Design Tech, LLC v. Moriniere

• Decision Date: 24 September 2013
• Docket Number: AC 34981
• Citation: Design Tech, LLC v. Moriniere, AC 34981 (Conn. App. Sep 24, 2013)
• Parties: DESIGN TECH, LLC v. JEAN CHARLES MORINIERE
• Court: Connecticut Court of Appeals

DESIGN TECH, LLC v. JEAN CHARLES MORINIERE

AC 34981

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 30, 2013

Officially released September 24, 2013

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(Appeal from Superior Court, judicial district of

Litchfield, Roche, J.)

Jean Charles Moriniere, self-represented, with whom, on the brief, was Thomas J. Allingham, for the appellant(defendant).

John D. Tower, for the appellee(plaintiff).

Opinion

KELLER, J.The defendant, Jean Charles Moriniere,¹appeals from the judgment of the trial court granting the application of the plaintiff, Design Tech, LLC, to confirm an arbitration award.On appeal, the defendant claims that the court improperly confirmed the arbitration award by finding that the arbitrator did not manifestly disregard the law when he(1) awarded estimated damages in accordance with an equitable theory of unjust enrichment while simultaneously holding that the parties were bound by the terms of a written contract; (2) found that the defendant breached the parties' contract by failing to pay the proper amount owed under the contract, while simultaneously finding that the parties never agreed on the cost of extra work; and (3) found that the defendant breached the contract when the plaintiff failed to satisfy a condition precedent.We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to the defendant's appeal.On November 16, 2009, the parties entered into a written contract to rebuild the defendant's residence at 22 Wheaton Road in Washington after the prior residence was destroyed by a fire.Article 8.1 of the contract defined ''any change to the original plans and/or specifications'' as a change order, and required that all change orders be ''agreed upon in writing, including cost, additional time considerations, approximate dates when the work will begin and be completed, a legal description of the location where the work will be done and signed by both parties.''Article 8.1 also specified that 50 percent of the cost of each change order would be paid prior to the change, with the final 50 percent paid upon completion of the change order, and that a 12 percent fee would be added to all change orders and overages in excess of initial allowances.Article 12 of the contract contained an unrestricted arbitration submission, which provided: ''Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association[association] under its Construction Industry Arbitration Rules, and judgment on the award rendered by arbitrator(s) may be entered in any court having jurisdiction thereof.''²

The arbitration was held at the defendant's rebuilt residence before a sole arbitrator, Attorney Salvatore N. Fornaciari, appointed by the association.At the conclusion of a four day hearing, the arbitrator issued a written award dated June 1, 2012, of which the parties were notified on June 4, 2012.The arbitrator made the following findings of fact: ''There is no doubt that the parties agreed to voluminous change orders (extras, credits, tradeoffs) to the Official Plans during construction. . . .At some point, [the defendant] made several hand written modifications to the Official Plans andgave these new modified plans to [Thomas L.] Seger.³Now, these changes included finishing the attic and adding a spare bathroom to the second floor. . . .[T]here is no doubt that these sophisticated parties worked very well together through most of the Project.They failed, however, to document any of their voluminous change orders in writing pursuant to the contract.

''Such failure created fertile soil from which this dispute arose towards the end of the Project. . . .After some disagreement about the proper credits and extras, [the defendant] terminated [the plaintiff] by letter dated June 23, 2011.

''Eventually, the [plaintiff] filed a demand for arbitration and claimed that $67,982.52 was due under the contract with its claimed extras and credits.[The defendant], in response, counterclaimed that [the plaintiff] breached the contract and that [the defendant] was due $150,000.''

After the conclusion of the arbitration hearing, the arbitrator found that the plaintiff had met its burden of proving that the parties had a valid contract, that the parties agreed to numerous change orders, and that the plaintiff substantially performed its contractual obligations, including the change orders.In addition, the arbitrator found that the plaintiff had proven that the defendant breached the contract by improperly terminating the plaintiff and failing to pay it the proper amount.He further found that defendant's defenses to the plaintiff's breach of contract claim were without merit and that the defendant failed to meet his burden of proving his counterclaim that the plaintiff breached the contract by failing to construct the residence in accordance with the contract, failing to complete the work required under the contract, or failing to complete the work in a timely manner.The arbitrator awarded the total sum of $106,194 to the plaintiff.The award was comprised of $50,531.05 in damages, $7920 in association administrative fees and arbitrator compensation, and $47,742.95 in attorney's fees and costs.⁴

On June 12, 2012, pursuant to General Statutes § 52-417, the plaintiff filed an application to confirm the arbitration award.On June 28, 2012, pursuant to General Statutes § 52-418 (a)(4), the defendant filed an objection to the plaintiff's motion and requested that the arbitration award be vacated.In his objection and motion to vacate the award, the defendant claimed that the arbitrator ''manifestly disregarded the law by reaching five legally inconsistent conclusions.'' Specifically, the defendant claimed that the arbitrator: (1) found that the defendant breached the written contract agreement despite the fact that the plaintiff failed to satisfy a condition precedent; (2) found that the defendant breached the contract by failing to pay the '' 'proper amount' '' under the contract, despite the fact that he then awarded less than the amount demanded by the plain-tiff; (3) found that the parties never agreed on the cost of extras, but then found that the defendant did not pay the 'proper amount''' for extras and breached the contract; (4) estimated damages in accordance with an equitable theory of unjust enrichment after concluding that the parties were bound by a written contract; and (5) awarded the plaintiff attorney's fees and costs ''which are only authorized under the written contract and which are statutorily excessive.''⁵

The court issued a written memorandum of decision on August 10, 2012, granting the plaintiff's application to confirm the award.⁶In its decision, the court rejected the defendant's claims that the arbitrator manifestly disregarded the law in reaching his conclusions.⁷This appeal followed.Additional facts will be set forth as necessary.

The defendant claims the trial court erred in confirming the arbitration award by finding that the arbitrator did not manifestly disregard the law, when he(1) awarded estimated damages in accordance with an equitable theory of unjust enrichment while simultaneously holding that the parties were bound by the terms of the written contract; (2) found that the defendant breached the contract by failing to pay the proper amount owed under the contract, while simultaneously holding that the parties never agreed on the cost of the extra work; and (3) found that the defendant breached the contract even though the plaintiff failed to satisfy a condition precedent.We do not agree with the defendant's claims.

The defendant's claims on appeal are based solely on § 52-418 (a)(4), which provides in relevant part: ''Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds . . . 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.'' In reviewing an arbitration award based on an unrestricted submission, we are guided by well established principles.''Judicial review of arbitral decisions is narrowly confined. . . .When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement. . . .When the scope of the...