21 Mass. App. Ct. 955

January 16, 1986

Bernard W. Fang for the plaintiffs.

Stephen S. Ostrach, Assistant Attorney General, for the defendants.

We would have supposed that the plaintiffs' lack of standing to maintain the present action was made clear by what we said in Knowles v. Codex Corp., 12 Mass. App. Ct. 493, 495-496, 498-499 (1981), but we concur in the additional reasons for dismissal which were given by the motion judge in this case.

Judgment affirmed.


21 Mass. App. Ct. 955

January 21, 1986

Girard R. Visconti for the defendant.

Peter F. Davis for the plaintiff.

In this appeal from a judgment of the Superior Court confirming the decision of an arbitrator, the defendant contends that the award should be vacated pursuant to G. L. c. 251, Section 12(a)(4), because the arbitrator refused to

Page 956

hear evidence material to the controversy. See as to the limited scope of review of an arbitration award, the cases collected in Bernard v. Hemisphere Hotel Management, Inc., 16 Mass. App. Ct. 261, 263-264 (1983). It is readily apparent that the defendant's contention "is completely without any factual foundation in the record." Bay State York Co. v. Canter Constr. Co., 5 Mass. App. Ct. 192, 195 (1977).

For essentially the reasons provided by the Superior Court judge, there was no ground for vacating the arbitration award pursuant to G. L. c. 251, Section 12(a)(4), particularly where the uncontested averments of the arbitrators stated that: (1) there was no expert evidence which would have been the proper subject of rebuttal and (2) no offer of proof was made describing the proposed expert rebuttal evidence.

Farm Construction has moved for costs, expenses, and attorneys' fees. See Mass.R.A.P. 25, as most recently amended, 378 Mass. 925 (1979), and G. L. c. 211A, Section 15. See also Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984). We determine that Farm Construction is to have $500 in damages on account of its legal fees for the appeal, as well as double costs of the appeal. Id. at 460. See also Katz v. Savitsky, 10 Mass. App. Ct. 792, 798 & n.8 (1980).

The judgment is affirmed. Damages and costs shall be assessed in the Superior Court as above provided.

So ordered.