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,	 we 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.
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[¶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,	see 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.

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[¶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.
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operative	agreement, “[a]t	this	preliminary	stage—when	factual	disputes	must	

be	resolved	in	favor	of	the	non-moving	party—the	Court	cannot	conclude	as	a	

matter	of	law	that	the	parties	entered	into	a	valid	agreement	to	arbitrate.”		

[¶6]		TPR	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	 explained	 the	 process by	which	 a	 court	 ruling	 on	 a	

motion	 to	 compel	 arbitration should “summarily” resolve quintessentially	

factual	 disputes—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).		
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agreements based	on	affidavits	and	exhibits.		See,	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]		The	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	based	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).		This	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	 conjunction 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	then	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	 not	 obviate	

resolution	of	the	factual	dispute	regarding	the	existence	of	an	arbitration	agreement.
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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,	773-76 (3d	Cir.	2013).

The	entry	is:

Judgment	 vacated.	 	 Remanded	 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

FOR	CLERK	REFERENCE	ONLY

 4		Because	the	very	existence	of	an	agreement	to	arbitrate	remains unproved,	we	do	not,	despite	

TPR’s	 urging,	 address	 whether	 TPR’s	 fraud	 claim	 would	 fall within	 the	 scope	 of	 the	 arbitration	

provision	 in	 Paychex’s	 version	 of	 the	 contract	 nor,	 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.