Gary Excavating, Inc. v. Town of North Haven

• Decision Date: 29 November 1972
• Parties: GARY EXCAVATING, INC. v. TOWN OF NORTH HAVEN et al.
• Court: Connecticut Supreme Court

Page 84

318 A.2d 84

164 Conn. 119

GARY EXCAVATING, INC. v. TOWN OF NORTH HAVEN et al.

Supreme Court of Connecticut.

Nov. 29, 1972.

John W. Barnett, New Haven, with whom, on the brief, was Basil R. Duncan, New Haven, for appellants (defendants). Howard F. Zoarski, New Haven, for appellee (plaintiff).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

LOISELLE, Associate Justice.

Pursuant to the provisions of § 52-410 of the General Statutes, the plaintiff applied for an order directing the defendants to proceed with the arbitration of alleged disputes concerning the release of moneys held as retainage by the defendants, additional costs incurred through the defendants' misrepresentation of conditions, and extras. The plaintiff claimed that these disputes were arbitrable under the provisions of the contract. While admitting that the claims had been made, the defendants denied that they had refused to comply with the requirements for arbitration and they pleaded specially that the demands for arbitration did not comply with the procedural prerequisites for arbitration and, therefore, the claims were not arbitrable. In addition, the defendants pleaded that one of these claims was barred by the doctrine of res judicata. The court ordered the defendants to proceed with arbitration and the defendants have appealed from the judgment.

The conclusions reached by the court appear inconsistent. The court first found that the plaintiff had complied with the contract in presenting claims and had properly demanded arbitration but then concluded that the 'alleged defenses of the defendant of time limitations, waivers, . . . (and) reasonable time are all issues necessarily involved in the decision of the arbitrators. . . . (W)hether the present disputes are arbitrable is for the arbitrators under the contract.' 'While the memorandum of decision cannot supplant the finding, we may consult the memorandum for a better understanding of the basis of the court's decision. Murphy v. Murphy, 143 Conn. 600, 602, 124 A.2d 891; Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194; Maltbie, Conn.App.Proc. § 152.' Hirsch v. Thrall, 148 Conn. 202, 206, 169 A.2d 271, 273; see also Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855; Masda Realty Corporation v. Name Realty Corporation, 151 Conn. 204, 206, 195 A.2d 559. The memorandum of decision clearly demonstrates that under the court's interpretation of the contract it was for the arbitrators to determine whether a dispute was arbitrable and the court granted the plaintiff's application on that ground alone. The primary issue presented by the defendants' appeal is whether the court erred in concluding that under the contract the arbitrability of the disputes presented by the plaintiff was a question for the arbitrators rather than for the court.

The defendants' attack on the findings of fact presents no novel questions and does not warrant extended discussion. Five paragraphs of the finding are attacked as being found without eidence. Four of these paragraphs find support in the appendix to the plaintiff's brief, while the fifth paragraph properly constitutes a conclusion; see Buckley v. Webb, 143 Conn. 309, 315, 122 A.2d 220; and viewed as a conclusion is consistent with the facts found. Finally, since the defendants have failed to comply with the proper procedure for supporting their claim for inclusion in the finding of eleven paragraphs of the draft finding, no addition will be made. Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146; Barnini v. Sun Oil Co., 161 Conn. 59, 60, 283 A.2d 217.

Arbitration is the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination.' Gores v. Rosenthal, 150 Conn. 554, 557, 192 A.2d 210, 211. Legal as well as factual disputes may be designated by the contract to be within the purview of the arbitrators; Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646, Colt's Industrial Union v. Colt's Mfg. Co., 137 Conn. 305, 307, 77 A.2d 301; but arbitration and its scope remains dependent on the contract. The courts are empowered to direct compliance with the provisions of arbitration agreements, but no one may be compelled to arbitrate a dispute outside the scope of the agreement, which constitutes the charter of the entire arbitration proceeding and defines and limits the issues to be decided by the arbitrators. Gores v. Rosenthal, supra; Amalgamated Assn v. Connecticut Co., 142 Conn. 186, 191, 112 A.2d 501.

In apportioning, between the court and the arbitrators, the responsibility for ddetermining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 262 A.2d 159.

At issue here is whether compliance with the contract procedures for filing claims and demanding arbitration is a condition precedent which must be found by the court before arbitration can be ordered. In a similar case wherein the defendant claimed that the plaintiff was not entitled to arbitration because a ruling by the architect required by the contract had not been sought and also because the claim had not been presented within one year of completion as required in the contract, this court noted that '(w)hether the arbitrability of a dispute is a question for the court or for the arbitrators depends upon the language of the contract.' College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832. The contract language in that case provided that '(a)ny disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration.' Under such broad and all embracing language the question of what was subject to arbitration was for the arbitrators themselves. College Plaza, Inc. v. Harlaco, Inc., supra; Gores v. Rosemthal, supra.

The contract between the parties in the present case demonstrates similarly a broad intention to submit disputes to the arbitrators. Section 120 of the contract between the parties provides that all claims and disputes arising under the contract or its...