Opinion
21-P-1040
11-28-2022
CHEN HE & another[1] v. EDNA STREET, LLC, & another.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Deling Chen and Chen He, appeal from the dismissal of their claims against defendants Edna Street, LLC (Edna Street), and David Burns. The plaintiffs purchased a newly constructed single-family home from Edna Street in May 2015. On appeal, the plaintiffs claim the motion judge erred in finding that the purchase and sale (P & S) agreement for the home required them to submit their claims to arbitration. We affirm.
Discussion.
"We review the grant of a motion to dismiss de novo, 'accept[ing] as true the facts alleged in the plaintiffs' complaint as well as any favorable inferences that reasonably can be drawn from them.'" Sacks v. Dissinger, 488 Mass. 780, 783 (2021), quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). The factual allegations must plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
After taking possession of the home in May 2015, the plaintiffs noticed water leakage in the basement. The property had a water infiltration system designed to handle excess water, but despite the plaintiffs' efforts over several years, the system failed to keep water out of the basement. The complaint alleged two other irregularities related to the property. The first was that the sump pump was illegally connected to the municipal sewer line. The second was that the defendants failed to grant an easement to the town of Lexington, where the property was located, even though the town required the easement as a condition of the construction permit.
The complaint does not specify when the plaintiffs first noticed the water leakage. The plaintiffs discovered a problem with the sump pump in February 2016, from which we infer that the water leakage began before that date.
The complaint alleged that the home's sump pump was not connected to the infiltration system. We infer that this contributed to the water leakage problem, although the complaint did not specify how.
The P & S included a "Limited Warranty" addendum. In the addendum, Edna Street warranted that all construction would be free of defects for one year from the date of closing and provided additional warranty terms for specific "coverage items." The warranty limited Edna Street's obligations to dwelling repairs only. The limited warranty also included a "Disputes" clause, which provided that "[a]ny disputes or complaints concerning the condition of the dwelling or under this warranty shall be resolved and handled by arbitration exclusively . . . and not by litigation."
The plaintiffs contend on appeal that the motion judge erred in referring their claims to arbitration. We disagree. "[W]here the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that 'an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Local Union No. 1710, Int'l Ass'n of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421 (1999) (Local Union No. 1710), quoting AT&T Techs, v. Communications Workers of Am., 475 U.S. 643, 649 (1986). Here, the arbitration clause applied to "[a]ny disputes or complaints concerning the condition of the dwelling or under [the limited] warranty." The facts outlined in the complaint related to the water leakage, the inadequacy of the water infiltration system, and the defendants' representations about these deficiencies. These allegations either concerned the condition of the dwelling or fell under the provisions of the warranty, for example, that the construction would be free of defects for one year. Because the plaintiffs' claims arose from these facts, we cannot say with "positive assurance" that the arbitration clause does not cover their dispute. Local Union No. 1710, supra. The dispute is therefore covered.
The plaintiffs also claim on appeal that the judge erred in striking paragraph 28 of the complaint when no party had moved to strike. The judge struck the paragraph because it was overly vague. The plaintiffs cite no legal authority for the proposition that a judge may not act sua sponte to strike part of a pleading due to vagueness. Rule 16 (a) (9) (A) of the Massachusetts Rules of Appellate Procedure, as appearing in 481 Mass. 1628 (2019), requires that an appellant's brief support each contention "with citations to the authorities ... on which the appellant relies." We need not consider issues not adequately argued in the appellant's brief. See id. See also Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (court had insufficient basis to consider appellant's claims of error where appellant failed to provide supporting legal authority).
The plaintiffs correctly state that "[a] court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute." Merrimack College v. KPMG LLP, 88 Mass.App.Ct. 803, 808 (2016), quoting Granite Rock Co. v. International Bhd. of Teamsters, 561 U.S. 287, 297 (2010). Here, however, the P & S specifically incorporated the addendum, which included the disputes clause. By entering in the P & S, the plaintiffs agreed to submit to arbitration any dispute falling under that clause.
The plaintiffs assert on appeal that their claims fall outside the disputes clause. This argument relates to the unpermitted sewer connection and the defendants' failure to grant an easement to the town. However, to the extent that the disputes clause may not cover these items, a question we leave to the arbitrator, the facts in the complaint still did not plausibly suggest an entitlement to relief. See Iannacchino, 451 Mass. at 636. Neither the complaint nor the plaintiffs' brief on appeal clarifies how the unpermitted status of the sewer connection resulted in damage to the plaintiffs. Similarly, the plaintiffs have alleged no specific injury arising from the lack of an easement. For these reasons, the motion judge properly found that the plaintiffs' claims were subject to the disputes clause and must be resolved by arbitration.
The plaintiffs also contend for the first time on appeal that "subsurface hydraulic conditions" may have caused the water leakage, therefore, the P & S' "basement" clause put the leak outside the warranty. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County., N.A., 405 Mass. 420, 421 n.2 (1989). Accordingly, this issue is waived.
The plaintiffs state on appeal that the lack of an easement has resulted in costs to them and uncertainty about their title to the property. However, they have not specified what costs, and during oral argument, the plaintiffs' attorney conceded that any failure to grant an easement did not result in the plaintiffs holding defective title to the home.
Judgment affirmed.
Meade, Sullivan & D'Angelo, JJ.
The panelists are listed in order of seniority.