LAVEAU CERVALIN VS. UNIVERSAL GLOBAL, INC. (L-1085-20, HUDSON COUNTY AND STATEWIDE)

L
                                NOT FOR PUBLICATION WITHOUT THE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-0974-20

LAVEAU CERVALIN,

          Plaintiff-Appellant,

v.

UNIVERSAL GLOBAL, INC.,
d/b/a METRO HONDA, and
TRUIST BANK, f/k/a BRANCH
BANKING AND TRUST
COMPANY,1

     Defendants-Respondents.
___________________________

                   Submitted June 8, 2021 – Decided July 6, 2021

                   Before Judges Fisher, Gilson, and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, L-1085-20.



1
   Plaintiff named as a defendant "Branch Banking and Trust Company a/k/a
BB&T." Truist Bank answered on behalf of that defendant, stating it was
formerly known as Branch Banking and Trust Company (BB&T) and had been
improperly pleaded as "Branch Banking and Trust Company a/k/a BB&T."
Based on that unchallenged representation, we amend the caption accordingly.
            Houston & Totaro, attorneys for appellant (Madeline L.
            Houston and Melissa J. Totaro, on the briefs).

            Piro Zinna Cifelli Paris & Genitempo, LLC, attorneys
            for respondent Universal Global, Inc., and co-counsel
            for respondent Truist Bank; and Ballard Spahr, LLP,
            co-counsel for respondent Truist Bank (Todd M.
            Galante, Brian Frankoski, and William P. Reiley, on the
            joint brief).

PER CURIAM

      Plaintiff appeals an order compelling arbitration and dismissing with

prejudice his complaint. Because the language of the parties' agreements clearly

sets forth an intent to arbitrate, we affirm the aspect of the order compelling

arbitration. We reverse the aspect of the order dismissing the complaint with

prejudice because the appropriate procedural step was to stay the case pending

the arbitration, not to dismiss it with prejudice, and remand with a direction that

a new order be entered compelling arbitration and staying the action pending

conclusion of those proceedings.

                                        I.

      Plaintiff purchased a used 2016 Honda Pilot from defendant Universal

Global, Inc., d/b/a Metro Honda (Metro). As part of the transaction, plaintiff

and Metro entered into and executed two agreements, both of which had an




                                                                             A-0974-20
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arbitration clause. The Motor Vehicle Retail Order contained the following

arbitration clause:

            AGREEMENT TO ARBITRATE ALL CLAIMS.
            READ    THE  FOLLOWING     ARBITRATION
            PROVISION CAREFULLY, IT LIMITS YOUR
            RIGHTS, AND WAIVES THE RIGHT TO
            MAINTAIN A COURT ACTION, OR TO PURSUE A
            CLASS   ACTION   IN  COURT     AND   IN
            ARBITRATION.

            The parties to this agreement agree to arbitrate all
            claims, disputes, or controversies, including all
            statutory claims and any state or federal claims
            ("claims"), that may arise out of or relating to this
            agreement and the sale or lease identified in this
            agreement. By agreeing to arbitrate, the parties
            understand and agree that they are giving up their rights
            to use other available resolution processes, such as a
            court action or administrative proceeding, to resolve
            their disputes. Further, the parties understand that they
            may not pursue any claim, even in arbitration, on behalf
            of a class or to consolidate their claim with those of
            other persons or entitles. Consumer Fraud, Used Car
            Lemon Law, and Truth-in-Lending claims are just three
            examples of the various types of statutory claims
            subject to arbitration under this agreement. The
            arbitration shall be administered by the American
            Arbitration Association under its Consumer Arbitration
            Rules, before a single arbitrator who shall be a retired
            judge or an attorney. Dealership shall advance both
            party's filing, service, administration, arbitrator,
            hearing, and other fees, subject to reimbursement by
            decision of the arbitrator. Each party shall bear his or
            her own attorney, expert, and other fees and costs,
            except when awarded by the arbitrator under applicable
            law. The arbitration shall take place in New Jersey at a

                                                                        A-0974-20
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            mutually convenient place agreed upon by the parties
            or selected by the arbitrator. The decision of the
            arbitrator shall be binding upon the parties. Any further
            relief sought by either party will be subject to the
            decision of the arbitrator. If any part of this agreement
            is found to be unenforceable for any reason, the
            remaining provisions shall remain enforceable. In the
            event that any claims are based on a lease, finance, or
            other agreement between the parties related to this sale
            or lease as well as this agreement, and if such lease,
            finance or other agreement contains a provision for
            arbitration of claims which conflicts with or is
            inconsistent with this arbitration provision, the terms of
            such other arbitration provision shall govern and
            control. THIS ARBITRATION PROVISION LIMITS
            YOUR RIGHTS, AND WAIVES THE RIGHT TO
            MAINTAIN A COURT ACTION OR PURSUE A
            CLASS ACTION IN COURT OR IN ARBITRATION.
            PLEASE READ IT CAREFULLY, PRIOR TO
            SIGNING.

Plaintiff signed directly below the arbitration.

      Plaintiff and Metro also executed a document entitled "RETAIL

INSTALLMENT SALE CONTRACT – SIMPLE FINANCE CHARGE (WITH

ARBITRATION PROVISION)" (finance contract), which stated on the first

page, "[b]y signing this contract, you choose to buy the vehicle on credit under

the agreements in this contract." The finance contract contained the following

language on the first page directly above plaintiff's signature:

            Agreement to Arbitrate: By signing below, you agree
            that, pursuant to the Arbitration Provision on page 5 of
            this contract, you or we may elect to resolve any dispute

                                                                          A-0974-20
                                        4
            by neutral, binding arbitration and not by a court action.
            See the Arbitration Provision for additional information
            concerning the agreement to arbitrate.

The fifth page of that contract contained an arbitration clause, which provided

in part:

                        ARBITRATION PROVISION

            PLEASE REVIEW – IMPORTANT – AFFECTS
            YOUR LEGAL RIGHTS

            1. EITHER YOU OR WE MAY CHOOSE TO HAVE
            ANY DISPUTE BETWEEN US DECIDED BY
            ARBITRATION AND NOT IN COURT OR BY JURY
            TRIAL.

            2. IF A DISPUTE IS ARBITRATED, YOU WILL
            GIVE UP YOUR RIGHT TO PARTICIPATE AS A
            CLASS REPRESENTATIVE OR CLASS MEMBER
            ON ANY CLASS CLAIM YOU MAY HAVE
            AGAINST US INCLUDING ANY RIGHT TO CLASS
            ARBITRATION OR ANY CONSOLIDATION OF
            INDIVIDUAL ARBITRATIONS.

            3. DISCOVERY AND RIGHTS TO APPEAL IN
            ARBITRATION   ARE   GENERALLY   MORE
            LIMITED THAN IN A LAWSUIT, AND OTHER
            RIGHTS THAT YOU AND WE WOULD HAVE IN
            COURT MAY NOT BE AVAILABLE IN
            ARBITRATION.

            Any claim or dispute, whether in contract, tort, statute
            or otherwise (including the interpretation and scope of
            this Arbitration Provision, and the arbitrability of the
            claim or dispute), between you and us . . . , which arises
            out of or relates to your credit application, purchase or

                                                                         A-0974-20
                                        5
             condition of this vehicle, this contract or any resulting
             transaction or relationship . . . shall, at your or our
             election, be resolved by neutral, binding arbitration and
             not by a court action. . . . Any claim or dispute is to be
             arbitrated by a single arbitrator on an individual basis
             and not as a class action. . . . You may choose the
             American Arbitration Association, 1633 Broadway,
             10th Floor, New York, New York 10019
             (www.adr.org), or any other organization to conduct the
             arbitration subject to our approval. You may get a copy
             of the rules of an arbitration organization by contacting
             the organization or visiting its website. Arbitrators
             shall be attorneys or retired judges and shall be selected
             pursuant to applicable rules. . . . Any arbitration under
             this Arbitration Provision shall be governed by the
             Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not
             by any state law concerning arbitration. Any award by
             the arbitrator shall be in writing and will be final and
             binding on all parties, subject to any limited right to
             appeal under the Federal Arbitration Act.

Plaintiff signed the bottom of the page containing the arbitration clause. Metro

subsequently assigned the finance contract to BB&T.

      According to plaintiff, after he purchased the car, he discovered it "had

serious pre-existing and undisclosed physical damage." He reported the damage

to Metro, which "refused to repair the damage or offer any other type of relief

to plaintiff."

      Plaintiff filed a complaint, naming Metro and BB&T as defendants.

Pleading common-law fraud and violations of the New Jersey Consumer Fraud

Act, N.J.S.A. 56:8-1 to -226 (CFA), and the Magnuson-Moss Warranty —

                                                                          A-0974-20
                                         6
Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301 to 2312

(MMWA), plaintiff alleged Metro: (1) sold him the car at a higher price than

advertised; (2) orally agreed to one price but included additional charges

improperly or unbeknownst to him; and (3) made misrepresentations in regard

to the car's condition and history of damage and whether it qualified as a Honda

certified pre-owned vehicle. After filing answers, defendants moved to compel

arbitration and stay the case.     Plaintiff opposed the motion, arguing the

arbitration clauses were unenforceable because they contained conflicting and

unclear provisions and were displayed in an inconspicuous manner and that,

even if the motion judge found the clauses to be enforceable, the MMWA claim

was not subject to arbitration.

      In a written order and opinion, the motion judge granted the aspect of

defendants' motion seeking to compel arbitration and dismissed the complaint

with prejudice. The motion judge found "the two arbitration provisions are clear

and unambiguous waivers of right to seek judicial remedy and therefore are

enforceable" and any differences in the arbitration clauses were resolved by the

supersession clause of the Retail Order, which provided that if a finance

agreement "contain[ed] a provision for arbitration of claims which conflicts with

or is inconsistent with this arbitration provision, the terms of such other


                                                                           A-0974-20
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arbitration provision shall govern and control." The motion judge rejected

plaintiff's argument that the MMWA claim could not be compelled to binding

arbitration, citing Davis v. S. Energy Homes, Inc., 

305 F.3d 1268

 (11th Cir.

2002).   The motion judge noted defendants had requested a stay pending

arbitration but "dismisse[d] this action in recognizing that the arbitration is

binding." Plaintiff appeals that decision, making the same arguments he made

to the motion judge and asserting the Retail Order's supersession clause does not

resolve the differences between the arbitration clauses.

                                        II.

      We review de novo an order compelling arbitration. Skuse v. Pfizer, Inc.,

244 N.J. 30

, 46 (2020); see also Kernahan v. Home Warranty Adm'r of Fla., Inc.,

236 N.J. 301

, 316 (2019) ("Whether a contractual arbitration provision is

enforceable is a question of law, and we need not defer to the interpretative

analysis of the trial . . . court[] unless we find it persuasive."). When reviewing

orders about arbitration, we recognize arbitration is a "favored means of dispute

resolution," Hojnowski v. Vans Skate Park, 

187 N.J. 323

, 342 (2006), and "are

mindful of the strong preference to enforce arbitration agreements, both at the

state and federal level." Hirsch v. Amper Fin. Servs., LLC, 

215 N.J. 174

, 186




                                                                             A-0974-20
                                        8
(2013); see also Flanzman v. Jenny Craig, Inc., 

244 N.J. 119

, 133 (2020)

(recognizing federal and state policy favoring arbitration).

      The Retail Order states it is governed by New Jersey law; the arbitration

provision in the finance contract states it is governed by the Federal Arbitration

Act, 9 U.S.C. §§ 1 to 16 (FAA). Under either law, we apply New Jersey

contract-law principles. Under the FAA, arbitration is a creature of contract. 9

U.S.C. § 2; Rent-A-Ctr., W., Inc. v. Jackson, 

561 U.S. 63

, 67 (2010); see also

Hirsch, 215 N.J. at 187 (explaining that under New Jersey law, arbitration is also

a creature of contract). "[T]he FAA 'permits states to regulate . . . arbitration

agreements under general contract principles,' and a court may invalidate an

arbitration clause 'upon such grounds as exist at law or in equity for the

revocation of any contract.'" Atalese v. U.S. Legal Servs. Grp., L.P., 

219 N.J.

430

, 441 (2014) (quoting Martindale v. Sandvik, Inc., 

173 N.J. 76

, 85 (2002)).

      In determining whether a valid agreement to arbitrate exists, we apply

"state contract-law principles." Hojnowski, 

187 N.J. at 342

; see also Kernahan,

236 N.J. at 317-18. Under those principles, "[a]n arbitration agreement is valid

only if the parties intended to arbitrate because parties are not required 'to

arbitrate when they have not agreed to do so.'" Kernahan, 236 N.J. at 317

(quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,


                                                                            A-0974-20
                                        9

489 U.S. 468

, 478 (1989)). Thus, our first inquiry is whether the parties

actually and knowingly agreed to arbitrate their dispute. Ibid.; see also Atalese,

219 N.J. at 442.

      That inquiry begins with the language of the arbitration clauses. To reflect

mutual assent to arbitrate, the terms must be "sufficiently clear to place a

consumer on notice that he or she is waiving a constitutional or statutory right."

Atalese, 219 N.J. at 443.      "No particular form of words is necessary to

accomplish a clear and unambiguous waiver of rights." Id. at 444; see also

Flanzman, 244 N.J. at 137. If "at least in some general and sufficiently broad

way" the language of the clause conveys that arbitration is a waiver of the right

to bring suit in a judicial forum, the clause will be enforced. Id. at 447; see also

Arafa v. Health Express Corp., 243 N.J 147, 172 (2020) (finding jury trial waiver

"was knowing and voluntary in light of . . . broad agreement to resolve 'all

disputes' between the parties through binding arbitration").

      Applying those principles to the arbitration clauses at issue, we agree with

the motion judge that the two arbitration provisions are clear and unambiguous

waivers of the right to seek judicial remedy and are enforceable. The arbitration

clause in the Retail Order begins in capital letters, telling the buyer to read the

arbitration provision "CAREFULLY" and advising "IT LIMITS YOUR


                                                                              A-0974-20
                                        10
RIGHTS, AND WAIVES THE RIGHT TO MAINTAIN A COURT ACTION."

It goes on to state the parties "agree to arbitrate all claims, disputes, or

controversies, including all statutory claims and any state or federal claims

("claims"), that may arise out of or relating to this agreement and the sale or

lease identified in this agreement."

         The arbitration clause of the finance contract also contains sufficiently

broadly-worded and clear language regarding the waiver of a right to proceed in

court.     It asks the buyer to "PLEASE REVIEW" the clause, saying it is

"IMPORTANT" and "AFFECTS YOUR LEGAL RIGHTS." It explains the

clause means "ANY DISPUTE" will be "DECIDED BY ARBITRATION AND

NOT IN COURT OR BY JURY TRIAL." Plaintiff faults the language of the

finance contract for not being sufficiently absolute, claiming by saying

"EITHER YOU OR WE MAY CHOOSE" arbitration, the provision is somehow

vague. We find that argument unpersuasive, especially when it disregards

additional language in the clause stating any claim or dispute "shall" be resolved

"by neutral, binding arbitration and not by a court action" if arbitration is elected

by either party. Plaintiff's additional arguments faulting the finance contract's

arbitration clause are equally unpersuasive and do nothing to diminish the clear

language waiving the right to seek a judicial remedy.


                                                                              A-0974-20
                                        11
      Plaintiff criticizes the two clauses for being inconsistent.           Any

inconsistencies are of no consequence, especially considering that plaintiff in

opposing defendants' motion certified he had made no effort to read the

arbitration clauses. See Roman v. Bergen Logistics, LLC, 

456 N.J. Super. 157

,

175 (App. Div. 2018) (finding "unavailing" the plaintiff's claims "she was

unable to read or understand" an agreement containing an arbitration clause she

had executed). Moreover, any inconsistencies are resolved by the supersession

clause contained in the Retail Order:

            In the event that any claims are based on a lease,
            finance, or other agreement between the parties related
            to this sale or lease as well as this agreement, and if
            such lease, finance or other agreement contains a
            provision for arbitration of claims which conflicts with
            or is inconsistent with this arbitration provision, the
            terms of such other arbitration provision shall govern
            and control.

The supersession clause directly precedes the following language:

            THIS ARBITRATION PROVISION LIMITS YOUR
            RIGHTS, AND WAIVES THE RIGHT TO
            MAINTAIN A COURT ACTION OR PURSUE A
            CLASS ACTION IN COURT OR IN ARBITRATION.
            PLEASE READ IT CAREFULLY, PRIOR TO
            SIGNING.

Plaintiff executed the document just below that language. The purpose of the

supersession clause is to resolve inconsistencies, and its meaning is clear: if a


                                                                           A-0974-20
                                        12
claim is "based on" the Retail Order and another agreement, and those

agreements contain arbitration clauses that differ, the provisions of the other

agreement will govern. A reasonable consumer reading each document would

have a clear understanding of which provision applied. Plaintiff attempts to

create an ambiguity out of the clause's use of the phrase "based on," but we see

no ambiguity in that simple language.

      Plaintiff's reliance on Rockel v. Cherry Hill Dodge, 

368 N.J. Super. 577

(App. Div. 2004), which was decided before Atalese, is misplaced. Rockel

involved a car sale with two contracts containing arbitration clauses. The

arbitration clause in the retail order in that case was only fifty-five words long

and contained no clear reference to a waiver of the right to maintain a court

action.   The finance contract in that case was "far more expansive," even

extending the right to compel arbitration to non-parties. 

Id. at 582

. Those

differences are not present here. The minor differences that may exist are

resolved by the supersession clause and are not sufficient to overcome the clear

language waiving the right to sue.

      We now turn to plaintiff's MMWA claims. Plaintiff faults the motion

judge for "defer[ing] to the Davis [c]ourt's findings that MMWA claims may be

subject to binding arbitration." Defendants tell us we need not decide if the


                                                                            A-0974-20
                                       13
MMWA claims are subject to arbitration because the arbitration clauses delegate

to the arbitrator the authority to make that decision. In reply, plaintiff asserts

both parties briefed the delegation issue and the motion judge "decided" the

issue in plaintiff's favor.

      We don't have copies of those briefs,2 but here's what we know: the

motion judge determined the MMWA-claim arbitrability issue, thereby

effectively rejecting any argument that the arbitrability decision was delegated

to the arbitrator. Defendant did not cross-appeal the motion judge's decision to

decide that issue. Accordingly, we decline to address the delegation issue.

Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 

414 N.J. Super. 483

,

499 n.9 (App. Div. 2010) (finding "a respondent must cross-appeal to obtain

relief"). Instead, we assume – without deciding – that the judge held the

arbitrability of the MMWA was a matter for the court to decide.




2
    The motion judge summarized defendant's response to plaintiff's MMWA
argument as "cit[ing]" Davis, 

305 F.3d 1268

, and Walton v. Rose Mobile Homes
LLC, 

298 F.3d 470

, 475 (5th Cir. 2002). The judge made no mention of any
argument based on a delegation of the issue to the arbitrator. See Morgan v.
Sanford Brown Inst., 

225 N.J. 289

, 306 (2016) (noting defendants had not
argued to the motion court "it lacked jurisdiction to decide whether the parties
agreed to arbitration because that role was for the arbitrator alone" but instead
filed a brief seeking an order compelling arbitration).
                                                                            A-0974-20
                                       14
      On the issue of whether the MMWA claim is subject to arbitration, we

agree with the motion judge's decision to follow Davis, 

305 F.3d 1268

, which is

one of the vast majority of cases finding MMWA claims to be arbitrable

compared to the handful of cases finding them to be not arbitrable. Compare 

id.

at 1280

; Walton, 

298 F.3d 470

; Krusch v. TAMKO Bldg. Prods., Inc., 

34 F.

Supp. 3d 584

, 594-95 (M.D.N.C. 2014); In re Apple iPhone 3G Prods. Liab.

Litig., 

859 F. Supp. 2d 1084

, 1090-91 (N.D. Ca. 2012); Jones v. Gen. Motors

Corp., 

640 F. Supp. 2d 1124

, 1135-44 (D. Ariz. 2009); Patriot Mfg., Inc. v.

Dixon, 

399 F. Supp. 2d 1298

, 1306-07 (S.D. Ala. 2005); Dombrowski v. Gen.

Motors Corp., 

318 F. Supp. 2d 850

, 850-51 (D. Ariz. 2004); Pack v. Damon

Corp., 

320 F. Supp. 2d 545

, 558 (E.D. Mich. 2004), rev'd in part on other

grounds, 

434 F.3d 810

 (6th Cir. 2006); Patriot Mfg., Inc. v. Jackson, 

929 So. 2d

997

, 1005-06 (Ala. 2005); S. Energy Homes, Inc. v. Ard, 

772 So. 2d 1131

, 1135

(Ala. 2000); Results Oriented, Inc. v. Crawford, 

538 S.E.2d 73

, 81 (Ga. Ct. App.

2000), aff'd, Crawford v. Results Oriented, Inc., 

548 S.E.2d 342

 (Ga. 2001);

Borowiec v. Gateway 2000, Inc., 

808 N.E.2d 957

, 970 (Ill. 2004); Walker v.

DaimlerChrysler Corp., 

856 N.E.2d 90

, 93 (Ind. Ct. App. 2006); Hemphill v.

Ford Motor Co., 

206 P.3d 1

, 12 (Kan. Ct. App. 2009); Howell v. Cappaert

Manufactured Hous., Inc., 

819 So. 2d 461

, 464 (La. Ct. App. 2002); Abela v.


                                                                          A-0974-20
                                      15
Gen. Motors Corp., 

677 N.W.2d 325

, 327-28 (Mich. 2004); and In re Am.

Homestar of Lancaster, Inc., 

50 S.W.3d 480

, 492 (Tex. 2001), with Rickard v.

Teynor's Homes, Inc., 

279 F. Supp. 2d 910

 (N.D. Ohio 2003); Browne v. Kline

Tysons Imps., Inc., 

190 F. Supp. 2d 827

 (E.D. Va. 2002); Pitchford v. Oakwood

Mobile Homes, Inc., 

124 F. Supp. 2d 958

 (W.D. Va. 2000); Raesly v. Grand

Hous., Inc., 

105 F. Supp. 2d 562

, 573 (S.D. Miss. 2000); Wilson v. Waverlee

Homes, Inc., 

954 F. Supp. 1530

 (M.D. Ala. 1997); Koons Ford of Baltimore,

Inc. v. Lobach, 

919 A.2d 722

 (Md. 2007); and Parkerson v. Smith, 

817 So. 2d

529

 (Miss. 2002). 3

      We do not follow the majority blindly or just because it is the majority.

We follow the majority because we agree that (1) "the text, legislative history,

and purpose of the MMWA do not evince a congressional intent to bar

arbitration of MMWA written warranty claims," Walton, 

298 F.3d at 478

; and

(2) we are not bound by the "unreasonable" interpretation of the MMWA by the

Federal Trade Commission (FTC), Davis, 

305 F.3d at 1280,

 which reflects the

FTC's "skepticism" toward arbitration, Jones, 

640 F. Supp. 2d at 1141,

 and is



3
  We do not include in this list unpublished cases, R. 1:36-3, or Kolev v.
Euromotors West/The Auto Gallery, 

658 F.3d 1024

 (9th Cir. 2011), withdrawn,

676 F.3d 867

 (9th Cir. 2012), on which plaintiff relies even though it was
expressly withdrawn by the Ninth Circuit.
                                                                          A-0974-20
                                      16
counter to federal policy favoring arbitration. See 

id. at 1141-42

 ("The Supreme

Court has been quite clear that such innate suspicion of arbitration is not

sufficient   to   render   arbitration     agreements    unenforceable")     (citing

Shearson/American Express Inc. v. McMahon, 

482 U.S. 220

, 226 (1987))

("[W]e are well past the time when judicial suspicion of the desirability of

arbitration and of the competence of arbitral tribunals should inhi bit the

enforcement of the [FAA] in controversies based on statutes"); see also

Flanzman, 244 N.J. at 133 (finding "the federal policy expressed by Congress in

the FAA" and the legislative and judicial policy of our state favor arbitration).

      To the extent we do not address any other arguments made by plaintiff, it

is because we find insufficient merit in them to warrant discussion in a written

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

                                         III.

      We affirm the aspect of the order compelling arbitration. We reverse the

aspect of the order dismissing the case with prejudice. See N.J.S.A. 2A:23B-

7(g) (stating "[i]f the court orders arbitration, the court on just terms shall stay

any judicial proceeding that involves a claim subject to the arbitration."); see

also 9 U.S.C. § 3 (stating a court action should be stayed if the action involves

"any issue referable to arbitration"). We remand for entry of a new order and


                                                                              A-0974-20
                                         17
direct that the new order compel arbitration and stay the civil action pending

those proceedings.

      Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.




                                                                        A-0974-20
                                     18

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