DeRose v. Jason Robert's, Inc. ( 2019 )

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MICHAEL DEROSE v. JASON ROBERT’S, INC., ET AL.
(AC 40715)
Keller, Prescott and Harper, Js.
Syllabus
The plaintiff sought to confirm an arbitration award in favor of the defen-
dants, who filed a motion to vacate the award, which was issued in
connection with an employment dispute and the defendants’ alleged
breach of a licensed dealer agreement between the parties regarding
the defendants’ concrete business. The trial court granted the plaintiff’s
application to confirm the award, denied the defendants’ motion to
vacate the award and rendered judgment thereon, from which the defen-
dants appealed to this court. Held:
1. The defendants could not prevail on their claim that the trial court improp-
erly found that the arbitrator effectively had defaulted them for their
failure to appear at the final arbitration hearing, which they claim caused
the court to fail to consider the merits of their challenges to the arbitra-
tion award: the arbitrator expressly found in the award that he had
continued the final arbitration hearing to allow the defendants additional
time to submit a rebuttal to the plaintiff’s case and to present additional
witnesses and that the final hearing proceeded even though the defen-
dants did not submit their rebuttal or attend the hearing, which suggested
that the arbitrator to some degree had relied on the plaintiff’s unrebutted
arguments as a result of the defendants’ absence, and the trial court’s
finding that the arbitrator effectively had defaulted the defendants was
supported by the evidence in the record and was not clearly erroneous;
moreover, even if the trial court erred in finding that the defendants
effectively had been defaulted, the defendants failed to establish that that
finding affected the court’s consideration of their claim on the merits.
2. The defendants could not prevail on their claim that the trial court improp-
erly ruled on their motion to vacate the arbitration award without first
providing them with an evidentiary hearing: the defendants failed to
cite any authority mandating that the court hold an evidentiary hearing
prior to ruling on the motion to vacate the arbitration award, in the
absence of an express statute or rule of practice requiring it, the determi-
nation of whether to hold an evidentiary hearing is within the discretion
of the trial court, the relevant statute (§ 52-420 [a]) requires that any
motion to vacate be heard in the manner provided by law for written
motions at a short calendar session, and a party seeking a hearing on
a short calendar motion generally must make that request on the short
calendar claim form or by motion, which the defendants here failed to
do; moreover, the defendants’ claim to the contrary notwithstanding,
the defendants were in fact afforded an evidentiary hearing, as the
record showed that, although the court initially denied their motion
without hearing evidence, it immediately reopened the proceedings after
the defendants requested an opportunity for an evidentiary hearing,
allowed them to create an evidentiary record by admitting into evidence
four exhibits that they proffered, and permitted them to make additional
legal arguments.
3. The defendants’ claim that the trial court improperly granted the arbitra-
tor’s motion to quash a subpoena duces tecum, which sought to compel
the arbitrator to testify and to produce his arbitration file, was not
reviewable, that claim having been inadequately briefed; although the
defendants’ brief cited to cases for the proposition that an arbitrator
may be required to testify at a hearing on a motion to vacate an arbitration
award, the defendants did not provide any analysis as to how they were
harmed by the granting of the motion to quash or how precluding the
arbitrator’s testimony constituted an abuse of discretion, especially
given that the court nonetheless admitted into evidence certain corre-
spondence between the parties and the arbitrator at the defendants’
request.
4. The defendants could not prevail on their claim that the trial court erred
in confirming the arbitration award because the arbitrator failed to
address the entirety of the arbitration submission, which was based on
their claim that the arbitrator ignored their special defenses, set-offs
and counterclaim in issuing the award; although the submission was
extremely broad and encompassed the defendants’ special defenses, set-
offs and counterclaim, and the arbitration award contained no express
findings or conclusions specific to those pleadings, the defendants failed
to establish that the arbitrator did not consider or decide the special
defenses, set-offs and counterclaim, rather than tacitly considering and
rejecting them prior to determining damages, particularly given that the
defendants took no steps before the arbitrator to determine whether
he had considered the entirety of the submission and presented no
evidence to the trial court as to what they submitted to the arbitrator
other than the pleadings in support of their special defenses, set-offs
and counterclaim.
5. The trial court properly denied the defendants’ motion to vacate the
arbitration award on public policy grounds, which award was issued
fourteen years after the parties’ dispute initially arose and four years
after arbitration commenced; although courts have described arbitration
as an efficient system of alternative dispute resolution and the general
policy favoring arbitration encompasses the concomitant policy that
arbitrations proceed expeditiously, the attribution of promptness is aspi-
rational and does not create an explicit, well-defined and dominant
public policy that mandates that arbitrations be completed within a
strict designated time period, and the award here did not violate a public
policy of expedience as embodied by the doctrine of laches, as that
doctrine is largely governed by the circumstances of the particular case
and, therefore, is left to the discretion of the trial court, the defendants
were unable to produce any case law in which a court vacated an
arbitration award as violative of public policy because the arbitration
was not completed in an expeditious manner, and even if the award
here had violated a public policy of expedience in arbitration matters,
the arbitrator expressly found that it was the defendants who had caused
the delay in the arbitration proceedings.
6. The defendants’ claim that the arbitrator’s award should be vacated pursu-
ant to statute (§ 52-418 [a] [4]) because it constituted a manifest disregard
of the law was unavailing; the defendants having failed to meet their
burden of demonstrating that the arbitrator ignored clearly applicable
governing law or that the claimed manifest disregard of the law was
anything more than their mere disagreement with the arbitrator’s inter-
pretation and application of established legal principles, it was unneces-
sary for this court to reach the merits of the defendants’ claim.
Argued January 31—officially released August 13, 2019
Procedural History
Application to confirm an arbitration award, brought
to the Superior Court in the judicial district of Ansonia-
Milford, where the defendants filed a motion to vacate
the award; thereafter, the matter was tried to the court,
Hon. Arthur A. Hiller, judge trial referee; judgment
granting the application to confirm and denying the
motion to vacate, from which the defendants appealed
to this court; subsequently, the court issued an articula-
tion of its decision. Affirmed.
Lori Welch-Rubin, for the appellants (defendants).
Thomas J. Weihing, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendants, Jason Robert’s, Inc.,
and Robert D. Hartmann, Sr., appeal from the judgment
of the trial court denying their motion to vacate an
arbitration award and granting an application to con-
firm the award filed by the plaintiff, Michael DeRose.
On appeal, the defendants claim that the court improp-
erly (1) found that the arbitrator effectively had
defaulted the defendants for failing to appear at the final
arbitration hearing, and that this allegedly erroneous
factual finding colored the court’s decision-making pro-
cess with respect to the motion to vacate; (2) failed
to provide the defendants with an evidentiary hearing
before ruling on the motion to vacate; (3) granted a
motion to quash a subpoena duces tecum directed at
the arbitrator and his files; (4) failed to vacate the arbi-
tration award on the ground that the arbitrator had not
addressed the entirety of the submission; (5) confirmed
an award that violated public policy; and (6) confirmed
an award made in manifest disregard of the law in
violation of General Statutes § 52-418 (a) (4).1 We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The facts underlying the parties’ long-standing dis-
pute are set forth in our decision in Jason Robert’s,
Inc. v. Administrator, Unemployment Compensation
Act, 127 Conn. App. 780, 782–85, 15 A.3d 1145 (2011).
Additional facts and procedural history are set forth in
the arbitrator’s award and in the trial court’s oral deci-
sion and subsequent articulation. ‘‘[Jason Robert’s,
Inc.,] is a concrete business. During the years 1998,
1999 and 2000, [it] employed [DeRose] as a concrete
artisan. While [DeRose] was working for [Jason
Robert’s, Inc.] as an employee, he asked for a raise in
salary. In order to give [DeRose] the potential to earn
more money, [Jason Robert’s, Inc.,] directed [DeRose]
to set up a business so that he could enter into an
agreement with [it] as a licensed dealer. In or about
2001, after [DeRose] had set up his own business, [Jason
Robert’s, Inc.,] presented him with a licensed dealer
authorization (agreement), and, on May 4, 2001,
[DeRose] signed the agreement and became a licensed
dealer for [Jason Robert’s, Inc.]
***
‘‘[DeRose] was a licensed dealer of [Jason Robert’s,
Inc.,] during the years 2001 and 2002. During those
years, [Jason Robert’s, Inc.,] classified [DeRose] as an
independent contractor. At the end of 2002, [DeRose]
terminated the agreement because the arrangement had
become unprofitable for him. After terminating the
agreement, [DeRose] filed a claim for benefits under
the Unemployment Compensation Act (act), General
Statutes § 31-222 et seq. This claim for benefits caused
. . . the administrator of the act [administrator] to
issue a missing wage assignment. . . . On April 25,
2003 . . . [a field auditor of the employment security
division of the state department of labor] issued [a]
written report, wherein he concluded that [DeRose]
was an employee [of Jason Robert’s, Inc.,] during the
years 2001 and 2002. In a letter dated April 29, 2003,
the [administrator] informed [Jason Robert’s, Inc.,] of
this determination and that there would be an assess-
ment for the contributions due in the amount of
$4366.03 plus interest. On May 16, 2003, [Jason Robert’s,
Inc.,] appealed this determination to the appeals divi-
sion . . . . On September 12, 2007 . . . the appeals
referee affirmed the determination. In its decision, the
appeals referee applied § 31-222 (a) (1) (B) (ii), more
commonly known as the ‘ABC test,’ . . . and con-
cluded that [DeRose] was an employee of [Jason
Robert’s, Inc.] The referee reached this conclusion after
having determined that [Jason Robert’s, Inc.,] failed to
satisfy any of the three prongs of the ABC test.’’ (Foot-
note omitted.) Id., 782–84.
Both the Worker’s Compensation Review Board
(board) and the Superior Court subsequently affirmed
the decision of the appeals referee. Id., 784–85. Jason
Robert’s, Inc., then appealed to this court claiming that,
in determining whether DeRose was an employee, the
board should have applied General Statutes § 42-133e
(b), rather than the ‘‘ABC test’’ to the underlying facts.
Id., 785. We disagreed and affirmed the judgment of the
trial court. Id.
In 2007, during the pendency of the worker’s compen-
sation appeal, DeRose filed a civil action against the
defendants.2 The operative complaint contained seven
counts in which DeRose alleged that the defendants
(1) breached their agreement with him by failing to
compensate him for various jobs, (2) breached the
implied covenant of good faith and fair dealing, (3)
made negligent misrepresentations, (4) made fraudu-
lent misrepresentations, (5) violated several state labor
statutes, (6) committed unfair trade practices, and (7)
negligently inflicted emotional distress. In May, 2011,
the defendants filed an amended answer to the com-
plaint raising a number of special defenses.3 Jason
Robert’s, Inc., also filed a counterclaim against DeRose,
alleging that he had breached the parties’ agreement by
failing to complete work or utilizing poor workmanship,
and committed statutory theft by retaining funds
belonging to Jason Robert’s, Inc.
On June 6, 2012, the parties entered into an agreement
to resolve their civil action through binding arbitration.
DeRose subsequently withdrew his civil action from
the Superior Court. The arbitration agreement contains
a clause titled ‘‘Submission to Arbitration and Scope of
Arbitration,’’ which states as follows: ‘‘The controversy
shall be submitted to a panel of one arbitrator (Attorney
Daniel Portanova), who shall hear, settle and determine
by arbitration the matters in controversy within the
scope of the claim based upon the evidence and testi-
mony presented. The arbitrator is permitted, but not
required, to apply the rules of evidence in civil cases
when considering the evidence presented. No party
shall have the right or power to revoke the submission
without the written consent of the other party except
on the grounds as exist in law or equity for the rescission
or revocation of any contract. All issues shall be submit-
ted to and fully and finally adjudicated by the arbitrator
including, but not limited to, the issue of coverage,
liability, causation and damages. The arbitrator will
apply the procedural and substantive law of Con-
necticut.’’
The arbitrator held hearings between July 1, 2012, and
January 24, 2013, during which the parties submitted
evidence, including testimony from DeRose and Hart-
mann. A period of inactivity then followed. By letter
dated September 25, 2014, the arbitrator notified the
parties as follows: ‘‘Please be advised that I am holding
[$2,100] in my trustee account regarding the above arbi-
tration. I have attached my invoice showing that each
respective party has paid [$4,500]; therefore, each party
is owed a refund of [$1,050].’’
DeRose sent the arbitrator a letter dated May 15,
2015, attached to which were additional documents that
DeRose sought to file with the arbitrator ‘‘with the inten-
tion to restart the . . . arbitration matter.’’ A copy of
that letter and its attachments were also sent to the
defendants’ counsel. The defendants responded to
DeRose by letter dated May 19, 2015. The defendants
indicated that, because the last arbitration hearing had
taken place on January 24, 2013, and DeRose, until he
sent the May 15, 2015 letter, had not complied with
the arbitrator’s request ‘‘to submit everything,’’ they
considered the arbitration abandoned.4 DeRose replied
to the defendants by letter dated June 1, 2015. In the
letter, he stated that the arbitration proceedings had
never been closed, he had not abandoned the matter,
and he intended to proceed to a final decision. He indi-
cated that he had no more testimony or evidence to
present and that, if the defendants failed to participate
going forward, they did so at their own peril. A few
days later, on June 4, 2015, DeRose sent a letter to the
arbitrator stating: ‘‘It has come to my attention that
[counsel for the defendants] will not file any more docu-
ments or bring any witnesses into arbitration. We there-
fore respectfully request that you declare the arbitration
closed and issue a decision in this matter.’’
The arbitrator next met with the parties in March,
2016. He later sent notice to the parties by letter dated
April 1, 2016, stating: ‘‘I have reviewed the file since
our meeting of last week. This file will remain open for
further consideration.’’ The parties and the arbitrator
met again in June, 2016. By that time, Hartmann had
discharged the defendants’ attorney and was proceed-
ing as a self-represented party. Hartman made an oral
motion to have the arbitration terminated, but the arbi-
trator denied the motion, continuing the matter until
January 16, 2017.
Despite the arbitrator’s decision that the arbitration
would go forward, the defendants, who were now repre-
sented by their present counsel, sent DeRose a letter
dated January 13, 2017, asserting that they intended to
treat the arbitration as abandoned ‘‘by virtue of laches.’’
The defendants did not attend the final January 16, 2017
arbitration hearing, despite having been duly served
with subpoenas.
On February 1, 2017, the arbitrator issued a final
award resolving the matter in favor of DeRose. Among
other things, the arbitrator found that (1) DeRose was
an employee of Jason Robert’s, Inc., (2) DeRose never
authorized the defendants to make deductions as was
claimed by the defendants, and (3) Hartman was the
individual who ultimately was responsible for the wage
violations that had occurred. The arbitrator found that
the defendants were liable to DeRose under General
Statutes § 31-72,5 and ordered them to pay DeRose dam-
ages, costs, and attorney’s fees totaling $171,938.20.6
Notice of the arbitrator’s award issued on February
3, 2017.
On February 15, 2017, DeRose filed an application
with the Superior Court for an order confirming the
arbitration award. See General Statutes § 52-417.7 On
March 6, 2017, the defendants filed a motion to vacate
the arbitration award pursuant to § 52-418. According
to the defendants, the arbitrator’s award violated clear
public policy, as embodied in the equitable doctrine of
laches, and contravened one or more of the statutory
proscriptions set forth in § 52-418. The defendants also
filed an objection to DeRose’s application to confirm
the arbitration award raising these same arguments.
DeRose filed an objection to the motion to vacate the
arbitration award, arguing that no legally cognizable
reason existed to vacate the award.
The defendants served a subpoena duces tecum on
the arbitrator ordering him to appear in court on July
17, 2017, and to produce the entire arbitration file main-
tained by him in his capacity as arbitrator. The arbitra-
tor filed a motion to quash the subpoena, arguing that
the contents of the arbitration file, which included his
research and personal notes, were not relevant to any
of the theories the defendants had advanced in support
of their motion to vacate the arbitration award.
The parties argued the motion to quash before the
court on July 17, 2017. After hearing from the parties,
the court granted the arbitrator’s motion to quash the
subpoena. The court also denied the defendants’ motion
to vacate the arbitration award and granted the applica-
tion to confirm the award. The court explained as fol-
lows on the record: ‘‘The court has heard the arguments.
The court has read all the papers in this file that have
been filed. The court will grant the motion to quash the
subpoena. The court will find that any delay in this
arbitration was caused because the arbitrator gave the
defendants extra time to present their case. The court
finds no prejudice. The court finds that any delay [that]
may have occurred did not cause any prejudice to the
defendants and that the delay, if anything, was to their
benefit. . . .
‘‘The defendants were apprised of the final hearing
date, and . . . Hartmann, both in his corporate and
his personal capacity, [was] served by subpoenas on
January 11, 2017. Hartmann and Jason Robert’s, Inc.,
were in effect defaulted and failed to appear at the
hearing. And as a result of their failure to appear at the
hearing, Hartmann did not have another attorney filing
an appearance on his behalf and he did not ask for a
continuance and had a letter sent that the defendants
were not coming to the hearing. . . . Hartmann, once
again, did not appear at the final hearing, nor did any
attorney representing him, and the arbitrator went for-
ward after finding the defendants had notice of the
hearing. The defendants have provided no valid reason
that the arbitrator’s decision should be vacated, and
the [application] to confirm is granted.’’
The defendants immediately objected to the court
having ruled without first affording them an evidentiary
hearing at which, they assert, they would have called the
arbitrator to testify8 and would have offered additional
documentary evidence. The court indicated that it
would not allow the defendants to call the arbitrator to
testify because ‘‘what [they were] asking for is irrelevant
and improper.’’ The court nevertheless agreed to open
and reconsider its ruling and allowed the defendants
an opportunity to make additional legal arguments and
offer whatever documentary evidence that they
believed supported their position that the award should
be vacated. The defendants offered four documents,
which were admitted into evidence as full exhibits, and
made additional legal arguments with respect to those
exhibits.9 The defendants requested time to submit addi-
tional written briefs addressing the motion to quash
and the motion to vacate the arbitration award, but the
court indicated that briefs already had been filed and
that it had heard enough. The court ordered that its
prior rulings granting the motion to quash, denying the
motion to vacate, and confirming the arbitration award
would stand. This appeal followed.
On September 7, 2017, the defendants filed a motion
for articulation pursuant to Practice Book § 66-5.
DeRose filed an objection to the motion on November
1, 2017. The court, on November 21, 2017, granted in
part the defendants’ motion and articulated its decision
further. Specifically, the court responded to the defen-
dants’ request that the court articulate the basis for its
denial of their motion to vacate the arbitration award
on the grounds that the award violated public policy
and § 52-418 (a) (4). The court first indicated that the
arbitration agreement at issue was unrestricted, that
both parties had acknowledged this fact in their respec-
tive pleadings, and that this severely limited the bases
on which the court could set aside the award.10
With respect to the defendants’ public policy argu-
ment, which was premised on the theory that recovery
by DeRose in the arbitration was barred by laches, the
court concluded that because ‘‘the delay at issue was
the fault of the defendants, the doctrine of laches did
not apply to the [present] matter.’’ With respect to
whether the award violated § 52-418 (a) (4) because
the arbitrator allegedly had disregarded the procedural
and substantive law of Connecticut, the court indicated
that the defendants’ claim, in essence, simply asserted
that the arbitrator misapplied the law rather than acted
with ‘‘manifest disregard of the law’’ in violation of § 52-
418 (a) (4). The court denied the defendants’ motion
to vacate the award because they improperly ‘‘sought
to retry the factual and legal determinations made by
the arbitrator pursuant to a valid and unrestricted arbi-
tration agreement.’’11
Before turning to our discussion of the specific claims
raised by the defendants, we first set forth the very
limited nature of judicial review regarding arbitration
awards. ‘‘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 omit-
ted.) Bridgeport v. Kasper Group, Inc., 278 Conn. 466,
478–79, 899 A.2d 523 (2006). ‘‘The propriety of arbitra-
tion awards often turns on the unique standard of
review and legal principles applied to decisions ren-
dered 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 effi-
cient and economical system of alternative dispute reso-
lution. . . .
‘‘[U]nder an unrestricted submission, the [arbitra-
tor’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., 331 Conn. 524, 531,
205 A.3d 552 (2019).
‘‘[Because] 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 proceed-
ings. . . . The party challenging the award bears the
burden of producing evidence sufficient to invalidate
or avoid it . . . . [Our Supreme Court has] . . . recog-
nized 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 § 52-418.’’ (Citation omitted; internal
quotation marks omitted.) Bridgeport v. Kasper Group,
Inc., supra, 278 Conn. 474. With these principles in
mind, we now turn to the defendants’ claims on appeal.
I
The defendants first claim that the court improperly
found that the arbitrator effectively had defaulted the
defendants for failing to appear at the final arbitration
hearing. According to the defendants, this alleged erro-
neous factual finding ‘‘clouded [the court’s] judgment
when reviewing the many claims of error that formed
the basis of the defendants’ . . . motion to vacate.’’ In
other words, the defendants contend that, because the
court found that the arbitrator’s award amounted to a
default judgment against the defendants in favor of
DeRose, the court necessarily failed to consider prop-
erly the merits of the defendants’ challenges to the
arbitrator’s award. We are not persuaded.
As the defendants recognize in their appellate brief,
a ‘‘trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
. . . . We cannot retry the facts or pass on the credibil-
ity of the witnesses. . . . A finding of fact is clearly
erroneous [if] there is no evidence in the record to
support it . . . or [if] although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 141,
794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d
49 (2002).
In the award, the arbitrator expressly found that he
had continued the arbitration proceedings to allow the
defendants an opportunity to finish their rebuttal of
DeRose’s case and to present additional witnesses, but
that the defendants failed to appear for the final arbitra-
tion hearing in defiance of duly served subpoenas. The
arbitrator elected to proceed with the arbitration pro-
ceedings despite the defendants’ absence. Although the
arbitrator does not describe his award as a default judg-
ment, he notes as part of his findings that DeRose pre-
viously had submitted an exhibit summarizing all of the
issues under submission and that the defendants had
never provided a rebuttal to this summary. Because this
suggests that the defendants’ absence from the final
hearing resulted in the arbitrator’s reliance, at least
in part, on the unrebutted arguments of DeRose, it is
certainly a plausible inference for the trial court to have
found that, as a result of the defendants’ failure to
appear at the final hearing, the defendants ‘‘were in
effect defaulted’’ by the arbitrator. (Emphasis added.)
The court’s finding regarding the perceived effect of
the defendant’s absence, therefore, cannot be viewed as
clearly erroneous because, as indicated, there is some
evidence in the record to support such a character-
ization.
Moreover, even if we agreed with the defendants that
the court mischaracterized them as having been ‘‘in
effect defaulted,’’ the defendants have not directed us
to any portion of the court’s decision, or anywhere in
the record, that would support their assertion that this
finding affected the court’s consideration of the defen-
dants’ motion to vacate in any way deleterious to the
defendants. The court never indicated, for instance, that
it would not consider the substance of the motion to
vacate because the defendants had been defaulted by
the arbitrator. Instead, the court found, on the basis of
its review of the record presented, that the defendants
had failed to provide a valid reason to vacate the award,
implying that the court fairly considered the defendants’
arguments on their merits and rejected them. Accord-
ingly, we are not persuaded by this claim.
II
The defendants also claim that the court improperly
failed to provide them with an evidentiary hearing
before ruling on their motion to vacate the arbitration
award. This claim is belied by the transcript of the
hearing and is, thus, without merit.
‘‘We consistently have held that, unless otherwise
required by statute, a rule of practice or a rule of evi-
dence, whether to conduct an evidentiary hearing gen-
erally is a matter that rests within the sound discretion
of the trial court.’’ (Internal quotation marks omitted.)
State v. Nguyen, 253 Conn. 639, 653, 756 A.2d 833 (2000).
‘‘Under this standard of review, [w]e must make every
reasonable presumption in favor of the trial court’s
action.’’ (Internal quotation marks omitted.) Metropoli-
tan District Commission v. Connecticut Resources
Recovery Authority, 130 Conn. App. 132, 142, 22 A.3d
651 (2011).
The defendants have not cited to any statute, eviden-
tiary rule, or rule of practice mandating that parties are
entitled to an evidentiary hearing before a court rules on
a motion to vacate an arbitration award. Furthermore,
General Statutes § 52-420 (a) provides in relevant part
that ‘‘[a]ny application [to confirm, vacate or modify
an award] under [§§] 52-417, 52-418 or 52-419 shall be
heard in the manner provided by law for hearing written
motions at a short calendar session, or otherwise as
the court or judge may direct, in order to dispose of
the case with the least possible delay.’’ A party wishing
to have an evidentiary hearing on a short calendar
motion generally must make such a request on the short
calendar claim form or by motion. See Ridgefield Bank
v. Stones Trail, LLC, 95 Conn. App. 279, 287, 898 A.2d
816, cert. denied, 279 Conn. 910, 902 A.2d 1069 (2006).
Unless there is an express statutory provision or rule
of practice requiring an evidentiary hearing; see, e.g.,
General Statutes § 49-14 (a) (mandating motion for defi-
ciency judgment ‘‘be placed on the short calendar for
an evidentiary hearing’’); which is absent here, whether
to hold an evidentiary hearing in a particular case and
the scope of such a hearing is left to the discretion of
the court.
Although the court initially ruled on the defendants’
motion to vacate after hearing arguments and ruling on
the motion to quash, the record shows that, once the
defendants requested an opportunity for an evidentiary
hearing, the court agreed to open the proceedings for
the purpose of reconsideration and to allow the defen-
dants to make an evidentiary record. Although the court
indicated, consistent with its ruling on the motion to
quash, that it would not allow the defendants to call
the arbitrator as a witness, the court admitted as full
exhibits several documents that the defendants offered
into evidence and permitted additional legal arguments.
Accordingly, contrary to the defendants’ claim, they
were afforded an evidentiary hearing. To the extent that
the defendants believe the court unfairly limited the
scope of that hearing, the defendants have failed to
brief any such claim on appeal except to challenge the
ruling on the motion to quash, which we address in
part III of this opinion. The defendants have not indi-
cated what additional evidence they were precluded
from presenting to the court or how it would have
changed the outcome of the court’s decision. Thus, they
have failed even to attempt to demonstrate how they
were harmed by the alleged error. On the basis of the
record presented, we conclude that the defendants’
claim that they were denied an evidentiary hearing is
simply untenable.
III
We next turn to the defendants’ claim that the court
improperly granted the arbitrator’s motion to quash the
subpoena duces tecum directed at him. We decline to
review this claim because it is inadequately briefed.
‘‘[A] trial court’s decision to quash a subpoena is
. . . reviewed on appeal under the abuse of discretion
standard.’’ (Internal quotation mark omitted.) Cavolick
v. DeSimone, 88 Conn. App. 638, 654, 870 A.2d 1147,
cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). ‘‘Dis-
cretion means a legal discretion, to be exercised in
conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . The salient inquiry is whether
the court could have reasonably concluded as it did.
. . . It goes without saying that the term abuse of dis-
cretion does not imply a bad motive or wrong purpose
but merely means that the ruling appears to have been
made on untenable grounds. . . . In determining
whether there has been an abuse of discretion, much
depends upon the circumstances of each case.’’ (Inter-
nal quotation marks omitted.) Satchwell v. Commis-
sioner of Correction, 119 Conn. App. 614, 623–24, 988
A.2d 907, cert. denied, 296 Conn. 901, 991 A.2d 1103
(2010).
The subpoena duces tecum in the present case sought
to compel the arbitrator’s testimony and the production
of the arbitrator’s entire file, including but not limited to
his legal research, personal notes, and correspondences
with the parties.12 The court granted the motion to quash
the subpoena because it concluded that the contents of
the arbitrator’s file and his testimony were not relevant
given the limited scope of the court’s review of an
arbitration award resulting from an unrestricted sub-
mission. The court later articulated that the defendants
had not demonstrated a clear need for any additional
evidence and that it was capable of deciding the motion
to vacate on the basis of the record before it.
As previously indicated in part II of this opinion, even
without the benefit of the subpoena, the defendants
were able to admit into evidence certain correspon-
dence between the parties and the arbitrator that were
not part of the record and that they believed supported
their arguments that the arbitration previously was
abandoned by DeRose. Although the defendants cite to
a few cases in their appellate brief supporting the gen-
eral proposition that, under certain circumstances, it
might be necessary for an arbitrator to testify at a hear-
ing on a motion to vacate an award, they have failed
adequately to analyze how the court abused its discre-
tion by not allowing testimony in the present case or
how they were harmed by the granting of the motion
to quash. ‘‘Analysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by
failure to brief the issue properly.’’ (Internal quotation
marks omitted.) Shore v. Haverson Architecture &
Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837
(2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).
We deem this claim abandoned due to inadequate brief-
ing and, accordingly, decline to review it.
IV
The defendants next claim that the court improperly
failed to vacate the arbitration award on the ground
that the arbitrator failed to address the entirety of the
submission, which the defendants contend included
their special defenses, set-offs, and counterclaim
pleaded in the underlying civil action. We are not per-
suaded.
The scope of arbitration, including the delineation
of the issues to be decided, is determined and limited
by the parties’ submission to arbitration. See Board of
Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d
553 (1985). ‘‘A submission to arbitration, sometimes
referred to as an agreement for submission, is a contract
. . . whereby two or more parties agree to settle their
respective legal rights and duties by referring the dis-
puted matters to a third party, by whose decision they
agree to be bound. . . . Technical precision in making
a submission is not required and submissions are given
a liberal construction in furtherance of the policy of
deciding disputes by arbitration and in light of the sur-
rounding facts and circumstance. . . . A submission
to arbitrate must embrace everything necessary to give
the arbitrators jurisdiction over the parties and the mat-
ter in dispute . . . . Since the award is limited by the
submission, the submission agreement should show
clearly what disputes are to be arbitrated. However, it
will be presumed that the parties intended to grant to
the arbitrators such powers as are reasonably necessary
to settle the dispute fully.’’ (Citation omitted; internal
quotation marks omitted.) Alderman & Alderman v.
Pollack, 100 Conn. App. 80, 82–83, 917 A.2d 60 (2007).
In the present case, the submission provided that
‘‘[a]ll issues shall be submitted to and fully and finally
adjudicated by the arbitrator including, but not limited
to, the issues of coverage, liability, causation and dam-
ages.’’ This submission is very broad, evincing the par-
ties’ intent that the submission encompass not only
DeRose’s causes of action against the defendants, but
any special defenses and counterclaims raised by the
defendants as a result. The defendants argue on appeal
that the arbitrator ‘‘simply chose to ignore those claims
in their entirety.’’ Although we agree with the defen-
dants that the arbitration award does not contain
express findings or legal conclusions specifically
addressing each special defense and counterclaim
raised by the defendants, the defendants have failed to
demonstrate that the arbitrator simply chose to ignore
the special defenses and counterclaim, rather than hav-
ing considered and rejected them, prior to awarding
damages to DeRose.
Our standard of review requires that we make ‘‘every
reasonable presumption in favor of the arbitration
award and the arbitrator’s acts and proceedings.’’ (Inter-
nal quotation marks omitted.) Bridgeport v. Kasper
Group, Inc., supra, 278 Conn. 474. The party challenging
the award, in this case the defendants, bears the burden
‘‘of producing evidence sufficient to invalidate or avoid
it.’’ Id. The defendants have failed to show beyond mere
speculation that the arbitrator did not consider and
fully resolve all issues properly submitted to him by
the parties. The defendants do not argue on appeal that
they were frustrated in doing so by the court’s decision
to quash the subpoena issued to the arbitrator. More-
over, they offered no other evidence before the trial
court as to what evidence was submitted to the arbitra-
tor on their counterclaim and set-off other than the
pleadings. Finally, the defendants took no steps before
the arbitrator after he had issued his award to ascertain
whether the arbitrator had considered and decided all
the defendants’ special defenses, set-offs, and counter-
claim. Stated another way, the defendants have failed
to overcome the presumption that, by awarding dam-
ages to DeRose without awarding any express set-off
or countervailing damages to the defendants, the arbi-
trator properly, yet tacitly, rejected any special defenses
and counterclaim raised by the defendants. We con-
clude that the court properly rejected this claim as a
basis for vacating the award.
V
The defendants next claim that the court improperly
confirmed the award because the award violated public
policy. The defendants identify two public policies
potentially implicated by the award: the policy favoring
arbitration as an efficient alternative to litigation and
the equitable doctrine of laches. We are unconvinced
that either provides a basis for vacating the arbitration
award on the basis of ‘‘the stringent and narrow con-
fines of the public policy exception.’’ MedValUSA
Health Programs, Inc. v. MemberWorks, Inc., 273 Conn.
634, 665, 872 A.2d 423, cert. denied sub nom. Vertrue,
Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960,
126 S. Ct. 479, 163 L. Ed. 2d 363 (2005).
‘‘A court’s refusal to enforce an arbitrator’s award
. . . because it is contrary to public policy is a specific
application of the more general doctrine, rooted in the
common law, that a court may refuse to enforce con-
tracts that violate law or public policy. . . . This rule
is an exception to the general rule restricting judicial
review of arbitral awards.’’ (Citation omitted; internal
quotation marks omitted.) C. R. Klewin Northeast, LLC
v. Bridgeport, 282 Conn. 54, 93, 919 A.2d 1002 (2007).
‘‘The public policy exception applies only when the
award is clearly illegal or clearly violative of a strong
public policy. . . . A challenge that an award is in con-
travention of public policy is premised on the fact that
the parties cannot expect an arbitration award approv-
ing conduct which is illegal or contrary to public policy
to receive judicial endorsement any more than parties
can expect a court to enforce such a contract between
them. . . . When a challenge to the arbitrator’s author-
ity is made on public policy grounds, however, the court
is not concerned with the correctness of the arbitrator’s
decision but with the lawfulness of enforcing the
award. . . . Accordingly, the public policy exception
to arbitral authority should be narrowly construed and
[a] court’s refusal to enforce an arbitrator’s [award] is
limited to situations where the contract as interpreted
would violate some explicit public policy that is well
defined and dominant, and is to be ascertained by refer-
ence to the laws and legal precedents and not from
general considerations of supposed public interests.
. . .
‘‘The party challenging the award bears the burden
of proving that illegality or conflict with public policy
is clearly demonstrated. . . . Therefore, given the nar-
row scope of the public policy limitation on arbitral
authority, [a party] can prevail . . . only if it demon-
strates that the [arbitrator’s] award clearly violates an
established public policy mandate.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
State v. New England Health Care Employees Union,
271 Conn. 127, 135–36, 855 A.2d 964 (2004). ‘‘[W]hen a
challenge to a voluntary arbitration award rendered
pursuant to an unrestricted submission raises a legiti-
mate and colorable claim of violation of public policy,
the question of whether the award violates public policy
requires de novo judicial review.’’ (Internal quotation
marks omitted.) Id., 135.
In the present case, the defendants argue that the
present arbitration was delayed for a number of years,
and that a final award was not issued until more than
fourteen years had passed since the parties’ dispute
initially arose. The defendants ask us to recognize that
our oft-stated general policy favoring arbitration
encompasses a concomitant policy that arbitrations
proceed expeditiously, which the defendants contend
did not happen here, as reflected by the record. It is
true that courts in this state have often described arbi-
tration as ‘‘an efficient and economical system of alter-
native dispute resolution’’; (internal quotation marks
omitted) LaFrance v. Lodmell, 322 Conn. 828, 851, 144
A.3d 373 (2016); and that arbitration is intended as a
means to ‘‘secure prompt settlement of disputes . . . .’’
(Internal quotation marks omitted.) State v. Philip Mor-
ris, Inc., 279 Conn. 785, 796, 905 A.2d 42 (2006). The
attribution of promptness with respect to an arbitration
proceeding, however, is aspirational in nature, and in
no way creates a public policy that mandates that arbi-
trations be completed within a strict designated time
period. Private arbitration, after all, is a creature of
contract; id.; and all aspects are controlled by the par-
ties through their arbitration agreement. If parties wish
to have their disputes resolved through arbitration
within a particular time frame, they are free to do so
contractually. In describing the expeditious nature of
arbitration relative to litigation, our courts have never
intimated that a protracted arbitration proceeding
risked being found violative of a clearly defined and
well established public policy.
The defendants similarly argue that the lengthy arbi-
tration proceedings violate a public policy that they
assert is embodied in the doctrine of laches. ‘‘Laches
is purely an equitable doctrine, is largely governed by
the circumstances, and is not to be imputed to one who
has brought an action at law within the statutory period.
. . . It is an equitable defense allowed at the discretion
of the trial court in cases brought in equity.’’ (Emphasis
omitted; internal quotation marks omitted.) Florian v.
Lenge, 91 Conn. App. 268, 282, 880 A.2d 985 (2005).
Courts have recognized the defense of laches to pre-
clude a plaintiff from pursuing equitable relief in the
face of an inexcusable delay causing prejudice to the
defendant. See Caminis v. Troy, 112 Conn. App. 546,
552, 963 A.2d 701 (2009), aff’d, 300 Conn. 297, 12 A.3d
984 (2011). But whether a delay violates the doctrine
of laches is an issue left squarely to the discretion of
the trial court, to be determined on the basis of the
circumstances presented. Finally, it is important to note
that the defendants have not directed us to any case
in which a court vacated an arbitration award as vio-
lative of public policy because the arbitration was not
completed in an expeditious manner.
We conclude that neither of the purported ‘‘public
policies’’ advanced by the defendants rises to the type
of explicit, well-defined, and dominant public policy
that would render an arbitrator’s award unenforceable
under the narrow public policy exception. Moreover,
even if the defendants were able to demonstrate the
existence of a public policy that would subject an arbi-
tration award to vacatur upon a finding that an inequita-
ble delay in the arbitration process occurred, the defen-
dants’ claim nevertheless would fail in the present case
because the arbitrator attributed the primary cause of
any delays in the present case to the defendants.
Although we engage in plenary review of whether an
explicit, well-defined, and dominant public policy is
implicated by an award, we nonetheless must give def-
erence to the factual findings of the arbitrator. See HH
East Parcel, LLC v. Handy & Harman, Inc., 287 Conn.
189, 201, 947 A.2d 916 (2008). We conclude that the
court properly rejected the defendants’ claim that the
award should be vacated on public policy grounds.
VI
Finally, the defendants claim that the court improp-
erly confirmed the arbitration award because it violated
§ 52-418 (a) (4). Specifically, the defendants contend
that the arbitrator’s award was in ‘‘manifest disregard of
the law’’ because the arbitrator (1) applied the improper
legal test in finding that DeRose was an employee of
the defendants, (2) ignored the legal definition of wages
as set forth in General Statutes § 31-71a (3), and (3)
improperly awarded attorney’s fees pursuant to General
Statutes § 31-72. We conclude that the defendants have
failed to demonstrate even a colorable claim that the
award violates § 52-418 (a) (4).
As previously noted, § 52-418 (a) provides in relevant
part that, ‘‘[u]pon the application of any party to an
arbitration, the superior court . . . shall make an order
vacating the award if it finds . . . (4) . . . the arbitra-
tors have exceeded their powers or so imperfectly exe-
cuted them that a mutual, final and definite award upon
the subject matter submitted was not made.’’ Our
Supreme Court has indicated that subdivision (4) of
§ 52-418 (a) is also ‘‘commonly referred to as ‘manifest
disregard of the law.’ ’’ Kellogg v. Middlesex Mutual
Assurance Co., 326 Conn. 638, 649, 165 A.3d 1228 (2017),
citing Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d
742 (1992).13 It is well settled, however, ‘‘that the mani-
fest disregard of the law ground for vacating an arbitra-
tion award is narrow and should be reserved for circum-
stances of an arbitrator’s extraordinary lack of fidelity
to established legal principles. . . . [T]hree elements
. . . must be satisfied in order for a court to vacate an
arbitration award on the ground that the [arbitrator]
manifestly disregarded the law: (1) the error was obvi-
ous and capable of being readily and instantly perceived
by the average person qualified to serve as an arbitrator;
(2) the [arbitrator] 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 [arbitrator] is [well-defined], explicit, and clearly
applicable.’’ (Citation omitted; internal quotation marks
omitted.) Kellogg v. Middlesex Mutual Assurance Co.,
supra, 649–50. We will not decide the merits of a claimed
manifest disregard of the law if the proponent of an
application to vacate an award cannot demonstrate
‘‘anything more than his disagreement with the [arbitra-
tor’s] interpretation and application of established legal
principals.’’ Garrity v. McCaskey, supra, 13.
Here, as in Garrity, it is unnecessary for us to reach
the merits of this claim because the defendants have
demonstrated nothing more than a disagreement with
the arbitrator’s interpretation and/or application of
established legal principles. Id. ‘‘Such a contention is
a far cry from the egregious or patently irrational mis-
performance of duty that must be shown in order to
prove a manifest disregard of the law under § 52-418
(a) (4). Acceptance of [the defendants’] argument would
turn every disagreement with an arbitrators’ rulings of
law [which generally are not subject to review by the
courts] into an allegation of manifest disregard of the
law. We have never construed § 52-418 (a) (4) so broadly
and we decline to do so today.’’ Id.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-418 (a) provides in relevant part: ‘‘Upon the applica-
tion of any party to an arbitration, the superior court for the judicial district
in which one of the parties resides . . . 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.’’
2
DeRose first commenced a civil action against the defendants in 2005.
The 2007 action was filed with reference to the accidental failure of suit
statute, General Statutes § 52-592. It is not clear from the record, however,
precisely how the 2005 action was disposed of or whether it was consolidated
into the 2007 action, as was requested by Jason Robert’s, Inc., in a motion
to consolidate.
3
The defendants raised by way of special defense accord and satisfaction,
failure to mitigate damages, statute of limitations, res judicata, and collat-
eral estoppel.
4
Although the defendants state in their brief that nearly eight months
passed between the time ‘‘the arbitrator had refunded his remaining retainer’’
and DeRose’s May 15, 2015 letter, there is nothing in the record indicating
whether the arbitrator ever issued a refund to the parties or whether the
defendants sought any clarification or confirmation of whether the arbitrator
deemed the arbitration proceedings closed or abandoned.
5
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of [General
Statutes §§] 31-71a to 31-71i, inclusive, or fails to compensate an employee
in accordance with [General Statutes §] 31-76k . . . such employee . . .
shall recover, in a civil action, (1) twice the full amount of such wages, with
costs and such reasonable attorney’s fees as may be allowed by the court,
or (2) if the employer establishes that the employer had a good faith belief
that the underpayment of wages was in compliance with law, the full amount
of such wages or compensation, with costs and such reasonable attorney’s
fees as may be allowed by the court. . . .’’
6
Specifically, the award consisted of $125,000 in damages, $45,000 in
attorney’s fees, and $1938.20 in costs.
7
General Statutes § 52-417 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 the judicial district in which one of the parties resides
. . . 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 [General Statutes §§] 52-418 and 52-419.’’
8
The defendants never made an offer of proof as to what testimony they
intended to elicit from the arbitrator.
9
The exhibits were (1) the May 15, 2015 letter from DeRose’s attorney
to the arbitrator, (2) the June 4, 2015 letter from DeRose’s attorney to the
arbitrator, (3) a May 25, 2016 e-mail from the defendants’ former attorney,
David Volman, notifying the arbitrator that he was no longer representing
Jason Robert’s, Inc., and (4) the May 4, 2001 licensing agreement between
DeRose and Jason Robert’s, Inc.
10
Although counsel for the defendants argued at the July 17, 2017 hearing
that the parties’ submission was not unrestricted because it contained a
clause requiring the arbitrator to apply the substantive and procedural laws
of Connecticut, counsel was not able to provide the court with any legal
authority supporting that proposition. A submission is unrestricted unless
it contains language that expressly restricts the breadth of the issues to be
decided, reserves explicit rights, or conditions the award on court review.
See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins.
Co., 258 Conn. 101, 109, 779 A.2d 737 (2001). Because the defendants have
not raised as a distinct claim on appeal that the trial court improperly
determined that the parties’ submission to arbitration was unrestricted, we
view the award in this case as arising out of an unrestricted submission.
11
The defendants filed a motion for review of the court’s articulation
pursuant to Practice Book § 66-7. This court granted the motion for review
but denied the defendants’ request to order the court to further articulate
the basis for its decision.
12
In addition to commanding the arbitrator to appear to testify at the July
17, 2017 hearing, the July 7, 2017 subpoena duces tecum commanded that
the arbitrator ‘‘produce at that time and place the complete and entire
arbitration file maintained by you in your capacity as arbitrator . . . includ-
ing but not limited to any and all written documents, such as personal notes,
whether handwritten or typed made by [the arbitrator] after considering
the testimony on hearing dates; all legal research conducted by [the arbitra-
tor]; all correspondence from [the arbitrator] to the parties and their respec-
tive legal counsel, including letters, [e-mails] and the like; all submissions
to [the arbitrator] from the parties or their respective legal counsel, including
pleadings, correspondence, [e-mails], exhibits and the like; the billing
records maintained by [the arbitrator]; [and] the return of the remaining
retainers by [the arbitrator].’’
13
In Garrity v. McCaskey, supra, 223 Conn. 2, our Supreme Court consid-
ered whether an arbitrator’s alleged ‘‘manifest disregard for the law’’ should
be recognized under Connecticut law as an independent ground for vacating
an arbitration award resulting from an unrestricted submission. The court
reiterated that Connecticut recognized only three grounds for vacating such
an 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 § 52-418.’’ (Citations omitted.)
Id., 6. The first two grounds have their origins in our common law whereas
the third ground is statutory in nature. Although our Supreme Court chose
not to recognize manifest disregard for the law as an independent ground
on which to seek vacatur of an arbitration award, the court held that such
an argument was cognizable under the existing statutory ground set forth
in § 52-418 (a) (4). Id., 7.