Clasby v. Zimmerman ( 2019 )

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ROBERT CLASBY ET AL. v. EDWARD
ZIMMERMAN ET AL.
(AC 41463)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant general contractor, B Co., appealed to this court from the
judgment of the trial court denying its application to confirm an arbitra-
tion award made in connection with a prior action the plaintiff homeown-
ers had brought against B Co. and its owners, the defendants E and L.
The plaintiffs had hired B Co. to raise and remodel their home, and,
after becoming dissatisfied with B Co.’s work, they commenced the
underlying action seeking damages for, inter alia, breach of contract.
Prior to trial, the parties, in an effort to settle their issues and allow B
Co. to complete the project, signed a stipulation that included an
agreement to resolve their disputes through arbitration, and the plaintiffs
thereafter withdrew their action. The arbitration agreement provided,
inter alia, that the parties would submit their issues regarding the renova-
tions to an arbitration panel, which was given broad oversight authority
to determine what work remained to be done on those issues and the
price to be paid for that work, and that the plaintiffs agreed to pay the
amount determined by the panel to be due for the completion of the
project. In February, 2017, the panel issued an award, which expressly
stated that it was final as to those costs that had been proven but that
it was interim as to those costs yet to be proven to complete the project.
The award further specified that the cost to complete certain cabinetry
work was $76,500, of which $24,643.50 had been paid to date by the
plaintiffs, and noted the remaining balance due for the cabinetry. Neither
party filed a motion to vacate, modify or correct the February, 2017
award. Thereafter, in light of an ongoing dispute between the parties
concerning B Co.’s claim that, pursuant to the February, 2017 award,
it was entitled to be paid the entire $76,500 for the cabinetry work, the
panel issued a second award in August, 2017. In the August, 2017 award,
the panel found that the parties had agreed to a design change that had
reduced the cost of the cabinetry by approximately $20,000 and clarified
that, contrary to B Co.’s claim, because the cabinetry work had not
been completed when the panel issued the February, 2017 award, the
$76,500 cost it attributed to the cabinetry had not been a final determina-
tion, as the actual cost to complete the cabinetry had been unknown
and unproven at the time. Neither party filed a motion to vacate, modify
or correct the August, 2017 award. Subsequently, B Co. filed an applica-
tion to confirm the February, 2017 award. B Co. also sought an order
vacating the August, 2017 award, and an order that the plaintiffs pay B
Co. the entire $76,500 cost of the cabinetry work as set forth in the
February, 2017 award, rather than the reduced amount reflecting the
actual cost of the cabinetry work as set forth in the August, 2017 award.
The trial court denied B Co.’s application to confirm the award, and B
Co. filed an amended appeal with this court. Held:
1. The trial court improperly denied B Co.’s application to confirm the
February, 2017 award; where, as here, B Co. filed a timely application
to confirm the February, 2017 award within one year after it was ren-
dered, and the parties failed to timely file any motion to vacate, modify
or correct that award as required by the thirty day statutory (§ 52-420)
limitation period, the court was required, pursuant to statute (§ 52-417),
to confirm the award unless it was vacated, modified or corrected.
2. The trial court correctly denied B Co.’s request that it vacate the August,
2017 award and hold the plaintiffs responsible for the cost of the cabi-
netry work as set forth in the February, 2017 award: because B Co.
failed to timely file an application to vacate, modify or correct the
August, 2017 award, which reduced the cost of the cabinetry work by
more than $20,000 and clarified that the $76,500 for the cabinetry work
in the February, 2017 award had been an interim placeholder pending
the determination of the actual cost, B Co. thereby consented to its
terms, the trial court lacked any authority to invalidate the award, which
was binding on the parties and not subject to judicial scrutiny, and
the court was required to defer to the arbitration panel’s clarification;
moreover, the February, 2017 award expressly provided, with respect
to the cost of the uncompleted cabinetry work, that it was an interim
determination on the basis of the evidence available to that date, such
that it was reasonable to conclude that the $76,500 cost was not intended
to reflect a final and binding determination, and the parties were on
notice that the cost was subject to modification by the arbitration panel,
which had been granted broad authority by the parties in their sub-
mission.
Argued February 4—officially released July 9, 2019
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the defendants filed a counterclaim; thereafter,
the plaintiffs withdrew the action in accordance with
the parties’ stipulation to enter into binding arbitration
and the defendants withdrew their counterclaim; subse-
quently, the arbitrators issued certain awards and
entered certain orders; thereafter, the court, Genuario,
J., denied the application to confirm the arbitration
award filed by the defendant Bradford Estates, LLC, and
rendered judgment thereon, from which the defendant
Bradford Estates, LLC, appealed to this court; subse-
quently, the court denied the motion for reconsideration
filed by the defendant Bradford Estates, LLC, and the
defendant Bradford Estates, LLC, filed an amended
appeal with this court. Reversed in part; judgment
directed.
Lawrence F. Reilly, with whom was James A. Alissi,
for the appellant (defendant Bradford Estates, LLC).
Thomas B. Noonan, for the appellees (plaintiffs).
Opinion
PRESCOTT, J. The defendant, Bradford Estates,
LLC,1 is a general contracting business hired by the
plaintiffs, Robert Clasby and Krista Clasby, to raise and
remodel their shoreline home, which was extensively
damaged by Hurricane Sandy. The parties agreed to
arbitrate disputes that arose during the construction
project, and the defendant now appeals from the judg-
ment of the trial court denying its application to confirm
a February 4, 2017 arbitration award.2 The defendant
contends that the February 4, 2017 award conclusively
established that the defendant was entitled to collect
from the plaintiffs a balance of $51,856.65 in materials
and labor for certain cabinetry work.
The defendant’s claim on appeal is essentially two-
fold. First, he claims that, because no timely application
to vacate, modify or correct the February 4, 2017 award
was ever filed, the court was obligated to grant the
defendant’s application to confirm the award. Second,
the defendant claims that, by denying its application to
confirm the February 4, 2017 award, the court effec-
tively and improperly gave legal effect to a subsequent
award issued by the arbitration panel on August 23,
2017, in which the arbitration panel clarified that the
February 4, 2017 award was not a final determination
with respect to the cost of the cabinetry work and
reduced the amount that the defendant was entitled to
collect for the cabinetry work by more than $20,000.
We agree with the defendant that the trial court ‘‘had
no choice’’ but to grant the defendant’s timely applica-
tion to confirm the award because neither party filed
a timely application to vacate, modify or correct the
February 4, 2017 arbitration award. See Rosenthal Law
Firm, LLC v. Cohen, 165 Conn. App. 467, 472, 139 A.3d
774, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).
Nevertheless, we do not agree with the remaining
aspect of the defendant’s claim that confirmation of
the February 4, 2017 award necessarily invalidates or
renders legally inoperative the arbitration panel’s
August 23, 2007 award, particularly with respect to its
modification of the balance owed to the defendant for
the cabinetry work. In other words, we conclude that
the trial court properly denied the defendant’s request
for an order directing the plaintiffs to pay the defendant
an additional $21,463 for cabinetry work.3 For the rea-
sons that follow, we affirm in part and reverse in part
the judgment of the trial court, and remand the matter
with direction to grant the application to confirm the
February 4, 2017 award, but to deny the remainder of
the relief requested in the application.
The record reveals the following facts, as found by
the arbitration panel or as undisputed in the record.4
The plaintiffs hired the defendant to renovate and
remodel their shoreline home in Darien, which had suf-
fered significant damage from Hurricane Sandy. The
project included raising the home above the existing
foundation and redesigning and strengthening the foun-
dation to comply with new regulations. The relationship
between the parties, however, soon deteriorated.5 The
plaintiffs became dissatisfied with many aspects of the
project, including the cost, quality, and progress of the
renovations. The defendant eventually withdrew from
the project after it was halfway completed.
The plaintiffs commenced a civil action against the
defendant in January, 2014. In their operative com-
plaint, the plaintiffs alleged causes of action sounding
in breach of contract, a violation of the Connecticut
Unfair Trade Practices Act, General Statutes § 42-110a
et seq., fraud, conversion, breach of the covenant of
good faith and fair dealing, and negligence. The plain-
tiffs also sought to pierce the corporate veil between
the defendant and the Zimmermans. The defendants
filed an answer, special defenses, and a counterclaim
alleging defamation per se.
After several years of litigation, on April 29, 2016, the
parties signed a stipulation that included an agreement
to resolve their disputes through private arbitration in
lieu of a trial. The plaintiffs withdrew their complaint,
and the defendant withdrew its counterclaim. The par-
ties agreed to submit their issues to a three member
arbitration panel with the intent that the defendant
would return to the project and finish the renovations
to the plaintiffs’ home under the direction and supervi-
sion of an engineer and a building professional, both
of whom also would serve as members of the arbitration
panel.6 The stipulation refers to a ‘‘Schedule A,’’ which
was a chart that listed a variety of existing construction
issues, the parties’ positions relative to those issues,
and any agreed upon resolution already reached by the
parties. Pursuant to the stipulation, the plaintiffs agreed
to pay ‘‘any remaining amounts determined by the
[a]rbitrators to be due for the completion of the [p]roj-
ect’’ and to ‘‘place in escrow with their counsel an
evergreen $100,000 to secure payments to [the defen-
dant] under [the] [s]tipulation . . . .’’7 The parties
granted broad oversight authority to the arbitration
panel, including the right to determine when the project
was completed, at which time the parties agreed to
exchange releases from liability.
The parties submitted evidence to the arbitration
panel, and the panel conducted several days of hearings.
The parties submitted simultaneous posthearing briefs
on January 6, 2017. On February 4, 2017, the arbitration
panel issued an award with the seemingly contradictory
title ‘‘Interim Award/Final Award.’’ By way of explana-
tion, the arbitrators expressly provided that the award
should be viewed as final ‘‘as to allocations of costs
of items proven to date,’’ but interim ‘‘as to costs to
complete.’’ Later in the award, in a section addressing
the costs to complete the project, the arbitrators again
discussed, albeit in somewhat different terms, the
interim aspects of the award. In particular, they stated
that the award was interim ‘‘as to the attribution to the
parties of costs to complete the project, but is a final
award as to each credit and/or cost accounted for’’ in
a spreadsheet appended to the award.8
The spreadsheet attached to the award listed a variety
of specific items that remained to be completed. Associ-
ated with each enumerated item was (1) a ‘‘cost,’’ repre-
senting a total cost that the arbitrators assigned to
complete the item, (2) a ‘‘paid to date’’ amount,
reflecting the amount the plaintiffs already had paid
toward completion of that item; and (3) a ‘‘balance,’’
or the difference between the ‘‘cost’’ and the ‘‘paid to
date’’ amount. Item 21 of the spreadsheet pertained to
‘‘Cabinetry—labor/material’’ and listed a cost of
$76,500, a paid to date amount of $24,643.50, and a
balance of $51,856.65.9
Neither party timely filed an application to vacate,
modify or correct the February 4, 2017 award.10 The
defendant resumed its work completing the remaining
renovations under the terms of the stipulation, includ-
ing the cabinetry work.
On August 23, 2017, the arbitration panel issued
another arbitration award titled ‘‘Interim Award
(revised).’’ That award attempted to resolve the parties’
ongoing dispute regarding payment for the cabinetry
work referenced in item 21 of the spreadsheet appended
to the February 4, 2017 award.11 The August 23, 2017
award provided in relevant part: ‘‘Despite numerous
discussions between the [supervising members of the
arbitration panel] and the [defendant], [the defendant]
continues to insist to the [arbitration panel] that its
[February 4, 2017 award] requires that it be paid $76,500
for cabinetry work, whether or not this amount is ever
proven as the actual cost of the cabinetry. The [defen-
dant’s] position is groundless and untenable. While the
[arbitration panel] found there was a contract between
the parties, which included a ‘total price,’ because the
actual costs were unknown, this price was only a place-
holder for whatever the actual construction costs
turned out to be.’’ The arbitration panel explained that
the spreadsheet containing the $76,500 figure represent-
ing the ‘‘cost’’ of cabinetry work was prepared ‘‘to show
what the [plaintiffs] had already paid, as of the hearing,
toward the construction’s actual cost. This was the sole
purpose of the [spreadsheet]. As to costs yet unknown,
the [February 4, 2017 award] was interim, because it
was subject to change, as any construction cost might
be, for such items and events as change orders, unfore-
seen and/or hidden costs, and delay.’’ The arbitration
panel found that the defendant had agreed to a design
change involving a reduction in the amount of cabinetry
originally envisioned, noting that ‘‘had the parties added
to the project, the [defendant] would have expected to
be paid for additional cabinetry.’’
The defendant never filed a timely application to
vacate, modify or correct the August 23, 2017 award.
Rather, on November 22, 2017, the defendant filed an
application to confirm the February 4, 2017 award, in
which it also asked the court to vacate ‘‘any such subse-
quent order(s) from the arbitration panel which are
contrary to the terms of the award originally ren-
dered.’’12 The plaintiffs filed an objection to the applica-
tion to confirm, arguing that the defendant had
misinterpreted the February 4, 2017 award and, essen-
tially, was seeking to be paid for work that it never
provided.
The trial court, Genuario, J., heard argument on Janu-
ary 22, 2018. It later issued an order on February 23,
2018, denying the application to confirm the February
4, 2017 award. The court’s order stated: ‘‘The parties
entered into an arbitration agreement intended to result
in the orderly completion of the plaintiffs’ home by
the [defendant] under the jurisdiction of an arbitration
panel. Indeed, two members of the panel were actually
assigned to act as supervisors of the work. The arbitra-
tion submission is very broad, including granting the
panel the power to ‘take any action as may be deemed
necessary to effectuate the intent of this stipulation.’
The panel issued an Interim/Final award on February
4, 2017, which included a line item for cabinetry [that]
the defendant claims by its terms was final and the
plaintiff claims was interim. The parties returned to the
panel, and, on August 23, 2017, the panel issued an
award with regard to the cabinetry [that] reduced the
amount after that work had been completed and the
panel had been presented with additional evidence. The
panel described the [defendant’s] claim for the original
amount as ‘groundless.’ The [defendant’s] sole meaning-
ful argument is that the time frame for appealing the
initial award having passed, neither the parties [n]or
the panel had the right to modify the award. But that
argument begs the question. The issue is whether or
not the February 4, [2017] award was a final or interim
award, and the original submission grants the panel the
authority to deal with such issues in order to ‘effectuate
the intent’ of the parties. The [defendant], having agreed
to grant the panel such broad authority and participated
in the process accordingly, cannot now deprive the
arbitrators of the very authority granted to them in
anticipation of such disagreements. Accordingly, the
defendant’s [application] to confirm the February 4,
2017 award is denied.’’ This appeal followed.13
Before turning to our discussion of the defendant’s
claim, we remark briefly on the unusual nature of the
stipulation entered into by the parties. As noted by the
trial court, the parties used very broad language in their
stipulation defining the powers of the arbitration panel,
which included expansive authority to resolve, perhaps
on a daily basis, any disputes arising from changes in
costs and how those changes would affect the amount
the plaintiffs owed the defendant for work performed.
The broad and sometimes imprecise language used in
the submission increases the difficulty of determining
the proper legal effect to afford to the arbitration panel’s
arbitration awards, neither of which is characterized
as having completely resolved the parties’ disputes.
Ordinarily, private arbitrators are utilized by parties as
an alternative to litigation with the hope of expedited
resolution of then-existing disputes with defined, articu-
lable contours. It would seem to fall outside the usual
role of an arbitrator to act not only as an adjudicator
but, like in the present case, as a quasi-special master,
with extensive powers to oversee and direct completion
of a construction project in which factual and legal
issues, potentially uncontemplated by the parties in
drafting their submission, might later arise. This dual
role, in which supervising members of the arbitration
panel would make immediate, on-site decisions regard-
ing the construction project and then potentially later
would be asked to adjudicate the financial responsibili-
ties with respect to those choices, creates a risk of
conflicts of interest that render this type of arbitration
agreement problematic. Nevertheless, as a creature of
contract, the parties are largely in control of the type
of submission by which they agree to be bound. Fortu-
nately, although the unusual nature of the arbitration
proceedings in this case challenges our review process,
it does not thwart it.
I
We turn first to the defendant’s claim that the court
lacked the discretion to deny its application to confirm
the arbitration award. The defendant argues that, pursu-
ant to the statutory framework governing arbitrations
in Connecticut, once an arbitration award is rendered,
and the thirty day period for filing an application to
vacate, modify or correct the award lapses, a timely
application to confirm the award ordinarily must be
granted by the court. We agree.14
We begin with general legal principles, including the
standard that governs our review of the court’s denial
of the application to confirm the arbitration award.
‘‘Arbitration is favored by courts as a means of settling
differences and expediting the resolution of disputes.
. . . There is no question that arbitration awards are
generally upheld and that we give great deference to
an arbitrator’s decisions since arbitration is favored as
a means of settling disputes. . . . The limited scope of
judicial review of awards is clearly the law in Connecti-
cut.’’ (Citations omitted; internal quotation marks omit-
ted.) Wolf v. Gould, 10 Conn. App. 292, 296, 522 A.2d
1240 (1987). Whether the circumstances presented
require a court to grant an application to confirm an
arbitration award as a matter of law presents a legal
question over which we exercise plenary review. See
HH East Parcel, LLC v. Handy & Harman, Inc., 287
Conn. 189, 196, 947 A.2d 916 (2008) (determination of
whether trial court engaged in correct level of review
was question of law requiring plenary review).
The core principles of Connecticut’s arbitration law
are set forth in General Statutes §§ 52-408 through 52-
424. ‘‘Under [General Statutes] § 52-417, a party may
apply for the confirmation of an arbitration award
within one year after it has been rendered.’’15 Directory
Assistants, Inc. v. Big Country Vein, L.P., 134 Conn.
App. 415, 420, 39 A.3d 777 (2012). ‘‘[Section] 52-417
provides that in ruling on an application to confirm an
arbitration award [t]he court or judge shall grant such
an order confirming the award unless the award is
vacated, modified or corrected as prescribed in [Gen-
eral Statutes §§ ] 52-41816 and 52-419.17. . . The trial
court lacks any discretion in confirming the arbitration
award unless the award suffers from any of the defects
described in . . . §§ 52-418 and 52-419. . . . Further-
more, if [an application] to vacate, modify or correct
is not made within the thirty day time limit specified
in General Statutes § 52-420 [(b)],18 the award may not
thereafter be attacked on any of the grounds specified
in §§ 52-418 and 52-419.’’ (Emphasis added; footnotes
added; internal quotation marks omitted.) Stratek Plas-
tics, Ltd. v. Ibar, 120 Conn. App. 90, 91, 991 A.2d 577
(2010). ‘‘[Section] 52-420 (b) does not limit the thirty
day filing period to applications arising out of the
grounds for vacatur enumerated in § 52-418, but also
applies to common-law grounds, such as a claimed vio-
lation of public policy. . . . If the motion [to vacate]
is not filed within the thirty day time limit, the trial
court does not have subject matter jurisdiction over
the motion.’’ (Citation omitted; internal quotation marks
omitted.) Rosenthal Law Firm, LLC v. Cohen, supra,
165 Conn. App. 471.
In Directory Assistants, Inc. v. Big Country Vein,
L.P., supra, 134 Conn. App. 415, the plaintiff filed an
application in the Superior Court to confirm an arbitra-
tion award. Id., 418. The defendants, who had failed to
file a timely application to vacate, modify or correct
the award, filed a motion to dismiss the application to
confirm, arguing, inter alia, that the parties’ dispute had
not been arbitrable. Id. The trial court agreed with the
defendant and dismissed the application to confirm the
award. Id. The plaintiff appealed, and this court
reversed the judgment of the trial court. Id., 422. We
held that a party that failed to file a timely application
to vacate an arbitration award was barred from raising
any claims challenging the award in a pleading filed in
response to an application to confirm the award. Id.
Further, we held that in the absence of a valid applica-
tion to vacate, modify or correct an award, the court
‘‘lacked any discretion in confirming [the award] pursu-
ant to § 52-417.’’ Id.
This court applied the same rationale in Rosenthal
Law Firm, LLC v. Cohen, supra, 165 Conn. App. 467.
In that case, the self-represented defendant appealed
from the judgment of the trial court granting an applica-
tion to confirm an arbitration award, arguing that the
trial court improperly had concluded that his responsive
pleading, in effect, was an untimely motion to vacate
the award, and that the court failed to consider the
merits of his arguments.19 Id., 468. The plaintiff argued
that the court had been obligated to confirm the award
because the defendant had not filed an application to
vacate within thirty days of receiving notice of the arbi-
tration award, as required by General Statutes § 52-420
(b), and, thus, the court lacked the authority to consider
his arguments against confirmation. Id., 470. We agreed
with the plaintiff and affirmed the judgment of the trial
court. Id. We held that, because the defendant had not
timely moved to vacate, modify or correct the arbitra-
tion award, ‘‘the defendant had lost the ability to raise
any statutory or common-law grounds for vacating the
award . . . [and] the trial court had no choice but to
confirm the award.’’ (Citation omitted; emphasis
added.) Id., 472.
In the present case, the defendant filed its application
to confirm the February 4, 2017 arbitration award on
November 22, 2017, well within the one year period set
forth in § 52-417. It is undisputed that neither party filed
within the thirty day statutory time period an applica-
tion with the Superior Court raising any ground to
vacate, modify or correct the February 4, 2017 arbitra-
tion award. See General Statutes § 52-420 (b). Although
the record shows that both parties were not fully satis-
fied with the arbitration panel’s award, as reflected in
the plaintiffs’ motion for reconsideration and reargu-
ment and the defendant’s opposition thereto, neither
party pursued those issues further. Even if we treated
the plaintiffs’ objection to the defendant’s application
to confirm the February 4, 2017 award as an application
to vacate, modify or correct the award, it was filed
well outside the thirty day statutory time period for
challenging the award and, therefore, could not have
formed a proper basis for a decision by the trial court
to deny confirmation of the award.
In denying the defendant’s application to confirm the
award, the trial court did not cite to any specific defect
as justifying its ruling. Rather, it appears that the court
was focused on the defendant’s challenge to the arbitra-
tion panel’s later modification and clarification of the
award, which the court indicated was well within the
broad authority the parties had granted to the arbitra-
tion panel in their submission. In the absence of a timely
application to vacate, modify or correct the award, how-
ever, the court had no choice but to confirm the Febru-
ary 4, 2017 award. The court’s decision to deny the
application was, therefore, in error. This conclusion
does not, however, fully resolve the claim on appeal.
II
The remaining aspect of the defendant’s claim is that
by denying its application to confirm the February 4,
2017 arbitration award, the court also improperly
declined to order the plaintiffs to pay the defendant in
accordance with that award and, instead, tacitly vali-
dated the arbitration panel’s August 23, 2017 award,
which, by its terms, modified the amount the plaintiffs
owed the defendant for the cabinetry work. The premise
underlying this argument is that confirmation of the
February 4, 2017 award necessarily required the plain-
tiffs to pay any amounts listed in that award. We reject
that premise for two reasons. First, the defendant failed
to challenge the propriety of the August 23, 2017 award
in a timely application to vacate, modify or correct
the award, and, therefore, that award, which included
clarification and modification of the February 4, 2017
award, is binding on the parties and not subject to
judicial scrutiny. Second, by its own terms, the February
4, 2017 award was interim in nature with respect to the
cost assigned to the cabinetry work, and the defendant
has not directed our attention to any language in the
parties’ submission that limited the arbitration panel’s
authority to modify that initial cost estimate on the basis
of evidence of the actual cost following completion of
the cabinetry work. Accordingly, we reject this aspect
of the defendant’s claim.
By failing to timely challenge the August 23, 2017
award, the defendant consented to its terms. In its
August 23, 2017 award, the arbitration panel acknowl-
edged the defendant’s claim that the February 4, 2017
award contained a final and binding determination that
the defendant was entitled to be paid $76,500 for cabi-
netry work. The arbitration panel, however, rejected
that construction of its February 4, 2017 award, describ-
ing the defendant’s position as ‘‘groundless and untena-
ble.’’ The panel took the opportunity to clarify that,
because the cabinetry work had not been completed
at the time it rendered the February 4, 2017 award, the
actual costs were unknown at that time, and, thus, the
$76,500 listed as the ‘‘cost’’ represented only ‘‘a place-
holder for whatever the actual construction costs
turned out to be.’’ The panel maintained that the only
figures on the spreadsheet that were final, and thus not
subject to later modification, were the figures reflecting
the amount the plaintiffs already had paid to date. Those
figures were a final determination by the panel of the
credit the plaintiffs would be due against the actual
cost, which had yet to be finally determined.
In its application for confirmation of the February 4,
2017 award, the defendant argued that the court should
declare the August 23, 2017 award ‘‘illegal, null, and
void ‘‘ because, according to the defendant, the panel
lacked any authority to modify the February 4, 2017
award with respect to the cabinetry work. The defen-
dant’s arguments challenging the propriety of the
August 23, 2017 award, however, could have been raised
in a timely application to vacate the award. Because
the defendant failed to do so, the trial court lacked any
authority to invalidate the award. Instead, the court was
required to give deferential treatment to the arbitration
panel’s own articulation and clarification of the Febru-
ary 4, 2017 award. See All Seasons Services, Inc. v.
Guildner, 94 Conn. App. 1, 11, 891 A.2d 97 (2006) (hold-
ing that court improperly disregarded arbitrator’s artic-
ulation of award and that ‘‘arbitrator’s judgment that a
clarification was warranted is to be given deference by
the court’’).
Finally, even without the benefit of the panel’s August
23, 2017 clarification, the February 4, 2017 award,
although not a model of clarity, conveys by its terms
that the ‘‘costs’’ set forth for the various items listed
on the attached spreadsheet, including the cabinetry
work, reflected only the arbitration panel’s interim
determination of cost on the basis of the evidence avail-
able to date. The arbitration panel stated that the award
should not be viewed as final with respect to any ‘‘costs
to complete.’’ In other words, the costs listed on the
spreadsheet for items not yet completed were not final
costs but, instead, were the panel’s best estimate at
that time based on the terms of the original contract
and the defendant’s initial proposal. The award was
final only ‘‘as to each credit and/or cost accounted for,’’
meaning the credit listed on the spreadsheet as repre-
senting the amount the plaintiffs had paid to date for
particular items. On the basis of this language, it is
reasonable to conclude that the costs listed on the
spreadsheet were not intended to reflect a final and
binding determination. In their submission, the parties
broadly authorized the arbitration panel to determine
the amount the plaintiffs would pay for the work done
by the defendant and its subcontractors, and to resolve
any disputes that might arise, which would include
issues regarding costs and payments.
Accordingly, under any reasonable construction of
the February 4, 2017 award, the parties were on notice
that the amounts listed on the spreadsheet, other than
those reflecting the plaintiffs’ paid to date amounts,
could be subject to revision or modification by the
parties in consultation with the supervising arbitrators
based on the actual work performed. The parties could
have sought to modify or correct the award if they felt
that it failed accurately to reflect the intent of the parties
or improperly left issues open for further consideration.
Instead, by failing to do so, they chose to be bound by
the award as it was rendered. We conclude that the
court correctly denied the defendant’s request for an
order holding the plaintiffs responsible for the cost of
cabinetry work as set forth in the February 4, 2017
award, rather than pursuant to the updated determina-
tion as set forth in the unchallenged August 23, 2017
award.
The judgment is affirmed as to the trial court’s denial
of the defendant’s request for an order directing the
plaintiffs to pay the defendant an additional amount for
cabinetry work, the judgment is reversed as to the trial
court’s denial of the defendant’s application to confirm
the February 4, 2017 arbitration award, and the case is
remanded with direction to grant the application to
confirm that award but to deny any additional relief
requested therein.
In this opinion the other judges concurred.
1
Edward Zimmerman and Laurel H. Zimmerman own and operate Brad-
ford Estates, LLC. They were named as additional defendants in the underly-
ing action, but the appeal was filed only on behalf of Bradford Estates,
LLC, and the Zimmermans have not personally participated in the appeal.
Accordingly, we refer to Bradford Estates, LLC, as the defendant throughout
this opinion.
2
The defendant amended the appeal to challenge the court’s denial of a
motion for reconsideration. Because we conclude that the trial court should
have granted the application to confirm, we do not address whether it abused
its discretion in denying the motion for reconsideration.
3
In its principal appellate brief, the defendant asks this court for the
following relief on appeal: to ‘‘reverse the decision of the trial court and
direct that judgment enter confirming the February Arbitration Award’s
award of $51,856.65 for ‘Cabinetry—labor and materials,’ and order the
plaintiffs’ counsel to pay $21,463 to the defendant.’’
4
The factual record before us includes the pleadings filed with the trial
court and the transcript of the hearing on the defendant’s application to
confirm the arbitration award. No evidence was offered at that hearing.
The defendant attached to its application redacted copies of the parties’
stipulation and the February 4, 2017 arbitration award, and the plaintiffs
attached unredacted copies of the same to their responsive pleading. The
plaintiffs also attached copies of Schedule A, which is referenced in the
stipulation, and the arbitration panel’s August 23, 2017 award. Although the
defendant moved to strike the unredacted versions of the stipulation and
awards from the record for violating the confidentiality provisions of the
parties’ arbitration agreement, there is no indication in the record that the
trial court acted on the motion to strike. In any event, the defendant does
not argue on appeal that the unredacted stipulation and awards are not
part of the record or that this court should not rely on them in resolving
this appeal.
5
The arbitration panel made the following findings in its February 4, 2017
award regarding the root cause of the breakdown in the parties’ relationship.
‘‘The arrangement that the [plaintiffs] say they relied on, that is a contract
subject to modification during the construction, requires construction expe-
rience, agreement, trust, mutual interest, and great communication to be
successful. These requirements were lacking between the parties. Even
worse, the parties had no procedure for documenting any changes they made.
From the outset, Ed Zimmermann’s poor communication skills, coupled
with the [plaintiffs’] inexperience, were a recipe for disaster. The parties
had many misunderstandings, which gave rise to increasing anger and suspi-
cion on all sides.’’
6
The stipulation provided in relevant part: ‘‘2. The parties agree to appoint
an arbitrator and two neutral supervisors . . . to adjudicate the building
and structural issues submitted to them, and to supervise, monitor, manage
and instruct (where applicable) [the defendant] and its subcontractors in
their work as described herein.
***
‘‘8. The [a]rbitrators shall have the authority to decide how [the] [p]laintiffs’
[p]roject will be completed. In furtherance of that authority, the [a]rbitrators
shall have the following duties: (1) determine what documents are control-
ling with regard to the parties’ agreement and/or the [p]roject; (2) determine
if the parties amended or changed the agreement and if so what were those
changes; (3) determine whether such amendments are legally binding upon
the parties; (4) determine, if the parties agreed to any changes, how those
affect the price; (5) determine who should be responsible for any increase/
decrease in cost for materials attributable to changes in market prices since
2013; (6) determine the standard to which the work is to be performed at
the [plaintiffs’] home by [the defendant]; (7) resolve issues of credibility
between the parties; (8) determine the price to be paid by the [plaintiffs]
to [the defendant] for the completion of the [p]roject as decided under (1),
(2), and (3) above; (9) resolve questions to be set forth in a Schedule A;
(10) resolve any other issues that may arise concerning this stipulation;
[and] (11) take any other action as may be deemed necessary to effectuate
the intent of this stipulation.
‘‘9. The [e]ngineering and [b]uilding [s]upervisors shall oversee [the defen-
dant’s] work and oversee the implementation of the [a]rbitrators’ decisions
as described herein and be responsible for answering any questions and
resolving any problems that arise during the course of the [p]roject. . . .’’
7
The term ‘‘evergreen’’ is not defined in the stipulation but appears to
reflect the parties’ intent that, as payments were made periodically to the
defendant or its contractors from the escrow account, the plaintiffs would
replenish the account with additional funds necessary to keep the balance
of the escrow account at $100,000.
8
The award indicates that the spreadsheet is ‘‘entitled 16 Plymouth Rd.—
Costs to Complete.’’ Although the spreadsheet at the end of the award does
not bear this designation, the parties have not raised that as an issue or
provided us with any indication that the arbitrators were referring to a
different spreadsheet other than the one provided.
9
Although there appear to some be minor errors in the mathematical
calculations on the spreadsheet, including with respect to the cabinetry work
at issue on appeal, these technical defects were not raised by the parties.
10
The plaintiffs filed a motion with the arbitration panel asking for reargu-
ment and reconsideration. The defendant filed an opposition in which it
raised its own concerns with the award. The panel denied the motion on
February 27, 2017. We need not decide whether the filing of such a motion
acted to extend the thirty day statutory period set forth in General Statutes
§ 52-420 for filing an application to vacate, modify or correct an award
because, even if it did, no such application was filed within thirty days
following the denial of the motion by the arbitration panel.
11
The item 21 cabinetry work referred to cabinets and vanities for the
kitchen, bathrooms, and mudroom. Another one of the items listed on Sched-
ule A concerned ‘‘Sun Room Cabinetry,’’ an item that was resolved by the
parties and is distinct from the cabinetry at issue in this appeal.
12
Specifically, the defendant asked the court to issue the following order:
‘‘That any and all subsequent orders issued by one or more of the arbitrators
[that] conflicts with or purports to reduce that portion of the February 4,
2017 award which awarded [the defendant] $76,500 (total) for ‘Cabinetry—
labor/material’’ is hereby declared illegal, null, and void pursuant to [General
Statutes] § 52-416 et seq.’’ (Emphasis omitted.) Additionally, the defendant
sought an order from the court requiring the plaintiffs’ counsel to release
from escrow $21,463 to the defendant.
13
On March 23, 2018, the defendant filed a motion for reconsideration
and to reargue. The court denied the motion without comment the same
day. The defendant amended the present appeal to include a challenge to
the court’s denial of the motion for reconsideration. See footnote 2 of
this opinion.
14
We recognize, of course, that if an award is not timely rendered in
accordance with the provisions of General Statutes § 52-416, the award has
no legal effect.
15
General Statutes § 52-417 provides: ‘‘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 or, in a
controversy concerning land, for the judicial district in which the land is
situated or, when the court is not in session, to any judge thereof, 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.’’
16
General Statutes § 52-418 (a) provides in relevant part: ‘‘Upon the appli-
cation 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.’’
17
General Statutes § 52-419 (a) provides in relevant part: ‘‘Upon the appli-
cation 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.’’
18
General Statutes § 52-420 (b) provides: ‘‘No motion to vacate, modify
or correct an award may be made after thirty days from the notice of the
award to the party to the arbitration who makes the motion.’’
19
Although courts have discretion to treat an opposition to a motion to
confirm an arbitration award as a motion to vacate the award; see Wu v.
Chang, 264 Conn. 307, 309–10, 823 A.2d 1197 (2003); it may do so only if
the opposition is filed within the thirty day period prescribed in § 52-420
(b). Id., 312. ‘‘To conclude otherwise would be contrary not only to the clear
intent of the legislature as expressed in §§ 52-417, 52-418 and 52-420 (b),
but also to a primary goal of arbitration, namely, the efficient, economical
and expeditious resolution of private disputes.’’ Id., 313.