united-states evidence trial appeal arbitration
Is a Denial of a Motion to Compel Arbitration reviewed de novo by the Appellate Division?
<p>Appeals of an arbitration award are reviewed <em>de novo</em>. Does the same apply to the denial of a Motion to Compel Arbitration? In other words, if the trial court denied a motion to compel arbitration, is the appealing party entitled to ask the Appellate Division to review matters of fact or only matters of law?</p>
<p>Assuming it is reviewed <em>de novo</em>, is the appellant specifically required to ask for <em>de novo</em> review or it is done implicitly?</p>

<p>The appellate court reviews based upon the trial court record.</p>
<p>To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is <em>de novo</em>. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed <em>de novo</em>.  So are procedural question, like whether an evidentiary hearing should have been held.</p>
<p>But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record.</p>
<p>Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, <a href="https://www.govinfo.gov/content/pkg/USCOURTS-njd-3_21-cv-12986/pdf/USCOURTS-njd-3_21-cv-12986-0.pdf" rel="nofollow noreferrer">in this case</a> and <a href="https://www.govinfo.gov/content/pkg/USCOURTS-njd-2_19-cv-13545/pdf/USCOURTS-njd-2_19-cv-13545-0.pdf" rel="nofollow noreferrer">in this case</a>, an appellate court often does engage in <em>de novo</em> review.</p>
<p>But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled.</p>
<p>While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in <a href="https://www.njcourts.gov/sites/default/files/courts/appellatestandards.pdf" rel="nofollow noreferrer">this document</a> quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact.</p>
<blockquote>
<ol>
<li><p>Appellate courts &quot;review de novo the trial court's judgment
<strong>dismissing the complaint and compelling arbitration</strong>.&quot; Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer,
Inc., 244 N.J. 30, 46 (2020).</p>
</li>
<li><p>&quot;Under N.J.S.A. 2A:24-7, either party <strong>may move to confirm an award</strong> within three months of the date of its delivery. Once
confirmed, the award is as conclusive as a court judgment. N.J.S.A.
2A:24-10.&quot; Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N.
Haledon, 158 N.J. 392, 398 (1999).</p>
</li>
<li><p>N.J.S.A. 2A:24-8 provides a court <strong>may vacate an arbitration award</strong> for: 1) corruption, fraud or undue means; 2) evident
partiality or corruption in the arbitrators; 3) misconduct in refusing
to postpone the hearing, upon sufficient cause being shown, or in
refusing to hear evidence, pertinent and material to the controversy,
or of any other misbehaviors prejudicial to the rights of any party;
or 4) the arbitrators exceeded or so imperfectly executed their powers
that a mutual, final and definite award upon the subject matter
submitted was not made.</p>
</li>
<li><p>&quot;Judicial review <strong>of an arbitration award</strong> is very limited.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting
Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J.
268, 276 (2010)). &quot;To foster finality and 'secure arbitration's speedy
and inexpensive nature,' reviewing courts must give <strong>arbitration awards</strong>
'considerable deference.'&quot; Borough of Carteret v. Firefighters Mut.
Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough
of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02
(2013)). &quot;[A]n arbitrator's award resolving a public sector dispute
will be accepted so long as the award is 'reasonably debatable.'&quot;
Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67,
247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E.
Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). &quot;An arbitrator's
award is not to be cast aside lightly. It is subject to being vacated
only when it has been shown that a statutory basis justifies that
action.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017)
(quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221
(1979)).</p>
</li>
<li><p>Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set &quot;strict limits on the
appeal <strong>of an arbitration award.</strong>&quot; Riverside Chiropractic Grp. v.
Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008).</p>
</li>
</ol>
</blockquote>
<p>In support of a contrary view that even the findings of fact of the trial court are subject to <em>de novo</em> review are statements like this one (from <a href="https://www.criminalcivillawyer.com/wp-content/uploads/Arbitration-Clauses.pdf" rel="nofollow noreferrer">this case</a>):</p>
<blockquote>
<p>The existence of a valid and enforceable arbitration agreement poses a
question of law, and as such, our standard of review of an order
denying a motion to compel arbitration is <em>de novo</em>. <em>Hirsch v. Amper
Fin. Servs., L.L.C.</em>, 215 N.J. 174, 186 (2013); <em>Frumer v. Nat'l Home
Ins. Co</em>., 420 N.J. Super. 7, 13 (App. Div. 2011).</p>
</blockquote>
<p>But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely <em>dicta</em> as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2).</p>
<p><em>Hirsch</em> was <a href="https://casetext.com/case/hirsch-v-amper-fin-servs-2" rel="nofollow noreferrer">decided in motion practice without an evidentiary hearing</a> (<em>see</em> page 184) and the case itself says (at page 186):</p>
<blockquote>
<p>Orders compelling arbitration are deemed final for purposes of appeal.
R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011).
<strong>We review those legal determinations de novo</strong>. See Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230
(1995) (“A trial court's interpretation of the law and the legal
consequences <strong>that flow from established facts</strong> are not entitled to any
special deference.”).</p>
</blockquote>
<p>The decision in <em>Frummer</em> was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in <em>Frummer</em> said at page 13:</p>
<blockquote>
<p>We review the denial of a request for arbitration <em>de novo</em>. See Alfano
v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div.
2007). &quot;A `trial court's interpretation of the law and the legal
consequences <strong>that flow from established facts</strong> are not entitled to
any special deference.'&quot; Id. at 573, 925 A.2d 22 (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d
1230 (1995)).</p>
</blockquote>
<p><em>See also</em> <a href="https://law.justia.com/cases/new-jersey/appellate-division-published/2015/a2502-14.html" rel="nofollow noreferrer">this case</a> stating that:</p>
<blockquote>
<p>The     existence      of    a   valid     and     enforceable<br />
arbitration agreement poses a question of law, and as such, our
standard of review of an order denying a motion to compel arbitration
is <em>de novo</em>. <em>Hirsch    v.   Amper      Fin.    Servs.,      LLC</em>,<br />
215       N.J.    174,    186 (2013); <em>Frumer v. Nat'l Home Ins. Co</em>.,
420 N.J. Super. 7, 13 (App. Div. 2011).</p>
</blockquote>
<p>Again, however, I would question whether this holding is <em>dicta</em> because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing.</p>
