Asselin & Vieceli P'ship, LLC v. Washburn

• Decision Date: 26 November 2019
• Docket Number: AC 41439
• Citation: 194 Conn.App. 519,221 A.3d 875
• Court: Connecticut Court of Appeals
• Parties: ASSELIN AND VIECELI PARTNERSHIP, LLC v. Steven T. WASHBURN

194 Conn.App. 519

221 A.3d 875

ASSELIN AND VIECELI PARTNERSHIP, LLC

v.Steven T. WASHBURN

AC 41439

Appellate Court of Connecticut.

Argued September 19, 2019

Officially released November 26, 2019

Steven B. Kaplan, Hartford, with whom were Carolyn A. Young, Hartford, and, on the brief, Daniel S. DiBartolomeo, for the appellant (defendant).

Eugene C. Cushman, New London, for the appellee (plaintiff).

DiPentima, C.J., and Keller and Sheldon, Js.

DiPENTIMA, C.J.

The defendant, Steven T. Washburn, appeals from the judgment of the trial court denying his demand for a trial de novo following an arbitration award in favor of the plaintiff, Asselin & Vieceli Partnership, LLC. The trial court also confirmed the arbitration award upon an application filed by the plaintiff. On appeal, the defendant claims that the court improperly confirmed the arbitration award because the arbitrator had failed to take an oath required by General Statutes § 52-414 (d), the plaintiff failed to file certain required documents required by General Statutes § 52-421 (a) and the arbitrator exceeded her powers or imperfectly executed them in violation of General Statutes § 52-418 (a) (4). We disagree and, accordingly, affirm the judgment granting the plaintiff's application to confirm the arbitration award.

The following facts, which were found by the arbitrator, and procedural history are relevant to this appeal. In February, 2015, the defendant entered into a contract for the excavation and construction of a new bulkhead at Four Mile River Marina in Old Lyme. Bob Asselin, a member of the plaintiff, signed the contract as the authorized agent for Four Mile River Marina, LLC. (marina). Asselin is also an officer of the marina. The plaintiff owns the property that the marina rents and on which it operates its business. Pursuant to the lease agreement between the plaintiff and the marina, the marina was obligated to maintain the structural improvements at the marina. Accordingly, the marina entered into the contract with the defendant for repair of the bulkhead. The contract was signed on February 2, 2015. Construction of the bulkhead was completed on April 28, 2015. Shortly after the defendant's work crew left the property, the bulkhead began to deteriorate. Over the next few weeks "the sheeting dislodged, the tie rods gave way, the wale broke apart and the vinyl sheeting cracked." As a result, the bulkhead became entirely useless.

On September 12, 2016, the plaintiff initiated this action against the defendant. Its complaint alleged negligence, innocent misrepresentation, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On January 13, 2017, the defendant filed a motion for a stay in order to arbitrate, pursuant to the arbitration clause in the subject contract.¹ The court granted the motion and stayed the plaintiff's case for arbitration.

The parties signed an agreement with Elaine Gordon to arbitrate the dispute. The "Arbitration Retainer Agreement" (arbitration agreement) signed by the parties included the caption of the underlying civil action as part of its heading.² The arbitration agreement provided that the parties would retain Gordon "to serve as the Arbitrator in the above named dispute." The arbitration agreement further provided that the arbitration would "proceed on an ad hoc basis, without an administering organization."

During the arbitration proceedings, which began on December 1, 2017, Gordon accepted all the evidence submitted by the parties. On December 21, 2017, Gordon issued her arbitration award, finding that the bulkhead constructed by the defendant was a total loss, that the defendant was negligent in constructing it, and that his negligence proximately caused its failure. Gordon then awarded $275,607 to the plaintiff, including compensatory damages and attorney's and expert fees.

On December 28, 2017, the defendant filed a "Demand for Trial De Novo,"³ and the plaintiff filed an objection to the defendant's demand and an application to confirm the arbitration award. On February 28, 2018, following a hearing, the court denied the defendant's demand for a trial de novo and granted the plaintiff's application to confirm the arbitration award. This appeal followed.

On appeal, the defendant raises three challenges to the judgment of the court confirming the arbitration award. First, he claims that the award should be vacated because the arbitrator failed to undertake or affirm the mandatory oath required by § 52-414 (d). Second, he claims that the award should be vacated because the plaintiff failed to satisfy the requirements of § 52-421 (a) regarding documents that were required to be filed with the court clerk in conjunction with the plaintiff's application to confirm the award. Third, he claims that the award should be vacated because the arbitrator exceeded or imperfectly executed her powers in issuing the award, in derogation of § 52-418 (a) (4). Specifically, the defendant argues that the arbitrator exceeded her powers by failing to conduct the arbitration in accordance with the construction industry rules of the American Arbitration Association and that she exceeded her authority and manifestly disregarded the law by failing to consider the parties' contractual relationship and their obligations thereunder. We are not persuaded by any of the defendant's claims.

I

The record reveals that the first two claims, concerning alleged noncompliance with §§ 52-414 (d) and 52-421 (a), were not preserved. Accordingly, we decline to review those claims on appeal. See Practice Book § 60-5 ("[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial").

It is the appellant's "responsibility to present ... a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc. , 265 Conn. 210, 265, 828 A.2d 64 (2003). For this court "[t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.... We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal." (Internal quotation marks omitted.) Id.

"[T]he determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated [before the trial court] with sufficient clarity to place the trial court on reasonable notice of that very same claim." State v. Jorge P. , 308 Conn. 740, 754, 66 A.3d 869 (2013). In his demand for a trial de novo, the defendant argued that the arbitrator's decision was arbitrary and capricious because she had failed to consider that the contract was for labor only, considered incorrect information provided by the plaintiff's experts, and failed to consider evidence submitted by the defendant. The demand for a trial de novo makes no reference to the arbitrator's failure to take the oath before hearing the arbitration as required by § 52-414 (d) or to the plaintiff's failure to file certain documents required by § 52-421 (a). The defendant also failed to raise these two issues before the court, Cosgrove, J. , during the hearing. Therefore, because the defendant failed to preserve these issues in the proceedings before the trial court, we decline to consider them now for the first time on appeal.⁴

II

We next turn to the defendant's claim that the arbitrator exceeded or imperfectly executed her powers by issuing the award in derogation of § 52-418 (a) (4). The plaintiff counters, inter alia, that the defendant did not preserve this challenge in prior proceedings. Upon review of the record, we conclude that the defendant did raise this issue before the trial court. We agree, however, with the court's determination that there was no basis to vacate the arbitrator's decision under § 52-418 (a) (4) and that the award should be confirmed.

We begin by setting forth the well established principles that guide our review of arbitration awards. Because courts "favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co. , 275 Conn. 72, 80, 881 A.2d 139 (2005).

The scope of our review of the arbitrator's decision is defined by whether the submission to arbitration was restricted or unrestricted. "The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done.

Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators' decision." (Internal quotation marks omitted.) Id., at 81–82, 881 A.2d 139.

"The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted." Garrity v. McCaskey , 223 Conn. 1, 5, ...