                                NOT FOR PUBLICATION WITHOUT THE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-1586-18T3

WILLIAM R. HIGGINS,

          Plaintiff-Respondent,

v.

GREGORY S. SAYLOR,

          Defendant-Appellant,

and

ABATIS HOLDINGS, LLC,
and ABATIS SECURITY, LLC,

     Defendants.
____________________________

                    Submitted August 1, 2019 – Decided August 8, 2019

                    Before Judges Whipple and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Salem County, Docket No. L-0044-18.

                    Paul A. Leodori, attorney for appellant.

                    Martin Law Firm, LLC, attorneys for respondent
                    (Joseph A. Martin, on the brief).
PER CURIAM

      Defendant Gregory S. Saylor appeals from a November 9, 2019 order

entered by Judge James R. Swift denying his motion to terminate arbitration.

Because the orders under review do not resolve all of the claims between the

parties, we dismiss the appeal as interlocutory.

                                         I.

      Plaintiff William R. Higgins, a retired state trooper, and defendant became

embroiled in a business dispute involving two companies, Abatis Security, LLC,

which provides private security services to businesses in the Atlantic City area,

and Abatis Holdings, LLC, which was a corporate shell company having no

operations. Plaintiff was the sole member of Abatis Security and defendant was

employed by that company but had no ownership interest. Both parties were

members of Abatis Holdings. Defendant failed to disclose to plaintiff that he

filed a petition in bankruptcy prior to the formation of Abatis Holdings and that

defendant could not be licensed to perform security services.

      In early 2016, plaintiff discovered that defendant and two employees,

Graff and Tejada, who are not parties to this appeal, were stealing money from

Abatis Security, totaling approximately $200,000.           Defendant and Graff

admitted to the theft, resulting in plaintiff notifying them of their termination of


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                                         2
employment with Abatis Security. Plaintiff, defendant, and Graff subsequently

entered into a Stand Still Agreement, which allowed defendant and Graff to

retain their positions within Abatis Security, continuing their weekly paychecks

and an automobile allowance, until they could resolve their dispute through

mediation or arbitration. Plaintiff and Graff subsequently settled their dispute

amongst themselves, resulting in Graff relinquishing his ownership interest in

Abatis Holdings, but the dispute between the parties was unresolved. The

Agreement, in pertinent part, provided:

            2. Arbitration. If the parties are unable to resolve their
            disputes through mediation, any remaining disputes
            will be submitted to binding arbitration before retired
            [J]udge Eugene Serpentelli. If Judge Serpentelli is
            unavailable, the parties will confer and agree on a
            replacement arbitrator. The arbitration shall proceed on
            an expedited basis and will be binding.

            3. Interim Measures. In the interim, and until this
            matter is fully and finally concluded through mediation
            or arbitration, or until the parties agree otherwise or the
            arbitrator so rules, the following terms shall remain in
            effect:

                  a. Messrs. Graff and [defendant] may
                  return to work at the [c]ompany's 520
                  Pacific Avenue corporate offices . . . on
                  May 6, 2016, and [plaintiff] will return the
                  computers they use in the business of
                  Abatis Security and take such steps as may
                  be necessary to restore their email access
                  and return everything removed from the

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                                        3
                 [o]ffice to restore the [o]ffice to the same
                 condition it was in prior to Thursday, May
                 5, 2016. The [c]ompany's bookkeeper . . .
                 is to work in the [o]ffice but will be
                 available to [plaintiff] to assist him with
                 event operations and other duties as
                 needed.

                 b. Messrs. Graff and [defendant] will
                 continue to receive their salary and
                 automobile allowance payments. Salary
                 payments to Messrs. Graff and [defendant]
                 will be made weekly each Tuesday.
                 Automobile allowance payments will be
                 paid on the first day of the month.

                 c. Messrs. Graff and [defendant] will
                 return to and continue in their respective
                 positions with Abatis Security.

                       ....

                 e. [Plaintiff] will remain as sole signatory
                 on the TD Bank account for Abatis
                 Security, however, [plaintiff] will not send
                 out any Abatis Security checks, with the
                 exception of the parties' payroll and
                 automobile allowance payments, without
                 first advising Messrs. Graff and
                 [defendant] of the checks and seeking their
                 approval.

            [(Emphasis added).]

     Pursuant to the Agreement, plaintiff made five $2000 weekly payments to

defendant on July 2, August 2, September 7, September 17, and September 20,


                                                                    A-1586-18T3
                                      4
2016; and two $735 payments on August 1 and September 1, 2016. Defendant

certified the last payment he received from Abatis was in March 2017, and he

claims he is owed $148,760 for the pay periods between April 4, 2017 and

August 14, 2018. Defendant also asserts plaintiff violated section (e) of the

parties' Agreement by writing checks to himself and to his attorney's offices

without seeking prior approval from defendant.

      Plaintiff claims he ceased making weekly payments to defendant because

he did not continue to work, as required by the Agreement, and defendant only

appeared at the office on Tuesdays, which were paydays. Plaintiff sought to

remove the matter from arbitration and transfer the case to the Law Division for

adjudication, but the trial court enforced the arbitration clause in the Agreement

and referred the parties back to arbitration. Thereafter, defendant filed a motion

in the Law Division, and before the arbitrator, seeking to compel plaintiff to

compensate defendant for the missed payments and to resume making weekly

payments. Both motions were denied, and both orders are appealed from.

      Because of plaintiff's failure to pay defendant's weekly salary, he argues

that he was held in contempt for failure to pay his child support obligation, a

bench warrant was issued for his arrest, and his driver's license was temporarily




                                                                          A-1586-18T3
                                        5
suspended. Defendant's previous counsel was relieved from further representing

him due to defendant's failure to pay his fees. The trial court stated:

            And I know the argument is [the parties] also agreed
            that [defendant] would get paid, but . . . we're just
            ignoring the fact that [defendant] was supposed to
            work. The whole idea underlying this [S]tand[-][S]till
            [A]greement was that the parties would continue to
            work out these problems as this business was ongoing.

      The trial court denied counsel's request to establish a discovery schedule,

stating: "I can't do that. The agreement provides for arbitration. I've ruled that

there needs to be arbitration, twice now. And [the case is] going to arbitration."

Abatis Security became defunct in February 2018, when plaintiff decided to

pursue another business opportunity.

                                        II.

      The Rules that warrant dismissal of interlocutory appeals are clear. We

consider appeals from final orders of a trial court and other orders expressly

designated as final for purpose of appeal. R. 2:2-3(a)(1) and (3). "To be a final

judgment, an order generally must 'dispose of all claims against all parties.'"

Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007)

(quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87

(App. Div. 1998)). This "final judgment rule, reflects the view that 'piecemeal



                                                                          A-1586-18T3
                                        6
[appellate] reviews, ordinarily, are [an] anathema to our practice.'" Id. at 550

(alterations in original) (quoting S.N. Golden Estates, 317 N.J. Super. at 87).

      If an order is not final, or among those orders expressly designated as final

for purposes of appeal, a party must seek leave to appeal from the Appellate

Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is

left to the discretion of this court, and that discretion is exercised sparingly and

"in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky, 396 N.J. Super. at

550. Here, defendant did not seek leave to appeal from the orders under review.

      It is clear that we will not decide an appeal from an interlocutory order

merely because the appellant's notice of appeal mischaracterized the order, the

respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza

v. James, 397 N.J. Super. 516, 519 (App. Div. 2008) (recognizing but declining

to follow cases in which the court has granted leave to appeal nunc pro tunc even

though appeal was fully briefed on the ground that the practice invites disregard

of the Rules).

      We recognize that we may, in appropriate cases, grant leave to appeal

nunc pro tunc. R. 2:4-4(b)(2); see e.g., Yuhas v. Mudge, 129 N.J. Super. 207,

209 (App Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of

prompt disposition of the matter"). However, such relief is not automatic and


                                                                            A-1586-18T3
                                         7
should not be presumed. In dismissing an appeal as interlocutory after it was

fully briefed, we stated:

            [I]f we treat every interlocutory appeal on the merits
            just because it is fully briefed, there will be no
            adherence to the Rules, and parties will not feel there is
            a need to seek leave to appeal from interlocutory orders.
            At a time when this court struggles to decide over
            [7000] appeals a year in a timely manner, it should not
            be presented with piecemeal litigation and should be
            reviewing interlocutory determinations only when they
            genuinely warrant pretrial review.

            [Parker v. City of Trenton, 382 N.J. Super. 454, 458
            (App. Div. 2006).]


A "grant of leave to appeal nunc pro tunc is most extraordinary relief[.]"

Hallowell v. Am. Honda Motor Co., Inc., 297 N.J. Super. 314, 318 (App. Div.

1997) (quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div.

1975)). This case does not warrant such relief. We add the following comments.

      N.J.S.A. 2A:23B-8(b)(1) provides:

            b. After an arbitrator is appointed and is authorized and
            able to act:

                   (1) the arbitrator may issue orders for
                   provisional remedies, including interim
                   awards, as the arbitrator finds necessary to
                   protect the effectiveness of the arbitration
                   proceeding and to promote the fair and
                   expeditious resolution of the controversy,
                   to the same extent and pursuant to the same

                                                                         A-1586-18T3
                                        8
                  conditions as if the controversy were the
                  subject of a civil action[.]

      Further, the Act allows an arbitrator to "conduct an arbitration in such

manner as the arbitrator considers appropriate for a fair and expeditious

disposition of the proceeding. The authority conferred upon the arbitrator

includes the power to hold conferences with the parties . . . and, among other

matters, determine the admissibility, relevance, materiality, and weight of any

evidence." N.J.S.A. 2A:23B-15(a).

      During oral argument before the arbitrator, plaintiff argued that

defendant's motion was premature because he was asking Judge Serpentelli "to

make a ruling on a claim without the benefit of discovery or even a factual

record, which . . . is not permissible, particularly where, as here, the facts are

substantially in dispute." Plaintiff also argued that defendant breached the

Agreement first "by engaging in these interminable delays and stall tactics

during the arbitration, not producing discovery, raising issues which were

resolved and kind of churning the case along so that he can continue receiving

his paycheck when he wasn't even working for it."

      We have noted that "[a] party seeking to vacate an arbitration award must

first obtain trial court review of the award." Manger v. Manger, 417 N.J. Super.

370, 376 (App. Div. 2010). Here, defendant did not move before the trial court

                                                                          A-1586-18T3
                                        9
to vacate Judge Serpentelli's order on these grounds.        Instead, defendant's

motion before Judge Swift asserted plaintiff breached the agreement to arbitrate

by not paying defendant's weekly salary, but defendant did not move before the

trial court to vacate same on the basis of fraud, corruption, or other undue means.

Saliently, defendant's third argument, that we should determine there was fraud,

corruption, or other undue means in the arbitration process likewise is not

cognizable because we have no jurisdiction.

      Defendant also argues Judge Serpentelli refused to enforce a clearly-

written contract between the parties, thereby exceeding his authority as an

arbitrator. N.J.S.A. 2A:23B-23(a)(4) also allows the trial court to vacate an

arbitration award if the arbitrator exceeded his or her powers. "[J]udicial inquiry

must consider more than whether a mere mistake occurred." Minkowitz v.

Israeli, 433 N.J. Super. 111, 150 (App. Div. 2013). Rather, "the arbitrator[] must

have clearly intended to decide according to law, must have clearly mistaken the

legal rule, and that mistake must appear on the face of the award." Id. at 150-

51 (alteration in original) (quoting Tretina v. Fitzpatrick & Assocs., 135 N.J.

349, 357 (1994)). Additionally, the error must be "fatal" and "result in a failure

of intent or be so gross as to suggest fraud or misconduct." Id. at 151 (quoting

Tretina, 135 N.J. at 357).


                                                                           A-1586-18T3
                                       10
      Our careful review of the record reveals the trial court was well within its

authority to compel the parties to continue arbitrating their dispute with Judge

Serpentelli. Both parties consented to arbitrate their respective claims and

agreed to a binding decision by the arbitrator. Judge Serpentelli is the factfinder

and shall render a final decision. Therefore, Judge Swift properly declined to

consider the parties' mutual bad faith claims. "[O]nce the trial court ordered the

parties to proceed in arbitration and dismissed the complaint, that decision ended

the litigation in the Superior Court. There [is] nothing left for the trial court to

decide between the parties." Wein v. Morris, 194 N.J. 364, 379 (2008).

      Plaintiff argues Judge Swift did not err in denying defendant's request for

payment in the Superior Court because defendant was, in effect, forum shopping

and is now barred by the doctrine of collateral estoppel. Moreover, plaintiff

claims defendant fought to have this matter remain in arbitration after plaintiff

filed a verified complaint in the Superior Court, and when defendant became

"unhappy" with Judge Serpentelli's interlocutory ruling, defendant "ran" back to

Judge Swift in an attempt to achieve a different outcome.

      "In appropriate circumstances, arbitration awards may be given collateral

estoppel effect in subsequent judicial proceedings." Barker v. Brinegar, 346

N.J. Super. 558, 566 (App. Div. 2002) (quoting Konieczny v. Micciche, 505 N.J.


                                                                            A-1586-18T3
                                        11
Super. 375, 384 (App. Div. 1997)). Our Supreme Court has "recognized the

potential preclusive effect of an arbitration if the party to be bound has had its

day in court." Habick v. Liberty Mut. Fire Ins. Co., 320 N.J. Super. 244, 258

(App. Div. 1999). Collateral estoppel may only be invoked after an issue of law

or fact has been litigated and determined by a final and valid judgment, however.

Id. at 258. In order for the doctrine to apply, the asserting party must show:

            (1) the issue to be precluded is identical to the issue
            decided in the prior proceeding; (2) the issue was
            actually litigated in the prior proceeding; (3) the court
            in the prior proceeding issued a final judgment on the
            merits; (4) the determination of the issue was essential
            to the prior judgment; and (5) the party against whom
            the doctrine is asserted was a party to or in privity with
            a party to the earlier proceeding.

            [Selective Ins. Co. v. McAllister, 327 N.J. Super. 168,
            173-74 (App. Div. 2000) (emphasis added) (quoting In
            re Estate of Dawson, 136 N.J. 1, 20 (1994)).]

At oral argument, Judge Serpentelli stated he would "get to a[n] [arbitration]

trial. . . on contested issues and . . . decide [them] then." His order denying

defendant's request was not a final order because Judge Serpentelli declined

deciding the motion absent a full record. Collateral estoppel, therefore, cannot

be applied here.




                                                                          A-1586-18T3
                                       12
      We conclude that the remaining arguments—to the extent we have not

addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Appeal dismissed.




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                                       13
