Arbitrability of the interpretation of the agreement. "Whether the parties have agreed to arbitrate is a matter to be decided finally by the court and not by the arbitrator," Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354, 359 n.8, 577 N.E.2d 632 (1991), unless there is " ‘clea[r] and unmistakabl[e]’ evidence" that the parties agreed to arbitrate arbitrability. Massachusetts Highway Dep't v. Perini Corp., 83 Mass. App. Ct. 96, 100, 981 N.E.2d 721 (2013), quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).
The remaining opinions discussed the provision to some extent but not in a manner relevant to this appeal.Azcon Constr. Co., Inc. v. Golden Hills Resort, Inc. , 498 N.W.2d 630 (S.D. 1993) ; MBNA Am. Bank, N.A. v. Barben , 111 P.3d 663 (Kan. Ct. App. 2005) (unpublished table decision); Grad. v. Wetherholt Galleries , 660 A.2d 903 (D.C. 1995) ; GPS USA, Inc. v. Performance Powdercoating , 389 Ill.Dec. 484, 26 N.E.3d 574 (Ill. App. Ct. 2015) ; Parekh Constr., Inc. v. Pitt Constr. Corp. , 31 Mass.App.Ct. 354, 577 N.E.2d 632 (1991) ; Migneault v. United Servs. Auto. Ass'n , 21 Ariz.App. 397, 519 P.2d 1162 (1974) ; Garlock v. 3DS Props. LLC , 303 Neb. 521, 930 N.W.2d 503 (2019) ; Smith v. Pinnamaneni , 227 Ariz. 170, 254 P.3d 409 (App. 2011) ; Bolton v. Bernabei & Katz, PLLC , 954 A.2d 953 (D.C. 2008) ; Westbrook Sch. Comm. v. Westbrook Tchrs. Ass'n , 404 A.2d 204 (Me. 1979) ; Roosa v. Tillotson , 695 A.2d 1196 (Me. 1997) ; Carroll v. MBNA Am. Bank , 148 Idaho 261, 220 P.3d 1080 (2009) ; City of Lawrence v. Falzarano , 380 Mass. 18, 402 N.E.2d 1017 (1980) ; Thompson v. Lee , 589 A.2d 406 (D.C. 1991) ; Pelletier & Flanagan, Inc. v. Maine Ct. Facilities Auth. , 673 A.2d 213 (Me. 1996) ; University of Ala. v. Modern Constr., Inc. , 522 P.2d 1132 (Ala. 1974) ; Sterling Glob. Sols., LLC v. Parillo , 2017 IL App (1st) 170397-U, ¶ 1, 2017 WL 5146105.E.g., Seagate Tech., LLC v. Western Digit. Corp. , 854 N.W.2d 750, 758–59 (Minn. 2014)
Azcon Constr. Co., Inc. v. Golden Hills Resort, Inc., 498 N.W.2d 630 (S.D. 1993); MBNA Am. Bank, N.A. v. Barben, 111 P.3d 663 (Kan.Ct.App. 2005) (unpublished table decision); Grad. v. Wetherholt Galleries, 660 A.2d 903 (D.C. 1995); GPS USA, Inc. v. Performance Powdercoating, 26 N.E.3d 574 (Ill.App.Ct. 2015); Parekh Constr., Inc. v. Pitt Constr. Corp., 577 N.E.2d 632 (Mass. App. Ct. 1991); Migneault v. United Servs. Auto. Ass'n, 519 P.2d 1162 (Ariz.Ct.App. 1974); Garlock v. 3DS Props. LLC, 930 N.W.2d 503 (Neb. 2019); Smith v. Pinnamaneni, 254 P.3d (Ariz.Ct.App. 2011); Bolton v. Bernabei & Katz, PLLC, 954 A.2d 953 (D.C. 2008); Westbrook Sch. Comm. v. Westbrook Tchrs. Ass'n, 404 A.2d 204 (Me. 1979); Roosa v. Tillotson, 695 A.2d 1196 (Me. 1997); Carroll v. MBNA Am. Bank, 220 P.3d 1080 (Idaho 2009); City of Lawrence v. Falzarano, 402 N.E.2d 1017 (Mass. 1980); Thompson v. Lee, 589 A.2d 406 (D.C. 1991); Pelletier & Flangan, Inc. v. Maine Ct. Facilities Auth., 673 A.2d 213 (Me. 1996); University of Ala. v. Modern Constr., Inc., 522 P.2d 1132 (Ala. 1974); Sterling Glob. Sols., LLC v. Parillo, 2017 IL App (1st) 170397-U, ¶ 1.
Therefore, this Court may determine whether an agreement to arbitrate was indeed in effect at the time of the arbitration. See Parekh Construction, Inc. v. Pitt Construction Corp., 31 Mass. App. Ct. 354, 358-59 (1991) (noting that a party can raise the question of whether an arbitration agreement existed after an arbitrator makes a decision if the above requirements are met). As noted above, despite receiving the promised payments from Aspeon-Consulting pursuant to the severance agreement, Mountzuris did not tender the waivers referenced in the severance agreement, as he had promised to do by signing the agreement.
The issue of arbitrability may also be raised in a motion to vacate an arbitration award. Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354, 359 (1991). 'An agency relationship is created when there is mutual consent, express or implied, that the agent is to act on behalf and for the benefit of the principal, and subject to the principal's control.'
While the arbitrator in this case could have chosen to proceed with the hearing on the merits, issued a decision, and sought remuneration from Michelson after the fact, she was not required to do so. Michelson also relies on Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354 (1991), which, quoting from rule 30 of the Construction Industry Arbitration Rules of the Association, observes that those rules provide that:"Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or counsel, who, after due notice, fails to be present or fails to obtain an adjournment.
). Contrast Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass.App.Ct. 354, 358–359, 577 N.E.2d 632 (1991) ( “Here, [the plaintiff] did not raise the issue of arbitrability prior to or during the proceedings, and did not participate in the arbitration proceedings. Therefore, [the plaintiff] could properly raise the issue on its application to vacate the arbitrator's award” [footnote omitted] ); Coady v. Ashcraft & Gerel, 223 F.3d 1, 9 n. 10 (1st Cir.2000) (no waiver where objections to scope of arbitrators' authority were “consistently and vigorously maintained” in submissions to arbitrators and at arbitration hearings).
Because Pinnamaneni did not participate in the arbitration, he retained his right to assert he had not agreed to arbitrate with W Inc., A.R.S. § 12-1512(A)(5), and to have a court decide whether as a nonsignatory he was nevertheless required to arbitrate. See Parekh Constr., Inc. v. Pitt Constr. Corp., 577 N.E.2d 632, 635-36 (Mass. App. Ct. 1991) (contractor who did not appear in arbitration still allowed to raise argument in court that no contract existed). ¶ 25 Requiring the superior court to decide whether Pinnamaneni was bound by the arbitration clause is consistent with cases applying the Federal Arbitration Act as well. While an arbitration clause can provide an arbitrator with the authority to rule on whether issues are arbitrable, see FirstOptions of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 1923, 131 L. Ed. 2d 985 (1995), an arbitrator normally cannot decide the threshold issue of whether a party is bound to arbitrate at all.
All we hold is that the arbitrator had no authority to reach such a result on his own in this case, where Brothers Vermont was not a party to the agreement and did not otherwise agree to have its alleged alter ego status determined by the arbitrator. See School Comm. of Hanover v. Hanover Teachers Assn., 435 Mass. 736, 740 (2002) (arbitrator's award must draw its essence only from contract at issue); Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354, 359 n. 8 (1991) ("Whether the parties have agreed to arbitrate is a matter to be decided finally by the court and not by the arbitrator"). See also Orion Shipping Trading Co. v. Eastern States Petroleum Corp., 312 F.2d 299, 300-301 (2d Cir. 1963) (arbitrator exceeded his authority in relying on alter ego theory to impose liability under agreement on an entity that was not a party to the agreement).
The contractor should have filed a complaint naming itself as the plaintiff and Simas as the defendant. See Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354, 357 (1991) (party seeking to nullify award in case arbitrated under auspices of G.L.c. 251 could attempt to do so by filing complaint, as plaintiff, in Superior Court). The contractor's filing was accepted as the equivalent of a complaint; the case was entered; and discovery ensued.