Pickard v. Dept. of Mental Health & Addiction Services ( 2022 )

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REGINA PICKARD v. DEPARTMENT OF MENTAL
HEALTH AND ADDICTION SERVICES
(AC 44415)
Bright, C. J., and Alexander and Bishop, Js.
Syllabus
The plaintiff, whose employment with the defendant had been terminated,
appealed to this court from the trial court’s judgment dismissing her
application to vacate an arbitration award following the cancellation of
an arbitration of a grievance relating to her termination. The Office of
Labor Relations had denied a grievance by the plaintiff’s union seeking
her reinstatement. The plaintiff thereafter waived her right to union
representation and sought independent counsel to represent her during
the arbitration of that grievance. The plaintiff failed to deposit the
required funds for her share of the arbitration costs in escrow, and the
office cancelled the arbitration. The plaintiff filed an application to
vacate an arbitration award pursuant to statute (§ 52-418 or § 52-420),
and requested that the court issue a pendente lite order pursuant to
statute (§ 52-422) to, inter alia, open the arbitration proceedings. The
court granted the defendant’s motion to dismiss for lack of subject
matter jurisdiction. On the plaintiff’s appeal to this court, held that
the trial court lacked subject matter jurisdiction over the plaintiff’s
application to vacate an arbitration award and, thus, properly dismissed
it: no arbitration award was issued, thus, an essential condition of §§ 52-
418 and 52-420 was not met; moreover, because no arbitration was
pending, the trial court lacked jurisdiction to consider the plaintiff’s
petition for an order pendente lite.
Submitted on briefs December 2, 2021—officially released February 22, 2022
Procedural History
Application to vacate an arbitration award, brought
to the Superior Court in the judicial district of Hartford,
where the court, Lynch, J., granted the defendant’s
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Affirmed.
Norman A. Pattis and Kevin Smith filed a brief for
the appellant (plaintiff).
Maria C. Rodriguez, assistant attorney general, Wil-
liam Tong, attorney general, and Philip M. Schulz, dep-
uty associate attorney general, filed a brief for the appel-
lee (defendant).
Opinion
BISHOP, J. In this special statutory proceeding, the
plaintiff, Regina Pickard, appeals from the judgment of
the Superior Court granting the motion to dismiss filed
by the defendant, the Department of Mental Health and
Addiction Services, claiming that the court lacked sub-
ject matter jurisdiction over the plaintiff’s application
to vacate an arbitration award pursuant to General Stat-
utes §§ 52-418, 52-420, and 52-422. On appeal, the plain-
tiff claims that the court erred in concluding that it
lacked subject matter jurisdiction over her application
to vacate an arbitration award.1 We disagree and,
accordingly, affirm the judgment of the court.
The following undisputed facts and procedural his-
tory are relevant to our disposition of the plaintiff’s
claim on appeal. The plaintiff was an employee of the
defendant and a member of the New England Health
Care Employees Union District 1199 (union). On Octo-
ber 2, 2017, the defendant notified her that she was the
subject of an investigation for allegedly assaulting her
supervisor. During the investigation into the allegations,
the plaintiff was represented by her union. On March
5, 2018, the plaintiff’s employment with the defendant
was terminated. In response to the plaintiff’s termina-
tion, the union filed a grievance on the plaintiff’s behalf
with the Office of Labor Relations (office), pursuant to
a collective bargaining agreement between the union
and the state.2 Multiple hearings on the grievance were
held in which the plaintiff and her union representative
presented evidence, seeking her reinstatement. How-
ever, on June 1, 2018, the office denied the plaintiff’s
grievance. The union then informed the office of its
intent to arbitrate the plaintiff’s grievance.
Subsequently, the plaintiff waived her right to union
representation, instead opting to hire independent
counsel to represent her during the arbitration. On May
8, 2019, the office advised the plaintiff that the costs
associated with the arbitration would be split evenly
between her and the state in accordance with the collec-
tive bargaining agreement,3 and that the arbitrator
required a deposit, in escrow, of $4000 for her share of
the projected cost of the arbitration, a minimum of sixty
days prior to the first day of arbitration. The office
informed the plaintiff that ‘‘[i]f the funds are not con-
firmed to be in escrow by the deposit deadline date,
the [a]rbitration will be cancelled.’’ On May 9, 2019,
counsel for the plaintiff confirmed with the office that
the plaintiff understood that a deposit was required.
The arbitration was scheduled to begin on October
16, 2019, and, accordingly, the deposit was due on
August 16, 2019. The plaintiff, however, failed to meet
the deposit deadline. On August 21, 2019, the office,
not the arbitrator, notified the plaintiff that, because
the arbitrator had not received his deposit by the due
date, the arbitration had been cancelled and the office
considered the case closed. In response, on August 23,
2019, counsel for the plaintiff requested that the deposit
deadline be extended to October 30, 2019, and that the
arbitration be rescheduled for January, 2020. The office
denied the plaintiff’s request and dismissed the plain-
tiff’s request for arbitration.
On October 31, 2019, the plaintiff filed an application
with the Superior Court to vacate an arbitration award
pursuant to either § 52-418 or § 52-420, and requested
that the court issue a pendente lite order pursuant to
§ 52-422 (1) to require the office and the defendant to
appear and show cause for why the plaintiff’s applica-
tion to vacate should not be granted, (2) to open the
arbitration proceedings, and (3) to afford her a reason-
able opportunity to comply with the deposit require-
ment. The plaintiff essentially argued that the office
deprived her of her right to due process when it, as
opposed to the arbitrator, terminated the arbitration
proceedings.
The defendant filed a motion to dismiss for lack of
subject matter jurisdiction pursuant to Practice Book
§ 10-30 (a),4 along with a supporting affidavit. The defen-
dant argued that the court lacked subject matter juris-
diction over the plaintiff’s application ‘‘because no arbi-
tration award has been issued, no arbitration is pending
and as a result, the conditions prescribed by the statutes
are not [met].’’ The plaintiff opposed the defendant’s
motion to dismiss arguing that, ‘‘while an arbitrator
has not rendered an award in this case, the [office]
prevented an arbitrator from even having the opportu-
nity to make an award by arbitrarily elevating itself to
the position of arbitrator and summarily dismissing [the
plaintiff’s] case. . . . In short, the state has made itself
the arbitrator in this proceeding and has awarded itself
a dismissal, thus allowing the court to vacate the dis-
missal.’’ The court granted the defendant’s motion to
dismiss, concluding that it lacked jurisdiction because
the office’s dismissal of the plaintiff’s request for arbi-
tration did not constitute an award under §§ 52-418 and
52-420, and there was no pending arbitration as required
by § 52-422. This appeal followed.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motion to dismiss for lack
of subject matter jurisdiction over her application to
vacate an arbitration award. Specifically, the plaintiff
contends that the dismissal of the arbitration was the
functional equivalent of an arbitration award, asserting
that ‘‘the state has made itself the arbitrator in this
proceeding and has awarded itself a dismissal, thus
allowing the court to vacate the dismissal.’’ We are not
persuaded.
We begin by setting forth our standard of review.
‘‘The standard of review for a court’s decision on a
motion to dismiss [under Practice Book § 10-30 (a) (1)]
is well settled. A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . When a . . .
court decides a jurisdictional question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon
that alone. . . . In undertaking this review, we are
mindful of the well established notion that, in determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged.’’ (Internal quotation marks omitted.) Dorry
v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014).
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to § [10-30 (a)
(1)] may encounter different situations, depending on
the status of the record in the case. . . . [L]ack of
subject matter jurisdiction may be found in any one of
three instances: (1) the complaint alone; (2) the com-
plaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undis-
puted facts plus the court’s resolution of disputed facts.
. . . Different rules and procedures will apply,
depending on the state of the record at the time the
motion is filed. . . .
‘‘[I]f the complaint is supplemented by undisputed
facts established by affidavits submitted in support of
the motion to dismiss . . . the trial court, in determin-
ing the jurisdictional issue, may consider these supple-
mentary undisputed facts and need not conclusively
presume the validity of the allegations of the complaint.
. . . Rather, those allegations are tempered by the light
shed on them by the [supplementary undisputed facts].
. . . If affidavits and/or other evidence submitted in
support of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings.’’ (Citations
omitted; emphasis in original; footnotes omitted; inter-
nal quotation marks omitted.) Conboy v. State, 292
Conn. 642, 650–52, 974 A.2d 669 (2009).
Here, the plaintiff’s application to vacate was supple-
mented by undisputed facts established by the affidavit
submitted by the defendant in support of its motion to
dismiss.5 Therefore, in ruling on the defendant’s motion
to dismiss, we consider the supplementary, undisputed
facts in the affidavit along with the well pleaded facts
in the complaint. See id.‘‘[S]ubject matter jurisdiction involves the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it is
without jurisdiction . . . .’’ (Internal quotation marks
omitted.) A Better Way Wholesale Autos, Inc. v. Saint
Paul, 338 Conn. 651, 658, 258 A.3d 1244 (2021). ‘‘It is a
familiar principle that a court which exercises a limited
and statutory jurisdiction is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation.’’ (Internal quotation marks omitted.) Mehdi
v. Commission on Human Rights & Opportunities,
144 Conn. App. 861, 865, 74 A.3d 493 (2013); see also
Goodson v. State, 232 Conn. 175, 180, 653 A.2d 177(1995) (Where a ‘‘statute confers a definite jurisdiction
upon a judge and it defines the conditions under which
such relief may be given . . . jurisdiction is only
acquired if the essential conditions prescribed by stat-
ute are met. If they are not met, the lack of jurisdiction
is over the subject-matter . . . .’’ (Internal quotation
marks omitted.)).
We begin by clarifying a point we find has significant
bearing on this appeal. The plaintiff claims that ‘‘[t]his
is an appeal from the trial court’s ruling dismissing an
administrative appeal.’’ This characterization is incor-
rect. In this matter, the plaintiff did not file an adminis-
trative appeal but, instead, chose to seek relief through a
special statutory proceeding brought pursuant to §§ 52-
418, 52-420, and 52-422. See Goodson v. State, supra,232 Conn. 180 (‘‘[a]n application for an order pendente
lite pursuant to § 52-422 is a special statutory proceed-
ing’’); see also Middlesex Ins. Co. v. Castellano, 225
Conn. 339, 344, 623 A.2d 55 (1993) (explaining that
application to vacate arbitration award brought pursu-
ant to § 52-420 ‘‘is not a civil action, but is rather a
special statutory proceeding’’); Middletown v. Police
Local, No. 1361, 187 Conn. 228, 231, 445 A.2d 322 (1982)
(explaining that application to vacate arbitration award
brought pursuant to § 52-418 ‘‘triggers special statutory
proceedings that are not civil actions’’). As the court
aptly explained, §§ 52-418, 52-420, and 52-422 ‘‘[confer]
a definite jurisdiction upon a judge and [define] the
conditions under which such relief may be given . . . .
[J]urisdiction is only acquired if the essential conditions
prescribed by [the] statute are met.’’ (Internal quotation
marks omitted.) Goodson v. State, supra, 180.
As to the special statutory procedure, the defendant
contends that the essential conditions prescribed by
§§ 52-418, 52-420, and 52-422 were not met, and, there-
fore, the court lacked jurisdiction to hear the plaintiff’s
claim. Specifically, the defendant asserts that (1) §§ 52-
418 and 52-420 require the existence of an arbitration
award, and here, no award was issued, and (2) § 52-
422 requires a pending arbitration proceeding before
an arbitrator, and here, there is no pending arbitration
proceeding. We agree with the defendant.
We first review § 52-418. It provides in relevant part:
‘‘(a) Upon the application of any party to an arbitration,
the superior court . . . shall make an order vacating
the award if it finds any of the following defects: (1)
If the award has been procured by corruption, fraud or
undue means; (2) if there has been evident partiality
or corruption on the part of any arbitrator; (3) if the
arbitrators have been guilty of misconduct in refusing
to postpone the hearing upon sufficient cause shown
or in refusing to hear evidence pertinent and material
to the controversy or of any other action by which the
rights of any party have been prejudiced; or (4) if the
arbitrators have exceeded their powers or so imper-
fectly executed them that a mutual, final and definite
award upon the subject matter submitted was not made.
. . .’’ (Emphasis added.) General Statutes § 52-418 (a).
One of the essential conditions of § 52-418 is the exis-
tence of an award.
Section 52-420 likewise mandates the existence of an
arbitration award. It provides in relevant part: ‘‘(b) 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. (c)
For the purpose of a motion to vacate, modify or correct
an award, such an order staying any proceedings of
the adverse party to enforce the award shall be made
as may be deemed necessary. Upon the granting of an
order confirming, modifying or correcting an award,
a judgment or decree shall be entered in conformity
therewith by the court or judge granting the order.’’6
(Emphasis added.) General Statutes § 52-420 (b) and
(c).
Our Supreme Court has held that a dismissal of a
request for arbitration does not constitute an arbitration
award. See Coldwell Banker Manning Realty, Inc. v.
Cushman & Wakefield of Connecticut, Inc., 293 Conn.
582, 603, 980 A.2d 819 (2009) (Coldwell). In Coldwell,
the plaintiff claimed that the trial court ‘‘improperly
concluded that the . . . dismissal of its request for
arbitration for untimeliness constituted an arbitration
award for purposes of [General Statutes] § 52-417.’’7 Id.,
592. The court agreed and held that the ‘‘dismissal of
[the plaintiff’s] request for arbitration did not constitute
an award . . . and that the trial court improperly
granted [the plaintiff’s] application to confirm the award
[pursuant to § 52-417] because there was no award to
confirm.’’ Id., 604. The court explained that ‘‘[a]rbitra-
tion is [a] process of dispute resolution in which a
neutral third party (arbitrator) renders a decision after
. . . both parties have an opportunity to be heard. . . .
The decision rendered by the arbitrator upon the con-
troversy submitted for arbitration constitutes the arbi-
tration award. The principal characteristic of an arbitra-
tion award is its finality as to the matters submitted so
that the rights and obligations of the parties may be
definitely fixed. . . . In other words, [a] final award is
[o]ne [that] conclusively determines the matter submit-
ted and leaves nothing to be done except to execute
and carry out [its] terms . . . . The requirement that
an award be mutual, final and definite as between the
parties to the arbitration has been codified at . . . § 52-
418 (a) (4).’’ (Citations omitted; internal quotation
marks omitted.) Id., 594. The court concluded that the
dismissal of the arbitration ‘‘did not satisfy the require-
ment of finality as to the matters submitted so that the
rights and obligations of the parties [were] definitely
fixed . . . and, therefore, was not a decision on the
merits.’’ (Citation omitted; internal quotation marks
omitted.) Id., 600.
Our Supreme Court also has held that a determination
on the issue of arbitrability does not constitute an award
under § 52-418 because it is not a final resolution of
the underlying claim on the merits. In Naugatuck v.
AFSCME, Council No. 4, Local 1303, 190 Conn. 323,
460 A.2d 1285 (1983), the court explained that ‘‘[§] 52-
418 only authorizes a court to vacate an arbitrator’s
award and then only under narrow circumstances.
Unless an arbitration decision is an award, therefore,
there is no right of appeal. This court has held that a
finding on arbitrability is not an award until it becomes
part of an award on the merits. . . . Therefore, a party
must demonstrate that an award on the merits has been
rendered before any right to appeal attaches.’’ (Citation
omitted; internal quotation marks omitted.) Id., 326. In
Coldwell, our Supreme Court stated that its conclusion
in Naugatuck ’’is consistent with the governing law on
arbitration, which provides that an arbitration award
settles the rights and obligations of the parties.’’ Cold-
well Banker Manning Realty, Inc. v. Cushman & Wake-
field of Connecticut, Inc., supra, 293 Conn. 603.
In the present case, the plaintiff concedes that ‘‘it is
true that an independent arbitrator never heard the
instant case or had the opportunity to render an award
in it . . . .’’ The plaintiff nevertheless contends that
the dismissal of the arbitration is the functional equiva-
lent of an award. We are unpersuaded by this novel
claim. The dismissal of the arbitration in the present
case is not a final resolution of the underlying claim
on the merits; see Naugatuck v. AFSCME, Council No.
4, Local 1303, supra, 190 Conn. 326; nor does it conclu-
sively resolve the rights and obligations of the parties as
to the matter submitted. See Coldwell Banker Manning
Realty, Inc. v. Cushman & Wakefield of Connecticut,
Inc., supra, 293 Conn. 594. Because we conclude that
an essential condition of §§ 52-418 and 52-420 has not
been met, we conclude that the court lacked subject
matter jurisdiction over the plaintiff’s application to
vacate.
We next turn to § 52-422, which provides in relevant
part: ‘‘At any time before an award is rendered pursuant
to an arbitration under this chapter, the superior court
. . . upon application of any party to the arbitration,
may make forthwith such order or decree, issue such
process and direct such proceedings as may be neces-
sary to protect the rights of the parties pending the
rendering of the award and to secure the satisfaction
thereof when rendered and confirmed.’’ (Emphasis
added.)
Section 52-422 permits a judge to make orders pen-
dente lite. To do so, however, our Supreme Court has
made clear that ‘‘a pending arbitration is an essential
condition that must exist before § 52-422 may be
invoked.’’ Goodson v. State, supra, 232 Conn. 180. In
Goodson, the plaintiff filed a petition pursuant to § 52-
422 requesting an order pendente lite. Id., 178. At the
time the plaintiff filed his petition, the arbitration pro-
cess had not yet been invoked, but was the next step
in the grievance procedure. Id. The trial court held a
hearing on the plaintiff’s petition pursuant to § 52-422
and issued an order. Id. On appeal to our Supreme
Court, the defendant claimed that the trial court lacked
subject matter jurisdiction over the plaintiff’s petition
because § 52-422 applies only to parties to an arbitra-
tion and, at the time the plaintiff filed the petition,
there was no pending arbitration. Id., 178–79. The court
agreed, explaining that, ‘‘[b]y its express terms, § 52-
422 allows the trial court to issue an order only ‘upon
application of any party to the arbitration. . . .’ Thus,
a pending arbitration is an essential condition that must
exist before § 52-422 may be invoked. It is undisputed
that on the date the trial court conducted its hearing
and entered its order, there was no pending arbitration.
The essential condition prescribed by the statute was
not met, therefore, and the trial court lacked jurisdiction
to have considered the plaintiffs’ petition pursuant to
§ 52-422.’’ Id., 180.
The plaintiff concedes that Goodson mandates that
a pending arbitration exist before § 52-422 may be
invoked but endeavors to distinguish Goodson from the
facts in the present case. The plaintiff argues that, ‘‘[a]t
the time that the Goodson plaintiffs brought their peti-
tion seeking an order pendente lite, they had not yet
begun the arbitration process and were still proceeding
through their union grievance process. . . . Unlike
Goodson, [the plaintiff here] had begun the arbitration
process . . . . Consequently, the court does have the
necessary jurisdictional prerequisite because arbitra-
tion had begun . . . .’’ (Citations omitted.) The plain-
tiff’s effort to distinguish Goodson from the procedural
facts at hand fails. Like in Goodson, here, there is no
pending arbitration. Regardless of whether the arbitra-
tion had not yet begun or had already concluded, no
pending arbitration existed at the time the petition pur-
suant to § 52-422 was filed. Goodson makes clear that
an essential condition of § 52-422 is a pending arbitra-
tion—a condition that is not met in the present case.
We therefore conclude that the court lacked jurisdiction
to have considered the plaintiff’s petition for an order
pendente lite pursuant to § 52-422.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also argues that sovereign immunity bars the plaintiff’s
claim. Because we conclude that the court lacked subject matter jurisdiction
over the plaintiff’s claim, we need not address the defendant’s sovereign
immunity argument.
2
Exhibit D, which was attached to the affidavit submitted by the defendant
in support of its motion to dismiss, includes article 32 of the collective
bargaining agreement between the union and the state, which sets forth the
grievance and arbitration procedure.
3
Article 32, § 7, of the collective bargaining agreement provides in relevant
part: ‘‘The expenses for the arbitrator’s service and for the hearing shall be
shared equally by the [s]tate and the [u]nion. However, in dismissal or
suspension cases where the [u]nion is not a party, one-half the cost shall be
borne by the [s]tate and the half by the [e]mployee submitting to arbitration.’’
4
Practice Book § 10-30 (a) provides in relevant part: ‘‘A motion to dismiss
shall be used to assert: (1) lack of jurisdiction over the subject matter . . . .’’
5
Attached to the affidavit is (1) a termination letter from the defendant
to the plaintiff, (2) a dismissal notice of the plaintiff’s grievance, (3) the
plaintiff’s notice of her intent to pursue arbitration, (4) a portion of the
collective bargaining agreement between the state and the union, and (5)
various correspondence between the plaintiff’s attorney and the office.
6
Although the plaintiff filed her application pursuant to §§ 52-418, 52-420,
and 52-422, she states that she ‘‘does not cite [§ 52-420] for its substantive
authority, but rather to show that her claim is not time barred.’’
7
General Statutes § 52-417 provides: ‘‘At any time within one year after
an award has been rendered and the parties to the arbitration notified
thereof, any party to the arbitration may make application to the superior
court for the judicial district in which one of the parties resides or, in a
controversy concerning land, for the judicial district in which the land is
situated or, when the court is not in session, to any judge thereof, for an
order confirming the award. The court or judge shall grant such an order
confirming the award unless the award is vacated, modified or corrected
as prescribed in sections 52-418 and 52-419.’’
8
We note that, to the extent the plaintiff was aggrieved by the office’s
dismissal of the arbitration proceedings, her proper recourse, if any, is under
the Uniform Administrative Procedure Act. See General Statutes § 4-166
et seq.