55 Mass. App. Ct. 419 | Mass. App. Ct. | 2002
The plaintiffs asserted rights under an option to purchase contained in a lease of a condominium unit and denied that the signatures appearing on a superseding lease (which did not contain such an option) were theirs. Shortly before trial, the parties agreed to submit their dispute to arbitration. The arbitrator found for the defendant, and the defendant filed a motion with a judge of the Superior Court for confirmation of the arbitrator’s determination to which the plaintiffs did not object. The defendant also moved for an award of attorney’s fees and costs under Mass.R.Civ.R 37(c), 365 Mass. 799 (1974),
In his written order, the motion judge did not address the effect of G. L. c. 251, § 10, on the appropriateness of a request for attorney’s fees in a matter submitted to arbitration. That statute provides that “[ujnless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” The statute generally precludes an award of attorney’s fees incurred in arbitration proceedings, absent an express agreement of the parties. See Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 99-101 (1980). Attorney’s fees may be awarded if mandated under a statutory claim submitted to arbitration. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 673 (2002). However, the basis for attorney’s fees in the present matter derives from a procedural rule of court, rather
The plaintiffs contend on two grounds that the motion judge was without authority to award counsel fees in any amount. First, the plaintiffs argue that the submission of the parties’ dispute to arbitration subsumed all claims between the parties, including nascent claims arising from discovery propounded during the litigation phase of the proceeding. Second, the plaintiffs contend that, if attorney’s fees were available at all, any claim for fees should first have been submitted to the arbitrator.
The statutory prohibition against the award of counsel fees in arbitration does not extend by its terms to fees incurred in litigation of claims later submitted to arbitration. Moreover, despite concluding that counsel fees incurred in arbitration proceedings generally cannot be recovered, the court in Floors, Inc. v. B.G. Danis of New England, Inc., supra at 100, explicitly recognized that fees incurred in separate litigation stayed pending arbitration are nonetheless recoverable. We conclude that G. L. c. 251, § 10, does not preclude recovery of that portion of the defendant’s expenses incurred before the parties submitted their claims to arbitration.
The plaintiffs’ remaining argument against the imposition of
The discovery violation in the present case arose during the pendency of the action in the Superior Court and under the rules applicable to its progress there. We see no reason to burden the process of arbitration with the determination of discovery disputes arising under the courts’ procedural rules before the matter is submitted to arbitration. Cf. Floors, Inc. v. B.G. Danis of New England, Inc., supra at 96. Contrast Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 616-617 (1993). The motion judge was able to review the nature of the evidence presented to the arbitrator, and we see no error in his conclusion that the plaintiffs had no reasonable basis to believe they would prevail in their denial of the genuineness of the lease or their signatures thereon. Moreover, the arbitrator’s conclusion that the plaintiffs’ signatures were genuine was binding on the parties. See Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992). It would derogate from the puzpose of arbitration to provide an efficient resolution of civil disputes to require a claim for fees arising from the litigation phase of a matter to be submitted to the arbitrator for determination, and it would defeat the purpose of the arbitration itself if a judge were required to conduct a complete and independent review of the evidence presented to the arbitrator before determining whether to award fees.
We conclude that the motion judge properly awarded expenses incurred before the parties submitted their claims to
So ordered.
The rule provides as follows:
*420 “Expenses on Failure to Admit. If a party fails to admit the genuineness of any documents or the truth of any matters as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable grounds to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.”
Certainly, parties could agree that their submission of claims to arbitration would bar all claims for attorney’s fees (and costs) arising from the litigation prior to such submission, but we do not construe the parties’ agreement in the present case to that effect. The operative language of the parties’ agreement states that “the Arbitrator shall be empowered to make all binding findings of fact and rulings of law, and to issue such orders in law or equity which, in the Arbitrator’s judgment, shall fully and finally resolve all issues between the parties concerning the Unit.” We accept the implicit finding of the motion judge that the parties’ agreement did not encompass the defendant’s separate claim for discovery sanctions arising from the conduct of the litigation itself,
Though the plaintiffs’ notice claimed appeal from the judgment, the plaintiffs advanced no argument on appeal to challenge it.
