MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2020	ME 79 Docket: Yor

- 19

- 229 Submitted

On	Briefs: April	14,	2020 Decided: June	2,	2020
Panel: MEAD,	GORMAN,	JABAR,	and	HUMPHREY ,	JJ. ,	and	HJELM,	A.R.J.

TPR,	INC.

v. PAYCHEX,	INC.

HUMPHREY,	J. [¶1]		Paychex ,	Inc.,	appeals from	an	order	entered	by	the	Superior	Court (York	County, O’Neil,	J. )	denying its motion to	compel arbitration	of , and	dismiss
all	counts	in , a complaint filed against	it by	TPR,	Inc

. Because	the	court did	not
make	the statutorily required	determination as	to whether	the parties	agreed to	 arbitrate	 the	 dispute ,	 w e vacate	 the	 order	 and	 remand	 for	 further proceedings.
I.		BACKGROUND [¶ 2 ] We derive the	following undisputed facts and	procedure from	the parties’ pleadings	and	affidavits and	the	court’s	record

. See Snow	v.	Bernstein , Shur, Sawyer	&	Nelson,	P.A. ,	2017	ME	239,	¶	2 , 176	A.3d	729 ; Stenzel	v.	Dell,	Inc. , 2005	ME	27,	¶	6,	870	A.2d	133

.2 [¶ 3 ] In	2017,	TPR	and	Paychex	entered	into	a	contract	whereby	Paychex would	 provide	 payroll	 services	 to	 TPR. In	 January	 of	 2019 ,	 TPR filed	 a complaint against	Paychex in	which	it	asserted claims	 for breach	of	contract, fraud,	and	negligence. [¶ 4 ] Paychex moved to	 dismiss TPR ’s	 complaint	 and	 to	 compel
arbitration , se e 14	 M.R.S.	 §	 5928 (2020) , arguing that its	 contract	 with	 TPR
contains an	 arbitration clause that covers TPR’s claims

. With	 its	 motion, Paychex	 submitted	 an	 affidavit with	 an attached	 exhibit that	 Paychex represented to	be	the	operative	contract between	it	and	TPR and	that	contains
an	 arbitration	 clause

. TPR ,	 opposing	 Paychex’s	 motion,	 submitted	 its	 own
affidavit asserting	 that the exhibit submitted	by	Paychex is not the	operative
agreement between	the	parties

. At	a nontestimonial hearing	on	the	matter,	TPR presented	the	court	with a different document

— which	it	represented	to	be the
actual operative agreement

— that does	not contain	any	arbitration	clause

. 1 [¶ 5 ] On May	 14,	 2019, the	 court	 denied Paychex’s motion, explaining
that ,	because the	parties continue	to	dispute which document constitutes the

1 To	 further	 complicate	 matters,	 at	 the	 hearing,	 Paychex	 acknowledged	 that	 the	 exhibit	 it submitted	with	its	motion	was	not	the	operative	agreement	but	was	instead	a	prior	contract	between the	parties;	with	the	court’s	permission,	Paychex	then introduced a third	version	of	the	document

— again	containing	an	arbitration	provision

— that	it	asserts	is	the	 true	agreement. Thus, the	parties continue	 to	dispute,	and	 the	court	has	not	yet	resolved,	which	of these	documents constitutes	 the operative	agreement	between TPR	and	Paychex.3 operative	agreement , “ [a]t	this	preliminary	stage

— when	factual	disputes	must
be	resolved	in	favor	of	the	non

- moving	party

— the C ourt cannot	conclude	as	a matter	of	law	that	the	parties	entered	into	a	valid	agreement	to	arbitrate. ” [¶ 6 ] Paychex timely	appealed. 2 See M. R. App.	2B(c)( 2 ) (D)

. II.		DISCUSSION [¶ 7 ] “We	review	a	trial	court’s	decision	on	a	motion	to	compel	arbitration for	 errors	 of	 law	 and	 for	 facts	 not	 supported	 by	 substantial	 evidence	 in	 the
record.” Stenzel ,	2005	ME	37,	¶	6,	870	A.2d	133 (quotation	marks	omitted). [¶ 8 ] Title	14	M.R.S.	§	5928(1)	provides	that	if a party	opposing a	motion to	compel arbitration	“denies	the	existence	of	[an] agreement	to	arbitrate , the court	 shall	 proceed	 summarily	 to	 the	 determination	 of	 the	 issue so	 raised .” Although we	 have	 never	 explain ed	 the	 process by	which	 a	 court ruling	 on	 a motion	 to	 compel	 arbitration should “summarily” resolve quintessentially factual	 dispute s — such	 as	 the	 one	 presented	 here

— at	 this	 stage, we	 have repeatedly affirmed trial	 court determinations	 reached	 at	 this	 stage of proceedings regarding	 the existence	 and enforceability of	 arbitration

2 As	 the	 parties	 agree, interlocutory	 orders	 denying	 motions	 to	 compel	 arbitration	 are immediately	appealable

. See 14	M.R.S.	§	5945(1)(A) (2020).4 agreements based	on	affidavits	and	exhibits

. S ee,	e.g. , Snow ,	2017	ME	239,	¶¶ 7,
20

- 23,	176	A.3d	729; Stenzel ,	2005	ME	37,	¶ ¶ 6, 9

- 13, 870	A.2d	133

. [¶ 9 ] T he trial	court denied Paychex’s	motion without	making the	finding regarding	arbitrability required	by section	5928(1)

. Rather,	perhaps	because Paychex	misleadingly	 framed	its	motion	as	primarily	a	motion	 to	dismiss	 the complaint, see	infra n.3,	the	court	denied	the	motion	bas ed	entirely on	the	mere
existence	of a	material	factual	dispute	between	the	parties. We agree	with	the trial	court	 that	 the	 sparse	 record developed	 thus	 far does	not	 permit	 such	 a determination	as	a	matter	of	law; rather,	in	the confusing	record	presented to the	court,	the	only	clarity	is	that	the	parties	dispute	which	of	two	exhibits

— the
one	 with	 the	 arbitration	 clause	 or	 the	 one	 without

— constitutes their	 2017
agreement. 3 Accordingly,	we	vacate	the	judgment	and	remand	for	the	court	to “proceed	 summarily” to determine	 whether the	 parties	 agreed	 to	 arbitrate
TPR’s	claims

. 14	M.R.S.	§ 5928(1). T his	summary	procedure	may	include ,	if the

3 In	addition	to	the	manner	in	which	the	parties	presented	multiple	versions	of	the	purported agreement	 to	 the	 court,	 the	 confusion	 seems	 to	 have	 been	 exacerbated	 by	 the con junction of Paychex’s	motion	to	compel	arbitration	with	its	motion	to	dismiss	TPR’s complaint.		The	substance of	Paychex’s	motion,	however,	makes	clear	that	its	motion	to	dismiss	was	predicated	upon	the	court granting	its	motion	to	compel	arbitration

— essentially,	Paychex	asked	the	court	to	compel	arbitration of	all	of	TPR’s	claims	and	th en	dismiss	the	( resulting empty)	complaint.		We	do	not	address	whether dismissal,	rather	than	a	stay,	would	be	proper	in	such	a	circumstance, see 14	M.R.S.	§ 5928(4)	(2020); we	 note	 the	 issue only to	 explain	 why	 the	 pendency	 of	 the	 motion	 to	 dismiss	 did	 no t	 obviate resolution	of	the	factual	dispute	regarding	the	existence	of	an	arbitration	agreement.5
court	deems	it necessary, a	period	of	limited	discovery followed	by adjudication pursuant	to	a	summary	judgment	standard or	even, should	a genuine	dispute
remain ,	 a	 testimonial	hearing

. 4 See Guidotti	v.	 Legal	Helpers	Debt	Resolution,
L

. L

. C

. ,	716	F.3d	764, 77 3

- 7 6 (3d	Cir.	2013 )

.

The	entry	is: Judgment	 vacated .	 	 R emanded	 for further proceedings	consistent	with	this	opinion.

Dawn	 M.	 Harmon,	 Esq.,	 Perkins	 Thompson,	 P.A.,	 Portland,	 for	 appellant Paychex,	Inc. Neal	L.	Weinstein,	Esq.,	Old	Orchard	Beach,	for	appellee	TPR,	Inc.

York	County	Superior	Court	docket	number	CV

- 2019

- 11 F OR C LERK R EFERENCE O NLY

4 Because	the	very	existence	of	an	agreement	to	arbitrate	remains unprove d ,	we	do	not,	despite TPR’s	 urging,	 address	 whether	 TPR’s	 fraud	 claim would	 fall with in	 the	 scope	 of	 the	 arbitration provision	 in	 Paychex’s	 version	 of	 the	 contract n or,	 indeed,	 whether	 the	 initial	 resolution	 of	 that question	belongs	to	a	court	rather	than	to	an	arbitrator. See	Snow	v.	Bernstein,	Shur,	Sawyer	& Nelson, P.A. ,	2017	ME	239,	¶	10,	176	A.3d	729; V.I.P.,	Inc.	v.	First	Tree	Dev. Ltd.	Liab.	Co. ,	2001	ME	73,	¶	4,	770 A.2d	95

.