DOMINIC LEMMA v. YORK AND CHAPEL, CORP.
File No. CV-18-5016228-S
Superior Court, Judicial District of Ansonia-Milford
December 19, 2019
PIERSON, J.
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APPENDIX
DOMINIC LEMMA v. YORK AND CHAPEL, CORP.*
Superior
File No. CV-18-5016228-S
Memorandum filed December 19, 2019
Proceedings
Memorandum of decision on defendant‘s application to vacate and plaintiff‘s motion to confirm arbitration award. Judgment denying the application to vacate and granting the application to confirm.
Stephen J. Curley, for the plaintiff.
Bruce L. Elstein, for the defendant.
Opinion
PIERSON, J.
STATEMENT OF THE CASE
This action was commenced by an application for an order pendente lite in aid of arbitration and for a prejudgment remedy. According to a supporting affidavit filed by the applicant, Dominic Lemma, on March 2, 2018, he and the respondent, York & Chapel
The applicant alleges that, despite complying fully with his obligations under the agreement, the respondent terminated his employment on or about August 15, 2018, without cause or notice. The applicant further alleges that, as of
According to the applicant, on August 22, 2018, he demanded arbitration pursuant to the agreement “under the auspices of the American Arbitration Association.”
The AAA “Online Filing Acknowledgement” form filed by the applicant, which served as a “Demand for Arbitration,” reflects, inter alia, several claims—namely, that the respondent (1) failed to pay the applicant $2083.34 in salary through August 15, 2018, (2) failed to reimburse expenses of $4200 through August 15, 2018, and (3) owed a termination payment of “at least” $29,166.76. The “Claim Amount” listed on the form is $34,450.10. The form also reflects that the respondent‘s alleged breach “constitutes a violation of [
The facts and circumstances surrounding the arbitration are largely undisputed. An arbitration hearing was scheduled to be held before James F. Stapleton, as arbitrator, on May 22 and 23, 2019. According to the respondent, on May 16, 2019, the respondent‘s attorney was informed “of the impending death of a close personal friend of over [forty] years. He . . . passed on May 16, 2019.” On May 17, 2019, at 5:11 p.m., the applicant‘s attorney wrote to the arbitrator, stating that, “as of the close of business on May 17, 2019, Claimant has not received Respondent‘s Exhibits in conformance with Scheduling Order #1 as modified by the Arbitrator earlier this week. This situation compounds the prejudice suffered by Claimant, who timely complied with Scheduling Order #1.”
In response, the respondent‘s attorney sent an e-mail to opposing counsel at 6:15 p.m. on May 17, 2019—on which the arbitrator was copied—which reads in part as follows: “I was informed Thursday morning of an impending death of a friend of over [forty] years. He passed yesterday afternoon. I knew he was in hospice. I was unable to work at all yesterday and very little today. The arrangements are still not firm but are anticipated to be Monday/Tuesday or Tuesday/Wednesday. It will be in [Foxborough] MA. I am giving the eulogy. I plan to work Monday [morning, as] I have a [long-standing] mediation in an important case and then will be out of town. Because I was unable to attend to this, I request a continuance of both the exhibits and the hearing.”
The arbitrator continued the hearing by one day, from May 22, 2019, to May 23, 2019. An e-mail from the arbitrator dated May 18, 2019, reads, “[g]iven what has occurred [t]o date on this case and to be fair to all the following orders are hereby entered: the hearing is reduced to one day to be held on Thursday May 23, at 9 [a.m. . . .] and if [the respondent‘s counsel, Attorney Bruce L.] Elstein is unavailable [Attorney John J.] Ribas or another lawyer from that firm should handle the case on behalf of the [r]espondent.”
The respondent‘s attorney did not return home from Massachusetts “until very late on May 22, 2019.” On May 22, 2019, in the early afternoon, the respondent‘s attorney sent a second continuance request, which was denied.1 Prior to the denial,
The arbitration hearing was held on May 23, 2019, before the AAA arbitrator. According to the respondent‘s counsel, “[b]ecause the undersigned counsel was unavailable, Attorneys Matthew Woods and John Ribas were required, at the last second, to scramble to prepare for a hearing they never intended to attend, never mind actually conduct.”
The arbitrator issued a written award in the matter on July 9, 2019. In the award, the arbitrator concluded that the respondent “did not have [c]ause under the [a]greement to terminate the [c]laimant and is therefore liable for damages under the terms in the [a]greement as provided under Connecticut law as set forth herein.” The arbitrator further concluded that the applicant was entitled to recover the following items of damage: (1) $1923.07 in salary for time worked before he received notice of his termination; (2) $2907.73 for uncovered expenses; (3) a $33,566.68 termination payment; and (4) $1923.07 in unpaid wages, doubled pursuant to
On August 2, 2019, the respondent filed a motion to vacate and/or modify the arbitration award (No. 120.00). In the motion, the respondent asks the court to vacate or modify the arbitrator‘s award on four grounds: (1) by failing to continue the arbitration hearing held on May 23, 2019, the arbitrator was guilty of misconduct in violation of
Thereafter, on August 29, 2019, the applicant filed an application to confirm the
The motion to vacate and/or modify, and the application to confirm, were submitted to the court on September 9, 2019, following oral argument, on which date the court took the matters under advisement. No evidentiary hearing was requested, and none is necessary for the court to resolve the motion and application presented. See DeRose v. Jason Robert‘s, Inc., 191 Conn. App. 781, 797-98, 216 A.3d 699, cert. denied, 333 Conn. 934, 218 A.3d 593 (2019).
DISCUSSION
I
Our Supreme Court has held that, “for many years [it has] wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator‘s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator‘s acts and proceedings. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of
“A party‘s choice to accept arbitration entails a trade-off. A party can gain a quicker, less structured way of resolving disputes; and it may also gain the benefit of submitting its quarrels to a specialized arbiter. . . . Parties lose something, too: the right to seek redress from the courts for all but the most exceptional errors at arbitration.” (Internal quotation marks omitted.) DeRose v. Jason Robert‘s, Inc., supra, 191 Conn. App. 794, quoting Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 478-79, 899 A.2d 523 (2006). “The propriety of arbitration awards often turns on the unique standard of review and legal principles applied to decisions rendered in this forum. [Thus, judicial] review of arbitral decisions is narrowly confined. . . . 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.) Board of Education v. New Milford Education Assn., 331 Conn. 524, 531, 205 A.3d 552 (2019).
“The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it. . . . [W]e have . . . recognized three grounds for vacating an [arbitrator‘s] award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of
II
“The concept of arbitral ‘misconduct’ does not lend itself to a precise definition but is, instead, best illustrated by example. . . . Among the actions that have been found to constitute such misconduct on the part of an arbitrator as would warrant vacating an arbitration award are the following: participation in ex parte communications with a party or a witness, without the knowledge or consent of the other party . . . ex parte receipt of evidence as to a material fact, without notice to a party . . . holding hearings or conducting deliberations in the absence of a member of an arbitration panel, or rendering an award without consulting a panel member . . . undertaking an independent investigation into a material matter after the close of hearings and without notice to the parties . . . and accepting gifts or other hospitality from a party during the proceedings. . . . An award may likewise be set aside on the basis of procedural error by an arbitration panel if, for instance, the panel arbitrarily denies a reasonable request for postponement of a hearing . . . or commits an egregious evidentiary error, such as refusing to hear material evidence or precluding a party‘s efforts to develop a full record. . . . Though not exhaustive, these examples of arbitral misconduct delineate the broad contours of conduct that is unacceptable and prohibited under
The court‘s analysis is aided further by reference to federal case law. As noted by our Supreme Court, “[u]nder
As observed by the United States District Court for the District of Connecticut, “[t]he [United States Court of Appeals for the] Second Circuit has interpreted [
A
“Parties to an arbitration are not entitled to a postponement merely by asking for one, nor is every decision of an arbitrator to deny a request for a postponement and proceed with the arbitration grounds for vacating the award. In passing on requests for postponements an arbitrator may balance the prejudice to the moving party resulting from the failure to postpone against the prejudice to the opposing party due to granting a postponement, the avoidability of such postponement, and other circumstances as warranted in each case.” Two Sisters, Inc. v. Gosch & Co., 171 Conn. 493, 499 n.4, 370 A.2d 1020 (1976); see also Local Union No. 251 v. Narragansett Improvement Co., 503 F.2d 309, 312 (1st Cir. 1974) (“Appellant‘s position in this case reduces to a claim that it is entitled to a postponement merely by asking for it. Such a view is obviously unacceptable.“).
“The arbitrary denial of a reasonable request for a postponement may serve as grounds for vacating an arbitration award. . . . However, the expeditious resolution of a dispute remains one of the
The court concludes that the arbitrator did not engage in misconduct in violation of
Moreover, according to the respondent, Attorney Elstein was back home from the funeral on May 22, 2019, albeit “very late.” Thus, the respondent‘s attorney had returned by May 23, 2019, and the record does not reflect that Attorney Elstein was unable to attend the hearing. See Vyas v. Doctor‘s Associates, Inc., supra, United States District Court, Civil Action No. 3:17-cv-1774 (JCH) (motion to vacate denied
Finally, in declining the respondent‘s request for a second continuance, the arbitrator was not limited to a consideration of the respondent‘s concerns. Rather, the arbitrator was required to balance “the prejudice to the moving party resulting from the failure to postpone against the prejudice to the opposing party due to granting a postponement . . . and other circumstances as warranted in each case.” (Emphasis added.) Two Sisters, Inc. v. Gosch & Co., supra, 171 Conn. 499 n.4. Here, in opposing the second requested continuance, the applicant‘s counsel cited as prejudicial, inter alia, the fact that (1) the applicant was “en route from [the West Coast] to attend the hearing,” (2) at least one third-party witness had been subpoenaed to the hearing, and (3) the applicant‘s counsel, as a solo attorney, could not handle a rescheduled hearing for a period of time. In light of the fact that arbitration is designed to afford parties a more expeditious resolution of their disputes, and in balancing the prejudice to the parties and the other circumstances existing, it was within the arbitrator‘s discretion to deny the second requested continuance of the hearing date. No proof of bad faith or gross error on the part of the arbitrator has been presented, and the arbitrator did not engage in misconduct under
B
Furthermore, even if the arbitrator‘s refusal to grant a second continuance constituted misconduct, the respondent has not demonstrated that it was prejudiced by the arbitrator‘s actions, let alone substantially prejudiced. The respondent was represented by counsel in the arbitration proceeding. No evidence was allegedly precluded at the hearing. See, e.g., Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 483-86 (affirming trial court order vacating arbitration award where party was prejudiced by arbitrator‘s failure to consider testimony that was highly probative and likely to have altered outcome if introduced).
The only specific ground of prejudice cited by the respondent is that Attorney Elstein had interviewed personally a third-party witness in advance of the hearing and that the witness testified at the hearing “in direct contravention to her prior statements.” Even if accepted as true, this fails to demonstrate substantial prejudice to the respondent. The respondent fails to show, specifically and by sufficient evidence, that Attorney Elstein‘s presence at the hearing would have altered the impact of this testimony or the arbitrator‘s award. See, e.g., Jenkins v. Jenkins, 186 Conn. App. 641, 650, 200 A.3d 1193 (2018) (affirming trial court‘s denial of motion to vacate arbitration award and noting that plaintiff failed to show that particular witness’ testimony “would have impacted the outcome of the proceedings“); see also Hartford Municipal Employees Assn. v. Hartford, 128 Conn. App. 646, 659, 19 A.3d 193 (testimonial evidence from individual witness was not so central to plaintiff‘s case that panel‘s failure to consider it constituted misconduct), cert. denied, 301 Conn. 934, 23 A.3d 730 (2011). Thus, the respondent has not demonstrated substantial prejudice resulting from the arbitrator‘s refusal to grant a second continuance of the arbitration hearing.
The respondent also argues that the arbitrator exceeded his powers because he awarded the applicant an amount in excess of the amount listed on the demand for arbitration form submitted by the applicant to the AAA. The argument is rejected.
In Quinn Associates, Inc. v. Borkowski, 41 Conn. Supp. 17, 20, 548 A.2d 480 (1988), the defendant sought to vacate an arbitration award on the ground that the arbitrator exceeded his authority in making an award. According to the defendant in that case, “the submission is restricted by the amount of $21,854.06 that the plaintiff claimed in the original demand for arbitration and . . . the arbitrator exceeded his power by awarding $29,283.” Id., 21. In denying the motion to vacate on this ground, the court in Quinn Associates, Inc., observed, “[t]he defendant cites no authority in Connecticut or elsewhere for this contention, and this court can find none. . . . In this court‘s view, it makes no sense for the amount of the claim or relief sought to constitute a restriction on the arbitrator. If the parties submitted to the arbitrator the question of whether a claimant should be compensated a specified sum, then, by awarding a different sum, the arbitrator exceeds his power. But when the submission is general, as here, and includes an agreement to decide by arbitration all disputes under the contract, the arbitrator is free to award more or less than the amount claimed. The essence of the submission is that the arbitrator resolve all disputes. A statement of the amount claimed is a guide to the arbitrator, but not a limitation on his power.” (Citations omitted; emphasis added.) Id., 21-22. This court agrees and holds that the claim amount listed in the applicant‘s demand for arbitration did not limit the arbitrator‘s power to award a larger sum.
Moreover, the respondent misapprehends the nature of the submission in this case. The “submission” to which the arbitration award must conform is defined by § 11 (f) of the agreement, not by the demand for arbitration form filed by the applicant. “The arbitra-tion clause in a contract constitutes the written submission to arbitration. . . . If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration.” (Citations omitted; internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 229, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). Section 11 (f) of the agreement defined the parties’ submission in broad terms to include “any dispute arising directly or indirectly from the performance or breach of a party‘s obligations under this [agreement]” and “all questions of law and fact between the parties . . . .”4 Thus, and as noted by the court in Quinn Associates, Inc. v. Borkowski, supra, 41 Conn. Supp. 17, “[t]he agreement of submission in this case is the . . . contract between the parties, which provided: ‘All claims, disputes and other matters in question . . . arising out of or relating to this [a]greement or the breach thereof, shall be decided by arbitration . . . .’ The demand for arbitration identified the nature of the dispute as the contract balance due the plaintiff. In deciding the defendant‘s claim that the arbitrator exceeded his powers, within the meaning of
IV
The respondent also contends that the arbitrator exceeded his authority under
The respondent does not dispute that the submission was unrestricted, except as to an award of special, consequential, or punitive damages. “Even in the case of an unrestricted submission, however, a reviewing court will vacate an award when an arbitrator has exceeded the power granted to [him or] her by the parties’ submission. . . . [A] claim that [an arbitrator has] exceeded [his or her] powers may be established under
As for conforming with the submission, “[w]hen the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . [Moreover] the factual findings of the arbitrator are not subject to judicial review.” (Citation omitted; internal quotation marks omitted.) Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL-CIO v. Norwalk, 324 Conn. 618, 628, 153 A.3d 1280 (2017). “[U]nder an unrestricted submission, the [arbitrator‘s] decision is considered final and binding; thus the courts will not review the evidence considered by the [arbitrator] nor will they review the award for errors of law or fact. . . . A submission is deemed restricted only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Board of Education v. New Milford Education Assn., supra, 331 Conn. 531. Given the
As for the claim that the arbitrator acted in manifest disregard of the law in awarding fees, our Supreme Court has “outlined the following burden of proof for claims that an arbitrator . . . issued a decision in manifest disregard of the law in violation of
“We have emphasized . . . 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.” (Internal quotation marks omitted.) Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL-CIO v. Norwalk, supra, 324 Conn. 629. “[Courts] are not at liberty to set aside an [arbitrator‘s] award because of an arguable difference regarding the meaning or applicability of laws urged upon it. . . . Even if an arbitrator misapplies the relevant law, such a misconstruction of the law [does] not demonstrate the [arbitrator‘s] egregious or patently irrational rejection of clearly controlling legal principles.” (Citations omitted; internal quotation marks omitted.) Lathuras v. Shoreline Dental Care, LLC, 65 Conn. App. 509, 514, 783 A.2d 83, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001). “[M]anifest disregard of the law may be found only where the arbitrators understood and correctly stated the law but proceeded to ignore it.” (Internal quotation marks omitted.) Id.; see also Rai v. Barclays Capital, Inc., supra, 739 F. Supp. 2d 372 (“To constitute manifest disregard, the court must find that the arbitrator knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless [wilfully] flouted the governing law by refusing to apply it. Obtaining judicial relief on these grounds is rare.” (Footnote omitted; internal quotation marks omitted.)
The respondent fails to meet its burden of proof here. The respondent argues that the fee award “is in direct contravention of the unambiguous language of the [a]greement. . . .” In doing so, the respondent demonstrates only its disagreement with the arbitrator‘s interpretation and application of legal principles. See Lathuras v. Shoreline Dental Care, LLC, supra, 65 Conn. App. 515 (affirming denial of motion to vacate where applicant had not demonstrated anything more than disagreement with arbitrator‘s interpretation and application of established legal principles). Such a disagreement is insufficient to satisfy the exacting standard required to demonstrate a manifest disregard of the law.
By way of example, in JEM Builders, Inc. v. Zelvin, Superior Court, judicial district of New London, Docket No. CV-04-4000119 (March 11, 2005) (Hendel, J.) (38 Conn. L. Rptr. 866), aff‘d, 106 Conn. App. 401, 942 A.2d 455 (2008), the court considered a motion to vacate an arbitration award based in part on the argument that the arbitrators manifestly disregarded the law in interpreting a contract. In that case, the moving parties argued “that contract interpretation begins with the plain and ordinary meaning of the contract language. In effect, the defendants argue that the arbitrators ignored the normal rules of contract interpretation in arriving at the meaning of [a section of] the contract. The parties agreed that disputes would go to arbitration . . . unless there is manifest disregard of the law. The defendants do not argue that the arbitrators ignored the law but rather that they ignored rules of contract interpretation.” Id., 871. In denying the motion to vacate, the court in JEM Builders, Inc., held that, “even if this court were to find that the interpretation of the contract should be other than what the arbitrators decided, in such a voluntary arbitration with an unrestricted submission, the court is not entitled to substitute its judgment for that of the arbitrators. This is true even if the arbitrators are wrong as regarding questions of law.” Id.; accord Henry v. Imbruce, 178 Conn. App. 820, 843, 177 A.3d 1168 (2017), quoting Oxford Health Plans, LLC v. Sutter, 569 U.S. 564, 569, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (“[o]nce bound to arbitration, ‘[a] party seeking relief under [
In addition, the respondent argues that there was “no evidence” introduced that would support reformation of the fee and cost provisions of the arbitration clause. As there is no record of the arbitration proceeding, the court is unable to conclude whether or not such evidence was presented. Thus, the evidentiary record here is insufficient to support the respondent‘s challenge.7
Importantly, and as reflected in his written decision, the arbitrator‘s award with respect to attorney‘s fees and costs was made pursuant to
V
Finally, the respondent argues that it was beyond the arbitrator‘s authority to award double damages as to the applicant‘s proven lost wages, pursuant to
In Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 77-78, our Supreme Court considered a party‘s application to vacate an arbitration award under
The respondent attempts to distinguish the holdings in Harty and Lathuras on the grounds that, in those cases, the parties did not argue that an arbitrator is barred from awarding double damages under
More important to the respondent‘s motion to vacate is that, as characterized by the respondent‘s counsel at oral argument, the issue of whether an arbitration is a civil action for purposes of
For the foregoing reasons, the motion to vacate and/or modify the arbitration award (No. 120.00) is DENIED, and the objection thereto (No. 124.00) is SUSTAINED; the application to confirm the arbitration award (No. 123.00) is GRANTED.
* Affirmed. Lemma v. York & Chapel, Corp., 204 Conn. App. 1, 252 A.3d 406 (2021).