SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2532-18T2

IN THE MATTER OF 

THE ESTATE OF SAM 

ATHANASENAS,

Deceased.

_____________________

Argued January 13, 2020 – Decided February 11, 2020

Before Judges Sumners and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. P000536-18.

Haralampo Kasolas argued the cause for appellant 

George Athanasenas (Brach Eichler LLC, attorneys; 

Haralampo Kasolas, of counsel and on the briefs).

Patrick J. Jennings argued the cause for respondent 

Constantina Giannaros. 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant George Athanasenas (George1), decedent Sam Athanasenas'

(Sam) son, appeals from the Chancery Division's January 3, 2019 order that 

referred his claims to arbitration. After a thorough consideration of the record 

and the parties' arguments in light of the applicable legal principles, we reverse.

I.

George and respondent Constantina Giannaros (Constantina) are brother 

and sister and co-executors and beneficiaries of Sam's estate. At the time of his 

death, Sam was the sole officer, director, and manager of JTS Restaurant 

Corporation (JTS), which owned and operated a diner in Fairview, and included 

assets such as a liquor license, real property, trade fixtures, goodwill, and 

furniture. 

According to George, after Sam's death, he secured a $2.5 million cash 

offer to purchase the assets of JTS, but never received authorization from 

Constantina to close the sale. Instead, Constantina sued George and JTS and

asserted claims for an accounting, shareholder oppression, conversion and 

misappropriation, unjust enrichment, breach of fiduciary duty and loyalty, and 

imposition of constructive trust.

1

 Intending no disrespect, we refer to the parties, and the decedent, by their first 

names.
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George and Constantina, their respective trusts, and Sam's estate, reached 

a settlement agreement on July 19, 2017. According to that agreement, in

exchange for Constantina's voluntary dismissal of her lawsuit, the parties agreed 

"to resolve the dispute set forth in the lawsuit and all other disputes between 

them by mediation/arbitration." The parties further agreed that mediation and 

arbitration would be decided by a single person, former Superior Court Judge 

Thomas P. Olivieri (Arbitrator).

The Arbitrator issued a discovery schedule in the arbitration in which he 

instructed both George and Constantina to provide "the specifics of each claim 

he/she will assert at the [a]rbitration." In a February, 5, 2018 letter, George's

counsel set forth multiple claims in his "bill of particulars": 1) claims of $93,523 

and $347,033 for salary and cash infusions into JTS; 2) repayment of a 

$26,166.22 advance to Constantina pursuant to the July 19, 2017 settlement 

agreement; 3) payment of an $86,204 note payable to George as reflected on the 

2016 JTS tax return; 4) proceeds of the sale of the family home in Long Island; 

5) payment of his loan to JTS for its legal fees; and 6) approximately $10,000 

in miscellaneous items. 

Approximately two weeks later, George and Constantina executed a 

February 20, 2018 agreement to arbitrate. The agreement indicated that George 
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and Constantina agreed to arbitrate "all issues that could be raised and 

adjudicated in the Litigation and as otherwise stated herein except those 

excluded from arbitration by [Rule] 5:1-5(a)." Although "Litigation" was not 

defined, the agreement specifically referenced that the parties participated in

"litigation involving a dispute between the [p]arties regarding claims referenced 

in the February 5, 2018 letter and email from the [p]arties' counsel." 

The February 20, 2018 agreement further stated that George and 

Constantina were "fully aware of their rights to have all differences that exist 

between them . . . heard by the Superior Court of New Jersey, in connection with 

the pending Litigation[,] [but] have agreed to waive their right to seek their relief 

in court" consistent with the February 20, 2018 agreement. Pursuant to 

paragraph two of the agreement, the parties agreed to proceed to arbitration with 

the understanding that

[t]he Arbitrator shall have final say in determining 

whether an issue or dispute is within the scope of the 

Arbitrator's jurisdiction. If the Arbitrator determines 

that an issue or dispute is not within the scope of his 

jurisdiction, then that issue or dispute shall be referred 

back to the Law Division for determination. 

[(Emphasis added).] 
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The agreement also provided that neither party would "have the right or power 

to expand, narrow, amend or revoke this [a]greement without the consent . . . of 

all of the other [p]arties." 

The parties closed the sale of JTS and its assets for $1.75 million the 

following day. On June 22, 2018, George's counsel sent a letter to the Arbitrator 

requesting leave to amend his February 5, 2018 bill of particulars to add claims

pertaining to Constantina's alleged failure to take the necessary and appropriate 

steps to close the earlier $2.5 million offer to purchase the JTS assets, causing a 

loss of $375,000. Relying on Perini Corp. v. Greate Bay Hotel & Casino, Inc., 

129 N.J. 479 (1992), he denied counsel's request in a July 2, 2018 email and 

determined that in light of the February 20, 2018 agreement which limited the 

matters to be arbitrated to the February 5, 2018 submissions, "[w]ithout 

[Constantina's] consent, the [a]rbitration cannot be expanded beyond that which 

the [p]arties agreed to arbitrate."

After the Arbitrator's denial, and in accordance with the procedure 

established in paragraph two of the February 20, 2018 agreement, George filed 

an August 7, 2018 complaint in the Chancery Division asserting seven causes of 

action against Constantina related to the failed $2.5 million sale: 1) breach of 

fiduciary duty as co-executor of Sam's estate; 2) waste; 3) negligence; 4) breach 
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of fiduciary duty of care as officer, director, voting shareholder, and equity 

shareholder in JTS; 5) breach of fiduciary duty of loyalty as officer, director, 

voting shareholder, and equity shareholder in JTS, 6) oppressed minority 

shareholder; and 7) tortious interference with prospective economic advantage

and contractual relations by Constantina and her husband. 

Constantina requested that the Arbitrator dismiss George's Chancery 

complaint arguing that the claims arising from the unsuccessful $2.5 million sale

were known to George before the February 5, 2018 deadline and he waived those 

claims by failing to include them in his bill of particulars. The Arbitrator denied 

her request and noted that he did "not have the authority to dismiss the Chancery 

[A]ction" and that she needed to "file a [n]otice of [m]otion before the Chancery 

judge seeking dismissal of that action."

Constantina moved to dismiss George's complaint which the trial court 

denied in a November 9, 2018 order. The trial court noted that "if [it] were to 

accept the arguments put forth here, [George] would have no remedy with 

respect to the alleged claims" and "the parties themselves . . . agreed that if [the 

Arbitrator] determined that the dispute was not within his jurisdiction, then the 

matter would be decided by the courts." The trial court also held that since 

Constantina "did not wish to pursue the matter or objected to the matter before 
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[the Arbitrator], the [c]ourt [would] allow this matter to proceed in the Superior 

Court." The same day, the court entered an order transferring the matter to the 

Probate Part and George thereafter filed an amended verified complaint alleging 

the same seven causes of action.

Approximately two months later, at a January 3, 2019 case management 

conference, the trial court sua sponte reconsidered the November 9, 2018 order 

and compelled arbitration. The court memorialized in its order that Constantina

now "consent[ed] to having the issues raised in this matter determined in 

arbitration . . . as previously agreed by the parties," and at the case management 

conference explained that "[he] made [his original] ruling . . . because it was 

[his] understanding that [Constantina] did not consent to hearing these matters 

before [the Arbitrator]." The court concluded that "[i]f [the Arbitrator] says now 

that you have consent of every [party, you can] send[] . . . everything to me, [the 

trial court would] enter an order transferring it to [him]," but if he refused, "then 

[the trial court's] ruling [would] stand." 

For context, at the case management conference, Constantina consented 

to arbitration "as a result of [the trial court's November 9, 2018] ruling." George,

however, now argued against arbitration, despite his earlier attempts to have his

claims heard by the Arbitrator, contending the costs incurred related to
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remanding the matter to arbitration would be significant. George further 

maintained that the arbitration was now too far along and he was "going to have 

to go back and re-amend expert reports . . . [and] spend more money in experts"

which was a "big problem . . . given how far along [they were] with the matter, 

given the motions that are pending, [and] given the [expert] report [that] is 

already completed." George finally contended that his last issue related to the 

scope of permissible discovery as "[p]roving the type of claim [he had] before 

[the trial court] . . . require[ed] [him] to have full power of depositions, 

subpoenas, document demands, [and] interrogatories" which he believed was 

"not something that [was] readily available in an arbitration."

II.

We use a de novo standard of review when determining the enforceability 

of arbitration agreements. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 

(2019) (citing Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013)). 

The validity of an arbitration agreement is a question of law, and we conduct a 

plenary review of such legal questions. Atalese v. U.S. Legal Servs. Grp., L.P., 

219 N.J. 430, 445-46 (2014) (citing Kieffer v. Best Buy Stores, L.P., 205 N.J. 

213, 222-23 (2011)); Barr v. Bishop Rosen & Co., Inc., 442 N.J. Super. 599, 

605 (App. Div. 2015) (citing Hirsch, 215 N.J. at 186).
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Arbitration is fundamentally a matter of contract. NAACP of Camden 

Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div. 2011). "An 

agreement to arbitrate 'must be the product of mutual assent, as determined 

under customary principles of contract law.'" Barr, 442 N.J. Super. at 605-06

(quoting Atalese, 219 N.J. at 442). "Mutual assent requires that the parties 

understand the terms of their agreement" and, where the "agreement includes a 

waiver of a party's right to pursue a case in a judicial forum, 'clarity is required.'"

Id. at 606 (citation omitted). That is, "the waiver must be clearly and 

unmistakably established, . . . should clearly state its purpose, . . . [a]nd the 

parties must have full knowledge of the legal rights they intend to surrender. "

Ibid. (citations omitted). 

Because "arbitration is a matter of contract[,] . . . a party cannot be 

required to submit to arbitration any dispute which [it] has not agreed so to 

submit." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research, Inc., 

427 N.J. Super. 45, 59 (App. Div. 2012) (quoting Howsam v. Dean Witter 

Reynolds, 537 U.S. 79, 83 (2002)); see also First Options of Chi., Inc. v. Kaplan, 

514 U.S. 938, 945 (1995) ("[A] party can be forced to arbitrate only those issues 

it specifically has agreed to submit to arbitration."). Therefore, "[a] court must 

look to the language of the arbitration clause to establish its boundaries[,]" and 
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"may not rewrite a contract to broaden the scope of arbitration." Hirsch, 215 

N.J. at 188 (quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 

P.A., 168 N.J. 124, 132 (2001)). 

III.

George principally maintains that the language in the February 20, 2018 

arbitration agreement "confirms that the parties agreed to arbitrate only those 

claims set forth in [the] February 5, 2018 submission[s]," specifically his claims 

set forth in his February 5, 2018 bill of particulars. He also maintains that the 

arbitration agreement "makes clear that the decision on whether to arbitrate [his] 

claims was not vested with the trial court, but with the arbitrator." George

concludes that since both the arbitrator and trial court, in reliance on the 

arbitrator's decision, determined that his claims were not arbitrable, "the trial 

court erred . . . when it overruled the arbitrator's determination and compelled 

arbitration sua sponte." 

Constantina argues that George's Chancery Action is subject to arbitration 

pursuant to the July 19, 2017 settlement agreement. She maintains that 

agreement "could not have been clearer, nor could the arbitration language have 

been any broader," and thus "[a]ll disputes between [George and her] in all 

capacities, including Sam's estate, were subject to arbitration." Constantina
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emphasizes that she objected to George introducing additional claims in the 

arbitration "not because the arbitrator did not have jurisdiction," but rather 

because "the known claim was brought late." She concludes, however, that 

"[g]iven the [c]ourt's ruling that [George] is entitled to have the claims heard, 

the claims must proceed in arbitration and the matter was properly returned to 

the arbitrator." 

We agree with George's arguments that the trial court erred in compelling 

arbitration as the February 20, 2018 arbitration agreement clearly limited the 

broad language of the July 19, 2017 settlement agreement to restrict the scope 

of arbitration to the issues set forth in the parties' February 5, 2018 submissions. 

As noted, the February 20, 2018 agreement explicitly referred to "litigation 

involving a dispute between the [p]arties regarding claims referenced in the 

February 5, 2018 letter and email from the [p]arties' counsel." By compelling

arbitration of George's new claims pertaining to his alleged loss in the sale of 

the JTS assets, the court improperly rewrote the parties' second agreement by 

broadening the scope of arbitration to include claims that were beyond what the 

parties consented to in the more limited February 20, 2018 agreement. See

Hirsch, 215 N.J. at 188. 
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Moreover, the court's January 3, 2019 decision rendered ineffective the 

provision in the February 20, 2018 agreement that the Arbitrator had "final say 

in determining whether an issue or dispute is within the scope of [his] 

jurisdiction" and that if he determined an issue was not within his jurisdiction, 

the dispute would be referred to the Law Division. The Arbitrator initially 

determined correctly that he could not expand the arbitration beyond the 

February 5, 2018 submissions without the parties' consent, which at the time 

clearly did not exist, and George properly sought relief in the trial court. Thus, 

it was error for the court to refer George's claims back to arbitration contrary to 

the parties' express language in the agreement. 

The court's decision to compel arbitration was principally based on 

Constantina's revised decision at the January 3, 2019 case management 

conference to agree to arbitrate the dispute regarding the sale price for the 

business which formed the basis for George's Chancery Division complaint. 

Although we acknowledge that the parties have essentially switched positions, 

as noted, the record does not indicate that George and Constantina agreed to 

arbitrate those claims. Indeed, both the Arbitrator and the trial court in its first 

ruling clearly stated that mutual consent did not exist, which is supported by the 

February 20, 2018 agreement (specifically the "litigation . . . regarding claims 
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referenced in the February 5, 2018 letter and email" language) and the 

reservation in paragraph two that at least some claims (those "the Arbitrator 

determines . . . is not within the scope of his jurisdiction") would not be 

arbitrated and instead "referred back to the Law Division for determination." If 

the February 20, 2018 agreement did not limit the arbitration agreement 

contained in the July 19, 2017 settlement agreement, there would have been no 

purpose to enter the February 20, 2018 agreement and include reference to the 

February 5, 2018 bill of particulars. 

Further, at the time the court reconsidered its original ruling, George 

clearly indicated that he no longer desired arbitration of those claims, a not 

unreasonable position given that he complied with the February 20, 2018 

agreement and filed and prosecuted a separate complaint in the Chancery 

Division, and incurred costs and expenses in doing so which included appearing 

at two court conferences as a result of Constantina's initial lack of consent and 

the Arbitrator's ruling. Thus, it was error for the court to base its decision based 

on Constantina's revised and unilateral consent after the circumstances had 

changed. 
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IV.

In sum, we conclude the trial court erred in compelling arbitration of

George's claims with respect to the alleged loss of the $2.5 million sale of the 

JTS assets. As discussed, the February 20, 2018 agreement effectively limited 

the original arbitration agreement to the claims set forth in the parties' February 

5, 2018 submissions to the Arbitrator. Consequently, we reverse the January 3, 

2019 order and remand the matter to the Chancery Division for further 

proceedings consistent with this opinion. 

In light of our decision, we need not address George's second argument 

that Constantina waived her right to arbitrate the additional claims when she 

objected to the inclusion of those claims and rendered the Superior Court as the 

only forum where George could seek relief. We similarly need not address 

George's third argument that the trial court abused its discretion when it sua 

sponte reconsidered its November 9, 2018 decision because it lacked jurisdiction 

to reconsider its original order after the twenty-day limitation set forth in Rule

4:49-2. 

Reversed and remanded.