A. Dubreuil and Sons, Inc. v. Town of Lisbon, 13779

• Court: Connecticut Supreme Court
• Writing for the Court: Before PETERS; CALLAHAN
• Citation: A. Dubreuil and Sons, Inc. v. Town of Lisbon, 577 A.2d 709, 215 Conn. 604 (Conn. 1990)
• Decision Date: 10 July 1990
• Docket Number: No. 13779,13779
• Parties: , 61 Ed. Law Rep. 1273 A. DUBREUIL AND SONS, INC. v. TOWN OF LISBON.

Page 709

577 A.2d 709

215 Conn. 604, 61 Ed. Law Rep. 1273

A. DUBREUIL AND SONS, INC. v. TOWN OF LISBON.

No. 13779.

Supreme Court of Connecticut.

Argued April 5, 1990.

Decided July 10, 1990.

Richard S. Cody, Danbury, for appellant (plaintiff).

David S. Williams, Norwich, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

CALLAHAN, Justice.

On June 3, 1986, the plaintiff, A. Dubreuil and Sons, Inc., a general contractor, and the defendant, the town of Lisbon, entered into a contract for certain additions and alterations to be made by the plaintiff to the town-owned Lisbon Central School in Lisbon. The plaintiff, claiming that it was entitled to compensation for extra work performed on the project, filed a demand for arbitration with the American Arbitration Association (AAA) on November 7, 1988. The defendant thereafter informed the AAA that the contract did not require the parties to arbitrate the plaintiff's claim and that it did not agree to arbitration. As a result, the AAA notified the parties by letter dated December 16, 1988, that it "would hold this file in abeyance until such time as a court orders arbitration."

In response to the AAA's letter of December 16, 1988, the plaintiff, by complaint dated January 7, 1989, instituted an action in the Superior Court requesting an order compelling the defendant to arbitrate their differences in compliance with what it contended was their agreement requiring arbitration on the demand of either party. Subsequently, the plaintiff filed a "Motion for Arbitration" that was heard on the short calendar and denied by the trial court. See General Statutes § 52-410(c). Later, a motion to reconsider and reargue the same motion was also denied. From those decisions of the trial court denying its application for an order to compel arbitration, the plaintiff appealed to the Appellate Court. We transferred the appeal to ourselves, pursuant to Practice Book § 4023.

The agreement between the parties, as it concerns arbitration, is embodied in §§ 7.9.1, 7.9.2 and 7.9.3 of the standard American Institute of Architects' (AIA) printed contract document A201. The relevant portion of § 7.9.1 in its original form in the standard printed contract provided: "All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to the Contract Documents or the breach thereof ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise." ¹ (Emphasis added.)

Section 7.9.1 of the standard printed contract form, however, was amended by the parties, apparently at the instigation of the defendant, by a typewritten addendum to the printed contract to read in pertinent part: "All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof ... may be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise." ² (Emphasis added.)

After the plaintiff's appeal was transferred to this court, the trial court, in response to the plaintiff's motion for articulation, filed a written memorandum of decision articulating its reason for denying the plaintiff's application for an order to compel arbitration. In its memorandum the trial court declared: "If one party could unilaterally compel the other party to resolve any disputes by arbitration, as the plaintiff contends, then the change in section 7.9.1 of the terms from 'shall' to 'may' would be meaningless." The trial court could reasonably have reached such a conclusion.

"Arbitration is a creature of contract." John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981); Gangemi v. General Electric Co., 532 F.2d 861, 865 (2d Cir.1976); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977). It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law. John A. Errichetti Associates v. Boutin, supra; Hartford v. American Arbitration Assn., 174 Conn. 472, 480, 391 A.2d 137 (1978); Board of Education v. Bridgeport Education Assn., supra. " 'But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 [1967]; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 [1967]....' Marsala v. Valve Corporation of America, 157 Conn. 362, 365, 254 A.2d 469 (1969)." John A. Errichetti Associates v. Boutin, supra. No one can be forced to arbitrate a contract dispute who has not previously agreed to do so. Ginsberg v. Coating Products, Inc., 152 Conn. 592, 596, 210 A.2d 667 (1965). The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402-403, 365 A.2d 1086 (1976). The intention of the parties is, in turn, a question of fact. Ginsu Products, Inc. v. Dart Industries, Inc., 786 F.2d 260, 262-63 (7th Cir.1986); Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130, 523 A.2d 1266 (1987); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); First Hartford Realty Corporation v. Ellis, supra; Albert Mendel & Son, Inc. v. Krogh, 4 Conn.App. 117, 123, 492 A.2d 536 (1985); Novelly Oil Co. v. Mathy Construction Co., 147 Wis.2d 613, 617, 433 N.W.2d 628 (1988); Peninsular Carpets, Inc. v. Bradley Homes, 58 Wis.2d 405, 416, 206 N.W.2d 408 (1973).

It is therefore a question of fact in this instance whether the parties, in altering the printed contract by substituting "may" for "shall" in the contract's arbitration provision, intended to modify the contract to provide for consensual arbitration, rather than mandatory arbitration upon the demand of a single party. Three S. Development Co. v. Santore, 193 Conn. 174, 178, 474 A.2d 795 (1984); First Hartford Realty Corporation v. Ellis, supra; see Lavigne v. Lavigne, 3 Conn.App. 423, 427, 488 A.2d 1290 (1985). The trial court's finding on that issue is not reversible by this court unless it was a finding that the court could not reasonably have made. First Hartford Realty Corporation v. Ellis, supra; Heyman v. CBS, Inc., 178 Conn. 215, 227-28, 423 A.2d 887 (1979); Lar-Rob Bus Corporation v. Fairfield, supra. The plaintiff can prevail on appeal, therefore, only if it is able to demonstrate that the trial court's interpretation of the amended contract was clearly erroneous. Ginsu Products, Inc. v. Dart Industries, Inc., supra; Practice Book § 4061; Rowe v. Cormier, 189 Conn. 371, 373, 456 A.2d 277 (1983); Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Albrecht v. Albrecht, 19 Conn.App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Friedlander v. Friedlander, 5 Conn.App. 1, 5, 496 A.2d 964 (1985).

The cardinal rule in construing contracts is to ascertain the intention of the parties. Finlay v. Swirsky, 103 Conn. 624, 634, 131 A. 420 (1925); McVay v. Anderson, 221 Ga. 381, 385, 144 S.E.2d 741 (1965). "[I]nterpretation of an agreement [by a court] is a search for the intent of the parties." Lavigne v. Lavigne, supra, 3 Conn.App. at 428, 488 A.2d 1290; Lar-Rob Bus Corporation v. Fairfield, supra. "A contract is to be construed [by the trier of fact] according to what is fairly to be assumed to be the understanding and intent of the parties." Bridge-Mile Shoe Corporation v. Liggett Drug Co., 142 Conn. 313, 318, 113 A.2d 863 (1955); Bronx Derrick & Tool Co. v. Porcupine Co., 117 Conn. 314, 318, 167 A. 829 (1933). "Such a determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached." Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, supra, 203 Conn. at, 130, 523 A.2d 1266. " 'The intent developed is alone material, and when that is ascertained it is conclusive.' Whitney v. Wyman, 101 U.S. 392, 395 [25 L.Ed. 1050 (1880) ]; Adams v. Whittlesey, 3 Conn. 560 [1821]; Ogden v. Raymond, 22 Conn. 379, 385 [1853]." Massaro v. Savoy Estates Realty Co., 110 Conn. 452, 458, 148 A. 342 (1930).

The trial court was confronted by a printed form contract containing arbitration provisions that originally included a provision that required that disputes arising under the contract "shall be settled by arbitration." The use of the word "shall" denotes that the directive in the contract to arbitrate was mandatory. See United States v. White, 887 F.2d 705, 710 (6th Cir.1989); Daily v. New Britain Machine Co., 200 Conn. 562, 572, 512 A.2d 893 (1986); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972); Ring v. Williams, 192 Ga.App. 329, 330, 384 S.E.2d 914 (1989); Trumka v. Moore, 376 S.E.2d 178, 181 (W.Va.1988). The deliberate substitution of "may" for "shall" in the arbitration provision of the contract, on the other hand, is an indication that the parties expressly intended something other than mandatory arbitration. The word "may," unless the context in which it is employed requires otherwise, is not normally used as a word of command. Morales v. Trinity Ambulance Service, 9 Conn.App. 386, 390, 519 A.2d 90 (1986), cert....