Home GERALD WILSON vs. DAN MCCABE'S CREATIVE CARPENTRY, INC.

11 Mass. App. Ct. 956

February 27, 1981

The plaintiff's complaint that an adverse arbitration award should have been vacated because of the arbitrator's alleged failure to disclose fully his relationship with the parties and because of the arbitrator's alleged denial of his right to present his case fully is without a soupcon of merit. It borders on the outrageous. The arbitrator fully disclosed his relationship with counsel and a prospective witness before the proceedings commenced in accordance with Section 12 of the Arbitration Rules of the Construction Industry. If we had no reason beyond this disclosure, the award could not be vacated. Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268, 1275 (2d Cir. 1971). Moreover, the plaintiff's argument of an "impression of partiality" because the arbitrator and the defendant's president had been active in affairs of the town and because the arbitrator knew the father-in-law of the defendant's president is without merit. Compare, Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 146-148 (1968). The defendant is to be awarded double costs.

Judgment affirmed.

Home THE FIRST NATIONAL BANK OF BOSTON vs. MORRIS H. BERGREEN & others.

11 Mass. App. Ct. 956

March 2, 1981

By this action the plaintiff (First National) seeks to establish the indebtedness of the defendants under the terms of certain written guaranties, by which each of the defendants guaranteed the indebtedness of Innovex, a Massachusetts corporation, to the plaintiff.

1. The judge correctly denied the defendants' motion to dismiss for lack of personal jurisdiction. See G. L. c. 223A, Section 3, as amended through St. 1976, c. 435. We think that the instant case is controlled in all material respects by Salter v. Lawn, 294 F.Supp. 882, 884 (D.Mass. 1968). See Carlson Corp. v. University of Vt., 380 Mass. 102 , 106 n.6 (1980), wherein the Salter case is discussed. There are additional interests in and connections with Massachusetts that are present here which were absent in Kahn Paper Co. v. Crosby, 476 F.Supp. 1011, 1013

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(D. Mass. 1979), a case relied on by the defendants. Bernard Bergreen was an officer and director of Moorgate Capital Company, an entity which possessed a substantial equity investment in and a near majority of the voting stock of Innovex, the obligor. In addition, Bernard and Morris Bergreen managed the two companies which were the sole shareholders of Moorgate Capital. Negotiations were initiated and conducted at First National's Boston office by Morris Bergreen, and not by mail or over the telephone, as in Kahn Paper. The instant guaranties were in aid of a substantial investment in a Massachusetts corporation, whereas, in Kahn Paper, the guaranties were for the indebtedness of an out-of-State corporation. "Where the nonresident defendant's contacts with Massachusetts had substantial commercial consequence in this State, personal jurisdiction [may be] found, notwithstanding [unlike here] the absence of actual physical presence in Massachusetts." Carlson Corp. v. University of Vt., supra at 107. It can be fairly said that the activities of these defendants were not "an isolated transaction without commercial consequences in Massachusetts." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1 , 9 (1979).

The defendants here, through their financial interests in Innovex as well as through Morris' contact with First National, availed themselves of "the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S. 235, 253 (1958), and thus subjected themselves to the personal jurisdiction of the courts of the Commonwealth.

2. The defendants' principal challenge on the merits is that genuine issues of material fact exist as to whether there were misrepresentations by the bank which induced the defendants to execute the guaranties in question. We think the Superior Court judge properly concluded that this defense as well as the others was either insufficient as matter of law or unsupported by admissible evidence. See John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 721-722 (1976).

For the most part, the defendants' contentions have no force, as they are controlled by the express terms of the contracts of guaranty, see Canney v. New England Tel. & Tel. Co., 353 Mass. 158 , 165 (1967), and as such are legally insufficient to state a defense to this action. Moreover, the defendants have failed to show that First National made any material misrepresentation at the time the guaranties were executed.

Having failed to plead or present any evidence of fraud at the time the guaranties were executed (see Barret Associates v. Aronson, 346 Mass. 150 , 152 [1963]), the defendants are forced to rely on activities occurring after the loan proceeds were distributed to the obligor. Passing the problem that several of these defenses are now being raised for the first time on appeal (see John B. Deary, Inc. v. Crane, supra at 724), we think that they are likewise of no avail, as it is evident that no specific facts were set forth in support thereof. Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). See Royal Bank of Canada v. Connolly, 9 Mass. App. Ct. 905

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(1980). Moreover, the terms of the guaranties authorize the actions taken by First National.

In sum, the guaranties are absolute, unconditional and unambiguous on their face and no evidence was presented to show otherwise. The mere assertion of factual misrepresentations is insufficient to raise a genuine issue of material fact. See Community Natl. Bank v. Dawes, 369 Mass. 550 , 559 (1976). It is well settled that a defendant cannot in opposition to a motion for summary judgment merely raise "vague and general allegations of expected proof." Id. at 555-556, citing Albre Marble & Tile Co. v. John Bowen Co., 338 Mass. 394 , 397 (1959).

We conclude that there was no genuine dispute as to any material fact and that the judge correctly ruled that the plaintiff was entitled to a judgment in its favor as matter of law.

Judgment affirmed.