Opinion
No. CV05-4004458 S
September 13, 2006
MEMORANDUM OF DECISION RE APPLICATION TO CONFIRM ARBITRATION AWARD #112
On June 8, 2006, the plaintiff, Dorrance T. Kelly, D.D.S., P.C., a professional corporation located in Danbury, Connecticut, filed an amended application to confirm an arbitration award pursuant to General Statutes § 52-417. The defendant, Anthony Camillo, a licensed dentist, filed a memorandum in opposition to the plaintiff's application on August 18, 2006. The following facts are relevant to the disposition of this case.
On September 18, 2001, the parties entered into a written employment contract. The agreement contained a restrictive covenant and an interrelated arbitration cause. The restrictive covenant contained in paragraph 9B provides: "(I) In the event of a termination of the EMPLOYEE's employment for any reason, the EMPLOYEE shall not, for a period of (3) years following the termination of his employment, without the written consent of the CORPORATION, engage, directly or indirectly, as principal, agent or employee, in the practice of dentistry within a (15) mile radius of any office of the CORPORATION (Restrictive Covenant Area) nor shall he solicit or treat any individuals who are then or had been patients of the CORPORATION. It is agreed that the CORPORATION shall be entitled to apply to any court of competent jurisdiction to enjoin any violation of this restrictive covenant, threatened or actual.
"(ii) In the event of a termination of the EMPLOYEE's employment for any reason, the EMPLOYEE shall immediately resign his medical staff memberships and clinical privileges at any hospital within the Restrictive Covenant Area with which the EMPLOYEE was affiliated during the term hereof and he shall not reapply for such privileges during the three (3) year period immediately following the effective date of termination of employment. Such resignation shall take place despite any provision in the By-laws, Rules and Regulations of such hospital or its medical staff to the contrary and the EMPLOYEE shall not be entitled to any of the due process rights set forth in any such by-laws. It is agreed that the CORPORATION shall be entitled to apply to any court of competent jurisdiction to obtain specific performance (whether by injunction or declaratory judgment or otherwise) of the provisions of this paragraph B(ii)."
The arbitration clause contained in paragraph twelve provides: "ARBITRATION CLAUSE. In the event that any controversy or claim arising out of this Agreement (other than enforcement of the restrictive covenant or resignation provisions as set forth in Article 9.B hereof) cannot be settled by the parties, such controversy or claim shall be settled by arbitration in Danbury, Connecticut, in accordance with the then current rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof."
The defendant was terminated from his employment but continued to practice dentistry in Danbury. As a result, on September 30, 2004, the plaintiff commenced arbitration proceedings. The arbitrator, Richard A. Fortier, heard the matter on May 24, 2005, however, the defendant failed to appear at the hearing.
According to the arbitrator's findings, the plaintiff sought recovery against the defendant for breach of the restrictive covenant. Based on the uncontested evidence submitted during the arbitration hearing, the arbitrator found, inter alia, that the plaintiff sustained its burden of proving: (1) the parties' contractual relationship, (2) that the restrictive covenant was reasonable in time and geographical location, and (3) that the plaintiff's brief provided a rational method for the calculation of damages sustained as a result of breach of the restrictive covenant. Accordingly, the arbitrator awarded: (1) an order requiring the defendant to adhere to the provisions of the restrictive covenant, (2) $39,953.42 in compensatory damages, (3) $9,479.60 in costs and attorneys fees, and (4) $2,473.71 in additional fees and cost incurred by the plaintiff. Thereafter, on September 13, 2005, the arbitrator modified the award to correct typographical errors. Neither party claims a lack of notice of the award or modification, and the plaintiff now seeks to confirm the arbitration award with regard to money damages only. The defendant opposes confirmation of the award but did not filed a motion to vacate, modify or correct the arbitration award pursuant to General Statutes §§ 52-418 or 52-519.
The plaintiff's amended application to confirm the arbitration award requests the court confirm the award as to compensatory damages, costs, attorneys fees, administrative fees and compensation for arbitration expenses. The plaintiff has applied pursuant to § 52-417 and argues that the application should be granted because: (1) the court lacks discretion and must confirm the award since the defendant failed to file a motion to vacate the arbitration award pursuant to § 52-418, or to modify or correct the award pursuant to § 52-419, within the statutory time period set forth in General Statutes § 52-420(b); and (2) the damages awarded by the arbitrator conform with the submission. In opposition, the defendant argues that the arbitrator's award violates § 52-418(a)(4) because the arbitrator exceeded his power by arbitrating issues involving the restrictive covenant which the parties unambiguously removed from the arbitrator's power. For the following reasons the plaintiff's application to confirm the arbitration award is granted.
In ruling on a motion to confirm an arbitration award, the court is mindful that "[a]rbitration is the voluntary submission . . . of an existing or future dispute to a disinterested person or persons for final determination . . . Arbitration is favored by the courts because it is intended to avoid the formalities, delay, expense and vexation of ordinary litigation. The autonomy of voluntary submission to arbitration requires a minimum of judicial intrusion." (Citations omitted; emphasis added; internal quotation marks omitted.) Total Property Services of New England, Inc. v. Q.S.C.V., Inc., 30 Conn.App. 580, 585-86, 621 A.2d 316 (1993). Section 52-417 sets forth the authority of the trial court in ruling on an application to confirm an arbitration award. This section provides in relevant part: "At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419." Section 52-418(a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." In addition, § 52-419(a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy."
With regard to this statutory scheme our Appellate Court has said that if a defendant fails to move to vacate, modify, or correct an arbitration award within thirty days of receiving notice of the award in accordance with § 52-420(b), "the award may not thereafter be attacked on any of the grounds specified in §§ 52-418 and 52-419." Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn.App. 1, 4, 632 A.2d 713 (1993). The Appellate Court has also instructed that absent a motion to vacate, modify or correct filed within the thirty-day period prescribed by § 52-420(b), "the court is required to confirm the arbitration award on the application or motion of a party filed within one year of the award." (Emphasis added.) Aldin Associates, Ltd. Partnership v. Healey, 72 Conn.App. 334, 340, 804 A.2d 1049 (2002). In addition, American Jurisprudence recognizes that, "a party who had a valid ground for challenging an award but who fails to raise that challenge within the statutory time limit is not permitted to raise that challenge when the opponent applies for confirmation of the award." 4 Am.Jur.2d 283, Alternative Dispute Resolution § 253 (1995). In this case, it is undisputed that the defendant was notified of the award but never filed a motion to vacate, correct or modify the arbitration award. As such, this court is required to confirm the arbitration award and it cannot vacate the award on any of the statutory grounds listed in § 52-418 or § 52-419.,
American Jurisprudence goes on to state: "There is some question whether the cross motion to vacate can be made in an action to confirm an award if the motion to confirm was made within the statutory period requesting that the award be set aside, even if the motion to vacate is not timely under such statute." In the present case, the defendant has not briefed or argued that his memorandum should be considered a cross motion to vacate and, therefore, the court need not address this issue. See Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (principle that improperly briefed issues deemed to be abandoned applicable to trial court).
The court is cognizant that no matter how egregiously incorrect or fraudulent an arbitration award may be, strict adherence to this procedural requirement may provide a party seeking to confirm an arbitration award a nine-month windfall following the three-month statutory mandate. In the absence of appellate authority either found on its own or cited by the defendant, however, this court is bound by the language of the Appellate Court cited herein. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) (principle that trial court bound by precedent of higher court inherent in hierarchical judicial system).
The court is also cognizant that in addition to the statutory authority to vacate an arbitration award, a court has the authority to vacate an award on the following independent common-law grounds: "(1) the award rules on the constitutionality of a statute; and (2) the award violates clear public policy." (Internal quotation marks omitted.) Wu v. Chang, 264 Conn. 307, 311 n. 8, 823 A.2d 1197 (2003); see also Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). Neither ground has been briefed by the parties and, therefore, the court need not address these issues. See Connecticut Light Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 108.
Even if the court were to address the merits of the parties' arguments, however, the plaintiff would still prevail on its application with regard to money damages. In support of this position the plaintiff argues that the parties' agreement only prevented the arbitrator from "enforcing" the restrictive covenant but not from awarding damages for a breach thereof. On the other hand, the defendant argues that because the parties' agreement unambiguously restricts arbitration involving the restrictive covenant, it follows that the arbitrator exceeded the scope of his power by awarding damages, fees and expenses and, therefore, the award violates § 52-418(a)(4).
Our Supreme Court, in constructing § 52-418(a)(4), has, "as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 613, 887 A.2d 872 (2006). When addressing a claim that an arbitrator has exceeded or imperfectly executed its power, our Supreme Court has said that "[t]he trial and reviewing courts review in effect, de novo a claim that an arbitration award does not conform to the submission . . . [T]hat standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented . . . [R]eview is limited to a comparison of the award to the submission. [The] inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, [our Supreme Court has] explained that, as long as the arbitrator's remedies were consistent with the agreement they were within the scope of the submission . . . In making this determination, [a] court may not engage in fact-finding by providing an independent interpretation of the contract, but simply is charged with determining if the arbitrators have ignored their obligation to interpret and to apply the contract as written." (Citations omitted; internal quotation marks omitted.) Id., 616.
The inquiry in this case is limited to a determination as to whether the parties have vested the arbitrators with the authority to award the relief conferred. As such, as long as the arbitrator's remedies were consistent with the agreement, they were within the scope of the submission. On the basis of an independent review of the parties' contract, the court concludes that the parties vested the arbitrators with the authority to award compensatory damages, costs, attorneys fees, administrative fees and compensation for arbitration expenses.
Pursuant to the contract, the parties agreed to submit to arbitration any case or controversy arising out of their agreement except for " enforcement of the restrictive covenant or resignation provisions set forth in Article 9.B [of the contract] . . ." (Emphasis added.) The term "enforcement," as it is commonly understood, constitutes the noun form of the word "enforce." American Heritage Dictionary of the English Language (New College Ed. 1976). As a verb, the term "enforce" means, "to compel observance of or obedience to . . ." Id. Similarly, Black's Law Dictionary defines enforcement as, "[t]he act or process of compelling compliance with a law, mandate, or command." Black's Law Dictionary (7th Ed. 1999). Compelling a party to comply with the terms of a contract, whether those terms are in the form of a promise to forbear or a promise to affirmatively act, is accomplished through specific performance. See 12 A. Corbin, Contracts (Rev. Ed. 2002) §§ 1138-39, pp. 184-88; see also, e.g., Texaco, Inc. v. Golart, 206 Conn. 454, 461, 538 A.2d 1017 (1988) (specific performance appropriate remedy to enforce lease's fixed price purchase option); Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 475 A.2d 305 (1984) (specific performance granted to enforce lease's restrictive covenant restricting third-party defendant's business activity to operating a bakery); Fletcher-Terry Co. v. Grzeika, 1 Conn.App. 422, 473 A.2d 1227 (1984) (trial court directed, if contract found enforceable, to enforce contract provision obligating defendant to cede patent and title rights of invention to plaintiff through specific enforcement remedy). According to the terms of this contract, the parties agreed to remove from the arbitrator's power, submissions regarding specific performance of paragraph 9B. Awarding damages for a breach of contract, however, is a legal remedy separate and distinct from the equitable remedy of specific performance. See, e.g., Hart, Nininger Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 632, 548 A.2d 758 (1988) (injunctive relief and damages separate remedies). The contract, therefore, did not remove from the arbitrator's power the ability to award money damages.
"[C]ontractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction." (Internal quotation marks omitted.) Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984). "To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." (Internal quotation marks omitted.) Jagger v. Mohawk Mt. Ski Area, Inc., 269 Conn. 672, 682, 849 A.2d 813 (2004).
The court notes that "[t]he decree for specific performance of a duty to forbear from action is usually called an injunction . . . [and] . . . an injunction is a decree for specific performance, even though called by another name." 12 A. Corbin, Contracts (Rev. Ed. 2002) §§ 1138, p. 184-85. Whether labeled as a prohibitive injunction or specific performance, however, the analysis is the same. Marquardt v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 421 n. 2, 812 A.2d 175 (2003).
This conclusion finds support in the very paragraph cited within the arbitration. clause. Paragraph 9B(I) specifically provides the plaintiff with an explicit right "to apply to any court of competent jurisdiction to enjoin any violation of this restrictive covenant threatened or otherwise." (Emphasis added.) In addition, paragraph 9B(ii) provides the plaintiff with an explicit right to "apply to any court of competent jurisdiction to obtain specific performance (whether by injunction or declaratory judgment or otherwise) of the provisions of this paragraph B (ii)." (Emphasis added.) Thus, pursuant to the terms of the contract, the court finds that the parties vested the arbitrator with the authority to award the relief conferred.
For the foregoing reasons, the plaintiff's application to confirm the arbitration award is hereby granted.
It is so ordered.