ALBERT WOSZCZYNA & Another v. AMERIPRISE FINANCIAL SERVICES LLC & Others.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-234

ALBERT WOSZCZYNA & another1

vs.

AMERIPRISE FINANCIAL SERVICES LLC & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2023, Albert and Donna Woszczyna (plaintiffs) submitted

to the American Arbitration Association (AAA) their dispute over

the alleged failure by Ameriprise Financial Services LLC

(Ameriprise) to pay for several monthly life insurance premiums

for a policy the plaintiffs purchased in 2014. In their

complaint to the AAA, the plaintiffs did not disclose the

existence of a 2018 arbitration agreement with Ameriprise to

arbitrate disputes with the Financial Industry Regulatory

Authority, Inc. (FINRA). Prior to Ameriprise's answer, the AAA

1 Donna Woszczyna.

2American Enterprise Investment Services, Inc., and Daryl
DeVillier.
declined to administer the dispute because of Ameriprise's

failure to follow the AAA's administrative procedures. As a

result, the plaintiffs filed a complaint in Superior Court

asserting a variety of allegations. Thereafter, Ameriprise

filed a motion to dismiss the complaint and to compel

arbitration, which a Superior Court judge allowed, and from

which the plaintiffs appeal. We affirm.3

Discussion. "We review the decision on the motion to

compel arbitration de novo." Feeney v. Dell Inc., 454 Mass.

3 Ameriprise claims that we do not, and the Superior Court
did not, have jurisdiction over this case. In support, it
relies on 9 U.S.C. § 16(b)(2) (prohibiting appeals from
interlocutory orders "directing arbitration to proceed under
section 4 of this title"). Given our resolution of the appeal,
we need not resolve this question. With that said, arbitration
in the Commonwealth is controlled by G. L. c. 251, §§ 1 et seq.
In fact, the Superior Court has exclusive subject matter
jurisdiction over actions relating to the enforcement of
arbitration agreements. Karbowski v. Bradgate Assocs., Inc., 25
Mass. App. Ct. 526, 528-529 (1988). See G. L. c. 251, § 2 ("A
party aggrieved by the failure or refusal of another to proceed
to arbitration under an agreement described in section one may
apply to the superior court for an order directing the parties
to proceed to arbitration"); G. L. c. 251, § 16 (conferring
jurisdiction on courts to enforce arbitration agreements). In
any event, the allowance of a motion to dismiss is a final
order, not an interlocutory order. Ameriprise also claims that
Smith v. Spizzirri, 601 U.S. 472, 476-478 (2024), which requires
a Federal District Court to stay and not dismiss a lawsuit
involving an arbitrable dispute, is dispositive. Even to the
extent we interpret chapter 251 as the Federal Arbitration Act
has been interpreted, Smith is inapposite because Ameriprise did
not request a stay. See Smith, supra at 475. See also Green
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86–87 (2000)
(District Court order to proceed to arbitration, and dismissal
of all claims before it, constitutes appealable final order).

2
192, 199 (2009). The Massachusetts Arbitration Act, G. L.

c. 251, §§ 1 et seq., "expresses a strong public policy favoring

arbitration" (citation omitted). Miller v. Cotter, 448 Mass.

671, 676 (2007). The party seeking to enforce an arbitration

provision bears the burden of proving that the parties entered

into an agreement to arbitrate disputes. Kauders v. Uber

Techs., Inc., 486 Mass. 557, 572 (2021).

In 2018, the plaintiffs opened a "Brokerage Account" at

Ameriprise and entered into the "Ameriprise Brokerage Client

Agreement" (Brokerage Account agreement). In the 2018

agreement, the plaintiffs

"acknowledge that, in accordance with this Arbitration
section, you agree in advance to arbitrate any
controversies that may arise with [Ameriprise] or [American
Enterprise Investment Services, Inc. (AEIS)]. You agree
that all controversies that arise between us (including but
not limited to those related to your brokerage account and
any service or advice provided by a broker or
representative), whether arising before, on or after the
date you opened your Account shall be determined by
arbitration in accordance with the terms of this Agreement
and the rules then prevailing of [FINRA]. Any arbitration
pursuant to this provision shall be conducted only before
[FINRA]."

In August 2020, the plaintiffs opened an investment

advisory account at Ameriprise, which the parties refer to as

the "Select Account." This account was funded with a portion of

3
the proceeds from the Brokerage Account.4 The Select Account was

governed by the "Ameriprise Custom Advisory Relationship

Agreement" (Select Account agreement), which required any

controversy or claim arising out of the account to be resolved

by arbitration with the AAA. The Select Account agreement

contained no specific language that superseded what the parties

had agreed to in the prior Brokerage Account agreement.

The plaintiffs rely on a variety of published and

unpublished Federal Circuit and District Court decisions that

permit parties to bring a court action when an arbitration

entity refuses to arbitrate the matter. However, none of these

cases -- like the instant case -- involved two arbitration

agreements for different arbitral fora. Importantly, the Select

Account agreement requiring the use of the AAA was restricted to

claims "arising out of the investment advisory services offered

or delivered pursuant to this Agreement." However, the

Brokerage Account agreement requiring the use of FINRA was very

broad, and it was not restricted to disputes arising under the

Brokerage Account. Rather, the parties agreed to "arbitrate any

controversies that may arise with [Ameriprise] or AEIS"

(emphasis added). Moreover, the Select Account did not exist at

4 The plaintiffs transferred approximately $500,000 from the
Brokerage Account to the Select Account, resulting in a near
equal amount of funds in each account.

4
the time of three of the four alleged missed payments and the

insurance policy could not be deemed an "investment advisory

service" covered by the Select Account agreement.

Finally, the motion judge was aware of the two agreements,

and concluded it was "clear" that the plaintiffs "agreed to

arbitration . . . . before the AAA [regarding the Select

Account] as well as with FINRA with regard to the [Brokerage]

[A]ccount." In light of the broad FINRA arbitration language in

the Brokerage Account agreement, public policy, and a

presumption favoring arbitration, see Drywall Sys., Inc. v. ZVI

Constr. Co., 435 Mass. 664, 666 (2002), the motion to dismiss

and to compel arbitration was properly allowed.5

Judgment affirmed.

By the Court (Meade, Walsh &
Smyth, JJ.6),

Clerk

Entered: December 5, 2024.

5 Although the motion judge's margin order allowing the
motion to dismiss and to compel arbitration referenced
"paragraph 29 . . . [of the] Custom Advisory Relationship
Agreement," i.e., the Select Account Agreement requiring the use
of the AAA, this appears to be a scrivener's error as neither
party requested to return to the AAA.

6 The panelists are listed in order of seniority.

5