Sherman, P.J.
This is an appeal by the third-party defendants, Rogers Hall Jaycee Corporation and William T. Flanagan (“Rogers Hall” or the “owner:) from a judgment in favor of their former architects, W. Lewis Barlow IV and Architects, Inc. (“Barlow” or the “architect”) on Barlow’s third-party complaint for services rendered.
The issues raised on this appeal by Rogers Hall are whether the arbitration clause in the third-parties’ contract divested the trial court of subject matter jurisdiction and whether Barlow’s claim is barred by a prior release.
The report indicates that on July 16, 1987, Rogers Hall, as owner, and Barlow, as architect, executed an American Institute of Architects (“AIA”) Standard Form Agreement for the constriction of a four-story apartment building in Lowell, Massachusetts. The AIA Standard Form was modified at the owner’s request to include Article 12 which provided, in relevant part:
The architect, on behalf of the owner, will procure all required survey information as set forth in Article 4 subparagraph 4.5. Compensation shall be made as set forth in Article 11 subparagraph 11.4.1
Pursuant to Articlel 2, Barlow contracted with J.F. Hennessy Co.,Inc. (“Hennessy”), the plaintiff in this action, for the necessary survey work. Hennessy satisfactorily performed the required survey services, but received no payment. On January 30, 1990, Hennessy initiated this action in contract againstBarlow to recover$8,471.50for services rendered plus $864.88 in delinquency charges.
On August 6, 1990, Barlow filed both an answer and a third-party complaint against Rogers Hall. Barlow admitted its contractual indebtedness to Hennessy for the survey services, but denied any liability for delinquency charges. Based on such admission, Hennessy’s motion for judgment on the pleadings was allowed, and damages of approximately $9,000.00 were assessed against Barlow for the amount of Hennessy’s claim plus attorneys’ fees. The court also allowed Barlow’s motion to stay execution pending the resolution of its third-party claim.
Barlow’s third-party complaint, as amended, sought damages against Rogers Hall in an amount equal to the judgment against Barlow on Hennessy’s complaint, Dist./ [228]*228Mun. Cts. R. Civ. R, Rule 14(a),5 plus all monies owed by Rogers Hall for “extra services rendered” by Barlow.
On February 7, 1991, Rogers Hall answered byway of general denials and various affirmative defenses which did not include any assertion of contractual arbitration rights or payment and release. In May, 1991, Rogers Hall filed its responses to Barlow’s request for admissions.
During the course of the January 29, 1992 trial of the third-party action, Rogers Hall introduced into evidence a purported “general release”6 of all contractual claims by Barlow. At the close of the third-party plaintiffs case, Rogers Hall moved for a “directed verdict” on the basis of the release and on the additional ground that the court lacked subject matter jurisdiction given the arbitration clause contained in the third parties’ AIA agreement. The motion was denied.
At the close of all the evidence, Rogers Hall filed the following two requests for rulings of law, reiterating the grounds of its “directed verdict” motion:7
1. [T] his court lacks subject matter jurisdiction. Article 7 of the written agreement between the parties calls for arbitration of any claims arising out of this Agreement. The written Agreement between the parties calling for arbitration is specifically enforceable pursuant to Massachusetts General Laws, Chapter 251, Section 1.
2. [Ojn or about October 22,1987, the Third Party Defendants paid Third Party Plaintiff the sum of $4,175.00 in full satisfaction of the Agreement between the parties. Third Party Plaintiff executed a Release of any and all claims as a result of said payment thereby barring this action.
The trial court denied these requests, and entered judgmentfor third-party plaintiff Barlow in the amount of $7,500.00 plus interest and costs.
1. Contrary to the principal contention of Rogers Hall on this appeal, a contractual clauseforthe resolution of disputes by arbitration is notjurisdictional, Tumim v. Palefsky, 7 Mass. App. Ct. 847 (1979), in the sense that the court lacks any judicial authority other than to order the matter to arbitration. Although arbitration agreements are deemed “valid, enforceable and irrevocable” in this Commonwealth, G.L.c. 251, § 1 (“Uniform Arbitration Act”)8, arbitration is a contractual right which may be waived.9 [229]*229See generally, Roberto Construc. Co. v. Burnham-Manning Post #1105, 347 Mass. 400, 403-404 (1964); Agoos Kid Co. v. Blumenthal Import Corp., 282 Mass. 1, 14 (1933); Tumim v. Palefsky, supra at 847. Whether a party has waived arbitration is a question for the court to determine, and the “parties are precluded from contracting to exclude thecourtfromjurisdiction overthis issue.” Home Gas Corp. of Mass. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774-775 (1989).
The standard for determining a forfeiture or waiver of the right to arbitration is whether “under the totality of the circumstances, the defaulting party acted 'inconsistently’ with the arbitration right... through a failure properly and timely to assert the right.” Id. at 775. It is clear that Rogers Hall never asserted its right to arbitration in compliance with Article 7.2 of the parties’ agreement which required the filing of a written demand with Barlow “within a reasonable time” after the third party claim arose.10 Indeed, Rogers Hall never served any written arbitration demand upon Barlow at any time during the twelve months which elapsed between its answer to the third party complaint and the trial and entry of judgment in this case. Further, Rogers Hall failed to assert any right to arbitration in its answer, in its responses to Barlow’s requests for admissions or during the pretrial conferencing of this case. No request was ever made to the trial court for a stay of proceedings to enable Rogers Hall to obtain an order to compel arbitration.
The factors to be considered by a court in deciding the issue of waiver include:
Whether the party has actually participated in the lawsuit.. Whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff... whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand...
Home Gas Corp. of Massachusetts v. Walter's of Hadley, Inc., supra at 775-776. On the basis of such factors, we find no abuse of discretion, Martin v. Norwood, 395 Mass. 159, 161 (1985), in the trial court’s determination that the delay by Rogers Hall in not asserting its arbitration rights until the close of the plaintiffs evidence during the actual trial of this matter constituted a waiver of such rights. There was no error in the denial of request for ruling number one.
2.
Free access — add to your briefcase to read the full text and ask questions with AI
Sherman, P.J.
This is an appeal by the third-party defendants, Rogers Hall Jaycee Corporation and William T. Flanagan (“Rogers Hall” or the “owner:) from a judgment in favor of their former architects, W. Lewis Barlow IV and Architects, Inc. (“Barlow” or the “architect”) on Barlow’s third-party complaint for services rendered.
The issues raised on this appeal by Rogers Hall are whether the arbitration clause in the third-parties’ contract divested the trial court of subject matter jurisdiction and whether Barlow’s claim is barred by a prior release.
The report indicates that on July 16, 1987, Rogers Hall, as owner, and Barlow, as architect, executed an American Institute of Architects (“AIA”) Standard Form Agreement for the constriction of a four-story apartment building in Lowell, Massachusetts. The AIA Standard Form was modified at the owner’s request to include Article 12 which provided, in relevant part:
The architect, on behalf of the owner, will procure all required survey information as set forth in Article 4 subparagraph 4.5. Compensation shall be made as set forth in Article 11 subparagraph 11.4.1
Pursuant to Articlel 2, Barlow contracted with J.F. Hennessy Co.,Inc. (“Hennessy”), the plaintiff in this action, for the necessary survey work. Hennessy satisfactorily performed the required survey services, but received no payment. On January 30, 1990, Hennessy initiated this action in contract againstBarlow to recover$8,471.50for services rendered plus $864.88 in delinquency charges.
On August 6, 1990, Barlow filed both an answer and a third-party complaint against Rogers Hall. Barlow admitted its contractual indebtedness to Hennessy for the survey services, but denied any liability for delinquency charges. Based on such admission, Hennessy’s motion for judgment on the pleadings was allowed, and damages of approximately $9,000.00 were assessed against Barlow for the amount of Hennessy’s claim plus attorneys’ fees. The court also allowed Barlow’s motion to stay execution pending the resolution of its third-party claim.
Barlow’s third-party complaint, as amended, sought damages against Rogers Hall in an amount equal to the judgment against Barlow on Hennessy’s complaint, Dist./ [228]*228Mun. Cts. R. Civ. R, Rule 14(a),5 plus all monies owed by Rogers Hall for “extra services rendered” by Barlow.
On February 7, 1991, Rogers Hall answered byway of general denials and various affirmative defenses which did not include any assertion of contractual arbitration rights or payment and release. In May, 1991, Rogers Hall filed its responses to Barlow’s request for admissions.
During the course of the January 29, 1992 trial of the third-party action, Rogers Hall introduced into evidence a purported “general release”6 of all contractual claims by Barlow. At the close of the third-party plaintiffs case, Rogers Hall moved for a “directed verdict” on the basis of the release and on the additional ground that the court lacked subject matter jurisdiction given the arbitration clause contained in the third parties’ AIA agreement. The motion was denied.
At the close of all the evidence, Rogers Hall filed the following two requests for rulings of law, reiterating the grounds of its “directed verdict” motion:7
1. [T] his court lacks subject matter jurisdiction. Article 7 of the written agreement between the parties calls for arbitration of any claims arising out of this Agreement. The written Agreement between the parties calling for arbitration is specifically enforceable pursuant to Massachusetts General Laws, Chapter 251, Section 1.
2. [Ojn or about October 22,1987, the Third Party Defendants paid Third Party Plaintiff the sum of $4,175.00 in full satisfaction of the Agreement between the parties. Third Party Plaintiff executed a Release of any and all claims as a result of said payment thereby barring this action.
The trial court denied these requests, and entered judgmentfor third-party plaintiff Barlow in the amount of $7,500.00 plus interest and costs.
1. Contrary to the principal contention of Rogers Hall on this appeal, a contractual clauseforthe resolution of disputes by arbitration is notjurisdictional, Tumim v. Palefsky, 7 Mass. App. Ct. 847 (1979), in the sense that the court lacks any judicial authority other than to order the matter to arbitration. Although arbitration agreements are deemed “valid, enforceable and irrevocable” in this Commonwealth, G.L.c. 251, § 1 (“Uniform Arbitration Act”)8, arbitration is a contractual right which may be waived.9 [229]*229See generally, Roberto Construc. Co. v. Burnham-Manning Post #1105, 347 Mass. 400, 403-404 (1964); Agoos Kid Co. v. Blumenthal Import Corp., 282 Mass. 1, 14 (1933); Tumim v. Palefsky, supra at 847. Whether a party has waived arbitration is a question for the court to determine, and the “parties are precluded from contracting to exclude thecourtfromjurisdiction overthis issue.” Home Gas Corp. of Mass. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774-775 (1989).
The standard for determining a forfeiture or waiver of the right to arbitration is whether “under the totality of the circumstances, the defaulting party acted 'inconsistently’ with the arbitration right... through a failure properly and timely to assert the right.” Id. at 775. It is clear that Rogers Hall never asserted its right to arbitration in compliance with Article 7.2 of the parties’ agreement which required the filing of a written demand with Barlow “within a reasonable time” after the third party claim arose.10 Indeed, Rogers Hall never served any written arbitration demand upon Barlow at any time during the twelve months which elapsed between its answer to the third party complaint and the trial and entry of judgment in this case. Further, Rogers Hall failed to assert any right to arbitration in its answer, in its responses to Barlow’s requests for admissions or during the pretrial conferencing of this case. No request was ever made to the trial court for a stay of proceedings to enable Rogers Hall to obtain an order to compel arbitration.
The factors to be considered by a court in deciding the issue of waiver include:
Whether the party has actually participated in the lawsuit.. Whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff... whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand...
Home Gas Corp. of Massachusetts v. Walter's of Hadley, Inc., supra at 775-776. On the basis of such factors, we find no abuse of discretion, Martin v. Norwood, 395 Mass. 159, 161 (1985), in the trial court’s determination that the delay by Rogers Hall in not asserting its arbitration rights until the close of the plaintiffs evidence during the actual trial of this matter constituted a waiver of such rights. There was no error in the denial of request for ruling number one.
2. There is also no merit in Rogers Hall’s contention that the following constituted a “general release” by Barlow of any and all claims against Rogers Hall which arose from the parties’ agreement:
In consideration of $4,175.00 paid to Bill Barlow on October 22, 1987, Bill Barlow agrees to hold Rogers Hall Associates/Jaycee Housing Corporation harmless from any and all claims arising from the navment of said sum pursuant to the contract entered into between the parties on July 16, 1987 [emphasis supplied].
Construing this release in accordance with the ordinary meaning of the language employed and giving effect to each of its terms, Tupper v. Hancock, 319 Mass. 105, 108 (1946), it is obvious that the parties did not intend this as a general release sufficiently [230]*230comprehensive to include all claims arising from the parties’ agreement. Compare general releases in Schuster v. Baskin, 354 Mass. 137 (1968); Tupper v. Hancock, supra; Glendale Coal Co. v. Nesson, 312 Mass. 293 (1942); Purity Supreme, Inc. v. Marshall Contractors, Inc., 12 Mass. App. 7 Ct. 966 (1981). The express terms of the release in question strictly limited its scope to “claims arising from the payment of said” $4,175.00 to Barlow on October 22, 1987. The document was, therefore, a specific rather then general release confined to particular, limited claims. See Wine v. Commonwealth, 301 Mass. 451 (1938); Griffith v. New England Tel. & Tel. Co., 32 Mass. App. Ct. 79 (1992). Such specific release did not bar Barlow’s recovery in this action on his third-party complaint for separate, additional compensation and reimbursements for which Rogers Hall remained liable under the parties’ agreement.
There being no error, the report is dismissed.