LEAH C. GRIFFIN & Another v. ERIC L. MEARS.

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-96

LEAH C. GRIFFIN & another1

vs.

ERIC L. MEARS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties live on abutting parcels and have long

quarreled over an easement that crosses their properties. A

judge of the Superior Court referred the parties to binding

arbitration, pursuant to arbitration clauses in the parties'

settlement agreement and amendment of easement. The judge

confirmed the arbitration award and denied the defendant's

motion to vacate or modify the arbitration award. The defendant

appealed from the judgment and argues that the arbitrator

exceeded the scope of his authority by modifying the parties'

rights and obligations under the settlement agreement and

amendment of easement. He also asserts that the plaintiffs made

1 Dana R. Griffin.
fraudulent statements to the court and that the arbitrator acted

with bias. We affirm.

Background. The parties live on abutting parcels. The

plaintiffs live on Lot A and the defendant lives on Lot B. An

unpaved roadway crosses Lot B to provide road access to the rear

of Lot A. The roadway, which has existed for decades, is

recorded as an easement. The recorded easement allows the owner

of Lot A "to pass and repass with vehicles or otherwise."

In 2020, the plaintiffs sued the defendant. Their

principal contention was that the defendant had obstructed the

easement by parking vehicles on it. The plaintiffs wanted to

install a septic system on their property and the defendant's

parked cars interfered with the project. In 2021, the parties

executed a settlement agreement to resolve the dispute. They

agreed to hire a surveyor to plan the location and bounds of the

easement. The defendant would be able to locate the easement

within certain parameters.

The settlement agreement also addressed parking. The

parties agreed that the

"[o]wner of Lot B shall be permitted to use the Easement
for parking and other uses subject to the following:
Between the hours of 7:00am and 7:00pm, owner of Lot A and
their successors and assigns shall provide one (1) hour
notice to the owner of Lot B of their intention to make
actual use of the Easement and owner of Lot B shall ensure
that the easement is open to permit vehicular access to Lot
A."

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The parties recorded an amendment of easement that reflected the

terms of the settlement agreement. Both the amendment of

easement and the settlement agreement contained arbitration

clauses. In relevant part, the settlement agreement provided

that if "alleged violations of this agreement" cannot be

resolved, "the parties agree to submit the dispute to binding

arbitration by a commercial provider."

The settlement agreement did not end the dispute. In 2022,

the plaintiffs filed a motion for order of reference for binding

arbitration. They alleged that the defendant had violated the

settlement agreement by parking vehicles in the easement and by

relocating the entrance of the easement such that it was

impassable to vehicles. The judge ordered that their dispute be

submitted to mediation and, if unsuccessful, to arbitration.

The dispute proceeded to arbitration, presided over by a

retired justice of the Land Court. After a two-day arbitration

that included a view of the property, the arbitrator ordered the

defendant to improve the easement to make it passable for

vehicular and pedestrian access by regrading it and removing

certain impediments. Further, the arbitrator ordered the

defendant to refrain from parking vehicles in the easement

between 7 P.M. and 7 A.M. The judge confirmed the arbitrator's

award and denied the defendant's motion to vacate or modify the

award.

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Discussion. 1. Arbitrator's authority. The defendant

argues that the judge erred by confirming the arbitrator's award

because the arbitrator exceeded his authority, G. L. c. 251,

§ 12 (a) (3), by depriving him of his historical right to park

overnight in the easement and by ordering him to make

improvements to the easement not contemplated by the settlement

agreement. We disagree.

"We review the trial judge's decision to uphold the

arbitration award de novo, but our examination of the underlying

award is informed by the 'strong public policy favoring

arbitration'" (citation omitted). Pittsfield v. Local 447 Int'l

Bhd. of Police Officers, 480 Mass. 634, 637 (2018). "Indeed, an

arbitration award carries a presumption of propriety because it

is the arbitrator's judgment, not necessarily an objectively

correct answer, for which the parties have bargained." Id. at

638, citing United Steelworkers of Am. v. American Mfg. Co., 363

U.S. 564, 568 (1960). "[T]he powers of the arbitrator . . . are

wide and the scope of judicial review of the arbitration

proceedings is narrow" (citation omitted). Katz, Nannis &

Solomon, P.C. v. Levine, 473 Mass. 784, 793 (2016) (Levine). A

court will "uphold an arbitrator's decision even where it is

wrong on the facts or the law, and whether it is wise or

foolish, clear or ambiguous." Pittsfield, 480 Mass. at 638,

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quoting Boston v. Boston Police Patrolmen's Ass'n, 443 Mass.

813, 818 (2005).

"An arbitrator exceeds his or her authority by granting

relief that is beyond the scope of the arbitration agreement,

beyond that to which the parties bound themselves, or prohibited

by law." Levine, 473 Mass. at 795. Here, the parties bound

themselves under the settlement agreement and agreed to

arbitrate all claimed violations of the agreement. The source

of their disagreement was an ambiguity in the settlement

agreement. It required the plaintiffs to give the defendant one

hour's notice during the daytime before using the easement, to

allow the defendant to move his vehicles. There was no notice

requirement, however, between 7 P.M. and 7 A.M. The settlement

agreement was thus ambiguous about whether the defendant could

park overnight in the easement. The arbitrator had the

authority to interpret the ambiguity and prescribe remedies

accordingly. See Grobet File Co. of Am. v. RTC Sys., Inc., 26

Mass. App. Ct. 132, 135 (1988) (arbitrator acted within his

authority by construing ambiguity in contract, which parties had

agreed to arbitrate). Because it is the judgment of the

arbitrator that the parties bargained for, "it is the

arbitrator's view of the facts and of the meaning of the

contract that they have agreed to accept." Pittsfield, 480

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Mass. at 638, quoting United Paperworks Int'l Union, AFL-CIO v.

Misco, Inc., 484 U.S. 29, 37-38 (1987).

Likewise, the arbitrator acted within his authority in

ordering the defendant to relocate the entrance of the easement

and make certain improvements on the basis that the defendant

had breached the covenant of good faith and fair dealing. The

covenant of good faith and fair dealing, implied in every

contract, requires that "neither party shall do anything which

will have the effect of destroying or injuring the right of the

other party to receive the fruits of the contract." Druker v.

Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976), quoting

Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 377 (1st

Cir.), cert. denied, 298 U.S. 670 (1936). See also Warner Ins.

Co. v. Commissioner of Ins., 406 Mass. 354, 360 n.7 (1990)

(noting that settlement agreement is contract governed by

general contract law).

The arbitrator concluded that the defendant violated the

implied covenant of good faith and fair dealing by locating the

easement in such a way as to render it impassable. This

effectively deprived the plaintiffs of all fruits of the

contract. Whether the easement could be traversed by vehicles

was a critical issue in the parties' dispute, and the location

and condition of the easement cut to the heart of the matter.

Because the parties had agreed to arbitrate any "alleged

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violation" of the settlement agreement, this issue was squarely

within the ambit of the arbitrator.

2. Fraud and partiality. The defendant argues that the

plaintiffs' lawyer "duped" the judge into ordering reference to

binding arbitration by misleading the judge on the chief issue

of the case. He also argues that the arbitrator acted with

evident partiality. Both arguments are meritless.

The defendant cherry-picks one quotation from the trial

court transcript to buttress his argument that the plaintiffs'

trial counsel misled the judge.2 A full reading of the

transcript shows that the judge was well-apprised of the

parties' dispute. Trial counsel for the plaintiffs explained

that the dispute concerned access to the easement. Trial

counsel noted that boulders and a sapling were obstructing the

easement, in violation of the settlement agreement. The judge

accordingly referred the dispute to binding arbitration. There

is no factual or legal basis for the defendant's claim.

Secondly, the defendant argues that the arbitrator acted

with evident partiality. An arbitration award may be vacated

pursuant to G. L. c. 251, § 12 (a) (2), if "there was evident

partiality by an arbitrator." "Evident partiality" exists when

2 "[T]he ground monuments are supposed to be located by a
jointly-retained registered land surveyor and the fact of the
matter is that they weren't. That's the dispute that we have."

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"a reasonable person would have to conclude that an arbitrator

was partial to one party to an arbitration." Buffalo-Water 1,

LLC v. Fidelity Real Estate Co., 481 Mass. 13, 26 (2018),

quoting JCI Communications, Inc. v. International Bhd. of Elec.

Workers, Local 103, 324 F.3d 42, 51 (1st Cir. 2003). The

defendant does not point to any facts in the record from which a

reasonable person could infer partiality. Instead, he argues

that the arbitrator showed evident partiality by depriving him

of his historical right to park. This is a recycled form of the

defendant's main argument; namely, that the arbitrator exceeded

his authority by addressing parking. Whether the plaintiffs

could use the easement without impediment was integral to the

parties' dispute concerning the settlement agreement. The

arbitrator could not have exhibited partiality solely by

exercising his authority to resolve the dispute.3

Judgment affirmed.

By the Court (Grant,
Brennan & Toone, JJ.4),

Clerk

Entered: March 6, 2025.

3 The parties' requests for attorney's fee and damage awards
are denied. The plaintiffs' motion to strike portions of the
defendant's brief is also denied.

4 The panelists are listed in order of seniority.

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