Karbowski v. Bradgate Associates, Inc.

• Decision Date: 24 March 1988
• Docket Number: No. 87-409,87-409
• Citation: 520 N.E.2d 504,25 Mass.App.Ct. 526
• Parties: Richard KARBOWSKI et al. 1 v. BRADGATE ASSOCIATES, INC. et al. 2
• Court: Appeals Court of Massachusetts

Page 504

520 N.E.2d 504

25 Mass.App.Ct. 526

Richard KARBOWSKI et al. ¹ v. BRADGATE ASSOCIATES, INC. et al. ²

No. 87-409.

Appeals Court of Massachusetts Worcester.

Argued Dec. 14, 1987.

Decided March 24, 1988.

Paul G. Kolesnikovas, Auburn, for Bradgate Associates, Inc. and another.

Joseph F. Brennan, Jr., Worcester, for Richard Karbowski and another.

SMITH, Justice.

The plaintiffs entered into an agreement with the defendant, Grovecrest Corporation (Grovecrest), to purchase for a price of $66,000 a house to be constructed on a certain lot in Worcester. The agreement contained a warranty provision and an arbitration clause.

After Grovecrest transferred ownership to the plaintiffs, a dispute arose as to the construction of the house, in particular, certain alleged defects in the foundation. The plaintiffs filed a complaint in the Worcester Division of the District Court Department seeking damages from Grovecrest and Bradgate Associates, Inc. (Bradgate was apparently the contractor). During the pendency of the case, the matter was referred to binding arbitration. The arbitrator found for the plaintiffs against both defendants in the amount of $18,000.

The defendants filed a motion in the District Court to vacate the arbitrator's award. The basis for their motion was that the arbitrator had exceeded his authority by awarding punitive or multiple damages under G.L. c. 93A. There was, the defendants argued, no evidence to justify the c. 93A award. A District Court judge denied the defendants' motion to vacate the award. The defendants then appealed the matter to the Appellate Division of the District Court. By decision dated February 13, 1987, the Appellate Division dismissed the report, concluding that the measure of damages was an issue of fact for the arbitrator and final (even if grossly erroneous), and, as there was no allegation of fraud or any indication on the record that the arbitrator had exceeded his authority, that no error was shown. The defendants appealed from that decision to this court.

In its decision, the Appellate Division, sua sponte, raised the issue whether the District Court had jurisdiction to act on a motion to vacate an arbitration award. It expressed doubt that there was jurisdiction but stated that because no party had raised or briefed the issue, it would proceed to decide the merits.

On appeal, neither party has raised the question of lack of jurisdiction over the subject matter. However, "[i]t is our duty to note and decide a jurisdictional question, 'regardless of the point at which it is first raised,' and whether any party has raised it." Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. 668, 670, 461 N.E.2d 1225 (1984), quoting in part from Litton Business Syss., Inc. v. Commissioner of Rev., 383 Mass. 619, 622, 420 N.E.2d 389 (1981). See Mass.R.Civ.P. 12(h)(3), 365 Mass. 757 (1974). See also Perry v. Stanfield, 278 Mass. 563, 569, 180 N.E. 514 (1932); Henry L. Sawyer Co. v. Boyajian, 303 Mass. 311, 314, 21 N.E.2d 536 (1939), Id., 315 Mass. 757, 52 N.E.2d 851 (1943) (jurisdiction of Appellate Division); Mark v. Kahn, 333 Mass. 517, 519, 131 N.E.2d 758 (1956); MacDonald v Carr, 355 Mass. 120, 122, 243 N.E.2d 808 (1969); Bushnell v. Bushnell, 393 Mass. 462, 465-466, 472 N.E.2d 240 (1984) (issue of jurisdiction of District Court properly before Appellate Division).

Whether the District Court has jurisdiction to vacate an arbitrator's award appears to be a matter of first impression in the Commonwealth. ³ The arbitration of commercial disputes is governed by the provisions of G.L. c. 251, §§ 1-19. ⁴ Section 12 establishes, among other things, "the right and limitations on vacating ... an arbitration award." Marino v. Tagaris, 395 Mass. 397, 400, 480 N.E.2d 286 (1985). Section 12(a ), as appearing in St.1960, c. 374, § 1, provides that, "[u]pon application of a party, the court shall vacate an award if ..." (emphasis supplied). Section 16, also as appearing in St.1960, c. 374, § 1, defines "court" as "any court of competent jurisdiction of this state." ⁵ There is nothing in G.L. c. 251 that further defines the meaning of the word "court." ⁶ However, § 17, as appearing in St.1960, c. 374, § 1, specifically refers to the Superior Court as the forum where "[a]n initial application [to vacate] shall be made[.]" Although that statute is nominally concerned with venue, it has strong jurisdictional overtones. ⁷ We conclude that the District Court lacked jurisdiction to rule on the defendants' motion to vacate the arbitrator's award.

The ruling of the District Court denying the defendants' motion to vacate the arbitrator's award is annulled, and a new order is to be entered in that court dismissing that motion for lack of jurisdiction in that court to grant the relief requested.

So ordered.

1 Patricia Karbowski.

2 Grovecrest Corporation.

3 In Lawrence v. Falzarano, 7 Mass.App.Ct. 591, 592-593 n. 2, 389 N.E.2d 435 (1979), Id., 380 Mass. 18, 402 N.E.2d 1017 (1980), the court stated that proceedings in that case in the Probate Court to stay arbitration proceedings under G.L. c. 251, § 2(b ), were a nullity as "[t]he Probate Court was without jurisdiction to entertain such proceedings, jurisdiction over them being limited to the Superior Court. G.L. c. 251, § 2(b ) (as appearing in St.1960, c. 374, § 1)." The Supreme Judicial Court noted that the parties agreed...