE HOLDINGS, LLC, CLEMENTON LAND, LLC , and BOB'S SPACE RACERS, INC. , Defendants

- Respondents .

________________________________ ___ Argued Apri l 12, 2018

– Decided June 6, 2018 Before Judges Rothstadt and Gooden Brown. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L

2764

- 12. Michael Confusione argued the cause for appellants (Hegge & Confusione, LLC, atto rneys; Michael Confusione, of counsel and on the brief). Charles C. Daley , Jr., argued the cause for respondents Adrenaline Family Entertainment and Clementon Lake (Barnaba & Marconi, LLP,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is bin ding only on the parties in the case and its use in other cases is limited . R. 1:36

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PER CURIAM

P laintiffs, Vincenzo Gallina and his wife Maria Gallina , appeal from the Law Division's April 28, 2017 order denying
their motion to reinstate their complaint against defendants , Adrenaline Family Entertainment, Inc. , Clementon Lake Operations, LLC , Clementon Lake Management, L L C, Clementon Lake Holdings, LLC, Clementon Land, L LC and Bob's Space Racers, Inc. The complaint sought damages for injuries sustained by Vincenzo 1

on an amusement attraction , alleged ly due to defendants ' negligence in their ownership or operat ion of the ride or park

at which the attraction was available to the public . After plaintiffs filed suit, t he parties participated in an arbitration of plaintiffs' claims that resulted in a "no cause"
determination and the dismissal of their complaint. P laintiffs
then filed a motion to reinstate their complaint , a rgu ing that they did not agree to waive their right to a trial in court

1 We refer to plaintiffs by their first names to avoid any confusion caused by their common last name. No disrespect is intended.3 A - 3992

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before a judge or jury , despite their participation in the
arbitration . The motion judge denied the application without a hearing, finding that , like a party who agreed to a bench tri al
and after a n unsatisfactory verdict demanded a new trial by jury, plaintiffs were bound by the result of the arbitration
because the y participated in it, without objection . On appeal, plaintiffs contend that the motion judge should
have conducted an evi dentiary hearing before deciding whether the agreement to arbitrate bound them in light of their claim
that they did not know they were waiving their right t o a trial.

Fo r the reasons that follow, we vacate the order and remand for a hearing . The facts de rived from the motion record are summarized as follows . Vincenzo sustained inj ur i es at Clement on Park when he
fell off of "The Ladder Climbing Rope" attraction . After plaintiffs filed their complaint, the parties engaged in discovery including deposition s. Later, a ccording to Vincenzo, his attorney , Daniel B. Zonies, "told [hi m] we have to go to arbitration, " which the lawyer explained was being "in one room with an arbitrator or retired judge" where "lawyers [and the arbitrator] were going to ask [him] questions . . . . " It was undisputed that plaintiffs never signed any agreement to arbitrate. The only document indicating that there4 A - 3992

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would be arbitration was the arbitrator's ret a iner letter that
stated counsel "agreed to retain [the arbitrator] to con duct a binding arbitration . . . . " After setting forth the details
about the location , cost , timing for a deci si on and payment by counsel, the letter concluded with a statement signed by counsel that read "We agree to the terms and conditions set forth a bove
and understand that this agreement is made between and among the [ a ] rbitrator and the attorneys and not the [ a ] rbitrator and the parties ." Although there was no written agreement, Clement on Park's attorney , Kathi Peisner, certified that "[c]ounsel for all parties entered into a bin ding [a]rbitration [a]greement[.]" Additionally, counsel stated that many letters were exchanged "between and among counsel and [the arbitrator .] " Counsel averred, "[t]here [could] be NO doubt that plaintiffs' original attorney knew the arbitration was binding."
Vincenzo claimed that he "never personally understood that [he was giving] up [his] ri ght to go before judges or [a] jury[.] " Maria, too, asserted that Zonies never told her that she was giving up her righ ts by going to arbitration.
Bef ore the arbitration, counsel fo r the parties made submissions to the arbitrator. Plaintiffs and the parties' attorneys appeared fo r the arbitration on September 28, 2016 and5 A - 3992

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December 21, 2016 . According to Peisner, on the first day of the arbitration hearing, "plaintiffs appeared with their attorney, . . . an interpreter, and [their] relatives[,] " and the arbitrator explained "to all that the arbitration was on consent and binding. " Further, the arbitrator asked "plaintif fs through their counsel if they knew that arbitration was INSTEAD of a trial and that he would be deciding the case instead of a jury, and if they were ready to proceed." Peisner stated, "[p]laintiffs expressed an understanding, and consent, and their

at torney state d that plaintiffs understood the consequences ." On January 4, 2017, the arbitrator entered an award in favor of defendants, finding no cause for the action. A week later, Zonies advised Vincenzo that "the arbitrator ruled against [him,] and that [he] was not going to receive any damages for [his] injuries," or be able to "continue with [his]
claims in court . . . . " Vincenzo asserted that he was

" shocked " as he "never agreed to such an arrangement[,]" or to "give up [his] right to [his] cour t case." After plaintiffs file d their motion to reinstate and the parties made written submissions, the motion judge considered counsels' oral argument on April 28, 2017 , and denied plaintiffs' motion without a plenary hearing . In an oral6 A - 3992

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decision place d on the record on that date, the judge explained why he believed an evidentiary hearing was not necessary. In his decision, the judge stated that if he ordered a hearing he would " have to assume that [he] might actually believe the plaintiff [s] and beli eve that they truly didn't think they were waiving anything, Zonies didn't explain it to
them [,] and they had no idea as to what was going on. " Regardless of his beliefs about the plaintiffs' assertions, the judge concluded that Zonies ' agreement to arbit rate bound plaintiffs to the same agreement . The judge stated that if he questioned whether plaintiffs understood the agreement, it would

" substantially undercut[] the efficient working of the [c] ourt system where when the attorney, on behalf of the clien t signs a document agreeing to go to binding arbitration, it's enforced. " While the judge was satisfied that at a hearing , if the arbitrator t estified in accordance with the facts stated in
Peisner's certification , plaint iffs would lose, t he judge m ade
cl ear that his ruling was n ot based upon whether the arbitrator explained to plaintiffs anything about the arbitration before it began, but rather , upon his finding that the situation was similar to a litigant who was not happy with a result after a
bench tr ial. The judge explained:7 A - 3992

- 16T2 The important thing here is that unlike the settlement that was not authorized, [where] a plaintiff who won't sign a release, it's a different plaintiff than a plaintiff that proceeded to binding arbitration, lost and now wants their case heard before a jury. Those are apples and oranges. And I think this case is closer to the . . . bench trial situation . . . because no plaintiff could plausibly say in [c]ourt when their case is tried before a jud ge, gee, I thought we were [ going to] get another trial a year later before a jury. The motion judge ultimately found that to allow a dissatisfied plaintiff to raise an objection to the arbitration after it was completed would cause havoc in litigation. He
stated that at a hearin g , " if I believe the plaintiffs and said basically their no
- cause at binding arbitration is worthless, is meaningless, that [would be] the precedent I don't want to
establish. " This appeal followed.

A trial court confronted with a motion to reinstate a

c omplaint must determine whether good cause has been shown warranting that the " order dismissing [the] matter . . . be set aside and the case restored[.]" ASHI
- GTO Assocs. v. Irvington Pediatrics, PA , 414 N.J. Super. 351, 359 (App. Div. 2010) .

" Whether to grant or deny a motion to reinstate a complaint lies
within the sound discretion of the trial court. " Sullivan v. Coverings & Installation, Inc. , 403 N.J. Super. 86, 93 (App.8 A - 3992

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Div. 2008). "We will ' decline to interfere with [ such ] matters
of discretion u nless it appears that an injustice has been
done. ' " Ibid. (quoting Cooper v. Consol . Rail Corp. , 391 N.J. Super. 17, 2 3 (App. Div. 2007) ) . While the "'abuse of discretion' standard defies precise definition," we may find an abuse of discretion "when a de cision is 'made without a rational explanation, . . . rest[s] on an impermissible basis[,]'" or was
"an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Flagg v. Essex Cty. Prosecutor , 171 N.J. 561, 571 (2002) (citations omitted).

To the extent the trial court's decision involves, as here,

a decision regarding the validity of an arbitration agreement ,

our review is de novo. Atalese v. U.S. Legal Servs. Grp. , 219

N.J. 430, 445
- 46 (2014). Applying these standard s, we conclude that i t was a mistaken exercise of the judge's discretion to decide plaintiff's motion without a plenary hearing in light of the conflicting certifications presented to the judge concerning plaintiffs' alleged agreement to waive their right to a trial in

court. At the outset, we acknowledge that our S tate's public policy favors the resolution of disputes through arbitration.
Id. at 440. The strong "public policy of this State favors9 A - 3992

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arbitration as a means of settling disputes that otherwise would be litigated i n a court." Badiali v. N.J. Mfrs. Ins. Grp. , 220 N.J. 544, 556 (2015). The preference fo r arbitration is not
without limits. Atalese , 219 N.J. at 441. For example, " [a] n agreement to arbitrate, like any other contract, 'must be the product of mutual as sent, as determined under customary principles of contract law.'" Id. at 442 (citation omitted). "Mutual assent requires that the parties have an understanding of the terms to which they have agreed." Ibid.

"Our state
- law jurisprudence makes clear 'th at when a contract contains a waiver of rights

- whether in an arbitration
or other clause

- the waiver " must be clearl y and unmistakably
established. "'" Morgan v. Sanford Brown Inst. , 225 N.J. 289,
308

- 09 (2016) (quoting Atalese , 219 N.J. at 444). When the agreement is written, "[n]o magical language is required to accomplish a waiver of rights in an arbitration agreement." Id.
at 309. Because arbitration involves a waiver of the right to pursue a case in a judicial forum, courts take particular care

" in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that

assent." NAACP of Camden Cty. E. v. Foulke Mgmt. Corp. , 421 N.J. Super. 404, 425 (App. Div. 2011), appeal dismissed , 213 N.J. 47 (20 13).10 A - 3992

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"This requirement of a 'consensual understanding' about the rights of access to the courts that are waived in the agreement has led our courts to hold that clarity is required." Moore v. Woman to Woman Obstetrics & Gynecology, LLC , 416 N.J. Super. 30 , 37 (App. Div. 2010) (citation omitted). "By its very nature, an agreement to arbitrate involves a waiver of a party's right to have her claims and defenses litigated in court." Atalese , 219 N.J. at 442 (citation omitted). Any contractual waiver

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rig hts provision must reflect that the party has agreed "clearly and unambiguously" to its terms. Leodori v. Cigna Corp. , 175 N.J. 293, 302 (2003), cert. denied , 540 U.S. 938 (2003). "[A] n average member of the public may not know

— without some explanatory comment

— that arbitration is a substitute for the right to have one's claim adjudicated in a court of law."
Atalese , 219 N.J. at 442. The need for clarity about the rights being waived in an arbitration agreement does not mean that it must be in writi ng. An agreement to arbitrate in lieu of litigation "do[es] not need to be in writing to be enforceable." Leodori , 175 N.J. at 305 (addressing an employee's agreement t o a rbitrate absent a written agreement with his employer). There must be, however ,

ev idence that "otherwise explicitly indicate his or her agreement to" arbitrate, id . at 306, including "some other11 A - 3992

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unmistakable indication that [a litigant] affirmatively had agreed to arbitrate his claims," id . at 307, and waived his right to trial, Atalese , 219 N.J. at 442. Here, t he only evidence of plaintiffs' decision to waive their right to a trial that was presented to the motion judge

was the undisputed fact that the parties participated in th e arbitration and their conflicting certifications. P lain tiffs contended they did not understand that participating in the
arbitration meant there would be no trial . Peisner's certification relied upon her hearsay statement about what the arbitrator allegedly e xplained to plaintiffs and her unqualified
conclusi on that plaintiffs understood what t hey were told . In addition, t he one written agreement presented to the court

– the arbitrator's retainer agreement was signed only by counsel, and did not mention a waiver of plaintiffs' right to trial . There

was no ce rtification from the arbitrator explaining what he said to plaintiffs or even from their former attorney refuting
Vi n ce n zo's description of what he was told. And, there was no certification from the interpreter who assisted at the
arbitration.
While we share the motion judge's concern about the need
fo r courts to be able to rely on counsel s ' agreement to arbitrate, and the impact upon litigation of allowing12 A - 3992

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dissatisfied litigants to reopen cases after they participated
in an arbitration that does not go well for them, we believe
under th e unique circ u mst a n c es of this case, that there was
in su f fic i ent evid e nce for the motion judge to have decided the
issue presented, without a hearing. See Lederman v. Prudential Life Ins. Co. of Am., Inc. , 385 N.J. Super. 324, 347 (App. Div. 2006).
The order under review is vacated and the matter remanded
for a plenary hearing as to whether plaintiffs knowingly waived
their right to trial by a judge or jury.
Vacated and remanded for further proceedings consistent
with t his opinion. We do not retain jurisdiction.