Opinion
14-P-1375
03-04-2016
ABRAHAM KASPARIAN, JR. v. CHARLES SCHWAB & CO., INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Abraham Kasparian, Jr., appeals from the dismissal of his "verified complaint for contempt of court" (complaint for contempt) and the order denying his "verified reconsideration motion to allow him to re-submit a [procedurally] proper complaint for contempt." We affirm.
Background. This appeal arises from Kasparian's attempt to initiate claims against the defendants (collectively, Schwab defendants) for the diminution in value of his individual retirement account (IRA) administered by the Schwab defendants. On November 13, 2008, Kasparian filed a civil action in the Superior Court, alleging, inter alia, that the Schwab defendants wrongfully denied him access to his IRA, which was frozen by order of the Probate and Family Court. On February 23, 2009, the Schwab defendants filed a motion to compel arbitration and to dismiss the claims, or in the alternative, to stay proceedings pending arbitration. On April 28, 2010, a Superior Court judge (first judge) allowed the motion to compel arbitration, and dismissed the complaint for contempt against the "moving defendant." On July 1, 2010, the first judge corrected his order, clarifying that the dismissal applied to all of the "moving defendants." In 2010 and 2011, Kasparian filed additional motions in the Superior Court relating to the arbitration process. The first judge and a second judge denied these motions, concluding, inter alia, that Kasparian had the burden to initiate arbitration proceedings according to the terms of the arbitration agreement between the parties.
On June 22, 2015, the parties filed a partial stipulation of dismissal in this court, dismissing the appellate claims against two law firms and parties affiliated with the law firms; the dismissed defendants are excluded from the case caption here.
See note 4, infra.
On July 1, 2013, Kasparian filed, pursuant to Mass.R.Civ.P. 65.3, as appearing in 386 Mass. 1244 (1982), a complaint for contempt against the Schwab defendants for allegedly violating the corrected order. On December 31, 2013, the Schwab defendants filed a "response" to Kasparian's complaint for contempt, contending, inter alia, that the first judge had dismissed the claims against the Schwab defendants on the ground that the claims were subject to arbitration; the complaint for contempt failed to coherently identify an order of the court with which the Schwab defendants had not complied; Kasparian failed to provide a short, concise statement of the facts upon which the asserted contempt is based, as required by rule 65.3(c); and that Kasparian failed to properly serve a copy of the summons and complaint for contempt upon the Schwab defendants, as required by rule 65.3(d) and (e).
On January 6, 2014, a third judge dismissed the complaint for contempt "for the reasons set forth in defendants' response." The dismissal further stated, "Plainly, [Kasparian's] complaint for contempt failed to comply with the requirements of Mass.R.Civ.P. 65.3(c) and (e)." On January 21, 2014, Kasparian filed a "verified reconsideration motion to allow him to re-submit a [procedurally] proper complaint for contempt," which the third judge summarily denied. Kasparian's appeal to this court followed.
Discussion. The gravamen of Kasparian's appeal is that the Schwab defendants failed to comply with an order of the Superior Court, and that the third judge therefore improperly dismissed Kasparian's complaint for contempt and improperly denied his motion for reconsideration. We disagree.
A motion for civil contempt requires, as a prerequisite, the existence of a court order that is "sufficiently clear, so that the party to be bound is provided with adequate notice of the required or prohibited activity." Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 263 (2007), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 566 (1997). No such order exists in this case. Kasparian claims that the Schwab defendants purportedly violated the first judge's corrected order, but that order merely allowed the Schwab defendants' motion to compel arbitration. The corrected order neither prescribes nor proscribes any activity of the Schwab defendants. Accordingly, no activity or inactivity of the Schwab defendants violated that order. Thus, the corrected order cannot serve as the basis for a civil contempt action pursuant to rule 65.3. The third judge neither erred nor abused his discretion in so concluding.
Furthermore, rule 65.3(c) sets forth the requirements for a valid complaint for contempt. Among other things, the rule requires the complaint to "include a short, concise statement of the facts on which the asserted contempt is based." Mass.R.Civ.P. 65.3(c)(4). Here, Kasparian's nineteen-page complaint for contempt does not contain such a statement, likely for the reason stated supra: no order exists upon which the complaint for contempt could rest. To the contrary, a review of the orders on the Superior Court docket demonstrates that the Schwab defendants had no responsibility either to pay for or to initiate arbitration proceedings. Therefore, Kasparian's arguments fail.
See, e.g., orders dated July 1, 2010 ("Plaintiff is responsible to initiate arbitrator"); August 4, 2010 ("The plaintiff's agreement with the defendant corporation provides the procedure for selecting the arbitrator"); January 27, 2011 ("The plaintiff's agreement with the defendant provides the procedure for selecting the arbitrator"); and October 5, 2011 ("It is not the defendants' responsibility to provide the plaintiff with the rules for arbitration or the documents the plaintiff requests. It is also not the responsibility of the Court to provide funds for arbitration").
Kasparian also argues that the third judge erred in relying on rule 65.3(e) (service requirements for contempt summons and complaint) because the court did not issue the proper summons. Assuming, without deciding, that such reliance on rule 65.3(e) was in error, it was harmless. As already noted, the complaint for contempt was properly dismissed pursuant to rule 65.3(c), as no order proscribing or prescribing any activity of the Schwab defendants existed upon which the contempt complaint could have rested.
Although Kasparian explicitly limited the scope of his appeal to the dismissal of his complaint for contempt and the subsequent denial of what we assume to be a motion for reconsideration, he nonetheless challenges other orders of the Superior Court in his brief. These issues are clearly waived. See New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 372 (2001); Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002). Even so, we address them briefly.
The defendant included an affidavit in support of his brief and appendix that stated "that the only issues in this Action that I seek Appeal on are the DENIED MOTION/COMPLAINT FOR CONTEMPT OF COURT, against Appellees Charles Schwab & Co., Inc. and its staff, and the RECONSIDERATION OF THE LOWER COURT'S DENIAL TO ALLOW A REFILING OF A COMPLAINT FOR [CONTEMPT] OF COURT ORDER TO ARBITRATE THE ISSUES WITH CHARLES SCHWAB AND ITS STAFF."
First, none of the judges erred in failing to appoint an arbitrator. General Laws c. 251, § 3, only requires the court to appoint an arbitrator if the arbitration agreement at issue fails to specify a method for doing so. Here, the judges properly found that such a method existed in the arbitration agreement. See Roberto Constr. Co. v. Burnham-Manning Post #1105 Veterans of Foreign Wars of the United States, Inc., 347 Mass. 400, 403-404 (1964). Second, none of the judges erred by refusing to require the Schwab defendants to initiate the arbitration against themselves. General Laws c. 251, § 2(a), cited by Kasparian, does not apply, as the "record does not sustain any contention that the [Schwab] defendant[s] failed or refused to proceed to arbitration or denied the existence of the agreement to arbitrate." Roberto Constr. Co., supra at 403. Rather, the record reflects that Kasparian failed to initiate the arbitration under the terms of the arbitration agreement. Thus, there could be no refusal to proceed to arbitration absent the contractually agreed-upon request to arbitrate. Finally, the judges did not err by refusing to require the Schwab defendants to pay Kasparian's costs for arbitration prior to the arbitration's commencement. Contrary to Kasparian's claim, G. L. c. 251, § 10, does not confer any authority to the Superior Court to award costs prior to the commencement of the arbitration. Likewise, G. L. c. 261, §§ 27A and 27E, also cited by Kasparian, only pertain to an award of costs in a civil action. There was no error.
Kasparian also appears to claim that due to his status as an indigent inmate, the Superior Court or the Schwab defendants were obligated to commence and to pay for the arbitration. Kasparian cites no authority that supports this proposition. For this reason, as well as the reasons delineated supra, and in the Schwab defendants' brief, appellate relief is not warranted.
Judgment of dismissal of complaint for contempt affirmed.
Order denying reconsideration affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 4, 2016.