Weiss v. Atholl

9 Mass. L. Rptr. 381
CourtMassachusetts Superior Court
DecidedDecember 28, 1998
DocketNo. 963679
StatusPublished

This text of 9 Mass. L. Rptr. 381 (Weiss v. Atholl) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiss v. Atholl, 9 Mass. L. Rptr. 381 (Mass. Ct. App. 1998).

Opinion

Neel, J.

[382]*382INTRODUCTION

Plaintiff, Kenneth P. Weiss (“Weiss”), filed this action against his former employee, defendant Desmond Atholl (“Atholl"), for conversion (Count I) and replevin (Count II). Atholl counterclaimed for misrepresentation (Count I), breach of oral contract (Count II), breach of written contract (Count III), abuse of process (Count IV), slander per se (Counts V-VII), and conversion (Count VIII). Weiss moves to dismiss Atholl’s counterclaims under Mass.R.Civ.P. 12(b)(6), arguing that the claims are subject to arbitration pursuant to their written employment agreement. Weiss also seeks to submit his claims to arbitration. Weiss’s motion will be treated as a motion to compel arbitration under M.G.L.c. 251. For the reasons discussed below, the motion to compel arbitration is allowed in part and denied in part.

BACKGROUND

The uncontroverted facts are as follows. In February of 1996, Weiss engaged Atholl, a citizen of the United Kingdom, to come to the United States and serve as Weiss’s major domo and personal secretary. Atholl came to the United States and worked for Weiss in Weiss’s home in Newton. On or about June 10, 1996, the parties executed a written employment agreement, which contains an arbitration clause. The arbitration clause provides that “(a]ny controversy or claim arising out of, or relating to, this Agreement, or its breach, shall be settled by arbitration ...” (Employment Agreement, clause 14.) On or about June 12, 1996, Atholl terminated the agreement pursuant to a clause which provided for termination without cause.

It is undisputed that the agreement contains an arbitration clause, and that the agreement is an enforceable contract. At issue is whether Atholl’s counterclaims are arbitrable under the arbitration clause.

DISCUSSION

General laws c. 251 governs the arbitration of commercial disputes in Massachusetts. Section 1 of that chapter provides that a written agreement to arbitrate “shall be valid, enforceable and irrevocable.” Section 2(d) provides that “(a]ny action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect to such issue only.” “(T]he foregoing statutory provisions express a strong public policy favoring arbitration as an expeditious alternative to litigation for settling commercial disputes.” Danvers v. Wexler Constr. Co., Inc., 12 Mass.App.Ct. 160, 163 (1981). “Unless there is positive assurance that an arbitration clause is not susceptible to an interpretation that covers the asserted dispute, or unless no lawful relief conceivably can be awarded by the arbitrator, an order to arbitrate should not be denied.” Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. 252, 256 (1993) (quoting School Comm. of Danvers v. Tyman, 372 Mass. 106, 113 (1977)).

In the present case, the arbitration clause is very broad. See Loche v. Dean Witter Reynolds, Inc., 26 Mass.App.Ct. 296, 303 (1988) (construing substantially similar language). An arbitration clause that is expressed in general terms “should be construed as broadly as it was intended.” Danvers, 12 Mass.App.Ct. at 163 (construing substantially similar language) (quoting Carter, Moore & Co., Inc. v. Donahue, 345 Mass. 672, 676 (1963) (additional citations omitted)). “(U]nder such a clause, the parties are deemed to have consented in advance to arbitrate any dispute which they cannot settle between themselves ...” Danvers, 12 Mass.App.Ct. at 163 (citations omitted).

Weiss’s motion to compel arbitration as to his claims is unopposed; in any event, for the reasons stated below as to similar claims by Atholl, Weiss’s claims are subject to arbitration. The issue which remains is whether Atholl’s counterclaims are arbitrable.

Atholl concedes that his counterclaim for breach of written contract (Count III) falls within the scope of the arbitration clause (see Defendant’s Memorandum at 6), but argues that the remainder of his counterclaims are not arbitrable. Atholl asserts that an examination of the employment contract reveals that the parties did not agree to submit tort claims to arbitration. (See id., at 4.) The language within the arbitration clause here, however, “covers contract-generated or contract-related disputes between the parties however labeled: it is immaterial whether claims are in contract or in tort . . .” Loche, 26 Mass.App.Ct. at 304 (construing substantially similar language) (quoting Acevedo Maldonado v. PPG Indus., Inc., 514 F.2d 614, 616-17 (1st Cir. 1975)).

Count I of Atholl’s counterclaims alleges that Weiss fraudulently induced Atholl to come to the United States to work as Weiss’s major domo. Atholl alleges that Weiss misrepresented that he would reimburse Atholl for air fare and moving expenses, and would make Atholl a beneficiary under Weiss’s will.

The Supreme Judicial Court has determined that the language within the arbitration clause here “clearly encompasses a claim of fraud in the inducement of the contract. ” Quirk v. Data Terminal Sys., Inc., 379 Mass. 762, 765 (1980). Atholl argues that Quirk is not applicable to his misrepresentation claim because that claim is based not on fraud in the inducement of the written contract containing the arbitration provision, but rather “upon facts pertaining to Weiss’s statements made in February 1996 to come to the United States.” (Id., at 6.)

The Court is not persuaded that this distinction renders Quirk inapplicable to Atholl’s misrepresentation claim. Atholl asserts that the alleged misrepresentation created an oral contract. Because any such oral contract was later formalized by the written agree[383]*383ment, the misrepresentation claim is sufficiently related to the parties’ written agreement to render it subject to the arbitration clause. See Quirk, 379 Mass. at 765; Loche, 26 Mass.App.Ct. at 304 (construing substantially similar language within an investment contract and determining that because the plaintiffs claims of fraud, conversion and misrepresentation “were of a nature closely involved ... in a continuing investment relationship!,] [t]hey . . . were sufficiently connected with that investment relationship to be regarded as subject to the arbitration provision”) (footnote omitted); see also Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir. 1987) (construing substantially similar language and determining that claims are arbitrable “(i]f the allegations underlying the claims ‘touch matters’ covered by the parties’ . . . agreement! ] . . .”) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 624 n.13 (1985)).

Count II of Atholl’s counterclaims alleges that Weiss breached an oral contract with Atholl by failing to reimburse Atholl for his initial travel and moving expenses. Atholl contends that his breach of oral contract claim is not arbitrable because the oral contract was entered into four months prior to the execution of the written contract, and the contracts did not merge.

The Court disagrees.

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Related

Dean Witter Reynolds Inc. v. Byrd
470 U.S. 213 (Supreme Court, 1985)
James E. Morgan v. Smith Barney, Harris Upham & Co.
729 F.2d 1163 (Eighth Circuit, 1984)
Quirk v. Data Terminal Systems, Inc.
400 N.E.2d 858 (Massachusetts Supreme Judicial Court, 1980)
Loche v. Dean Witter Reynolds, Inc.
526 N.E.2d 1296 (Massachusetts Appeals Court, 1988)
Home Gas Corp. of Massachusetts, Inc. v. Walter's of Hadley, Inc.
532 N.E.2d 681 (Massachusetts Supreme Judicial Court, 1989)
Carter, Moore & Co. Inc. v. Donahue
189 N.E.2d 217 (Massachusetts Supreme Judicial Court, 1963)
Massachusetts Coalition of Police, Local 165 v. Town of Northborough
620 N.E.2d 765 (Massachusetts Supreme Judicial Court, 1993)
School Committee of Danvers v. Tyman
360 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1977)
Flanagan v. Prudential-Bache Securities, Inc.
495 N.E.2d 345 (New York Court of Appeals, 1986)
Tumim v. Palefsky
384 N.E.2d 1253 (Massachusetts Appeals Court, 1979)
Town of Danvers v. Wexler Construction Co.
422 N.E.2d 782 (Massachusetts Appeals Court, 1981)
Unisys Finance Corp. v. Allan R. Hackel Organization, Inc.
676 N.E.2d 486 (Massachusetts Appeals Court, 1997)
Genesco, Inc. v. T. Kakiuchi & Co.
815 F.2d 840 (Second Circuit, 1987)

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9 Mass. L. Rptr. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-atholl-masssuperct-1998.