Asselin & Vieceli Partnership, LLC v. Washburn ( 2019 )

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ASSELIN AND VIECELI PARTNERSHIP, LLC v.
STEVEN T. WASHBURN
(AC 41439)
DiPentima, C. J., and Keller and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
negligence in connection with the defendant’s construction of a bulkhead
at a marina operated by M Co. on property owned by the plaintiff.
Pursuant to a lease agreement between the plaintiff and M Co., M Co.
was obligated to maintain the structural improvements at the marina.
When the bulkhead began to deteriorate soon after its construction, the
plaintiff commenced this action against the defendant, who then filed
a motion to stay the action for arbitration pursuant to an arbitration
clause in the construction contract between the defendant and M Co.,
of which the plaintiff was a third-party beneficiary. The trial court
granted the motion and stayed the plaintiff’s action pending arbitration.
Thereafter, the plaintiff and the defendant entered into an agreement
with an arbitrator to arbitrate their dispute. The arbitration agreement
provided, inter alia, that the arbitration would proceed on an ad hoc
basis, without an administering organization. In her award, the arbitrator
found that the bulkhead was a total loss, that the defendant was negligent
in constructing it and that his negligence proximately caused its failure.
The arbitrator awarded the plaintiff $275,607 in damages. Thereafter,
the defendant filed a demand for a trial de novo with the trial court,
and the plaintiff filed an objection to that demand and an application
to confirm the arbitration award. Following a hearing, the court denied
the defendant’s demand for a trial de novo and granted the plaintiff’s
application to confirm the award. On the defendant’s appeal to this
court, held:
1. This court declined to review the defendant’s claims that the trial court
should have vacated the arbitration award because the arbitrator failed
to comply with the mandatory oath requirement of the applicable statute
(§ 52-414 [d]) and the plaintiff failed to comply with the statute (§ 52-
421 [a]) that requires certain documents to be filed with the court clerk
in conjunction with an application to confirm an arbitration award; the
defendant failed to preserve his claims of noncompliance with §§ 52-
414 (d) and 52-421 (a) for appellate review, as he failed to raise them
in his demand for a trial de novo or during the hearing before the
trial court.
2. The trial court properly granted the plaintiff’s application to confirm
the arbitration award, as the defendant failed to demonstrate that the
arbitrator exceeded or imperfectly executed her powers in issuing the
award in violation of the applicable statute (§ 52-418 [a] [4]): contrary
to the defendant’s claim, the arbitrator did not exceed her authority
when she did not apply the construction industry rules of the American
Arbitration Association when arbitrating the dispute between the parties,
as the arbitration agreement lacked any reference to those rules and,
instead, provided that the arbitration would proceed on an ad hoc basis,
without an administering organization; moreover, the record did not
support the defendant’s claim that the arbitrator exceeded her authority
and manifestly disregarded the law in failing to consider the parties’
obligations under the construction contract, as the arbitrator indicated
in her decision that she considered the duties and obligations created
by the contract, and her award discussed the obligations of the defendant
in building the bulkhead and the plaintiff’s obligations in acquiring the
materials for its construction.
Argued September 19—officially released November 26, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
London, where the court, Vacchelli, J., granted the
defendant’s motion to stay the proceedings for arbitra-
tion; thereafter, the court, Cosgrove, J., denied the
defendant’s demand for a trial de novo and granted the
plaintiff’s application to confirm an arbitration award,
and the defendant appealed to this court. Affirmed.
Steven B. Kaplan, with whom were Carolyn A. Young
and, on the brief, Daniel S. DiBartolomeo, for the appel-
lant (defendant).
Eugene C. Cushman, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Steven T. Wash-
burn, appeals from the judgment of the trial court deny-
ing his demand for a trial de novo following an arbitra-
tion award in favor of the plaintiff, Asselin & Vieceli
Partnership, LLC. The trial court also confirmed the
arbitration award upon an application filed by the plain-
tiff. On appeal, the defendant claims that the court
improperly confirmed the arbitration award because
the arbitrator had failed to take an oath required by
General Statutes § 52-414 (d), the plaintiff failed to file
certain required documents required by General Stat-
utes § 52-421 (a) and the arbitrator exceeded her pow-
ers or imperfectly executed them in violation of General
Statutes § 52-418 (a) (4). We disagree and, accordingly,
affirm the judgment granting the plaintiff’s application
to confirm the arbitration award.
The following facts, which were found by the arbitra-
tor, and procedural history are relevant to this appeal.
In February, 2015, the defendant entered into a contract
for the excavation and construction of a new bulkhead
at Four Mile River Marina in Old Lyme. Bob Asselin,
a member of the plaintiff, signed the contract as the
authorized agent for Four Mile River Marina, LLC.
(marina). Asselin is also an officer of the marina. The
plaintiff owns the property that the marina rents and
on which it operates its business. Pursuant to the lease
agreement between the plaintiff and the marina, the
marina was obligated to maintain the structural
improvements at the marina. Accordingly, the marina
entered into the contract with the defendant for repair
of the bulkhead. The contract was signed on February
2, 2015. Construction of the bulkhead was completed
on April 28, 2015. Shortly after the defendant’s work
crew left the property, the bulkhead began to deterio-
rate. Over the next few weeks ‘‘the sheeting dislodged,
the tie rods gave way, the wale broke apart and the vinyl
sheeting cracked.’’ As a result, the bulkhead became
entirely useless.
On September 12, 2016, the plaintiff initiated this
action against the defendant. Its complaint alleged neg-
ligence, innocent misrepresentation, and a violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. On January 13, 2017,
the defendant filed a motion for a stay in order to
arbitrate, pursuant to the arbitration clause in the sub-
ject contract.1 The court granted the motion and stayed
the plaintiff’s case for arbitration.
The parties signed an agreement with Elaine Gordon
to arbitrate the dispute. The ‘‘Arbitration Retainer
Agreement’’ (arbitration agreement) signed by the par-
ties included the caption of the underlying civil action as
part of its heading.2 The arbitration agreement provided
that the parties would retain Gordon ‘‘to serve as the
Arbitrator in the above named dispute.’’ The arbitration
agreement further provided that the arbitration would
‘‘proceed on an ad hoc basis, without an administer-
ing organization.’’
During the arbitration proceedings, which began on
December 1, 2017, Gordon accepted all the evidence
submitted by the parties. On December 21, 2017, Gor-
don issued her arbitration award, finding that the bulk-
head constructed by the defendant was a total loss, that
the defendant was negligent in constructing it, and that
his negligence proximately caused its failure. Gordon
then awarded $275,607 to the plaintiff, including com-
pensatory damages and attorney’s and expert fees.
On December 28, 2017, the defendant filed a ‘‘Demand
for Trial De Novo,’’3 and the plaintiff filed an objection
to the defendant’s demand and an application to con-
firm the arbitration award. On February 28, 2018, fol-
lowing a hearing, the court denied the defendant’s
demand for a trial de novo and granted the plaintiff’s
application to confirm the arbitration award. This
appeal followed.
On appeal, the defendant raises three challenges to
the judgment of the court confirming the arbitration
award. First, he claims that the award should be vacated
because the arbitrator failed to undertake or affirm the
mandatory oath required by § 52-414 (d). Second, he
claims that the award should be vacated because the
plaintiff failed to satisfy the requirements of § 52-421
(a) regarding documents that were required to be filed
with the court clerk in conjunction with the plaintiff’s
application to confirm the award. Third, he claims that
the award should be vacated because the arbitrator
exceeded or imperfectly executed her powers in issuing
the award, in derogation of § 52-418 (a) (4). Specifically,
the defendant argues that the arbitrator exceeded her
powers by failing to conduct the arbitration in accor-
dance with the construction industry rules of the Ameri-
can Arbitration Association and that she exceeded her
authority and manifestly disregarded the law by failing
to consider the parties’ contractual relationship and
their obligations thereunder. We are not persuaded by
any of the defendant’s claims.
I
The record reveals that the first two claims, concern-
ing alleged noncompliance with §§ 52-414 (d) and 52-
421 (a), were not preserved. Accordingly, we decline
to review those claims on appeal. See Practice Book
§ 60-5 (‘‘[t]he court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial’’).
It is the appellant’s ‘‘responsibility to present . . . a
claim clearly to the trial court so that the trial court
may consider it and, if it is meritorious, take appropriate
action. That is the basis for the requirement that ordi-
narily [the appellant] must raise in the trial court the
issues that he intends to raise on appeal.’’ (Internal
quotation marks omitted.) Schoonmaker v. Lawrence
Brunoli, Inc., 265 Conn. 210, 265, 828 A.2d 64 (2003).
For this court ‘‘[t]o review [a] claim, which has been
articulated for the first time on appeal and not before
the trial court, would result in a trial by ambuscade of
the trial judge. . . . We have repeatedly indicated our
disfavor with the failure, whether because of a mistake
of law, inattention or design, to object to errors
occurring in the course of a trial until it is too late for
them to be corrected, and thereafter, if the outcome of
the trial proves unsatisfactory, with the assignment of
such errors as grounds of appeal.’’ (Internal quotation
marks omitted.) Id.‘‘[T]he determination of whether a claim has been
properly preserved will depend on a careful review of
the record to ascertain whether the claim on appeal
was articulated [before the trial court] with sufficient
clarity to place the trial court on reasonable notice of
that very same claim.’’ State v. Jorge P., 308 Conn. 740,
754, 66 A.3d 869 (2013). In his demand for a trial de novo,
the defendant argued that the arbitrator’s decision was
arbitrary and capricious because she had failed to con-
sider that the contract was for labor only, considered
incorrect information provided by the plaintiff’s
experts, and failed to consider evidence submitted by
the defendant. The demand for a trial de novo makes
no reference to the arbitrator’s failure to take the oath
before hearing the arbitration as required by § 52-414
(d) or to the plaintiff’s failure to file certain documents
required by § 52-421 (a). The defendant also failed to
raise these two issues before the court, Cosgrove, J.,
during the hearing. Therefore, because the defendant
failed to preserve these issues in the proceedings before
the trial court, we decline to consider them now for
the first time on appeal.4
II
We next turn to the defendant’s claim that the arbitra-
tor exceeded or imperfectly executed her powers by
issuing the award in derogation of § 52-418 (a) (4). The
plaintiff counters, inter alia, that the defendant did not
preserve this challenge in prior proceedings. Upon
review of the record, we conclude that the defendant
did raise this issue before the trial court. We agree,
however, with the court’s determination that there was
no basis to vacate the arbitrator’s decision under § 52-
418 (a) (4) and that the award should be confirmed.
We begin by setting forth the well established princi-
ples that guide our review of arbitration awards.
Because courts ‘‘favor arbitration as a means of settling
private disputes, we undertake judicial review of arbi-
tration awards in a manner designed to minimize inter-
ference with an efficient and economical system of
alternative dispute resolution.’’ (Internal quotation
marks omitted.) Harty v. Cantor Fitzgerald & Co., 275
Conn. 72, 80, 881 A.2d 139 (2005).
The scope of our review of the arbitrator’s decision
is defined by whether the submission to arbitration was
restricted or unrestricted. ‘‘The significance . . . of a
determination that an arbitration submission was
unrestricted or restricted is not to determine what the
arbitrators are obligated to do, but to determine the
scope of judicial review of what they have done. Put
another way, the submission tells the arbitrators what
they are obligated to decide. The determination by a
court of whether the submission was restricted or
unrestricted tells the court what its scope of review is
regarding the arbitrators’ decision.’’ (Internal quotation
marks omitted.) Id., 81–82.
‘‘The authority of an arbitrator to adjudicate the con-
troversy is limited only if the agreement contains
express language restricting the breadth of issues,
reserving explicit rights, or conditioning the award on
court review. In the absence of any such qualifications,
an agreement is unrestricted.’’ Garrity v. McCaskey,
223 Conn. 1, 5, 612 A.2d 742 (1992). As discussed pre-
viously, the arbitration agreement provided that the
parties would retain Gordon ‘‘to serve as the Arbitrator
in the above named dispute’’ which referred to the
underlying tort case initiated by the plaintiff. This broad
submission contains no limitations on the issues to be
considered, no reservations of rights, nor any language
regarding court review. The record is clear that the
court and the parties proceeded on the understanding
that the submission was unrestricted. We also note that
the defendant does not argue on appeal that the submis-
sion to arbitration was restricted.5
In light of the unrestricted submission, the scope
of our review is limited. ‘‘Judicial review of arbitral
decisions is narrowly confined. . . . When the parties
agree to arbitration and establish the authority of the
arbitrator through the terms of their submission, the
extent of our judicial review of the award is delineated
by the scope of the parties’ agreement. . . . Where the
submission does not otherwise state, the arbitrators are
empowered to decide factual and legal questions and
an award cannot be vacated on the grounds that . . .
the interpretation of the agreement by the arbitrators
was erroneous.’’ (Internal quotation marks omitted.)
Harty v. Cantor Fitzgerald & Co., supra, 275 Conn.
80. ‘‘[T]he arbitrators’ decision is considered final and
binding; thus the courts will not review the evidence
considered by the arbitrators nor will they review the
award for errors of law or fact.’’ (Internal quotation
marks omitted.) Industrial Risk Insurers v. Hartford
Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 110,
779 A.2d 737 (2001).
When reviewing an unrestricted submission to arbi-
tration, however, our Supreme Court has recognized a
few limited circumstances in which a court can vacate
an award: ‘‘(1) the award rules on the constitutionality
of a statute . . . (2) the award violates clear public
policy . . . [and] (3) the award contravenes one or
more of the statutory proscriptions of § 52-418.’’ (Inter-
nal quotation marks omitted.) Harty v. Cantor Fitzger-
ald & Co., supra, 275 Conn. 81. It is the third circum-
stance that is the focus of our analysis of the defendant’s
remaining claim. Section 52-418 (a) provides four
grounds for vacating an arbitrator’s award.6 Further,
our Supreme Court also has recognized that a claim
that an arbitrator has manifestly disregarded the law
may be asserted under § 52-418 (a) (4). Garrity v.
McCaskey, supra, 223 Conn. 10.
With these principles in mind, we turn to the defen-
dant’s specific claims about how the arbitrator allegedly
exceeded her powers under § 52-418 (a) (4). The defen-
dant argues first that the arbitrator exceeded her pow-
ers in failing to conduct the arbitration under the con-
struction industry rules of the American Arbitration
Association. We are not persuaded.
‘‘In our construction of § 52-418 (a) (4), we have, as
a general matter, looked to a comparison of the award
with the submission to determine whether the arbitra-
tors have exceeded their powers.’’ (Internal quotation
marks omitted.) Harty v. Cantor Fitzgerald & Co.,
supra, 275 Conn. 81. In the present matter, the arbitra-
tion agreement stated: ‘‘The Arbitration will proceed
on an ad hoc basis, without an administering organiza-
tion.’’ In the arbitration agreement there is no reference
to the construction industry rules of the American Arbi-
tration Association, or any other set of rules. ‘‘When
the parties have agreed to a procedure and have deline-
ated the authority of the arbitrator, they must be bound
by those limits.’’ (Internal quotation marks omitted.)
Industrial Risk Insurers v. Hartford Steam Boiler
Inspection & Ins. Co., supra, 258 Conn. 114. Because
the arbitration agreement lacks any reference to the
construction industry rules of the American Arbitration
Association, the arbitrator did not exceed her authority
when she did not apply those rules when arbitrating
the dispute between the plaintiff and the defendant.7
The defendant’s second claim is that the arbitrator
exceeded her authority and manifestly disregarded the
law in failing to consider the parties’ contractual rela-
tionship and the duties and obligations under the con-
tract when determining the arbitration award. We
disagree.
As discussed previously in this opinion, it is well
established that ‘‘[i]t is the province of the parties to
set the limits of the authority of the arbitrators, and
the parties will be bound by the limits they have fixed.’’
(Internal quotation marks omitted.) MBNA America
Bank, N.A. v. Boata, supra, 283 Conn. 386. In the case
of an unrestricted submission like the one at issue here,
our review is generally limited to determining whether
the award conforms to the submission. See Industrial
Risk Insurers v. Hartford Steam Boiler Inspection &
Ins. Co., supra, 258 Conn. 110. Our Supreme Court has
also recognized that ‘‘an arbitrator’s egregious misper-
formance of duty may warrant rejection of the resulting
award.’’ Garrity v. McCaskey, supra, 223 Conn. 7–8.
‘‘[A]n award that manifests an egregious or patently
irrational application of the law is an award that should
be set aside pursuant to § 52-418 (a) (4) because the
arbitrator has exceeded [her] powers or so imperfectly
executed them that a mutual, final and definite award
upon the subject matter submitted was not made. We
emphasize, however, that the manifest disregard of the
law ground for vacating an arbitration award is narrow
and should be reserved for circumstances of an arbitra-
tor’s extraordinary lack of fidelity to established legal
principles.’’ (Internal quotations marks omitted.) Id., 10.
To demonstrate this, the defendant must show that
‘‘the award reflects an egregious or patently irrational
rejection of clearly controlling legal principles.’’ Id., 11.
The defendant has failed to do so here.
The defendant argues that the arbitrator ignored
clearly established legal principles by disregarding the
contractual relationship between the parties. Specifi-
cally, the defendant argues that the arbitrator ignored
established legal principles by not considering the
duties and obligations of the parties that arose out of the
contract. The arbitrator’s decision, however, indicates
that she did consider the duties and obligations created
by the contract. Her award discusses the obligations of
the defendant in building the bulkhead and of the plain-
tiff in acquiring the materials for the construction of
the bulkhead.8
The defendant has failed to demonstrate that the
arbitrator exceeded or imperfectly executed her powers
in issuing the arbitration award. The record does not
support the defendant’s claim that the arbitrator
exceeded her powers in failing to conduct the arbitra-
tion in accordance with the construction industry rules
of the American Arbitration Association, or that the
arbitrator exceeded her authority and manifestly disre-
garded the law in failing to consider the parties’ obliga-
tions under the contract. We conclude, therefore, that
the court properly granted the plaintiff’s application to
confirm the arbitration award.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff objected to the defendant’s motion to stay to arbitrate. The
plaintiff argued that it was not a party to the contract and, therefore, not
bound by the arbitration clause in the contract between the marina and the
defendant. The court, Vacchelli, J., determined that because the plaintiff
was a third-party beneficiary of the contract, it also was bound by the
arbitration clause in the contract. The court then stayed the case pending
arbitration.
2
The arbitration agreement’s heading is ‘‘Asselin v. Washburn, KNL-
CV16-6027983.’’
3
The defendant incorrectly relied on General Statutes § 52-549z when
filing the demand for a trial de novo. General Statutes § 52-549u governs
arbitration of certain civil matters and provides that a court, in its discretion,
may refer to an arbitrator ‘‘any civil action in which in the discretion of the
court, the reasonable expectation of a judgment is less than fifty thousand
dollars exclusive of legal interest and costs and in which a claim for a trial
by jury and a certificate of closed pleadings have been filed.’’ Pursuant to
§ 52-549z, the decision of the arbitrator shall become a judgment of the
court if no appeal from the arbitrator’s decision by way of a demand for a
trial de novo is filed in accordance with subsection (d), which provides in
relevant part that ‘‘[a]n appeal by way of a demand for a trial de novo must
be filed with the court clerk within twenty days after the deposit of the
arbitrator’s decision in the United States mail . . . .’’ The present case did
not involve a matter that was referred to arbitration pursuant to § 52-549u
and, thus, § 52-549z was not applicable. The trial court nevertheless treated
the demand for a trial de novo as a motion to vacate the arbitration award.
Thus, the defendant was permitted to present argument on why the award
should be vacated under § 52-418.
4
The defendant argues that even if we were to find that the claims were
not preserved, this court should still review them because they implicate
subject matter jurisdiction, constitute plain error, and require review in the
interest of justice and fairness. We disagree.
First, the defendant’s argument that the failure of the arbitrator to take
an oath constitutes a defect equivalent to a lack of subject matter jurisdiction
is misplaced. Our Supreme Court in MBNA America Bank, N.A. v. Boata,
283 Conn. 381, 388–91, 926 A.2d 1035 (2007), clarified the distinction between
the authority of the arbitrator and the judicial concept of subject matter
jurisdiction. The court stated that ‘‘[b]ecause the parties’ mutual assent
confers power on the arbitrator, a claim that an arbitrator lacks the authority
to hear a matter can be waived and, once waived, cannot be reclaimed.’’
Id., 390. Here, the parties together, in an agreement devoid of any reference
to an oath, retained the arbitrator to arbitrate the dispute between them.
Thus, the parties’ mutual assent conveyed authority to her to decide their
dispute. The failure of the arbitrator to take an oath does not negate the
authority that parties conferred on her through their mutual agreement.
The defendant’s other argument that the arbitrator’s failure to follow the
construction industry rules of the American Arbitration Association also
implicates her authority fails for the same reason.
The defendant’s second argument that the arbitrator’s failure to take an
oath and the plaintiff’s failure to file certain documents in conjunction with
its application to confirm the arbitration award constitutes plain error is
similarly unfounded. See Practice Book § 60-5; see also In re Jonathan S.,
260 Conn. 494, 505, 798 A.2d 963 (2002). ‘‘[T]he plain error doctrine is
reserved for truly extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . [I]n addition to examining the
patent nature of the error, the reviewing court must examine that error for
the grievousness of its consequences in order to determine whether reversal
under the plain error doctrine is appropriate. . . . An appellant cannot
prevail . . . unless he demonstrates that the claimed error is both so clear
and so harmful that a failure to reverse the judgment would result in manifest
injustice.’’ (Citation omitted; emphasis in original; internal quotation marks
omitted.) State v. Cane, 193 Conn. App. 95, 126, A.3d (2019). The
claimed error here is not ‘‘so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice.’’ (Internal quotation marks
omitted.) Id., 130.
5
At oral argument before this court, the defendant stated that there were
no specifications made by either party about what claims were to be adjudi-
cated in the arbitration.
6
General Statutes § 52-418 (a) provides: ‘‘Upon the application of any
party to an arbitration, 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, any judge thereof, 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
imperfectly executed them that a mutual, final and definite award upon the
subject matter submitted was not made.’’
7
The parties offered conflicting interpretations of the Latin phrase ‘‘ad
hoc’’ as used in the arbitration agreement, which the parties and the arbitra-
tor signed. The arbitration clause contained within the original contract
between the defendant and the marina stated: ‘‘Any claims or disputes
between the Contractor and the Owner arising from this agreement shall
be resolved by arbitration in accordance with the construction industry
Arbitration Rules of the American Arbitration Association unless both parties
agree otherwise.’’
The arbitration agreement, however, contained no reference to any set
of rules that the arbitrator was required to use. The arbitration agreement
instead stated that the arbitration would ‘‘proceed on an ad hoc basis . . . .’’
The defendant argued that ‘‘ad hoc’’ as used in the agreement meant ‘‘formed
for a particular purpose’’; specifically, that ‘‘[t]he selection of the arbitrator
on an ‘ad hoc basis’ simply meant that she was selected for the special
purpose of acting as an arbitrator for the specific dispute between the parties
. . . .’’ According to the defendant, this required the use of the construction
industry rules of the American Arbitration Association. In contrast, the
plaintiff argued that the use of ‘‘ad hoc’’ meant that the ‘‘parties agreed
‘otherwise’ as to the use of the American Arbitration Association and its
rules.’’ The plaintiff further argued that the defendant waived this challenge
by failing to object during the arbitration proceedings and to raise this issue
to the court during the hearing. Because the submission was unrestricted
and the agreement submitted to arbitration contained no reference to any
rules that the arbitrator was to use, we agree with the plaintiff that the
arbitrator was not required to use the construction industry rules of the
American Arbitration Association.
8
Furthermore, even if we accepted the defendant’s contention that the
arbitrator incorrectly determined that the contract was not a ‘‘labor only’’
contract, such error would not mean that the arbitrator manifestly disre-
garded the law. In Garrity v. McCaskey, supra, 223 Conn. 11, the defendant
argued that the arbitrators misapplied equitable tolling doctrines in determin-
ing that the plaintiff’s claims were not barred by the statute of limitations.
Our Supreme Court rejected this argument, determining that ‘‘[e]ven if the
arbitrators were to have misapplied the law governing statutes of limitations,
such a misconstruction of the law would not demonstrate the arbitrators’
egregious or patently irrational rejection of clearly controlling legal princi-
ples. The defendant’s claim in this case falls far short of an appropriate
invocation of § 52-418 (a) (4) for manifest disregard of the law.’’ Id., 11–12.
The same reasoning is true in the present case. Here, although we conclude
that the arbitrator properly considered the contract, even if she had failed
to consider the parties’ contractual obligations under the contract ade-
quately, this does not constitute manifest disregard of the law.