A Better Way Wholesale Autos, Inc. v. Saint Paul ( 2019 )

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A BETTER WAY WHOLESALE AUTOS, INC.
v. JAMES SAINT PAUL ET AL.
(AC 40014)
DiPentima, C. J., and Lavine, Sheldon, Keller, Elgo,
Bright, Moll and Lavery, Js.*
Syllabus
The plaintiff motor vehicle dealer sought to vacate an arbitration award
that was issued in favor of the defendants in connection with their
purchase of a vehicle from the plaintiff. The parties had entered into a
financing agreement that contained an arbitration provision stating that
any arbitration would be governed by the Federal Arbitration Act (9
U.S.C. § 1 et seq.) and not by any state law concerning arbitration. The
defendants thereafter filed a demand for arbitration, claiming that the
plaintiff had violated, inter alia, the Truth in Lending Act (15 U.S.C.
§ 1601 et seq.) when it required them to purchase certain contracts as
a condition of the financing agreement. After the arbitrator awarded
the defendants damages, attorney’s fees and costs, the plaintiff filed in
the trial court an application to vacate the award within the three month
limitation period set forth in 9 U.S.C. § 12 to file an application to vacate,
but beyond the thirty day limitation period permitted under state law
(§ 52-420 [b]). The defendants thereafter filed an application to confirm
the award, which the plaintiff did not oppose, and for an award of
supplemental attorney’s fees. The defendants also sought to dismiss the
plaintiff’s application to vacate on the ground that the trial court lacked
subject matter jurisdiction because the application to vacate was not
timely filed pursuant to § 52-420 (b). The trial court dismissed the plain-
tiff’s application to vacate as untimely, granted the defendants’ applica-
tion to confirm the award and awarded the defendants supplemental
attorney’s fees. On the plaintiff’s appeal to this court, held:
1. The plaintiff’s appeal was not moot despite the plaintiff’s failure to file
an opposition to the defendants’ application to confirm the award or
to address the application to confirm in its brief to this court; this court
could afford the plaintiff practical relief by reversing the trial court’s
dismissal of the application to vacate pursuant to statute (§ 52-417), as
the question of mootness was inextricably intertwined with the plaintiff’s
claim that its application to vacate was improperly dismissed on timeli-
ness grounds.
2. The trial court properly dismissed the plaintiff’s application to vacate the
arbitration award as untimely: the parties could not, as a matter of law,
agree to have the three month limitation period in 9 U.S.C. § 12 apply
to a vacatur proceeding in Connecticut state court so as to supplant or
override the thirty day limitation period in § 52-420 (b), which is subject
matter jurisdictional in nature and applicable to any application to vacate
an arbitration award brought in Connecticut state court; accordingly,
this court’s decision in Doctor’s Associates, Inc. v. Searl (179 Conn.
App. 577) was overruled insofar as it stands for the proposition that
parties can, as a matter of law, agree, by way of a choice of law provision,
to apply the three month limitation period in 9 U.S.C. § 12 to a vacatur
proceeding brought in Connecticut state court.
3. Although the trial court erred when it reviewed the substance of the
application to vacate the arbitration award after it ruled that the applica-
tion should be dismissed, as the court lacked subject matter jurisdiction
over the application to vacate, any error in its consideration of the
plaintiff’s application’s in connection with its consideration of the defen-
dants’ application to confirm was harmless, as the court properly dis-
missed the plaintiff’s application as untimely and confirmed the award.
4. The trial court did not abuse its discretion in awarding the defendants
supplemental attorney’s fees; that court was not required to adopt the
findings of another trial court regarding the reasonableness of the hourly
rates that were requested by the defendants’ counsel, and the plaintiff’s
claim that no reasonable client would consider paying the hourly fee
charged by the defendants’ counsel was unavailing, as that argument
lacked any citation to the record or to legal authority and was little
more than the ipse dixit of the plaintiff’s counsel.
(Two judges dissenting in one opinion)
Argued May 21 and October 10, 2018—officially released September 3, 2019
Procedural History
Application to vacate an arbitration award, brought to
the Superior Court in the judicial district of Waterbury,
where the defendants filed motions to confirm the
award and for attorney’s fees, and to dismiss the appli-
cation to vacate the award; thereafter, the matter was
tried to the court, M. Taylor, J.; judgment dismissing
the application to vacate, and granting the motions to
confirm and for attorney’s fees, from which the plaintiff
appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Richard F. Wareing, with whom was Daniel S. Blinn,
for the appellees (defendants).
Opinion
MOLL, J. The plaintiff, A Better Way Wholesale Autos,
Inc., appeals from the judgment of the trial court dis-
missing its application to vacate an arbitration award
issued in favor of the defendants, James Saint Paul
and Julie J. Saint Paul, and granting the defendants’
application to confirm the arbitration award. On appeal,
the plaintiff contends that the court improperly (1) dis-
missed its application to vacate as untimely, (2) engaged
thereafter in a review of the substance of the plaintiff’s
application to vacate and concluded that the arbitration
award did not manifest an egregious or patently irratio-
nal application of the law, and (3) awarded the defen-
dants $2185 in supplemental attorney’s fees. We con-
clude that the court properly dismissed the plaintiff’s
application to vacate as untimely and did not abuse its
discretion in awarding supplemental attorney’s fees. In
light of our conclusion that the court properly dismissed
the plaintiff’s application to vacate as untimely, we also
conclude that the court erred by reviewing the sub-
stance of the application but that such error was harm-
less. Accordingly, we affirm the judgment of the trial
court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. In early 2015, the defen-
dants purchased a motor vehicle from the plaintiff, a
motor vehicle dealer located in Naugatuck. To finance
their purchase, the defendants entered into a financing
agreement with the plaintiff. The agreement contains
an arbitration provision that provides, in part, that any
dispute arising out of or relating to the purchase of
the defendants’ vehicle shall be resolved by binding
arbitration. The agreement also contains a general
choice of law clause, which provides that ‘‘[f]ederal law
and the law of the state of our address shown on the
front of this contract apply to this contract.’’ The front
of the financing agreement shows an address in Nauga-
tuck. The arbitration section of the financing agreement
contains a specific choice of law provision, which pro-
vides in relevant part: ‘‘[1] Any arbitration under this
Arbitration Provision shall be governed by the Federal
Arbitration Act [(FAA)] (9 U.S.C. § 1 et seq. [2012]) and
not by any state law concerning arbitration. [2] Any
award by the arbitrator shall be in writing and will be
final and binding on all parties, subject to any limited
right to appeal under the [FAA].’’ The arbitration section
further provides in part that ‘‘[a]ny court having jurisdic-
tion may enter judgment on the arbitrator’s award.’’
On December 15, 2015, the defendants filed an arbi-
tration demand with the American Arbitration Associa-
tion, claiming that the plaintiff required the defendants
to purchase an oil change contract and a service con-
tract as a condition of financing in violation of the
federal Truth in Lending Act (TILA), 15 U.S.C. § 1601 et
seq. (2012), and the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq. On July 21, 2016,
following an evidentiary hearing,1 the arbitrator issued
a so-called ‘‘unreasoned award’’ in favor of the defen-
dants in the amount of $8797.81, which included
$2297.81 in actual damages, $2000 in statutory damages
under TILA, and $4500 in attorney’s fees and costs. The
arbitrator concluded that the plaintiff violated TILA by
failing to include the oil change contract and the service
contract in the finance charge disclosure provision of
the agreement.
On August 26, 2016, the plaintiff filed in the Superior
Court an application to vacate the arbitration award
pursuant to the FAA, claiming therein that the arbitrator
exceeded his powers. On September 28, 2016, pursuant
to General Statutes § 52-417,2 the defendants filed an
omnibus ‘‘motion to confirm arbitration award, opposi-
tion to plaintiff’s application to vacate arbitration
award, and motion for supplemental attorney’s fees’’
(application to confirm). On November 9, 2016, the
defendants filed a supplemental memorandum of law
in opposition to the plaintiff’s application to vacate,
arguing therein that the plaintiff’s application to vacate
should be dismissed for lack of subject matter jurisdic-
tion because it was not timely filed pursuant to General
Statutes § 52-420 (b) (‘‘[n]o 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’’). On December 7, 2016, the
plaintiff filed a memorandum of law in support of its
application to vacate, which did not address the timeli-
ness issue raised by the defendants.
On December 30, 2016, following a hearing, the trial
court dismissed the plaintiff’s application to vacate as
untimely filed pursuant to § 52-420 (b) and granted the
defendants’ application to confirm, including the defen-
dants’ request therein for $2185 in supplemental attor-
ney’s fees under TILA. This appeal followed.3 Additional
facts will be set forth as necessary.
I
As a threshold matter, we address the defendants’
claim that the plaintiff’s appeal should be dismissed as
moot. The defendants argue that, because the plaintiff
failed to file in the Superior Court an opposition to their
application to confirm and did not address in this court
the application to confirm, this court can no longer
grant the plaintiff any practical relief. We disagree.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . A case is
considered moot if [the] court cannot grant . . . any
practical relief through its disposition of the merits
. . . .’’ (Internal quotation marks omitted.) Glaston-
bury v. Metropolitan District Commission, 328 Conn.
326, 333, 179 A.3d 201 (2018). ‘‘Because mootness impli-
cates our subject matter jurisdiction . . . it is a proper
basis upon which to seek the dismissal of an appeal.’’
(Citation omitted.) Sovereign Bank v. Licata, 178 Conn.
App. 82, 96–97, 172 A.3d 1263 (2017).
In the present case, the question of mootness is inex-
tricably intertwined with the principal substantive issue
that the plaintiff raises on appeal, namely, whether the
trial court improperly dismissed the plaintiff’s applica-
tion to vacate on timeliness grounds. See Argent Mort-
gage Co., LLC v. Huertas, 288 Conn. 568, 575–76, 953
A.2d 868 (2008). Notwithstanding the plaintiff’s failure
to file an opposition to the application to confirm in
the Superior Court and its failure to address such appli-
cation in its appellate brief, this court could afford the
plaintiff practical relief by reversing the court’s dis-
missal of the plaintiff’s application to vacate on timeli-
ness grounds. See General Statutes § 52-417 (‘‘[t]he
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’’
[emphasis added]). Therefore, we conclude that the
plaintiff’s appeal is not moot.4
II
We turn now to the merits of the plaintiff’s claims
on appeal. The plaintiff first claims that the court erred
in dismissing its application to vacate as untimely under
our state law on the ground that it was filed beyond
the thirty day limitation period set forth in § 52-420
(b).5 According to the plaintiff, the arbitration provision
contained in the parties’ financing agreement requires
the application of the FAA in all respects, including its
three month limitation period to file an application to
vacate. See 9 U.S.C. § 12 (2012).6 The defendants main-
tain that our state law governs the timeliness question
presented, and, therefore, the trial court properly dis-
missed the plaintiff’s application to vacate as untimely
under § 52-420 (b). We agree with the defendants.
In the present case, it is uncontested that the plaintiff
filed its application to vacate after the expiration of the
thirty day limitation period set forth in § 52-420 (b) but
within the three month limitation period set forth in 9
U.S.C. § 12. Whether the court properly dismissed the
plaintiff’s application to vacate as untimely depends on
whether state or federal law controls the limitation
period in which the plaintiff was required to file such
application. Therefore, the question before us is a legal
one. ‘‘[W]e review a [trial] court’s decision to confirm
or vacate an arbitration award de novo on questions of
law . . . .’’ (Internal quotation marks omitted.) Henry
v. Imbruce, 178 Conn. App. 820, 828, 177 A.3d 1168
(2017).
A
We first turn our attention to the fundamental ques-
tion of whether parties can, as a matter of law, agree
to have the FAA’s three month limitation period set
forth in 9 U.S.C. § 12 apply to a vacatur proceeding filed
in Connecticut state court so as to supplant or override
the thirty day limitation period in § 52-420 (b). For the
reasons that follow, we conclude that they cannot.
We begin with a brief review of the purposes and
limitations of the FAA. In 1925, Congress enacted the
FAA ‘‘[t]o overcome judicial resistance to arbitration’’;
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
443, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006); and to
declare ‘‘ ‘a national policy favoring arbitration’ of
claims that parties contract to settle in that manner.’’
Preston v. Ferrer, 552 U.S. 346, 353, 128 S. Ct. 978,
169 L. Ed. 2d 917 (2008), quoting Southland Corp. v.
Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 79 L. Ed. 2d 1
(1984). In that connection, § 2 of the FAA provides that
arbitration agreements in contracts ‘‘involving com-
merce’’ are ‘‘valid, irrevocable, and enforceable.’’ 9
U.S.C. § 2 (2012). The FAA was designed to place agree-
ments to arbitrate ‘‘upon the same footing as other
contracts . . . .’’ (Citation omitted; internal quotation
marks omitted.) Volt Information Sciences, Inc. v.
Board of Trustees of Leland Stanford Junior Univer-
sity, 489 U.S. 468, 474, 109 S. Ct. 1248, 103 L. Ed. 2d
488 (1989) (Volt). The FAA ‘‘ ‘creates a body of federal
substantive law,’ ’’ and ‘‘the substantive law the [FAA]
created [is] applicable in state and federal courts.’’
Southland Corp. v. Keating, supra, 12, quoting Moses
H. Cone Memorial Hospital v. Mercury Construction
Corp., 460 U.S. 1, 25 n.32, 103 S. Ct. 927, 74 L. Ed. 2d
765 (1983). The United States Supreme Court has stated
that ‘‘[t]he FAA contains no express pre-emptive provi-
sion, nor does it reflect a congressional intent to occupy
the entire field of arbitration. . . . But even when Con-
gress has not completely displaced state regulation in
an area, state law may nonetheless be pre-empted to
the extent that it actually conflicts with federal law—
that is, to the extent that it stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.’’ (Citation omitted; internal quo-
tation marks omitted.) Volt, supra, 477.
The FAA does not create independent federal juris-
diction. The United States Supreme Court has described
the nonjurisdictional nature of the FAA as follows: ‘‘As
for jurisdiction over controversies touching arbitration,
the [FAA] does nothing, being ‘something of an anomaly
in the field of federal-court jurisdiction’ in bestowing no
federal jurisdiction but rather requiring an independent
jurisdictional basis.’’ Hall Street Associates, L.L.C. v.
Mattel, Inc., 552 U.S. 576, 581–82, 128 S. Ct. 1396, 170
L. Ed. 2d 254 (2008), citing Moses H. Cone Memorial
Hospital v. Mercury Construction Corp., supra, 460
U.S. 25 n.32. ‘‘While the [FAA] creates federal substan-
tive law requiring the parties to honor arbitration agree-
ments, it does not create any independent federal-ques-
tion jurisdiction under 28 U.S.C. § 1331 or otherwise.’’
Southland Corp. v. Keating, supra, 465 U.S. 15 n.9.
‘‘Given the substantive supremacy of the FAA, but
[its] nonjurisdictional cast, state courts have a promi-
nent role to play as enforcers of agreements to arbi-
trate.’’ Vaden v. Discover Bank, 556 U.S. 49, 59, 129 S.
Ct. 1262, 173 L. Ed. 2d 206 (2009), superseded by statute
in part on other grounds as stated in Vermont v. MPHJ
Technology Investments, LLC, 803 F.3d 635, 643–44
(Fed. Cir. 2015), cert. denied, U.S. , 136 S. Ct.
1658, 194 L. Ed. 2d 766 (2016), and cert. denied, MPHJ
Technology Investments, LLC v. Vermont, U.S. ,
136 S. Ct. 1660, 194 L. Ed. 2d 766 (2016). Accordingly,
despite its expansive reach, the FAA does not extend
so far as to preempt the procedural rules governing
state court proceedings in the absence of an actual
conflict with the purposes of Congress. That is because,
as the United States Supreme Court has made clear,
‘‘[t]here is no federal policy favoring arbitration under
a certain set of procedural rules; the federal policy is
simply to ensure the enforceability, according to their
terms, of private agreements to arbitrate.’’ Volt, supra,
489 U.S. 476.
We now turn to our state law procedures governing
an application to vacate an arbitration award brought
in Connecticut state court. ‘‘A proceeding to vacate an
arbitration award is not a civil action, but is rather
a special statutory proceeding. . . . Section 52-420(b)
requires that a motion to vacate an arbitration award
be filed within thirty days of the notice of the award
to the moving party.’’ (Citations omitted.) Middlesex
Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d
55 (1993).
Our Supreme Court repeatedly has held that the thirty
day limitation period set forth in § 52-420 (b) is subject
matter jurisdictional. See id. (‘‘[i]f the motion is not
filed within the thirty day time limit, the trial court does
not have subject matter jurisdiction over the motion’’);
see also Wu v. Chang, 264 Conn. 307, 312, 823 A.2d
1197 (2003); Rosenthal Law Firm, LLC v. Cohen, 165
Conn. App. 467, 471, 139 A.3d 774, cert. denied, 322
Conn. 904, 138 A.3d 933 (2016); Petrucelli v. Travelers
Property Casualty Ins. Co., 146 Conn. App. 631, 640–41,
79 A.3d 895 (2013), cert. denied, 311 Conn. 909, 83
A.3d 1164 (2014). Indeed, in Angersola v. Radiologic
Associates of Middletown, P.C., 330 Conn. 251, 267–68,
193 A.3d 520 (2018), our Supreme Court recently reaf-
firmed the principle of legislative acquiescence, which,
as applied to the present case, serves to buttress the
court’s long-standing interpretation of the limitation
period set forth in § 52-420 (b) as subject matter juris-
dictional. See id., 268 (‘‘the legislature has never seen
fit to overrule our conclusion that compliance with the
repose period [in General Statutes § 52-555, this state’s
wrongful death statute] is a jurisdictional prerequisite
to suit’’).7 ‘‘[A]s an intermediate appellate court, we are
bound by Supreme Court precedent and are unable to
modify it . . . . [W]e are not at liberty to overrule or
discard the decisions of our Supreme Court but are
bound by them. . . . [I]t is not within our province to
reevaluate or replace those decisions.’’ (Internal quota-
tion marks omitted.) State v. Montanez, 185 Conn. App.
589, 605 n.5, 197 A.3d 959 (2018).
It is, of course, a bedrock principle that parties cannot
agree to confer subject matter jurisdiction on a court,
nor can they waive the lack of subject matter jurisdic-
tion. Angersola v. Radiologic Associates of Middletown,
P.C., supra, 330 Conn. 265–66 (statutory time limitation
that is jurisdictional may not be waived); Rayhall v.
Akim Co., 263 Conn. 328, 337, 819 A.2d 803 (2003)
(‘‘[a]lthough both parties agree that this court has juris-
diction, a subject matter jurisdictional defect may not
be waived . . . [or] conferred by the parties, explicitly
or implicitly’’ [internal quotation marks omitted]); Man-
ning v. Feltman, 149 Conn. App. 224, 236, 91 A.3d 466
(2014) (‘‘subject matter jurisdiction cannot be conferred
by waiver or consent’’).
The foregoing well settled principles require us to
conclude that, as a matter of law, parties cannot con-
tract around, by way of a choice of law provision, the
subject matter jurisdictional nature of § 52-420 (b),
applicable to any application to vacate an arbitration
award brought in Connecticut state court. Therefore,
the limitation period set forth in § 52-420 (b) applies to
the plaintiff’s application to vacate. It is not disputed
that, if § 52-420 (b) is deemed to be the applicable limita-
tion period, the plaintiff’s application was untimely.
Accordingly, we affirm the trial court’s dismissal of the
plaintiff’s application to vacate as untimely under § 52-
420 (b).8
B
In light of the foregoing conclusion, we deem it neces-
sary to discuss a recent decision of this court, Doctor’s
Associates, Inc. v. Searl, 179 Conn. App. 577, 180 A.3d
996 (2018).9 By way of background, in Doctor’s Associ-
ates, Inc., the trial court had granted the plaintiff’s appli-
cation to confirm an arbitration award entered in its
favor and concluded that the defendants’ objection to
that application, which the parties treated as a motion
to vacate the award, was untimely filed under § 52-420
(b). Id., 579–82. On appeal to this court, the defendants
claimed that, pursuant to the terms of the parties’ arbi-
tration agreement, either federal law or New York law
governed the limitation period in which they had to file
their motion to vacate the arbitration award. Id., 582–83.
Specifically, the parties’ agreement provided in relevant
part: ‘‘Any disputes concerning the enforceability . . .
of the arbitration clause shall be resolved pursuant to
the [FAA] . . . and the parties agree that the [FAA]
preempts any state law restrictions . . . on the
enforcement of the arbitration clause in this Agree-
ment.’’ (Emphasis altered.) Id., 585. Thereupon, this
court reasoned: ‘‘By agreeing that the [FAA] preempts
any state law restrictions on the enforcement of the
arbitration clause, the parties have made clear that fed-
eral law governs the procedures by which the arbitra-
tion clause contained in the franchise agreement is to
be enforced. It necessarily follows that the procedure
for moving to vacate an arbitration award is governed
by federal law. Application of Connecticut’s statute of
limitations for filing a motion to vacate, pursuant to
§ 52-420 (b), would contradict the parties’ contractual
intent to use federal law, as expressly agreed to in the
franchise agreement.’’ (Footnote omitted.) Id., 585–86.
Relatedly, this court also held that ‘‘the parties
expressly agreed in [their] agreement that federal law
preempted the state law procedures used to enforce
the arbitration clause. Therefore, federal law should
have been used to determine whether the defendants
timely filed their motion to vacate.’’ Id., 585–86 n.7. This
court went on to note that the agreement contained a
general choice of law provision, which provided that
Connecticut law governed the agreement: ‘‘The Agree-
ment will be governed by and construed in accordance
with the substantive laws of the State of Connecticut,
without reference to its conflicts of law, except as may
otherwise be provided in this Agreement.’’ (Emphasis
altered.) Id., 586. However, this court reasoned that
‘‘[w]hen the general choice of law clause of the fran-
chise agreement is read in light of the arbitration clause,
it becomes clear that although, generally, Connecticut
law governs the terms of the agreement, federal law
governs the procedures used to enforce the arbitration
clause.’’ Id., 587. The court noted: ‘‘[W]e do not deviate
from the established precedent that holds that the [FAA]
does not preempt state law where the parties agreed
to abide by state arbitration rules. In this case, the
parties expressly intended and contracted that federal
law would apply to any disputes regarding the enforce-
ment of the arbitration clause.’’ Id., 586 n.8. Accordingly,
this court reversed the judgment of the trial court, con-
cluding that the defendants were entitled to a hearing
to determine whether they timely moved to vacate the
arbitration award pursuant to the FAA, and that, if so,
the trial court was required to reach the merits of their
motion. Id., 588.
We have provided the foregoing summary because
in Doctor’s Associates, Inc., the parties did not raise,
and this court did not address, the legal issues we have
considered in part II A of this opinion, namely, the
subject matter jurisdictional nature of the thirty day
limitation period set forth in § 52-420 (b), or the related
question of whether a choice of law clause in an arbitra-
tion agreement that purports to ‘‘preempt’’ the vacatur
procedure under Connecticut law, specifically, § 52-420
(b), violates the principle that parties cannot agree to
confer subject matter jurisdiction on the court. That is,
Doctor’s Associates, Inc., assumed that parties could,
as a matter of law, agree, by way of a choice of law
provision, to an application of the FAA’s three month
limitation period set forth in 9 U.S.C. § 12 to a vacatur
proceeding brought in Connecticut state court. The con-
clusion reached in part II A of this opinion, however,
requires us to overrule this court’s decision in Doctor’s
Associates, Inc. v. Searl, supra, 179 Conn. App. 577,
insofar as it stands for the proposition that, as a matter
of contract interpretation, parties can agree to have ‘‘the
procedure for moving to vacate an arbitration award
[in Connecticut state court] governed by federal law.’’10
Id., 585–86.
III
The plaintiff next claims that the court erred by
reviewing the substance of the plaintiff’s application
to vacate after ruling that the application should be
dismissed. We agree but conclude that any error was
harmless.
‘‘[A] court lacks discretion to consider the merits of
a case over which it is without jurisdiction . . . . Once
it becomes clear that the trial court lacked subject mat-
ter jurisdiction to hear the plaintiff[’s] complaint, any
further discussion of the merits is pure dicta. . . .
Lacking jurisdiction, the court should not deliver an
advisory opinion on matters entirely beyond [its] power
to adjudicate.’’ (Citations omitted; internal quotation
marks omitted.) Shockley v. Okeke, 92 Conn. App. 76,
85, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn.
777, 912 A.2d 991 (2007).
In its memorandum of decision, the court dismissed
the plaintiff’s application to vacate and subsequently
reviewed the substantive grounds of the plaintiff’s appli-
cation in connection with its consideration of the defen-
dants’ application to confirm.11 Thereafter, the court
granted the defendants’ application to confirm, con-
cluding that ‘‘[a]lthough the award was not vacated
. . . had the application to vacate survived the motion
to dismiss, there was no substantive basis set forth in
[the plaintiff’s] application to vacate the award . . . .’’
Although the court lacked subject matter jurisdiction
over the plaintiff’s application to vacate, in light of our
conclusion that the court properly dismissed the appli-
cation as untimely and confirmed the arbitration award,
any error inherent in the court’s consideration of the
arguments made in the plaintiff’s application to vacate
was harmless.
IV
The plaintiff’s final claim on appeal is that the court’s
award of $2185 in supplemental attorney’s fees, pursu-
ant to TILA, on the basis of a $400 hourly rate for
Attorney Daniel S. Blinn, counsel for the defendants,
is excessive. The defendants contend, to the contrary,
was within the court’s broad discretion. We agree with
the defendants.
‘‘It is well established that we review the trial court’s
decision to award attorney’s fees for abuse of discre-
tion. . . . This standard applies to the amount of fees
awarded . . . and also to the trial court’s determina-
tion of the factual predicate justifying the award. . . .
Under the abuse of discretion standard of review, [w]e
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Internal
quotation marks omitted.) Sabrina C. v. Fortin, 176
Conn. App. 730, 752, 170 A.3d 100 (2017).
In its memorandum of decision, the court applied
the following presumptively reasonable fee standard,
which the plaintiff does not challenge on appeal, stating:
‘‘ ‘To determine reasonable attorneys’ fees, the [United
States Court of Appeals for the] Second Circuit has
historically implemented the lodestar method of exam-
ining the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. . . .
However, in 2008, the Second Circuit determined that
[t]he meaning of the term ‘‘lodestar’’ has shifted over
time, and its value as a metaphor has deteriorated to the
point of unhelpfulness.’ Arbor Hill Concerned Citizens
Neighborhood Assn. v. County of Albany, 522 F.3d 182,
190 (2d Cir. 2008). In place of the lodestar method, the
court used the ‘‘presumptively reasonable fee’’ stan-
dard. . . .
‘‘ ‘The presumptively reasonable fee standard is pred-
icated on the same basic analysis as the lodestar
method: the multiplication of the hours reasonably
expended by a reasonable hourly rate. . . . Using the
presumptively reasonable fee standard, the . . . court
must engage in a four-step process: (1) determine the
reasonable hourly rate; (2) determine the numbers of
hours reasonably expended; (3) multiply the two to
calculate the presumptively reasonable fee; and (4)
make any appropriate adjustments to arrive at the final
fee award. . . . As part of the reasonableness analysis,
the . . . court should consider the factors enumerated
in Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717–19 (5th Cir. 1974)12 . . . and may adjust the
presumptively reasonable fee based on the degree of
success of the prevailing party.’ . . . Negron v. Mallon
Chevrolet, Inc., Civil No. 3:08-CV-182 (TPS), 2012 WL
435864 (D. Conn. September 24, 2012).’’ (Footnote in
original.)
Applying the foregoing presumptively reasonable fee
standard, the court concluded that the defendants are
entitled to a supplemental attorney’s fee of $2185. The
court reasoned: ‘‘Attorney Blinn is a highly experienced
consumer affairs lawyer. He has provided the court
with a detailed account of the hours billed in this case,
his customary fee in this and similar matters, as well
as hourly rates approved by courts in other cases.
Although his hourly rate of $400 is relatively high, the
court finds his briefs and other filings, totaling 175
pages, to have been produced in a highly professional
and efficient manner. The court reaches this conclusion
in light of the 6.4 hours of time billed by Attorney Blinn
and his paralegal, at [her] lower hourly rate of $150, to
produce one brief of sixteen pages in length, as well
as a second brief, three pages in length. Attorney Blinn
also appeared at two court proceedings in this matter.
His efficiency appears to be the result of his experience
in this area of the law and, thus, his hourly rate is
appropriate in this case. Moreover, he has received a
good disposition for his client in this case.’’
With regard to this claim on appeal, the plaintiff first
contends that no reasonable paying client would con-
sider paying an attorney $400 per hour to prosecute the
claims brought in this relatively simple matter and that
the client would inevitably spend more in attorney’s
fees than any anticipated gains from litigation would
justify. Made without any citation to the record or any
legal authority, the plaintiff’s argument in this regard
is little more than the ipse dixit of counsel and, thus,
is unavailing. The plaintiff next contends that the trial
court ‘‘ignored precedent’’ by awarding an hourly rate
different from that awarded in Freeman v. A Better
Way Wholesale Autos, Inc., Docket No. CV-XX-XXXXXXX-
S, 2016 WL 1397704, *3 (Conn. Super. March 18, 2016),
dismissed in part and aff’d in part, 174 Conn. App. 649,
166 A.3d 857, cert. denied, 327 Conn. 927, 171 A.3d 60
(2017), in which the court, Huddleston, J., described
the $400 hourly rate requested therein by Attorney Blinn
(as counsel for the defendants in that case) as ‘‘some-
what high’’ and instead found $375 to be a reasonable
hourly rate. See Freeman v. A Better Way Wholesale
Autos, Inc., 174 Conn. App. 649, 651–52 n.1, 166 A.3d
857 (dismissing that portion of appeal contesting award
of attorney’s fees for failure to amend appeal to include
such order), cert. denied, 327 Conn. 927, 171 A.3d 60
(2017). We reject this argument because it is well settled
that ‘‘[t]rial court cases do not establish binding prece-
dent’’; McDonald v. Rowe, 43 Conn. App. 39, 43, 682
A.2d 542 (1996); and the court in this case simply was
not required to adopt the findings of the court in Free-
man regarding the reasonableness of the hourly rates
requested.13
In sum, we conclude that the court did not abuse its
discretion in awarding the defendants $2185 in supple-
mental attorney’s fees.
The judgment is affirmed.
In this opinion DiPENTIMA, C. J., and LAVINE, KEL-
LER, ELGO and BRIGHT, Js., concurred.
* This appeal originally was argued on May 21, 2018, before a panel of
this court consisting of Chief Judge DiPentima, and Judges Moll and Lavery.
Subsequently, the court, pursuant to Practice Book § 70-7 (b), sua sponte,
ordered that the case be considered en banc. Accordingly, Judges Lavine,
Sheldon, Keller, Elgo and Bright were added to the panel, and additional
oral argument was heard en banc on October 10, 2018. See footnote 3 of
this opinion.
The listing of the judges reflects their seniority status on this court as of
the date of oral argument on October 10, 2018.
1
We note that the parties chose not to have the hearing transcribed.
2
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.’’
3
A three judge panel of this court heard oral argument on May 21, 2018.
Following argument, this court, pursuant to Practice Book § 70-7 (b), sua
sponte, ordered that the appeal would be considered en banc and ordered
the parties to file supplemental briefs addressing the following questions:
‘‘1. As a matter of law, with respect to an application to vacate an arbitra-
tion award filed in the Superior Court, can parties agree to an application
of the three month limitation period set forth in the Federal Arbitration Act,
9 U.S.C. § 12?
‘‘2. Does our Supreme Court’s holding that the thirty day limitation period
set forth in General Statutes § 52-420 (b) is subject matter jurisdictional;
e.g., Wu v. Chang, 264 Conn. 307, 312 [823 A.2d 1197] (2003); Middlesex
Ins. Co. v. Castellano, 225 Conn. 339, 344 [623 A.2d 55] (1993); affect the
analysis under question [one]?
‘‘3. What effect, if any, does this court’s decision in Doctor’s Associates,
Inc. v. Searl, 179 Conn. App. 577 [180 A.3d 996] (2018), have on your answers
to questions one and two?’’
The court heard oral argument en banc on October 10, 2018.
4
We note that this court previously has rejected the identical argument
in a similar appeal. See A Better Way Wholesale Autos, Inc. v. Gause, 184
Conn. App. 643, 646–47, 195 A.3d 747, cert. denied, 330 Conn. 940, 195 A.3d
693 (2018).
5
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.’’
6
Section 12 of title 9 of the 2012 edition of the United States Code provides
in relevant part: ‘‘Notice of a motion to vacate, modify, or correct an award
must be served upon the adverse party or his attorney within three months
after the award is filed or delivered. . . .’’
7
In Angersola v. Radiologic Associates of Middletown, P.C., supra, 330
Conn. 266–69, our Supreme Court discussed its decision in Blakely v. Dan-
bury Hospital, 323 Conn. 741, 150 A.3d 1109 (2016). In Blakely, our Supreme
Court asked the parties to submit supplemental briefs on the following
question: ‘‘Should this court continue to characterize limitation periods
contained within statutorily created rights of action as jurisdictional in
nature . . . or should this court apply a presumption in favor of subject
matter jurisdiction to statutory time limitations for all other actions and
determine whether strong evidence of legislative intent exists to overcome
that presumption?’’ (Citation omitted; internal quotation marks omitted.)
Id., 749 n.5. In Angersola, our Supreme Court stated that its request for
supplemental briefing in Blakely reflected ‘‘the tension we previously have
perceived between our characterization of limitation periods contained
within statutorily created rights of actions as subject matter jurisdictional
and the distinction we have repeatedly drawn between a trial court’s jurisdic-
tion and its authority to act under a particular statute.’’ (Internal quotation
marks omitted.) Angersola v. Radiologic Associates of Middletown, P.C.,
supra, 267. The court, in both cases, concluded that because § 52-555 created
a cause of action that did not exist at common law, and because the legisla-
ture had acquiesced to the court’s description of the statute of limitations
contained therein as a limit on the court’s subject matter jurisdiction, it
would continue to treat it as such.
The same analysis applies here. ‘‘Arbitration proceedings, including court
proceedings to compel arbitration, are creatures of statute in Connecticut
and are not common law actions.’’ (Internal quotation marks omitted.) Ben-
nett v. Meader, 208 Conn. 352, 357, 545 A.2d 553 (1988). Furthermore, ‘‘[t]he
right to review an arbitration award is wholly encompassed within the
parameters of [General Statutes] § 52-418. [Section] 52-418 goes beyond the
common law and provides additional grounds upon which to vacate an
award.’’ (Footnote omitted; internal quotation marks omitted.) Id., 356–57.
In addition, it has been more than twenty-five years since the Supreme Court
stated in Middlesex Ins. Co. v. Castellano, supra, 225 Conn. 344, that the
failure to file a motion to vacate in state court within the thirty day time
limit of § 52-420 (b) deprived the court of subject matter jurisdiction. Yet,
the legislature has not chosen to amend the statute to say that it is not
subject matter jurisdictional.
Although the foregoing analysis compels the conclusion that we must
continue to view the time limit in § 52-420 (b) as jurisdictional, we can
perceive of reasons why the legislature might consider amending the statute
to permit parties to agree to waive the time limit. In particular, the right or
obligation to arbitrate is a creature of the parties’ agreement. If they so
agree, they can construct the arbitration process in virtually any manner
they wish. They can set the number and qualification of arbitrators. They
can decide where and when the arbitration proceedings will take place,
whether any rules of evidence will apply, whether there will be a transcript of
the proceedings, whether the arbitrator will issue a reasoned or unreasoned
award, and who will bear the costs of the arbitration proceedings. Given the
freedom the parties have to construct their extrajudicial dispute resolution
process as they see fit, it is fair to ask why the parties should not also be
able to agree on the time to file a challenge to an award of the arbitrator.
In fact, there may be good reasons for them to choose a period of time
different from that set forth in § 52-420 (b). For example, the parties, particu-
larly if they are in a long-term relationship, may wish to give themselves
time to negotiate a resolution of their dispute after the arbitrator issues his
or her award, or they may need time to negotiate how best to implement
the award. Requiring them to file a motion to vacate within thirty days may
impede their ability to reach an amicable resolution on such issues. An
amendment to § 52-420 (b) that allows parties, by explicit written agreement,
to extend the date for filing motions to vacate would preserve the presump-
tive statutory deadline while providing a mechanism for avoiding judicial
intervention that would be consistent with the general contractual nature
of arbitration.
8
We recognize that if the plaintiff had filed its application to vacate in
federal court, the thirty day limitation in § 52-420 (b) likely would not have
applied, and the application would have been timely filed under the FAA,
9 U.S.C. § 12. Although at first glance, this may seem anomalous, it is simply
an example of how the statutory procedures between two independent court
systems can differ. Furthermore, this particular difference exists in virtually
every case, regardless of the language of the arbitration agreement, where,
as here, both the federal and state courts have jurisdiction over a motion
to vacate the arbitration award.
9
Following the trial court’s December, 2016 decision in the present case,
this court rendered its decision in Doctor’s Associates, Inc. v. Searl, supra,
179 Conn. App. 577. Prior to the initial oral argument in the present case
on May 21, 2018, the parties were ‘‘ordered to be prepared to address, at
oral argument, the applicability of Doctor’s Associates, Inc. v. Searl, [supra,
179 Conn. App. 577] to this appeal.’’
10
‘‘[T]his court’s policy dictates that one panel should not, on its own,
[overrule] the ruling of a previous panel. The [overruling] may be accom-
plished only if the appeal is heard en banc.’’ Consiglio v. Transamerica
Ins. Group, 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999).
11
The court stated that ‘‘[a]lthough [the plaintiff’s] application to vacate
has been dismissed, the court will briefly review the substance of its claim,
as set forth in its brief dated December 7, 2016.’’
12
‘‘‘The twelve Johnson factors are: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the level of skill required to
perform the legal service properly; (4) the preclusion of employment by the
attorney due to acceptance of the case; (5) the attorney’s customary hourly
rate; (6) whether the fee is fixed or contingent; (7) the time limitations
imposed by the client or the circumstances; (8) the amount involved in the
case and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the ‘‘undesirability’’ of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in
similar cases.’ Negron v. Mallon Chevrolet, Inc., Civil No. 3:08-CV-182 (TPS),
2012 WL 435864, *1 n.1 (D. Conn. September 24, 2012).’’
13
We further note that the plaintiff argued to the court that, for purposes
of awarding any supplemental attorney’s fees, Attorney Blinn’s hourly rate
should be capped at $300 per hour. Thus, the plaintiff’s challenge to the
award of supplemental attorney’s fees, had it been meritorious, would have
reduced the award by $490.