Cybulski v. Vaiani
Cybulski v. Vaiani
Concurring Opinion
(concurring). I agree with the result reached by the majority opinion, affirming the judgment of the Superior Court confirming the arbitral award. Under the reasoning of Abraham-Copley Square Ltd. Partnership v. Badaoui, 72 Mass. App. Ct. 339 (2008), it is clear that (contrary to the plaintiff’s argument) venue was proper in the Superior Court in Middlesex County.
I decline, however, to join the broader rule imposed by the majority opinion: that a motion to confirm an arbitral award in the circumstances of this case may only be brought in the Superior Court in Middlesex County.
As the majority correctly observe, no statute or common law confers exclusive jurisdiction or venue on the Superior Court of the county in which the action underlying a matter submitted to arbitration is pending, unless the agreement to arbitrate preceded commencement of the action. The majority further observe that, in confirming the award, the motion judge implicitly rejected the plaintiff’s contention that venue was improper in Middlesex County. Having concluded that venue was at least permissible in Middlesex County, and that the motion judge accordingly acted properly in confirming the arbitral award, we need go no further to affirm the judgment.
Were the law clear that venue is vested exclusively in the county in which the underlying action commenced, I would have little hesitancy in including, as dictum, a statement to that effect. However, the majority opinion elects to impose a rigid rule of exclusive venue, based on a series of factors it considers persuasive. I am not persuaded that a rule restricting venue to a particular county of the Superior Court is necessary or advisable. What is offensive about the plaintiff’s attempt in the present case is his effort to derail the defendant’s properly initiated motion to confirm the award. Had the defendant instead sought to confirm the award in the Superior Court in Bristol County, I am not persuaded that any troublesome burden on judicial resources would have resulted. Moreover, I consider the majority’s reliance on the presumed familiarity of Superior Court judges in Middlesex County with the underlying litigation to be overstated. First, by reason of the rotation system employed by the Superior Court department, there is no assurance that any judge assigned to that session at the time of the motion for confirmation would have had any prior
In my view, there seems no compelling reason for a mle restricting venue for motions to confirm an arbitral award to the county in which the underlying action was initially commenced; I would instead tend to prefer a presumptive rule of flexibility for parties seeking confirmation of an arbitral award. Whatever prudential considerations might weigh in the direction of the rule advocated by the majority are, in my view, better left to the Legislature. Failing action by the Legislature, we may have occasion in some future case, where the issue is necessary to decision, to consider an appropriate rule. In any event, we need not reach the question in the present case, and I accordingly decline to do so.
The docket of the Superior Court action, for example, reveals that the judge who confirmed the arbitral award had no prior involvement with the case, other than to allow a joint motion to continue a minor discovery motion.
The parties agreed to arbitrate after the entry of default against the defendant, and the defendant’s unsuccessful motion to remove the default (based on improper service).
Opinion of the Court
This appeal presents a procedural issue located between the lines of the Massachusetts Uniform Arbitration Act, G. L. c. 251, §§ 1 et seq. (Arbitration Act). If parties begin a civil action in the Superior Court, then suspend that litigation and make an agreement to arbitrate their dispute, does the suspended action serve as the mandatory site for judicial review of the arbi-tral decision? For the following reasons, we conclude that the parties must file their application for confirmation, vacation, or modification of the arbitral award in the original Superior Court litigation and may not commence a separate action for those purposes.
In May of 2007, Cybulski filed an action for negligence in Superior Court in Middlesex County. After completion of pleadings and some preliminary motions practice, the parties drafted and executed an arbitration agreement “to fully settle all claims.”
The parties agreed upon an arbitrator, set a hearing date of no later than February 13, 2008, and submitted to the Superior Court a joint motion to continue any pending activity until February 22, 2008. On January 16, 2008, a Superior Court judge allowed the continuance.
The arbitrator conducted a hearing at his office in Bristol County on February 7, 2008, and by a detailed decision of February 20 found no causal connection between the parties’ accident and Cybulski’s claimed injuries. He entered a defendant’s award for Vaiani. Under the Superior Court’s Rule 9A for motion practice, Vaiani served Cybulski with a motion to confirm the award.
Discussion. In his opposition to confirmation and now on appeal, Cybulski has contended that his application to vacate filed in Bristol County precluded any action upon Vaiani’s application to confirm in Middlesex County because the venue provision of the Arbitration Act, G. L. c. 251, § 17, directs an “initial application ... to the superior court for the county” in which the arbitration hearing occurred and “[a]ll subsequent applications ... to the court hearing the initial application unless the court otherwise directs.”
1. Statutory construction. No provision of the Arbitration Act specifically addresses the situation in which parties without a prior arbitration agreement (a) begin a lawsuit, (b) make an arbitration agreement during its progress, (c) leave the lawsuit open as they arbitrate, and (d) then dispute the propriety of judicial review of the arbitral award by the original court instead of a subsequent one. The specific silence of the Arbitration Act does not pose an insuperable problem. Substantial guidance is available from the premises of the Arbitration Act generally and from the suggestive purposes of certain provisions of the Act particularly.
The purpose of the Uniform Arbitration Act, adopted by the Legislature in 1960 as G. L. c. 251,
The provision of the Arbitration Act most closely approaching the present situation is G. L. c. 251, § 2(c):
“If an issue referable to arbitration under [a pre-existing arbitration agreement] is involved in an action or proceeding pending in a court having jurisdiction to hear applications under paragraph (a) [directing applications to the Superior Court], the application [to compel arbitration] shall be made therein . . . .”
The language presumes a pre-existing arbitration agreement between parties and a claim for arbitration by one or more of them. It assigns the determination of arbitrability to the Superior Court hosting the existing litigation. At least two factors support that directive. First, the parties are already engaged in that court and should not have to undertake an additional action. Second, that court’s familiarity with the existing action should assist its decision of arbitrability.
The venue provision of the Arbitration Act, G. L. c. 251, § 17, lends support to this conclusion. As recounted above, it directs an “initial application” for judicial review of the arbitral result to the Superior Court of the county in which the arbitration occurred or in the county of the residence or the business location of the adverse party, and assigns “all subsequent applications” to the same court “unless the court otherwise directs” (emphasis supplied). This reservation of discretion to the Superior Court upon the matter of the venue of judicial review permits the judges to assign a postarbitration application to an appropriate court for such reasons as the convenience of the parties, the efficiency of the courts, prior judicial familiarity with the merits, and a possible connection of the arbitral outcome to other pending litigation. In the situation of an action between the parties in a first court, predating the arbitration, generating the reference to arbitration, and remaining open after the arbitration, a second court would typically weigh the advantages of efficiency and continuity anchoring the dispute in the original court, and often transfer the parties’ application there, as authorized by the final phrase of § 17.
2. Practical considerations. Independently of the inferences available from the text of the Arbitration Act, mandatory return to the originating Superior Court action serves the paramount practical purposes of arbitration: speed, efficiency, simplicity, and limited judicial involvement. As the procedural history of this dispute demonstrates, the party losing the arbitration sought to open a second litigation front in a Superior Court session in another county. That development will typically require some response by the opposing party in both the new action and the original one.
Finally, if valid reasons cause parties to propose judicial review of the arbitral result by a different court and action, they may address that proposal in the first instance to the original court. That route will bring the progress of the case to the neutral management of a judge, rather than leave it to the adversary strategies of the parties. The judge will be well positioned to assess the merits of a transfer of the case to an alternate court and to serve the goals of fairness and expedition.
Conclusion. For these reasons the Superior Court in Middle-sex County correctly retained judicial review of the arbitral result and confirmed
Judgment affirmed.
Counsel for the parties signed, but did not date, the arbitration agreement. From events listed in the Superior Court docket sheet, we infer that the parties formed the agreement in late 2007.
Under Superior Court Rule 9A(b), a party submitting a motion must first serve the motion and related materials upon its opponent, allow effectively thirteen days for receipt of responsive material, and then file the combined materials with the court. The Arbitration Act, G. L. c. 251, § 17, provides that any “application” to a court functions as a “motion” under the usual rules of the court.
The thrust of Vaiani’s appellate argument is that Cybulski originally chose Superior Court in Middlesex County as the venue for his suit, left that action open during arbitration, and should now face barriers of waiver and estoppel against the commencement of a second action upon the same dispute in a different county.
By St. 1960, c. 374, § 1.
For commentary elaborating upon these benefits of arbitration, see Finn & McCarthy, Mediation and Arbitration § 9.5 (2008); Herzog, Commercial Arbitration: A Tool for the Lawyer, 4 Boston Bar J. No. 1, 7, 10 (1960); Asher, Commercial Arbitration in Massachusetts, 10 Boston Bar J. No. 9, 15, 17 (1966).
Even a successful motion to dismiss the second action will consume the
In a common scenario, as trial approaches in the Superior Court, all counsel may report their spontaneous agreement to submit the case to binding arbitration but will not request the judge to dismiss the action. The open action then serves as the natural forum for postarbitration applications.
Ideally, as the concurring opinion proposes, the Legislature might prescribe a solution. However, legislative attention to a procedural detail of a general statutory scheme is unpredictable. Meanwhile a question of the present kind — the propriety of two open actions upon one dispute — might continue indefinitely. Plugging the procedural gaps in broadly worded statutes employs the core competence and responsibility of the judiciary. In the absence of legislative directions, it should know best how to arrange the pathways to and through its court rooms. See, as only several examples, Kennedy v. Justice of the Dist. Ct. of Dukes County, 356 Mass. 367, 377-378 (1969) (furnishing a procedural code for the conduct of statutory inquests); Nei v. Burley, 388 Mass. 307, 315 (1983) (concluding, amid legislative silence, that G. L. c. 93A claims are not entitled to trial by jury); and Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 463-464 (2001) (itemizing the elements of a record necessary to establish a judge’s statutorily required warning of the immigration consequences of a guilty plea). By that process, the appellate courts furnish trial judges with guidance as well as hindsight.
The plaintiff has pressed this appeal entirely upon arguments of venue and not upon any merits-related grounds authorized for vacation or modification by G. L. c. 251, § 12(a) and § 13(a), respectively.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.