                             STATE OF MICHIGAN

                             COURT OF APPEALS



BRIAN BECK, GUY HANSON, KAREN                                       UNPUBLISHED
HANSON, RAYMOND FAVICHIA,                                           March 3, 2015
MARGARET FAVICHIA, JUDITH
SCHLEBECKER, JOHN SCHLEBECKER, and
BERNADETT STEINER,

               Plaintiffs,

and

AUDREY MAHONEY, DAVID OPPENHEIM,
FELICE OPPENHEIM, and PATTY BROWN,

               Plaintiffs-Appellants/Cross-
               Appellees,

v                                                                   No. 319463
                                                                    Oakland Circuit Court
PARK WEST GALLERIES, INC., ALBERT                                   LC No. 2011-122042-CZ
SCAGLIONE, MORRIS SHAPIRO, ALBERT
MOLINA, and PLYMOUTH AUCTIONEERING
SERVICES, LTD.,

               Defendants-Appellees/Cross-
               Appellants.


Before: MURRAY, P.J., and HOEKSTRA and WILDER, JJ.

PER CURIAM.

        Plaintiffs purchased artwork from defendant Park West Galleries, Inc. (“Park West”).
They claim that some of the works were fraudulently represented, that they were overcharged, or
that they did not receive what defendants represented they were purchasing. This action was
originally filed by 13 plaintiffs, but most plaintiffs agreed to dismiss their claims, leaving only
plaintiffs Audrey Mahoney, David Oppenheim, Felice Oppenheim, and Patty Brown (hereinafter
“plaintiffs”). The trial court granted defendants’ motion for summary disposition pursuant to
MCR 2.116(C)(7) and dismissed all claims brought by plaintiffs Mahoney and Brown, and some
of the Oppenheims’ claims, on the ground that the claims were subject to an arbitration
agreement. The court refused to dismiss any of the Oppenheims’ claims that involved invoices

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that did not contain an arbitration clause, concluding that the arbitration clauses in other invoices
were not broad enough to subject all claims to arbitration. Defendants later filed a second
motion for summary disposition pursuant to MCR 2.116(C)(7), requesting dismissal of the
Oppenheims’ remaining claims on the ground that they were barred by the statute of limitations.
The trial court agreed and dismissed the remaining claims. The court rejected the Oppenheims’
argument that the limitations period could be tolled under MCL 600.5855 because of fraudulent
concealment. Plaintiffs now appeal as of right. Defendants have filed a cross-appeal,
challenging the trial court’s ruling that not all of the Oppenheims’ claims were subject to
arbitration. We affirm the trial court’s ruling that the arbitration agreements were enforceable
despite the challenge to the invoices as a whole, reverse the trial court’s ruling that all of the
Oppenheims’ claims were not subject to arbitration, and remand for entry of an order granting
defendants’ motion for summary disposition. MCR 2.116(C)(7).

                                        I. ARBITRATION

       The existence and enforceability of an arbitration agreement is a question of law that this
Court reviews de novo. Michelson v Voison, 254 Mich App 691, 693-694; 658 NW2d 188
(2003). A trial court’s summary disposition decision is also reviewed de novo. Spiek v Dep’t of
Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is appropriate under
MCR 2.116(C)(7) when a claim is barred because of an agreement to arbitrate. The following
standards apply to a motion under MCR 2.116(C)(7):

              A defendant who files a motion for summary disposition under MCR
       2.116(C)(7) may (but is not required to) file supportive material such as affidavits,
       depositions, admissions, or other documentary evidence. MCR 2.116(G)(3);
       Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). If such
       documentation is submitted, the court must consider it. MCR 2.116(G)(5). If no
       such documentation is submitted, the court must review the plaintiff ’s complaint,
       accepting its well-pleaded allegations as true and construing them in a light most
       favorable to the plaintiff. [Turner v Mercy Hosps & Health Servs of Detroit, 210
       Mich App 345, 348; 533 NW2d 365 (1995).]

If the pleadings or other documentary evidence reveal that there is no genuine issue of material
fact, the court must decide as a matter of law whether the claim is barred. Holmes v Mich
Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000).

        The trial court ruled that all transactions involving an invoice that contained an
arbitration clause were subject to arbitration. The arbitration clauses in those invoices provided,
in relevant part:

               ARBITRATION OF CLAIMS AND DISPUTES AND WAIVER OF
       JURY TRIAL. Any disputes or claims of any kind, including but not limited to
       the display, promotion, auction, purchase, sale or delivery of art, items, or
       appraisals shall be brought solely in non-binding arbitration and not in any court
       or to any jury. . . . All decisions respecting the arbitrability of any dispute shall be
       decided by the arbitrator(s). . . .


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        Plaintiffs argue that because they were challenging the validity of their agreements with
defendants as a whole on the basis of fraud in the inducement, the trial court erred by ruling that
the arbitration agreements could be enforced without first determining whether the agreements as
a whole could be rescinded because of fraud.

        Because the parties’ transactions arise out of contracts involving interstate commerce, the
arbitration clauses are subject to the Federal Arbitration Act (FAA), 9 USC 1 et seq. Kauffman v
The Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). Where the FAA applies, it
preempts any state law or policy that specifically invalidates arbitration agreements. Abela v
Gen Motors Corp, 257 Mich App 513, 524-525; 669 NW2d 271 (2003), aff’d 469 Mich 603
(2004). However, 9 USC 2 recognizes that there must first be a valid and enforceable agreement
to arbitrate, which is an issue that may be decided under state contract law. DeCaminada v
Coopers & Lybrand, LLP, 232 Mich App 492, 502 n 7; 591 NW2d 364 (1998).

        Under 9 USC 2, state law involving contract defenses, including fraud, can invalidate an
arbitration agreement without contravening the FAA. Doctor’s Assoc, Inc v Casarotto, 517 US
681, 686-687; 116 S Ct 1652; 134 L Ed 2d 902 (1996). On this basis, plaintiffs argue that it was
necessary for the trial court to first decide whether the parties’ underlying contracts were valid
before enforcing the arbitration clauses.

        We believe that Scanlon v P & J Enterprises, 182 Mich App 347; 451 NW2d 616 (1990),
is dispositive of plaintiffs’ challenges to the arbitration clauses of their agreements. Plaintiffs are
arguing that their agreements with defendants are invalid as a whole, and should be voided based
on fraud. Plaintiffs have not alleged that the arbitration terms themselves were induced by fraud.
Like in Scanlon, the arbitration clauses in the parties’ agreements provide that any issues of
arbitrability should be resolved by the arbitrator, and not the court. Because the parties’
agreements contain such a clause, and the basis for plaintiffs’ challenge to the validity of the
agreements is not directed specifically to the agreements to arbitrate, the trial court correctly held
that plaintiffs’ claims are subject to arbitration. Id. at 350-351.

        Because plaintiffs are asserting fraud as a basis for challenging their agreements as a
whole, not specifically the arbitration provision, the trial court properly ruled that the arbitration
agreements are enforceable, and any challenge to the validity of the agreements as a whole is for
the arbitrator to decide.

                                  II. SCOPE OF ARBITRATION

        In their cross-appeal, defendants argue that the trial court erred by refusing to extend the
arbitration clause contained in invoices from the Oppenheims later transactions to earlier
transactions by the Oppenheims that did not involve an invoice or agreement that contained an
arbitration clause. Defendants argue that the scope of the arbitration clause in the latter
agreements was broad enough to encompass the earlier transactions involving the same parties.

        Whether a matter is subject to arbitration is determined by applying the following three-
part test:

               1) is there an arbitration agreement in a contract between the parties; 2) is
       the disputed issue on its face or arguably within the contract’s arbitration clause;
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         and 3) is the dispute expressly exempted from arbitration by the terms of the
         contract. [In re Nestorovski Estate, 283 Mich App 177, 202; 769 NW2d 720
         (2009).]

In the present case, the Oppenheims and defendants do not dispute that their later transactions
were subject to an arbitration clause that provided:

                 ARBITRATION OF CLAIMS AND DISPUTES AND WAIVER OF
         JURY TRIAL. Any disputes or claims of any kind, including but not limited to
         the display, promotion, auction, purchase, sale or delivery of art, items, or
         appraisals shall be brought solely in non-binding arbitration and not in any court
         or to any jury. . . . All decisions respecting the arbitrability of any dispute shall be
         decided by the arbitrator(s). . . .

At issue is the second factor from In re Nestorovski Estate, namely, whether disputes involving
transactions that did not contain an arbitration clause are on their face or arguably within the
scope of the arbitration clauses that undisputedly apply to the latter transactions. Defendants
argue that the language “[a]ny disputes or claims of any kind” is broad enough to encompass
disputes involving the earlier transactions.

       Arbitration is a matter of contract and a party cannot be required to submit to arbitration
any dispute which he had not agreed to so submit. Amtower v William C Roney & Co (On
Remand), 232 Mich App 226, 234; 590 NW2d 580 (1998). The parties’ agreement determines
the scope of arbitration. Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146,
163; 742 NW2d 409 (2007).

        In Cohen v Park West Galleries, unpublished opinion per curiam of the Court of Appeals,
issued April 5, 2012 (Docket. No. 302746) (MURRAY, J, dissenting in part), we addressed this
precise issue involving the same language. The majority concluded that the arbitration clause in
the later invoices did not govern prior transactions between the same parties. The dissent would
have ruled otherwise on the basis that the very broad arbitration clause in the invoice, which
covered “any and all claims,” in fact covered all claims. We adopt1 and repeat that opinion here:

                 There is no dispute that the arbitration provision at issue is very broad, as
         it provides “that any disputes or claims of any kind including but not limited to
         the display, promotion, auction, purchase, sale or delivery of art, items, or
         appraisals shall be brought solely in non-binding arbitration and not in any court
         or to any jury.” Hence, the question is whether this broad language encompasses
         disputes arising under prior contracts that did not contain arbitration provisions.
         As defendants argue, we must start with the proposition announced by our
         Supreme Court more than four decades ago, where it held in Kaleva-Norman-
         Dickson Sch Dist No 6, et al v Kaleva-Norman-Dickson School Teachers’ Ass’n,
         393 Mich 583, 592; 227 NW2d 500 (1975):


1
    As an unpublished opinion Cohen is not binding under stare decisis. MCR 7.215(C)(1).


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               “An order to arbitrate the particular grievance should not be
       denied unless it may be said with positive assurance that the
       arbitration clause is not susceptible of an interpretation that covers
       the asserted dispute. Doubts should be resolved in favor of
       coverage.” . . . Absent an “express provision excluding [a]
       particular grievance from arbitration” or the “most forceful
       evidence of a purpose to exclude the claim”, . . . the matter should
       go to arbitration[.] [Id., quoting United Steelworkers of America v
       Warrior & Gulf Navigation Co, 363 US 574, 582-585; 80 S Ct
       1347; 4 L Ed 2d 1409 (1960) (Emphasis in the original.)]

        No Michigan decision has addressed this precise issue, and though the
language of the agreement as interpreted under the guideposts of Sch Dist No 6
would seem to resolve the issue in favor of defendants, some decisions from other
jurisdictions provide some useful direction. One of the better cases discussing
this issue is the South Carolina Court of Appeals’ decision in Vestry & Church
Wardens of the Church of the Holy Cross v Orkin Exterminating Co, Inc, 356 SC
202; 588 SE2d 136 (2003). In that case the church entered into a contract with
Terminix in 1975 for the installation of a termite protection system, and the
contract did not contain an arbitration clause. In June 2000, the church entered
into a new contract with Terminix which contained an arbitration clause.
Additionally, from 1976 to 1985, the church had a contract with Orkin. In 1987
the church entered into a new contract with Orkin, but neither the contract
covering the 1976 to 1985 relationship, nor the 1987 agreement contained an
arbitration provision. However, in 1998 the church and Orkin entered into a
contract regarding a separate building, and that contract contained an arbitration
clause.

        Once the lawsuit was filed, both Orkin and Terminix filed motions to
compel arbitration. The trial court denied both motions to compel, concluding
that there was nothing in the 1998 Orkin contract nor the 2000 Terminix contract
signifying a retroactive effect. The South Carolina Court of Appeals affirmed in
part and reversed in part.1 In addressing the primary issue, which is the same
issue in this case, i.e., whether the subsequent contract’s arbitration provision
covered disputes arising under prior contracts between the parties, the court first
summarized the guiding law as follows:

               Courts have retroactively applied arbitration clauses to
       disputes arising under prior contracts, but in doing so, the courts
       have generally found the existence of a broadly worded clause
       which govern the overall relationship between the parties. . . . The
       common theme underlying these cases is that the parties expressly
       agreed that all controversies between them, not just those
       appurtenant to the contract containing the clause, were to be
       submitted to arbitration. That being the case, the source of the
       claim or injury is not dispositive, for the parties have manifested an
       intention to arbitrate all of their disputes arising from their business

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       relations, not just those arising under a particular contract. [Vestry,
       356 SC at 207-208 (footnote and citations omitted; emphasis in the
       original).]

The court then noted that where “the language of the arbitration clause is not as
broad, courts have refused to mandate the arbitration of disputes unrelated to the
contract containing the clause.” Vestry, 356 SC at 208-209. The court then
articulated the following principles:

                We derive from these cases that the mere fact that an
       arbitration clause might apply to matters beyond the express scope
       of the underlying contract does not alone imply that the clause
       should apply to every dispute between the parties. For example, a
       clause compelling arbitration for any claim “arising out of or
       relating to this agreement” may cover disputes outside the
       agreement, but only if those disputes relate to the subject matter of
       that agreement. . . . On the other hand, if the clause contains
       language compelling arbitration of any dispute arising out of the
       relationship of the parties, it does not matter whether the particular
       claim relates to the contract containing the clause; it matters only
       that the claim concerns the relationship of the parties. Under
       Zabinski, such a clause would have the broadest scope because it
       could be interpreted to apply to every dispute between the parties.
       [Id. at 209-210 (citations omitted).]

In light of this, the court held that the Orkin arbitration clause did not apply to
prior disputes arising under old contracts because it had language limiting the
clause only to disputes arising out of or relating to the agreement in which it was
contained, and it was not so broad as to cover all previous claims involving
unrelated areas. The court did, however, reverse the denial of Terminix’s motion
to compel arbitration, as the Terminix arbitration provision applied to “all matters
in dispute between [them]” which the court considered to be very broad and
“more akin to the language generally held to reflect an intention to apply to
matters arising out of the relationship of the parties.” Id. at 213. (Emphasis in the
original.) Cases coming to the same conclusion using the same rationale are,
amongst others, Levin v Alms & Assoc, Inc, 634 F3d 260, 268-269 (CA 4, 2011),
and Zink v Merrill Lynch Pierce Fenner & Smith, Inc, 13 F3d 330, 332 (CA 10,
1993).

        There is some support for the notion that when the prior contractual
relations are sporadic and separated by a good deal of time, and there is no
language within the arbitration provision specifically providing for application to
prior disputes under prior contracts, the arbitration clause should only apply to
claims arising under the last contract. In Hendrick v Brown & Root, Inc, 50 F
Supp 2d 527 (ED Va, 1999), for example, the court held that because the last
employment contract between the parties did not specifically indicate that it
applied to disputes arising from prior contractual relations, it could “be said with

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       positive assurance that the words chosen by Brown & Root to evince the intent of
       the parties about what they were to arbitrate do not require arbitration of disputes
       which had accrued before the execution of the fourth employment contract”
       between the parties. Hendrick, 50 F Supp 2d at 534.

               However, the standards utilized in Hendrick seem at odds with Michigan
       law as articulated in Sch Dist No 6, for in Hendrick the court required that the
       provision specifically state that it applies to prior disputes while under School
       District No 6, unless the clause contains limiting language, it should apply to all
       disputes. Additionally, concluding that these arbitration clauses apply to disputes
       relating to past contracts is not inconsistent with the general rule that contracts are
       not to be applied retroactively, for that general rule is still guided by the
       proposition that the language of the contract controls, see DaimlerChrysler Corp v
       Wesco Distribution, Inc, 281 Mich App 240, 248; 760 NW2d 828 (2008), and this
       broad language would seem to cover all disputes, especially when viewed in the
       context of the policy in favor of arbitration.2
       _________________________________________________________________________________________________

       1
        Initially, the court indicated that it was applying the law developed under the
       Federal Arbitration Act, 9 USC § 1 et seq., but that that law was similar to South
       Carolina law. Vestry, 356 SC at 206-207.
       2
         This conclusion does not run afoul of the cases cited by the [dissent] regarding
       contracts generally being treated separately. Under [our] approach to this issue,
       all contracts are treated as separate contracts, the only difference being the effect
       of the broad arbitration language contained in the last contract. [All brackets and
       ellipses in Cohen except the brackets in footnote 2.]
       _________________________________________________________________

        The United States Court of Appeals for the Sixth Circuit has also concluded that a broad
written arbitration clause covered disputes between the same parties that arose under a prior oral
agreement. See Watson Wyatt & Co v SBC Holdings Inc, 513 F3d 646, 650-651 (CA 6, 2008)
(arbitration provision that applied to “any dispute or claim arising from or in connection with this
agreement or the services provided by Watson Wyatt” covered disputes arising from a prior oral
agreement between the parties) (emphasis omitted). Each of these foreign jurisdiction decisions
are consistent with Michigan law that both applies contract clauses according to their plain
language (“any and all” means “any and all” when there are no agreed upon limitations), Kaleva-
Norman-Dickson School Dist No 6, 393 Mich at 592, and our well-developed law that Michigan
courts “resolve all conflicts in favor of arbitration.” Rooyaker & Sitz, PLLC v Plante & Moran
PLLC, 276 Mich App 146, 163-164; 742 NW2d 409 (2007). Had the parties carved out an
exception in the latest arbitration agreements indicating that the broad language did not apply to
disputes arising under prior contracts, plaintiffs would prevail under Kaleva-Norman-Dickson
School Dist No 6, but they did not provide any such limiting language. Consequently, we
enforce the plain language within the invoice and hold that because the parties contractually
agreed to arbitrate any and all claims arising between them, the trial court should have granted
defendants’ motion for summary disposition as to all of the Oppenheims’ claims, as they are all
subject to arbitration.

                                                      -7-
        Finally, because the arbitration provision covered all prior disputes, resolution of the
fraudulent concealment issue is unnecessary. Whether a claim is barred by the statute of
limitations would be for the arbitrator to decide. Amtower v William C Roney & Co (On
Remand), 232 Mich App 226, 232-233; 590 NW2d 580 (1998).

        Affirmed in part, reversed in part, and remanded for further proceedings. We do not
retain jurisdiction.



                                                           /s/ Christopher M. Murray
                                                           /s/ Kurtis T. Wilder




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