A. Dubreuil and Sons, Inc. v. Town of Lisbon, No. 13779

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

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.

Page 710

[215 Conn. 605] Richard S. Cody, Danbury, for appellant (plaintiff).

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

Before [215 Conn. 604] PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

[215 Conn. 605] 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 [215 Conn. 606] 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

Page 711

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.)

[215 Conn. 607] 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.)

[215 Conn. 608] 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.

Page 712

"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[215 Conn. 609] 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; [215 Conn. 610] Rowe v. Cormier, 189 Conn. 371, 373, 456 A.2d 277 (1983); Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981);...