                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1343-16T4

LEONARD YARBOROUGH,

     Plaintiff-Appellant,             APPROVED FOR PUBLICATION

v.                                            June 8, 2018

                                           APPELLATE DIVISION
STATE OPERATED SCHOOL DISTRICT
OF THE CITY OF NEWARK, ESSEX
COUNTY,

     Defendant-Respondent.
_____________________________

         Argued February 27, 2018 – Decided June 8, 2018

         Before Judges Fisher, Sumners1 and Moynihan.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No.
         L-5629-16.

         Charles I. Auffant argued the cause for
         appellant (Stuart Ball, LLC, attorneys;
         Charles I. Auffant, on the brief).

         Ramon E. Rivera argued the cause for
         respondent (Scarinci & Hollenbeck, LLC,
         attorneys; Ramon E. Rivera, of counsel;
         Shana T. Don, on the brief).

     The opinion of the court was delivered by

MOYNIHAN, J.S.C. (temporarily assigned).


1
  Judge Sumners did not participate in oral argument but has,
with the consent of counsel, been added to the panel deciding
this matter.
      Leonard      Yarborough,    a    third-grade        teacher      for   the    State

Operated School District of the City of Newark, Essex County

(District), appeals from the trial court's order denying his

motion   to    vacate,   effectively       confirming          that    portion     of   an

arbitration     award    and    decision       imposing    a    120-day      suspension

without pay after the arbitrator found Yarborough culpable of a

conduct-unbecoming        tenure        charge     for      inflicting         corporal

punishment on two students in contravention of N.J.S.A. 18A:6-1.

      Yarborough contends the trial court erred in failing to

vacate the arbitration award because the court: misinterpreted

the   entire       controversy     doctrine        (ECD)       which     should      have

precluded     the    District    from     prosecuting          the    tenure     charge;

failed to consider "fundamental legal principles" such as the

doctrines     of    industrial        double     jeopardy,       estoppel,       laches,

waiver and unclean hands; and failed to find the arbitration

award was procured by undue means, N.J.S.A. 2A:24-8, because,

"[e]ven if the charge of conduct unbecoming was properly before

the   [a]rbitrator,        the     [a]ward        is     not     supported         by     a

preponderance of the evidence standard."

      We are not persuaded that the ECD precludes the prosecution

of the conduct-unbecoming charge; nor are we persuaded that the

arbitrator's award was procured by undue means and affirm.




                                          2                                      A-1343-16T4
    "Judicial review of an arbitration award is very limited."

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)).                   "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."        Ibid. (quoting Kearny PBA Local # 21 v. Town of

Kearny, 81 N.J. 208, 221 (1979)).

    In     reviewing     the     award    confirmation,          we    owe     no    special

deference to the trial court's interpretation of the law and the

legal consequences that flow from the established facts.                                  Town

of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (citing Manalapan

Realty,    LP   v.   Twp.      Comm.     of       Manalapan,    140     N.J.    366,       378

(1995)).    We thus review the trial court's decision on a motion

to vacate an arbitration award de novo.                      Minkowitz v. Israeli,

433 N.J. Super. 111, 136 (App. Div. 2013).

    The     court    may    vacate     an     arbitration       award     "[w]here         the

award was procured by . . . undue means."                      N.J.S.A. 2A:24-8(a).

"'[U]ndue means' ordinarily encompasses a situation in which the

arbitrator has made an acknowledged mistake of fact or law or a

mistake that is apparent on the face of the record."                           Borough of

E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 203

(2013)     (alteration      in     original)          (quoting        Office        of   Emp.




                                              3                                      A-1343-16T4
Relations v. Commc'ns Workers, 154 N.J. 98, 111 (1998)).                              We

perceive neither a mistake of law nor a mistake of fact in the

record.

       We turn first to the issue of whether the ECD precludes the

District from bringing the conduct-unbecoming charge.                         The ECD

is   equitably      rooted;     its    applicability     is    left    to    judicial

discretion        based   on   the    particular   circumstances        in    a    given

case.       Mystic Isle Dev. Corp. v. Perskie & Nehmad, PC, 142 N.J.

310,    322-23     (1995);     DiTrolio     v.   Antiles,     142    N.J.    253,    275

(1995).      In Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App.

Div. 1960) (citations omitted), we held:

              It is well settled that discretion means
              legal discretion, in the exercise of which
              the trial judge must take account of the law
              applicable to the particular circumstances
              of the case and be governed accordingly. . .
              . [I]f the trial judge misconceives the
              applicable law, or misapplies it to the
              factual   complex,   in  total   effect  the
              exercise of the legal discretion lacks a
              foundation and becomes an arbitrary act,
              however conscientious may have been the
              judge in the performance of it.    When this
              occurs it is the duty of the reviewing court
              to adjudicate the controversy in the light
              of the applicable law in order that a
              manifest denial of justice be avoided.

       As    he   did     before     the   arbitrator   and    the    trial       court,

Yarborough contends the District's conduct-unbecoming charge is

precluded under the ECD because the precipitating events – the

corporal punishment of the students on October 21, 2013 and



                                            4                                 A-1343-16T4
February 28, 2014 — predated prior tenure actions instituted

against him on October 9, 2014 and January 26, 2015, during

which the present charge should have been brought.                                   We reject

Yarborough's proposed application of the ECD as overextended.

       We previously synopsized the recognized rationale for the

ECD:

            Our Supreme Court has stated that the [ECD]
            "seeks to further the judicial goals of
            fairness   and    efficiency    by    requiring,
            whenever possible, 'that the adjudication of
            a legal controversy should occur in one
            litigation in only one court.'"           Circle
            Chevrolet   Co.   v.   Giordano,    Halleran   &
            Ciesla,   PC, 142 N.J. 280, 289 (1995)
            (quoting Cogdell v. Hosp. Ctr. at Orange,
            116 N.J. 7, 15 (1989)).         The objectives
            behind   the   doctrine    were    outlined   in
            DiTrolio, 142 N.J. at 267[,] as follows:
            "(1) the need for complete and final
            disposition    through    the    avoidance    of
            piecemeal decisions; (2) fairness to parties
            to the action and those with a material
            interest in the action; and (3) efficiency
            and the avoidance of waste and the reduction
            of delay."

            [Hynes v. Clarke,          297      N.J.     Super.       44,       55
            (App. Div. 1997).]

       Yarborough     seeks    to    relate     our      holding      that       "under     the

proper    circumstances        the     [ECD]        is        correctly         applied      to

arbitration     proceedings,"        Shoremount          v.    APS    Corp.,         368   N.J.

Super.   252,   255    (App.    Div.       2004),     but      fails       to    relate     our

tempering     language    that       the     ECD      should         not    be       "imported

wholesale into [those] proceedings," id. at 256.                            We previously



                                            5                                         A-1343-16T4
noted    that     arbitration    –   with      its   ordinarily   narrow-framed

issues — "does not provide a forum conducive to extensive issue

. . . joinder."       Jersey City Police Officers Benevolent Ass'n v.

City of Jersey City, 257 N.J. Super. 6, 14 (App. Div. 1992).

Especially with regard to limited-issue arbitration, we warned

"[t]he preclusionary consequences of the [ECD] must consequently

be      cautiously     applied       to       litigation   involving"      those

arbitrations.       Id. at 14-15.

      The prior tenure arbitrations against Yarborough were based

solely on his alleged inefficiency.                  The arbitrator found the

inefficiency charges brought in the January 26, 2015 matter made

            the same factual allegations as those stated
            in the original charges [filed on October 9,
            2014].    It was specifically alleged that
            Yarborough demonstrated an inability to
            completely   and   responsibly    execute   his
            duties as a teacher and enumerated failures
            to    implement     curricular     goals    and
            objectives,   design   coherent    instruction,
            access    student    learning,     create    an
            environment of respect and rapport, manage
            student behavior, etcetera.     It was further
            alleged   that    [Yarborough]    received   an
            Ineffective rating for the 2012-2013 school
            year in an Annual Summative Evaluation and
            received a Partially Effective rating for
            the 2013-2014 school year in an [A]nnual
            Summative Evaluation.

The     limited    scope   of    both     arbitrations     militates    against

application of the ECD.




                                          6                             A-1343-16T4
       We note the Legislature provided special procedures for the

arbitration of inefficiency charges under N.J.S.A. 18A:6-117 to

-129    —    the     Teacher     Effectiveness        and    Accountability         for   the

Children of New Jersey (TEACHNJ) Act.                       N.J.S.A. 18A:6-17.1 to -

17.3.       The provisions include a limited scope of issue-review,

N.J.S.A. 18A:6-17.2(a), (b) and (c); a specified burden of proof

imposed on a board of education, N.J.S.A. 18A:6-17.2(d); and a

specified         time       frame   for    hearing      and     rendering     a     written

decision, N.J.S.A. 18A:6-17.2(e).                     Given the strictures imposed

on inefficiency arbitrations, we conclude such proceedings are

not    conducive         to    the    inclusion     of     other    charges,       including

conduct unbecoming.

       Further,         we     perceive    little     or    no     transactional       nexus

between          inefficiency        charges    and      conduct-unbecoming          charges

based       on    the    infliction        of   corporal       punishment    that      would

warrant application of the ECD.                       See Alpha Beauty Distribs.,

Inc. v. Winn-Dixie Stores, Inc., 425 N.J. Super. 94, 104 (App.

Div.    2012)           ("In     determining        what     constitutes       a      single

controversy, courts 'look at the core set of facts that provides

the link between distinct claims against the same or different

parties.'" (quoting Hobart Bros. Co. v. Nat'l Union Fire Ins.

Co., 354 N.J. Super. 229, 244 (App. Div. 2002))).                              The former

generally involve the assessment of teaching evaluations, see




                                                7                                   A-1343-16T4
N.J.S.A. 18A:6-17.2(a)(1) to (2), -17.2(b), -17.3; the latter,

evidence     of       physical       force       or   punishment,         except         when

statutorily justified, N.J.S.A. 18A:6-1.

      We previously observed the ECD was "intended to compel the

adjudication      of    all    components        of   a   legal       controversy       in    a

single litigation as a matter of fairness to the parties and

protection       of    the    judicial       system       from    unnecessary         waste,

inefficiency,         and     delay."            Jersey     City       Police    Officers

Benevolent Ass'n, 257 N.J. Super. at 13.                           We do not see the

inefficiency      claim      and    the    conduct-unbecoming           claim   as      being

part of the same controversy.                 Nor, in light of their discrete

factual bases and the separate procedural rules for inefficiency

matters,   do     we    see    that       separate    proceedings        caused       waste,

inefficiency or delay.

      Our decision renders it unnecessary to address the merits

of the rulings by both the trial court and the arbitrator that

the ECD was inapplicable because the prior tenure hearings were

not fully arbitrated.              The October 9, 2014 matter was dismissed

on   Yarborough's       motion       after    the     arbitrator        determined         the

District     —    as     had       been     previously       determined         in      prior

arbitrations in which the District made the same allegations —

could   not       use        2012-2013       evaluations         to     prove        teacher

inefficiency under the TEACHNJ Act.                       The arbitrator dismissed




                                             8                                       A-1343-16T4
the January 26, 2015 charges, invoking the ECD in determining it

would be "a denial of fundamental fairness to force [Yarborough]

to defend . . . an action regarding the identical facts [as in

the October 9, 2014 matter] which would deny him of his position

a second time."          While the ECD's "application requires, as a

matter of first principle, that the party whose claim is being

sought   to    be    barred        must    have     had     a    fair    and   reasonable

opportunity to have fully litigated that claim in the original

action," Cafferata v. Peyser, 251 N.J. Super. 256, 261 (App.

Div.   1991),       we   do    not    know     if    the    arbitrator         would    have

dismissed a conduct-unbecoming charge if it had been included in

either of the prior arbitrations.                    Our ruling that it need not

have been included obviates our contemplation.

       We conclude the rejection of Yarborough's ECD argument was

not a mistake of law or an abuse of discretion.                          We briefly note

Yarborough's        conflation        of     the    ECD    and    res     judicata,       and

determine     any    argument        based    on    res    judicata       to   be   without

sufficient merit to warrant discussion in a written opinion.                               R.

2:11-3(e)(1)(E).              No     issue    of     fact       was     ever   before      an

adjudicator; no issue of fact was litigated; and no issue of

fact was ever found.

       We also find meritless Yarborough's argument that the award

was procured by undue means because the evidence did not prove




                                              9                                     A-1343-16T4
the   conduct-unbecoming        charge        by     a   preponderance       of         the

evidence.     As    Judge    Thomas      R.    Vena      noted    in   his       written

decision,   the     arbitrator's      comprehensive         findings        of        fact,

crediting   the    testimony    of    the     school     principal     as    to        both

incidents of corporal punishment, well supported the conduct-

unbecoming charge.         The keen assessment of law and fact set

forth by Judge Vena in his opinion lead us to conclude that the

arbitrator's findings were supported by a preponderance of the

evidence; we cannot improve on his analysis.

      Plaintiff    never    raised     the         preclusive    effects         of     the

doctrines   of     industrial    double        jeopardy,        estoppel,        laches,

waiver and unclean hands prior to this appeal.                         We will not

address them here.         Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973).

      Affirmed.




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