Opinion
No. 11–P–1458.
2012-12-3
Robert CREMONE v. DEVELOPMENT & MARKETING GROUP CHELSEA II, LLC.
“[A] provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” G.L. c. 251, § 1, inserted by St.1960, c. 374, § 1. Under the plain and unambiguous terms of their contract, Cremone and the marina agreed that “any controversy or claim” regarding the lease of the boat slip, or breach of that lease “shall be settled” by arbitration. Contrary to Cremone's contention, their agreement to arbitrate controls without regard to whether the dispute is “commercial.”
By the Court (GRASSO, VUONO & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Cremone, appeals from a judgment that dismissed his action against the defendant Admiral's Hill Marina (marina) relative to a lease for a boat slip. On the marina's motion to dismiss or to compel arbitration, a judge of the Superior Court concluded that the broad form arbitration clause in the governing contract between the parties required that the dispute be resolved by arbitration. The judge rejected Cremone's argument that the marina had waived the right to arbitration by terminating the lease and taking other action provided for in the lease. We affirm.
Section 12, par. (g), of the lease between Cremone and the marina provides in pertinent part as follows:
“Any controversy or claim arising out of or relating to this Lease, or breach of it, shall be settled by Arbitration in accordance with the rules of the American Arbitration Association and judgment upon the award rendered by the Arbitrator may be entered in any court having jurisdiction. All arbitration hearings shall be held in the office of The Marina At Admiral's Hill located in Chelsea, Massachusetts. The parties agree that Massachusetts law shall apply in interpreting the terms of this Lease and the Lessee, by his execution hereof, hereby consents to the jurisdiction of the courts of the Commonwealth of Massachusetts.”
“[A] provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” G.L. c. 251, § 1, inserted by St.1960, c. 374, § 1. Under the plain and unambiguous terms of their contract, Cremone and the marina agreed that “any controversy or claim” regarding the lease of the boat slip, or breach of that lease “shall be settled” by arbitration. Contrary to Cremone's contention, their agreement to arbitrate controls without regard to whether the dispute is “commercial.”
We discern no error in the judge's determination that the marina did not waive its right to arbitration by taking action as provided for in the lease, see e.g., lease §§ 5 and 9. The propriety of the marina's action remained a “controversy or claim arising out of ... [the] Lease” subject to mandatory arbitration under the contract. Moreover, to the extent that Cremone argues that the marina violated the contract by not initiating arbitration at earlier points in time, that argument itself can be raised in the context of arbitration.
Nothing in the record suggests that the marina acted in a manner inconsistent with its right to arbitration. See Martin v. Norwood, 395 Mass. 159, 162, 478 N.E.2d 955 (1985). It responded promptly to service of Cremone's complaint with a motion to dismiss or, in the alternative, to compel arbitration. See Home Gas Corp. of Mass., Inc. v. Walter's of Hadley, Inc., 403 Mass. 772, 775–776, 532 N.E.2d 681 (1989).
We also reject Cremone's contention, raised for the first time in his reply brief, that the dismissal of his claims under G.L. c. 93A were improper in light of Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826, 434 N.E.2d 611 (1982). Nothing in the record demonstrates that this issue was even argued below. See Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 65 n. 4, 712 N.E.2d 93 (1999). Even were this issue not waived, we conclude that Cremone's claim under G.L. c. 93A is itself a subject of mandatory arbitration under the agreement. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666–673, 761 N.E.2d 482 (2002). See also Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 396–397, 910 N.E.2d 317 (2009).
Judgment affirmed.