Rondo v. DaCapo of Litchfield, Inc.

• Decision Date: 28 March 2016
• Docket Number: LLICV156012823S
• Court: Connecticut Superior Court
• Parties: Viron Rondo v. DaCapo of Litchfield, Inc. et al

Viron Rondo v. DaCapo of Litchfield, Inc. et al

No. LLICV156012823S

Superior Court of Connecticut, Judicial District of Litchfield, Litchfield

March 28, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE THE DEFENDANTS' MOTION TO DISMISS (#103)

John W. Pickard, J.

On October 19, 2015, the plaintiff, Viron Rondo, filed an application with this court to correct or vacate an arbitration award arising from a dispute between the plaintiff and the respondents, DaCapo of Litchfield, Inc. DaCapo, Inc., Konstantinos Rondo, and Evriadis Rondo. On November 18, 2015, the respondents filed a motion to dismiss (#103) for lack of subject matter jurisdiction. For the reasons set forth below, the court grants the respondents' motion to dismiss.

FACTUAL AND PROCEDURAL HISTORY

In 2014, the plaintiff and the respondents entered into arbitration to resolve a dispute concerning the ownership and possible dissolution of two restaurant businesses. A neutral arbitrator, Attorney Michael Sconyers, was selected by the parties. An evidentiary hearing was held on June 23, 2015. On August 25, 2015, the arbitrator rendered an award in which the arbitrator awarded the respondents offsets to the monies owed to the plaintiff totaling $205, 366.54.

The plaintiff filed a motion to correct the award, pursuant to Rule 50 of the American Arbitration Association (AAA) Rules and Mediation Procedures, ^[1] seeking a reduction of the total offsets awarded on the ground that the arbitrator described the offset as " 33.33% of the amounts claimed, " which, he argued, would be substantially less than the $205 366.54 listed in the award. The plaintiff categorized his request as a correction of a computational error. On September 17, 2015, the arbitrator denied the plaintiff's AAA Rule 50 motion, but clarified that the offset in the award was for $205, 366.54 and that any reference to 33.33 percent in the award was an error arising from the arbitrator's adoption of the language found in evidence submitted by the respondents during the arbitration hearing. Therefore, the arbitrator stated that " 33.33%" was replaced with " 100%" in the award.

On October 19, 2015, the plaintiff filed an application with this court to correct or vacate the arbitration award pursuant to General Statutes § § 52-418 and 52-419 on the ground that the arbitrator had exceeded his powers or so imperfectly executed them that a mutual, final, and definite award was not made and the arbitrator exhibited bias in favor of the respondents. Specifically, he argued that the arbitrator's award of an offset of $205, 366.54 was not only in excess of the 33.33 percent stated in the original award, but was in excess of the $205, 366.54 sought by the respondents. He argues that this computational error rendered the arbitrator's award irrational. He further argues that the arbitrator's correction of the award to reflect an award of 100 percent rather than 33.33 percent " compounded the error" because it reflected a substantive change to the original award. Therefore, he argues that the arbitrator's award was not a final resolution of the parties' dispute and the court should vacate or correct the award.

On November 18, 2015, the respondents filed a motion to dismiss (#103) for lack of subject matter jurisdiction, arguing that the court lacked jurisdiction because the plaintiff did not file his application to correct or vacate the arbitration award within thirty days of the arbitration award, pursuant to General Statutes § 52-420(b). The plaintiff filed an objection to the motion to dismiss (#104). The respondents filed a brief in reply to the objection (#105) and a corrected memorandum in support of their motion to dismiss (#107). The matter was heard at short calendar on January 4, 2016.

DISCUSSION

" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn 338, 350, 63 A.3d 940 (2013). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).

Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, " [when] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time . . . and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).

In the present case, the respondents argue that the court lacks jurisdiction because the plaintiff filed his application with the court more than thirty days from the date of the arbitrator's award. Specifically, they argue that the plaintiff had thirty days from August 25, 2015 to file an application to modify or vacate with this court. They further argue that the thirty-day period was not tolled by the plaintiff filing a AAA Rule 50 motion with the arbitrator or by the arbitrator's clarification of the award, which was made as part of his denial of the AAA Rule 50 motion.^[2] The plaintiff argues that his application was timely because the thirty-day period did not begin to run until the arbitrator substantively changed the award when he denied the plaintiff's AAA Rule 50 motion on September 17, 2015.

" '[A] party seeking to vacate an award on the basis of one or more of the grounds enumerated in [General Statutes] § 52-418 must comply with the requirements of [General Statutes] § 52-420(b).' MBNA America Bank, N.A. v. Boata, [283 Conn. 381, 393, 926 A.2d 1035 (2007)." MBNA America Bank, N.A. v. Bailey, 104 Conn.App. 457, 463, 934 A.2d 316 (2007). General Statutes § 52-420(b) provides " No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion." ^[3]" When such motions are filed more than thirty days from such notice, this court does not have subject matter jurisdiction to entertain the application. Wu v. Chang, 264 Conn. 307, 312, 823 A.2d 1197 (2003)." Girolametti v. Rizzo Corp., 52 Conn.Supp. 592, 595, 77 A.3d 217 [53 Conn. L. Rptr. 861] (2012), aff'd, 144 Conn.App. 77, 70 A.3d 1162 (2013) (" we . . . adopt the [trial] court's thorough and well reasoned memorandum of decision as the proper statement of the relevant facts, issues and applicable law." Id., 79).

" In Connecticut, the only statute authorizing modification or correction of an award is General Statutes § 52-419 and this is by the Superior Court. In this regard, the provisions of the Federal Arbitration Act, codified at 9 U.S.C. § § 1 through 16, are similar to Connecticut law. This absence of a statute allowing arbiter modification has been a basis for the federal courts considering this issue to hold that requests to arbiters to correct, modify or clarify do not toll the period in which vacation may be sought. See, e.g., Fradella v. Petricca, [183 F.3d 17, 20 and n.4 (1st Cir. 1999)] . . . [Therefore, ] the crucial date from which § 52-420(b) compliance must be measured is the date of the [a]ward . . ." (Footnote omitted.) Id., 600. While declining to address whether the AAA rule allowing for modification of an award would " effectively substitute for statutory authorization, " id., 600 n.5, the trial court in Girolametti noted that " [e]ven if AAA rules are agreed to by the parties, such agreement cannot create jurisdiction in this court and . . . this court cannot assume the rule [allowing modification of awards] was intended to change state law." Id.

The plaintiff argues that the correction made by the arbitrator when he denied the AAA Rule 50 motion for modification was actually a substantive change to the award and rendered the August 25, 2015 award not a final award. " It has been long recognized that in arbitration, '[a] final award is [o]ne [that] conclusively determines the matter submitted and leaves nothing to be done...