702 A.2d 1214 | Conn. Super. Ct. | 1997
These consolidated actions arise from arbitration proceedings between the law firm of Zeldes, Needle and Cooper, P.C. (the firm) and a former share holder of the firm, L. Douglas Shrader (Shrader). In docket number CV960338355S, the firm has filed an application to vacate part of the award and Shrader has filed an application to correct and to confirm the award.
In docket number CV960337701S, the action instituted by Shrader, the firm has filed an answer containing a counterclaim and a special defense. Pending before the court is Shrader's motion to dismiss this counter claim and to strike the special defense. The firm's counterclaim and special defense concern a provision of the *131 employment agreement between the firm and Shrader that restricts Shrader's legal practice upon the termination of his employment with the firm. The arbitrators concluded that this restriction on Shrader's practice was void and unenforceable under rule 5.6(a) of the Rules of Professional Conduct. The firm's counterclaim and special defense attack this part of the arbitration decision. The firm insists that the arbitrators' decision is wrong and violates the public policy expressed by rule 5.6(a), which authorizes noncompetition provisions that are part of a retirement agreement.
In his motions, Shrader argues that the firm's defenses are time barred under General Statutes §
Shrader correctly states that under §
The firm's primary response to Shrader's argument is that its special defense and counterclaim asserting *132
public policy violations are not governed by the arbitration statute, but are based on common law. The firm argues that the court has plenary power independent of §
Shrader does not argue that as a matter of law the firm has failed to assert a valid public policy claim; he simply insists that irrespective of whether the arbitration decision violates public policy, any such claim must be raised within the thirty day time limitation period of §
Thus, the precise issue presented is whether a party may assert as a special defense or a counterclaim that an arbitration decision should not be confirmed because the award violates public policy, when this claim could have been, but was not asserted as part of a timely motion to vacate or to correct the award under §
Our Supreme Court has expressly recognized three grounds for vacating an arbitration 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 §
Consequently, under Garrity, the law is clear that the public policy exception is a separate, common law basis for contesting an arbitration award independent of the provisions of the arbitration statutes.Garrity, however, does not address exactly when or how this *134
public policy exception may be asserted. After careful consideration, this court concludes that courts are required to review claims that an arbitration decision should not be confirmed because the award violates public policy even when these claims are not asserted within the thirty day time limitation period of §
As a matter of judicial prudence and in the exercise of the court's inherent judicial discretion, the court should not confirm an arbitration decision that violates well established public policy. An arbitration decision that violates public policy is not just erroneous; such an award exceeds the powers of an arbitrator and is "`void and unenforceable.'"International Brother hood of Police Officers v. Windsor,
The court appreciates the policy favoring arbitration as a means of settling private disputes. Courts generally undertake limited judicial review of arbitration decisions in order to promote this policy and to minimize the interference "with an efficient and economical system of alternative dispute resolution." Garrity v. *135 McCaskey, supra,
The issue here, however, is not whether the public policy argument is meritorious, but whether a prima facie claim that the award violates public policy may be asserted in defense to an application to confirm the award. In this context, it has been held that once a public policy concern is raised, the court must address it. Union Pacific R. Co. v.United Transportation Union,
The law is established that "if a motion to vacate, modify or correct is not made within the thirty day time limit specified in General Statutes §
Moreover, although the general rule is that when a party has grounds to contest an arbitration award, but *136
fails to do so within the statutory time period, it is precluded from raising the challenge in an action to confirm the award; see generally, 4 Am.Jur.2d 282-83, Alternative Dispute Resolution § 253 (1995); certain defenses, such as the existence of fraud or the lack of arbitral jurisdiction, may nevertheless be asserted as defenses to confirmation under such circumstances. See, e.g., Carr v. Trotta,
For the foregoing reasons, therefore, Shrader's motion to dismiss the counterclaim and his motion to strike the special defense are hereby denied. As requested, Shrader is given leave to file a further memorandum on the standard of review and on the merits of the public policy claim within three weeks.