Opinion
No. 07-5006999
August 17, 2010
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO CONFIRM, IN PART, AND VACATE AND/OR MODIFY ARBITRATOR'S AWARD AND DEFENDANTS' CROSS APPLICATION TO CONFIRM ARBITRATION AWARD
FACTS
On November 13, 2007, the plaintiff, James Muscarella, filed a six-count complaint against the defendants, Ted Mish and T.M. Builders, LLC, for damages arising from a contractual dispute between the parties. The plaintiff alleges that the parties entered a written contract, dated March 14, 2007, whereby the defendants were to perform certain renovations to the plaintiff's residence. On February 4, 2009, the defendants filed a motion to dismiss or stay for arbitration on the ground that the contract entered into between the parties provided for disputes to be resolved by way of binding arbitration. On February 18, 2009, this court, Martin, J., entered an order granting a stay on the pending action pursuant to the contract's arbitration provision.
In May 2009, the parties entered into an arbitration agreement. An evidentiary hearing was held before the arbitrator, attorney Frank Manfredi, on September 24, 2009, and on September 25, 2009. On October 30, 2009, the arbitrator issued a decision in which he awarded the plaintiff the sum of $4,677.58. The arbitrator further determined that a per se violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, existed because the contract failed to include a notice of cancellation rights. Although the arbitrator found that the plaintiff had not suffered ascertainable damages related to the CUTPA violation, he determined that the violation permitted the award of attorneys fees pursuant to Jacques All Trade Corp. v. Brown, 42 Conn.App. 124, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997), and granted the plaintiff's attorney an opportunity to submit evidence regarding attorneys fees.
The plaintiff filed an application for attorneys fees in the amount of $12,360 on November 13, 2009. On November 18, 2009, the defendants filed an objection to the plaintiff's claim for attorneys fees on the ground that the CUTPA violation in the present case did not permit attorneys fees because the plaintiff sustained no damages as a result of the violation. The plaintiff submitted a response to the defendants' objection on December 10, 2009. On December 16, 2009, the defendants filed a reply to the plaintiff's response. The arbitrator issued a supplemental decision awarding attorneys fees to the plaintiff in the amount of $8,240 on January 22, 2010.
On February 2, 2010, the defendants filed a motion to reconsider the arbitrator's award of attorneys fees in which the defendants argued that no ascertainable loss was established pursuant to the CUTPA violation. The plaintiff filed an objection to the defendants' motion to reconsider on March 2, 2010. On March 22, 2010, the arbitrator issued a decision vacating his award of attorneys fees pursuant to Scrivani v. Vallombroso, 99 Conn.App. 645, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007) (the arbitration award).
The plaintiff filed a motion to confirm, in part, and vacate and/or modify the arbitration award on April 20, 2010. The plaintiff's motion requests this court to vacate the arbitration award, and modify the award to include an award of attorneys fees. The plaintiff's motion further seeks to confirm the prior decisions made by the arbitrator dated October 30, 2009, and January 22, 2010. On April 29, 2010, the defendants filed an objection to the plaintiff's motion, accompanied by a memorandum of law. That same date, the defendants also filed an application to confirm the arbitration award.
The plaintiff initially argues that his motion to confirm, in part, and vacate and/or modify the arbitration award should be granted on the ground that the defendants failed to file a motion to correct, modify or vacate the arbitrator's decision pursuant to General Statutes § 52-240. On February 2, 2009, however, the defendants properly filed with the arbitrator a motion to reconsider his decision awarding attorneys fees rendered on January 22, 2009. See, e.g., Fraulo v. Gabelli, 37 Conn.App. 708, 713, 657 A.2d 704 (1995), cert. denied, 239 Conn. 947, 686 A.2d 125 (1996). As a result, the court will not grant the plaintiff's motion on this ground.
DISCUSSION
The plaintiff argues that his motion to confirm, in part, and vacate and/or modify the arbitration award should be granted on the ground that the arbitrator improperly vacated his original decision regarding attorneys fees by relying on Scrivani v. Vallombroso, supra, 99 Conn.App. 645. The defendants counter that the arbitration award should be confirmed on the grounds that the decision was duly granted after proper proceedings, and the plaintiff cannot meet the heavy burden of showing that the arbitrator was guilty of manifestly disregarding the law.
The court's analysis of these claims is guided by the well established principles of law governing consensual arbitration. "Judicial review of arbitral decisions is narrowly confined . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Internal quotation marks omitted.) Economos v. Liljedahl Brothers, Inc., 279 Conn. 300, 305, 901 A.2d 1198 (2006).
"[I]n applying this general rule of deference to an arbitrator's award, every reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings." (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 85, 777 A.2d 169 (2001). "Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission." (Internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education of Danbury, 122 Conn.App. 617, 624 (2010).
"Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved . . . In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact." Teamsters Local Union No. 677 v. Board of Education of Danbury, supra, 122 Conn.App. 622.
"In determining whether a submission is unrestricted, we look at the authority of the arbitrator. The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted." (Internal quotation marks omitted.) Alderman Alderman v. Pollack, 100 Conn.App. 80, 85, 917 A.2d 60 (2007).
In the present case, neither party contends that the present submission is restricted. Furthermore, the arbitration agreement does not limit or condition the arbitrator's authority in a manner that would make the present submission restricted. See Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 111-12, 779 A.2d 737 (2001) (noting where "neither the submission formulated by the arbitrator, nor the issues suggested by the parties, contained conditional language, the submission . . . is unrestricted"). As a result, the court finds that the present submission is unrestricted.
"Even in the case of an unrestricted submission, three grounds have been recognized for vacating an award: (1) The award rules on the constitutionality of a statute; (2) It violates clear public policy; and (3) It contravenes one or more of the statutory proscriptions of. General Statutes § 52-418." (Internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education of Danbury, supra, 122 Conn.App. 622. "[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. [Our Supreme Court emphasizes], however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles . . .
"In Garrity [ v. McCaskey, 223 Conn. 1, 7-8, 612 A.2d 742 (1992)], [our Supreme Court] adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418(a)(4) . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable." (Internal quotation marks omitted.) McCann v. Department of Environmental Protection, 288 Conn. 203, 952 A.2d 43 (2008).
In the present case, the plaintiff argues that the arbitration award should be vacated on the ground that the arbitrator's interpretation of the relevant case law and facts is improper. As noted herein, however, in the case of an unrestricted submission, "the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact." (Emphasis added.) Teamsters Local Union No. 677 v. Board of Education of Danbury, supra, 122 Conn.App. 622. Furthermore, the plaintiff has failed to prove any of the three elements which must be satisfied for the court to vacate an arbitration award resulting from an unrestricted submission on the ground that the arbitrator manifestly disregarded the law. Therefore, the plaintiff's motion to confirm, in part, and vacate and/or modify the arbitration award must be denied. As a result, the court grants the defendants' application to confirm the arbitration award pursuant to General Statutes § 52-417.
General Statutes § 52-417 provides, in relevant part: "The court or judge shall grant such an order confirming the [arbitration] award unless the award is vacated, modified or corrected as prescribed in [General Statutes §§ ]52-418 and 52-419."
CONCLUSION
Based on the foregoing, the court hereby denies the plaintiff's motion to confirm, in part, and vacate and/or modify the arbitrator's award, and hereby grants the defendants' application to confirm the arbitration award.