Remax Right Choice v. Aryeh, 26571.

• Decision Date: 10 April 2007
• Docket Number: No. 26571.,26571.
• Citation: 100 Conn.App. 373,918 A.2d 976
• Court: Connecticut Court of Appeals
• Parties: REMAX RIGHT CHOICE et al. v. Raffie ARYEH.

918 A.2d 976

100 Conn.App. 373

REMAX RIGHT CHOICE et al. v. Raffie ARYEH.

No. 26571.

Appellate Court of Connecticut.

Argued September 21, 2006.

Decided April 10, 2007.

Kari L. Olson, with whom, on the brief, was Everett E. Newton, Hartford, for the appellant (defendant).

Kevin S. Coyne, Stratford, for the appellees (plaintiffs).

SCHALLER, BISHOP and HENNESSY, Js.

SCHALLER, J.

The defendant, Raffie Aryeh, appeals from the judgment of the trial court confirming an arbitration award in favor of the plaintiffs, Remax Right Choice and Jeffery Wright. On appeal, the defendant claims that the court improperly (1) concluded that the award was not void as a matter of law and (2) found that the parties waived the thirty day time period set forth in General Statutes § 52-416(a). We agree with the defendant that the court improperly found that he had waived the thirty day requirement. Accordingly, we reverse the judgment of the trial court.

The following factual and procedural history is relevant for our discussion. In February, 2003, the parties requested that their dispute involving a real estate transaction, which was pending before the Superior Court, be submitted to private, binding arbitration. The parties selected attorney Richard J. Kenny as the arbitrator who would determine whether the plaintiffs were entitled to a commission for the sale of certain real estate lots, as well as statutory interest. Kenny held a hearing on August 6, 2004, and the defendant submitted the final posthearing brief on September 24, 2004. Kenny issued his decision in favor of the plaintiffs on January 4, 2005.¹ In a letter accompanying his award, Kenny wrote: "I am sorry that this decision took as long to do but I did spend considerable time reviewing the briefs and case law in this area. I also felt that it was necessary to do some research on the statutes and regulations."

On March 18, 2005, the plaintiffs filed an application to confirm the arbitration award totaling $129,703.70. On April 22, 2005, the defendant filed a memorandum of law in opposition to the plaintiffs' application to confirm the award. Specifically, the defendant argued that because the award was untimely, the arbitrator was deprived of subject matter jurisdiction, and, therefore, the award was void as a matter of law. The court heard argument on April 25, 2005, and issued its memorandum of decision confirming the award three days later. Specifically, the court stated: "After hearing and consideration of the evidence, [the] court finds that the defendant did not make a timely motion to vacate per General Statutes § 52-420(b) and that the parties waived [any objection to] the late filing of the award by failing to raise an objection after the deadline [of October 24, 2004] and prior to the entry of the award dated [January 4, 2005]." This appeal followed.²

I

The defendant first claims that the court improperly concluded that the award was not void as a matter of law. Specifically, he contends that the arbitrator's failure to issue his award within the statutory time frame automatically deprived the arbitrator of subject matter jurisdiction. Because we conclude that § 52-416(a) does not implicate subject matter jurisdiction, we are not persuaded.

The defendant's claim requires us to interpret the language of § 52-416, specifically, the phrase "no legal effect." We begin by setting forth the text of the relevant statute. Section 52-416(a) provides in relevant part: "If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator . . . shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator . . . for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing." (Emphasis added.)

We now set forth the relevant legal principles and our standard of review. "When interpreting a statute, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. General Statutes § 1-2z." (Citation omitted; internal quotation marks omitted.) D'Angelo Development & Construction Co. v. Cordovano, 278 Conn. 237, 243, 897 A.2d 81(2006); Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 689, 894 A.2d 919 (2006). Questions of statutory interpretation present questions of law; therefore, our review is plenary. Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 556, 888 A.2d 65 (2006); Dorchinsky v. Windsor Ins. Co., 90 Conn.App. 557, 562, 877 A.2d 821 (2005).

The parties do not dispute that the arbitrator received the final brief on September 24, 2004, and that there was no written agreement or stipulation to modify the terms of § 52-416(a). For the award to comply with the terms of § 52-416(a), it needed to be filed by October 24, 2004. The arbitrator, however, did not issue his award until January 4, 2005. The defendant argues that because the award was not filed within thirty days of September 24, 2004, the arbitrator immediately lost subject matter jurisdiction. In other words, on October 25, 2004, the arbitrator no longer had any competency or authority to act on the parties' dispute and to issue an award. We do not agree.

In support of his argument, the defendant relies primarily on Carr v. Trotta, 7 Conn.App. 272, 508 A.2d 799, cert. denied, 200 Conn. 806, 512 A.2d 229 (1986). Specifically, the defendant refers to the following language from that case: "The defendant's challenge of the arbitrator's award questions the legality of the award. It is in effect an attack upon the jurisdiction of the arbitrator to render an award beyond the thirty-day limit. The question of subject matter jurisdiction may be raised at any time. [Section] 52-416 clearly states that [a]n award made after that time [thirty days after hearings are concluded or thirty days from receipt of additional material] shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing . . . . This provision can only be interpreted to mean that the arbitrator under those conditions lacks the power to enter an award because he no longer has subject matter jurisdiction." (Emphasis in original; internal quotation marks omitted.) Id., at 274-75, 508 A.2d 799. Although at first blush this language appears to be controlling, a closer examination reveals that it was dicta.³ The issue before the Carr court was whether the arbitrator had the authority to determine that the hearing would not be completed until he received the transcript. Id., at 277, 508 A.2d 799. We held that the arbitrator had such authority. Id. The statements in Carr regarding subject matter jurisdiction were not germane to its holding and, therefore, were dicta. It is well established that statements in prior cases that constitute dicta do not act as binding precedent. See, e.g., Smith v. Greenwich, 278 Conn 428, 460, 899 A.2d 563 (2006); Jacoby v. Brinckerhoff, 250 Conn. 86, 103 n. 10, 735 A.2d 347 (1999) (Berdon, J., dissenting); Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 337, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004); State v. Iverson, 48 Conn.App. 168, 174, 708 A.2d 615, cert. denied, 244 Conn. 930, 711 A.2d 728 (1998); Lerman v. Levine, 14 Conn. App. 402, 410, 541 A.2d 523, cert. denied, 208 Conn. 813, 546 A.2d 281 (1988).

Our conclusion that § 52-416(a) does not implicate subject matter jurisdiction finds further support. First, we note that the Carr court compared noncompliance with § 52-416(a) to the failure to comply with the rule requiring a court to render a decision within 120 days as set forth in General Statutes § 51-183b, which has long been held to implicate personal, rather than subject matter jurisdiction.⁴ "We find these circumstances to be analogous to the situation where the trial judge renders a judgment in excess of 120 days after the close of a trial absent consent or waiver of the parties." Carr v. Trotta, supra, 7 Conn.App. at 275, 508 A.2d 799. We note that in other scenarios in which a party may waive a statutory time frame, our appellate courts have concluded that personal jurisdiction, which may be waived, rather than subject matter jurisdiction, is implicated. For example, in Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, 658-61, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004), we concluded that the failure to comply with the time frame of General Statutes § 52-102b implicated personal jurisdiction and not subject matter jurisdiction. See also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31-35, 848 A.2d 418 (2004). In short, in the context of other statutes, when a party is permitted to waive the temporal requirements, it has been determined that personal rather than subject matter jurisdiction is implicated.

Second, decisions from both this court and our Supreme Court subsequent to Carr have held that the requirements of § 52-416(a) may be waived. It is well established that parties cannot waive or consent to confer subject matter jurisdiction of a court. See, e.g., ABC, LLC v. State Ethics Commission, 264 Conn. 812, 823, 826 A.2d 1077 (2003). In contrast, parties are permitted to modify or alter the thirty day time period of § 52-416...