SBD Kitchens, LLC v. Jefferson ( 2015 )

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SBD KITCHENS, LLC v. BRETT JEFFERSON ET AL.
(AC 36411)
BRETT JEFFERSON ET AL. v. SBD KITCHENS, LLC
(AC 36412)
(AC 36613)
Gruendel, Lavine and Borden, Js.
Argued December 10, 2014—officially released June 16, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Povodator, J.)
Ethan A. Brecher, with whom, on the brief, was Ana
M. Montoya, for the appellants-appellees (defendants
in the first case, plaintiffs in the second case).
James C. Riley, with whom, on the brief, was Thomas
P. O’Connor, for the appellee-appellant (plaintiff in the
first case, defendant in the second case).
Opinion
BORDEN, J. These three appeals arise out of an arbi-
tration proceeding. In the first two consolidated
appeals, AC 36411 and AC 36412, the defendants, Brett
Jefferson and Catherine Jefferson, appeal from the trial
court’s judgment confirming the arbitrator’s award of
punitive damages to the plaintiff, SBD Kitchens, LLC,
claiming that the award was made in manifest disregard
of the law.1 In the third appeal, AC 36613, the plaintiff
claims that the trial court improperly denied its motion
for attorney’s fees incurred in the subsequent court
proceedings. We affirm the judgments of the trial court.
These claims arose out of work that the plaintiff
performed at the home of the defendants, and the defen-
dants’ creation and maintenance of a website criticizing
the quality of that work. The defendants commenced an
action against the plaintiff, claiming, inter alia, breach of
contract and violations of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq. (contract action). The plaintiff filed a demand for
arbitration with the American Arbitration Association
in accordance with the parties’ written agreement and
filed an application in the trial court under a separate
docket number for an order compelling arbitration
(arbitration action).2 The plaintiff alleged breach of con-
tract and defamation and sought compensatory and
punitive damages, as well as injunctive relief. The court,
Hon. Taggart Adams, judge trial referee, ordered all
of the parties’ various claims to be arbitrated.
Before the arbitrator,3 the plaintiff alleged breach of
contract on the basis of the defendants’ failure to pay
the final invoice for the work performed by it in the
defendants’ residence. The plaintiff also claimed it was
defamed by an Internet website created and maintained
by the defendants, and sought compensatory and puni-
tive damages as well as injunctive relief. The defendants
raised various related defenses and counterclaims.4 The
arbitrator found for the defendants on the plaintiff’s
breach of contract claim, and found for the plaintiff
on the defendants’ counterclaims. The arbitrator also
found for the plaintiff on its defamation claim, and
awarded the plaintiff compensatory damages in the
amount of $25,000, and punitive damages, consisting of
attorney’s fees and costs allocable to the defamation
claim, in the amount of $166,038.89, as well as certain
injunctive relief regarding the website.
The plaintiff applied to the trial court to confirm the
award. The defendants filed two applications: one, to
confirm that part of the award denying the plaintiff’s
breach of contract claim; and the second, to vacate the
award of punitive damages. The court, Povodator, J.,
granted the plaintiff’s application to confirm the award,
granted the defendants’ first application, namely, to
confirm that part of the award denying the plaintiff’s
breach of contract claim, and denied the defendants’
second application, namely, to vacate the award of puni-
tive damages. Thereafter, the plaintiff filed a motion
for attorney’s fees, which the court denied. These
appeals followed.
I
In the first two appeals, AC 36411 and AC 36412, the
defendants raise only one claim: the arbitrator’s award
of punitive damages was made in manifest disregard
of the law. We disagree and, accordingly, affirm the
judgment of the trial court confirming the award of
punitive damages to the plaintiff.
Certain facts relevant to this appeal are undisputed.
The plaintiff, owned by Sarah Blank and her husband,
Charles Karas, is a small business engaged in the instal-
lation of kitchens and other residential home projects.
The defendants own a home at 225 Tokeneke Road in
Darien. Brett Jefferson is the founder and head of an
asset management firm, Hildene Capital Management
(Hildene), with approximately $1.4 billion in assets
under management. The defendants used Harry Russell,
an employee of Hildene, to help them create and man-
age the website that is at issue in the present case.
The arbitrator made the following specific factual
findings and conclusions in his written award, none of
which the defendants challenge. First, the arbitrator
summarized the proceedings before him as follows.
‘‘[The plaintiff] seeks the recovery of money damages
for breach of contract on the part of [the defendants]
in allegedly failing to pay the final invoice submitted
by [the plaintiff] in the amount of $14,117.75 for services
performed under separate agreements which the parties
refer to familiarly as ‘the Kitchen Contract’ and ‘the
Bathroom Contract’ in connection with the renovation
work undertaken at the [defendants’] residence in Dar-
ien, Connecticut. In addition, [the plaintiff] seeks an
award of compensatory and punitive damages as well
as injunctive relief resulting from and related to the
content of an Internet website created by or at the
direction of [Brett Jefferson] and containing statements
critical of [the plaintiff’s] performance and practices
during the course of the relationship between the par-
ties. The website is alleged by [the plaintiff] to be
defamatory.
‘‘By way of Amended Answer to Demand for Arbitra-
tion and Amended Counterclaims . . . the [defen-
dants] have denied liability to [the plaintiff] either for
breach of contract or for defamation. [The defendants]
have raised twelve defenses to [the plaintiff’s] claims
and have asserted six counterclaims (which have been
pleaded jointly as defenses and counterclaims).’’
Second, the arbitrator made certain specific findings
of fact and conclusions of law in his award. In the
course of rejecting the plaintiff’s breach of contract
claim,5 he addressed certain of the defendants’ counter-
claims, namely, that the plaintiff had ‘‘charged an unrea-
sonable markup on its underlying costs or represented
that it would charge a markup only on cabinetry
. . . .’’6 The arbitrator found that these assertions of the
defendants were ‘‘belied by the evidence.’’ Specifically,
with respect to the kitchen contract, the arbitrator
found that the contract price of $212,835 was ‘‘consis-
tent with budget information provided by [the plaintiff]
to [the defendants] prior to the execution of the contract
. . . . There is no evidence to suggest that the [defen-
dants] did not know what they were to receive for that
price. In addition, the testimony of Jennifer Howard, a
designer who had initially been consulted by the [defen-
dants] but who had no stake in this dispute, was instruc-
tive in terms of the pricing exercise that she and [the
plaintiff] undertook for the defendants in early February
of 2010 as well as on this issue of markups in general.’’
With respect to the bathroom contract, the arbitrator
similarly found, on the basis of evidence that he detailed
in his award, that ‘‘the [defendants] understood what
they would be getting for [the contract price of]
$276,028—the essence of a bargained-for exchange.’’
Regarding the plaintiff’s defamation claim, the arbi-
trator found as follows. ‘‘On or about November 11,
2011, the [defendants] published a website entitled ‘SBD
Kitchens Contract Issues’ and subtitled ‘SBD Kitchens
SCAM (U) . . . in which numerous statements are
made concerning the contracting process with [the
plaintiff] as well as [its] performance.’’ Although the
initial motivation for the website was the defendants’
frustration regarding their inability to secure cost infor-
mation from the plaintiff, the ‘‘relationship between the
parties fractured irreparably in early March of 2011 as
a result of a conversation between [Brett] Jefferson
and Karas of [the plaintiff] in which [Brett] Jefferson
according to Karas, told Karas ‘that he was going to
destroy you, your business, your life, your reputation.’
‘‘Thereafter [Brett] Jefferson worked with an
employee of his company, Harry Russell, who in turn
worked with a website designer, Michael Walker of
Walker, Tek, to create the website, culminating in an
e-mail sent by [Brett] Jefferson to Blank of [the plaintiff]
at the close of business on November 11, 2011, with
the subject line ‘Happy Friday’ enclosing a link to the
new website. . . . The website remained active for
approximately a year. It went offline in late 2012 and
then was reactivated in April of 2013.’’
The arbitrator concluded that the contents of the
website constituted ‘‘libel per se under Connecticut
law.’’ The arbitrator stated that ‘‘the website contains
several false and/or defamatory statements. In addition
to the appearance of the term ‘SCAM’ in the subtitle of
the website, examples of these include:
‘‘ ‘I feel that [the plaintiff] made misrepresentations
as to their form of compensation and that much of their
work was inferior.’
‘‘ ‘Another designer (Designer 2) was very clear that
she only charged a markup on the cabinets. This meth-
odology was similar to what was conveyed to us by
[the plaintiff].’
‘‘ ‘[The plaintiff] with their deceptive pricing was
motivated to have us select lesser quality items so they
could achieve a greater markup.’
‘‘The section of the website entitled ‘Inferior Work-
manship and Knowledge,’ to the extent that it contains
inaccurate statements of the factual circumstances con-
cerning the beverage refrigerator, the vanity in the chil-
dren’s bathroom and the angled wall in Bathroom 6.’’
(Emphasis added.)
The arbitrator stated: ‘‘When coupled with the con-
tent and tone of internal e-mails between and among
[Brett Jefferson, Russell, Walker] and others, the con-
clusion is inescapable that publication of the website
was motivated in large measure by a desire to embarrass
[the plaintiff] and tarnish its reputation in the eyes of
those who visited the website. It is also evident that
efforts were made by [Brett] Jefferson and his agents
to optimize the website so that it appears as a prominent
search result when the term ‘SBD’ is the subject of a
‘Google’ or related search inquiry.’’ The arbitrator also
found, based on testimony of an advertising consultant,
‘‘that the existence of the website made it impractical
and imprudent for [the plaintiff] to launch an advertising
campaign.’’ The arbitrator then specifically rejected the
defendants’ claims that the website statements consti-
tuted protected opinion under the first amendment,
were immunized by the doctrine of fair comment or
other privilege, and were true.
The arbitrator then stated: ‘‘In accordance with Con-
necticut law, and with the discretion vested in the trier
of fact, [the plaintiff] is awarded the sum of $25,000 in
general damages on the defamation claim. . . . Fur-
ther, [the plaintiff] is awarded punitive damages, con-
sisting of attorney’s fees and costs allocable to the
defamation issues, in the amount of $170,559.49, which
consists of an award in the amount of $166,038.89 in
attorney’s fees and an award in the amount of $4,560.60
for stenographic services. These sums represent [70
percent] of the fees and stenographic costs incurred by
[the plaintiff] rather than the [80 percent] requested.’’7
(Emphasis added.) Finally, the arbitrator specified that
‘‘[t]his Award is in full settlement of all claims and
counterclaims submitted to this arbitration. All claims
and counterclaims not expressly granted herein are
denied.’’
The defendants’ sole claim in their appeals to this
court is that the arbitrator’s award of punitive damages,
consisting of attorney’s fees and costs, must be vacated
because it was made in manifest disregard of the law.
Specifically, the defendants argue as follows: under
Connecticut law, in order for there to be an award of
punitive damages in a defamation case, there must be
proof of actual malice, defined as ‘‘the publication of a
false statement with knowledge of its falsity or reckless
disregard for its truth . . . .’’ Gambardella v. Apple
Health Care, Inc., 291 Conn. 620, 634, 969 A.2d 736(2009). Actual malice is to be distinguished from ‘‘mal-
ice in fact,’’ defined as ‘‘the publication of a false state-
ment with bad faith or improper motive.’’ Id. The parties
had extensively briefed and argued this proposition of
law to the arbitrator, ‘‘an experienced attorney in Con-
necticut with an extensive background in construction
law.’’ Because the arbitrator was required to make a
‘‘Reasoned Award,’’ the defendants contend, he was
required specifically to make a finding of actual malice
in his award in order to justify his award of punitive
damages, which he did not do. The language of his
award, focusing on the defendants’ motives, indicates
instead that he based his award of punitive damages
on a finding of malice in fact, which falls short of the
legally required proof of actual malice. In this respect,
the defendants further argue that, in reviewing the ‘‘Rea-
soned Award,’’ we are confined to its four corners and
may not examine the record to determine whether the
record supports a finding of actual malice. Thus, the
defendants maintain, the arbitrator manifestly disre-
garded the law of punitive damages in making his
award. We disagree with the defendants.
We agree with the parties that our scope of review
of the trial court’s decision to confirm the award of
punitive damages is plenary. See HH East Parcel, LLC
v. Handy & Harman, Inc., 287 Conn. 189, 196, 947 A.2d
916 (2008); Bridgeport v. Kasper Group, Inc., 278 Conn.
466, 475, 899 A.2d 523 (2006). We also agree with the
parties that even an award made pursuant to an
unrestricted submission to arbitration, such as in the
present case,8 must be vacated if the arbitrator mani-
festly disregarded the law in making his award; see
Design Tech, LLC v. Moriniere, 146 Conn. App. 60,
67–68, 76 A.3d 712 (2013); Teamsters Local Union No.
677 v. Board of Education, 122 Conn. App. 617, 622–23,
998 A.2d 1239 (2010); and that this rule of law applies
equally to a punitive damage award made by an arbitra-
tor. See Nxegen, LLC v. Carbone, 155 Conn. App. 264,
271, 109 A.3d 534, cert. denied, 316 Conn. 906, A.3d
(2015). We conclude that the arbitrator, in awarding
punitive damages, did not manifestly disregard the law.
It is well settled that, in order for an arbitration award
to be set aside on the ground of manifest disregard of
the law, the party challenging the award has the burden
to establish three elements: ‘‘(1) the error was obvious
and capable of being readily and instantly perceived by
the average person qualified to serve as an arbitrator;
(2) the arbitration panel appreciated the existence of
a clearly governing legal principle but decided to ignore
it; and (3) the governing law alleged to have been
ignored by the arbitration panel is well defined, explicit,
and clearly applicable.’’ (Internal quotation marks omit-
ted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72,
102, 881 A.2d 139 (2005). It is equally well settled that
‘‘[t]he manifest disregard of the law ground for vacating
an arbitration award is narrow and should be reserved
for circumstances of an arbitrator’s extraordinary lack
of fidelity to established legal principles. . . . Even if
the [arbitrator] were to have misapplied the law . . .
such a misconstruction of the law would not demon-
strate the [arbitrator’s] egregious or patently irrational
rejection of clearly controlling legal principles. . . .
‘‘This standard of proof has rarely, if ever, been met
in Connecticut. . . . Indeed, [our Supreme Court] has
acknowledged that [t]he exceptionally high burden for
proving a claim of manifest disregard of the law under
[General Statutes] § 52-418 (a) (4) is demonstrated by
the fact that, since the test was first outlined in Garrity
[v. McCaskey, 223 Conn. 1, 9, 612 A.2d 742 (1992), the
court had] yet to conclude that an arbitrator manifestly
disregarded the law.’’ (Citations omitted; internal quota-
tion marks omitted.) Design Tech, LLC v. Moriniere,
supra, 146 Conn. App. 68; accord AFSCME, Council 4,
Local 1565 v. Dept. of Correction, 298 Conn. 824, 848
n.12, 6 A.3d 1142 (2010); Nxegen, LLC v. Carbone, supra,
155 Conn. App. 270–71.
As a substantive matter, both parties also agree that
the well settled legal test for awarding punitive damages
is that of actual malice, namely, ‘‘the publication of a
false statement with knowledge of its falsity or reckless
disregard for its truth’’; Gambardella v. Apple Health
Care, Inc., supra, 291 Conn. 634; and that malice in
fact, defined as ‘‘the publication of a false statement
with bad faith or improper motive’’; id.; is insufficient.
It is clear to us from this record that this governing law
is well-defined, explicit, and clearly applicable to the
plaintiff’s claim for punitive damages, and that the arbi-
trator appreciated its applicability. It is also clear from
the record, that this is not a case in which the arbitrator
exhibited an extraordinary lack of fidelity to established
legal principles or, to put it another way, demonstrated
an egregious or patently irrational rejection of clearly
controlling legal principles, or chose to ignore those
principles.9
In his award of punitive damages, the arbitrator, after
identifying several ‘‘false and/or defamatory state-
ments’’ that he found to have been made on the website,
stated: ‘‘When coupled with the content and tone of
internal e-mails between and among [Brett Jefferson,
Russell, Walker] and others, the conclusion is inescap-
able that publication of the website was motivated in
large measure by a desire to embarrass [the plaintiff]
and tarnish its reputation in the eyes of those who
visited the website. It is also evident that efforts were
made by Mr. Jefferson and his agents to optimize the
website so that it appears as a prominent search result
when the term ‘SBD’ is the subject of a ‘Google’ or
related search inquiry. Further, Joseph Giaccone, an
advertising consultant testified that the existence of the
website made it impractical and imprudent for [the
plaintiff] to launch an advertising campaign.’’
The arbitrator then concluded: ‘‘In accordance with
Connecticut law, and with the discretion vested in the
trier of fact, [the plaintiff] is awarded the sum of $25,000
in general damages on the defamation claim. See Mon-
roe v. Crandall, 3 Conn. App. 214, [486 A.2d 657] (1985).
Further, [the plaintiff] is awarded punitive damages,
consisting of attorney’s fees and costs allocable to the
defamation issues, in the amount of $170,559.49, which
consists of an award of $166,038.89 in attorney’s fees
and award in the amount of $4,560.60 for stenographic
services.’’ (Emphasis added.)
The arbitrator’s decision and the record substantiat-
ing it lead us to conclude that he did not manifestly
disregard the law in his award of punitive damages.
First, the language of the decision itself displays an
effort to follow the law, rather than to decide to ignore
it. He prefaced his damages award by: ‘‘In accordance
with Connecticut law . . . .’’ Although this phrase spe-
cifically preceded the compensatory damages award
and was not repeated in the next sentence, which
involved the punitive damages award, that next sen-
tence began with ‘‘[f]urther,’’ which we read to refer
back to the immediately preceding reference to ‘‘[i]n
accordance with Connecticut law . . . .’’
This reading is consistent with the appellate principle
that a reviewing court will engage in every reasonable
presumption in favor of the validity of an arbitral
award.10 See Board of Education v. Waterbury Teachers
Assn., 216 Conn. 612, 617–18, 583 A.2d 626 (1990) (pre-
sumption of validity of award requires court to adopt
interpretation supporting validity); Bic Pen Corp. v.
Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981)
(every reasonable presumption of validity will be made
in favor of arbitrator’s decision). It is also consistent
with the federal appellate principle of reading an arbi-
tral award, challenged as a manifest disregard of the
law, to yield a legally correct justification for its result.
Duferco International Steel Trading Co. v. T. Klaveness
Shipping A/S, 333 F.3d 383, 390 (2d Cir. 2003) (‘‘where
an arbitral award contains more than one plausible
reading, manifest disregard cannot be found if at least
one of the readings yields a legally correct justification
for the outcome’’).
Second, the record amply supports the arbitrator’s
award of punitive damages. In this regard, we note that,
again, the decision itself makes clear that the arbitrator,
in citing the evidence to support his factual determina-
tions, did not intend his citations to be exclusive and
plenary. For example, in finding that ‘‘the website con-
tains several false and/or defamatory statements,’’ the
arbitrator stated, ‘‘[i]n addition to the appearance of
the term ‘SCAM’ in the subtitle of the website, examples
of these include’’ the four examples noted previously
in this opinion, namely, that the website: falsely claimed
that the plaintiff misrepresented their compensation
structure and presented inferior work; falsely asserted
that plaintiff promised to only markup the price on the
cabinets; falsely alleged that the plaintiff engaged in
deceptive pricing to achieve a greater profit; and inaccu-
rately portrayed the circumstances surrounding the
beverage refrigerator, children’s bathroom vanity, and
angled wall in one of the bathrooms. Additionally, when
addressing the punitive damages award, the arbitrator
prefaced that paragraph as follows: ‘‘[w]hen coupled
with the content and tone of internal e-mails between
and among [Brett Jefferson, Russell, Walker] and oth-
ers’’ inviting the reader—including a reviewing court—
to look beyond the four corners of his written decision
for support.
Furthermore, as we have stated, the record contains
ample support for the award of punitive damages in
the present case. As the plaintiff notes in its brief, the
record contains the following evidence that supports a
finding of actual malice. The defendants acknowledged
in the arbitration hearing that, contrary to the assertions
in the website, neither Blank nor Howard; see footnote
6, of this opinion; had said that they only charged a
markup on the cabinetry, or that other items would be
passed through at cost. The defendants exercised no
due diligence nor investigated the veracity of many
of the defamatory statements in the website.11 Brett
Jefferson stated to Karas that he was going to destroy
the plaintiff’s business and reputation, as well as the
lives and reputation of Karas and Blank. Brett Jefferson
insisted on using the term ‘‘SCAM,’’ a term that his
agent, Russell, equated to ‘‘BS.’’12 When the website was
about to go live, Brett Jefferson asked Russell to e-mail
a link to Blank under an anonymous name. Brett Jeffer-
son posted a fake comment on the website, under a
fake name, as part of a plan to get other people involved
and join in the insults of Blank. He also e-mailed Karas
as follows: ‘‘What I want you to know is that regardless
of the outcome of the contract dispute the website . . .
which I have created will never be taken down . . .
and will have numerous back up sites in foreign jurisdic-
tions . . . .’’ After temporarily taking down the web-
site, the defendants republished it, including the false
statements attributed to Howard, despite the fact that
two months prior she had advised Brett Jefferson that
she had never made those statements. We agree that
this and other evidence in the record supports a finding
of actual malice.
As the defendants clarified at oral argument in this
court, their claim that the arbitrator manifestly disre-
garded the law of punitive damages—by finding only
what amounts to malice in fact rather than actual mal-
ice—rests solely on the fact that the parties required
the arbitrator to render a ‘‘Reasoned Award’’ under
the rules of the American Arbitration Association. This
claim is without merit.
We first note that those rules do not define further
what is meant by a reasoned award—only that it is
among the several forms of award that the parties to
an arbitration may require, namely, that ‘‘[t]he parties
may request a specific form of award, including a rea-
soned opinion, an abbreviated opinion, findings of fact
and conclusions of law . . . .’’13 Although there is no
Connecticut authority defining a reasoned award under
the rules of the American Arbitration Association, sev-
eral federal courts have done so.14 The common theme
of those federal authorities, with which we agree, is
that a reasoned award means something more than a
simple result and less than specific findings of fact and
conclusions of law. See, e.g., Rain CII Carbon, LLC v.
Conocophillips Co., 674 F.3d 469, 473 (5th Cir. 2012);
Cat Charter, LLC v. Schurtenberger, 646 F.3d 836, 844
(11th Cir. 2011); Sarofim v. Trust Co. of the West, 440
F.3d 213, 215 n.1 (5th Cir. 2006); R & Q Reinsurance Co.
v. American Motorist Ins. Co., United States District
Court, Docket No. 10 C 2825 (GWL) (N.D. Ill. October
14, 2010).
Of these authorities, the most compelling and perti-
nent to the present case is that of the Fifth Circuit Court
of Appeals in Sarofim v. Trust Company of the West,
supra, 440 F.3d 213, because in that case the court
specifically rejected the proposition that the defendants
argue here, namely, that appellate review of a ‘‘reasoned
award’’ is ‘‘confined to the four corners of the arbitral
award, and that [the court] may not consider evidence
from the record which supports the punitive damages
award.’’ (Internal quotation marks omitted.) Id., 217.
We agree with the court in Sarofim that, to the contrary,
we may consider ‘‘all the information available to the
court on review for manifest disregard.’’ (Internal quota-
tion marks omitted.) Id. We do so for two reasons.
First, confining ourselves to the four corners of the
arbitrator’s award would be inconsistent with the gener-
ally accepted propositions that courts favor arbitration;
Board of Education v. Wallingford Education Assn.,
271 Conn. 634, 639, 858 A.2d 762 (2004); and that we
give great deference to the factual findings and legal
conclusions of the arbitrator. State v. New England
Health Care Employees Union, District 1199, AFL-
CIO, 265 Conn. 771, 784, 830 A.2d 729 (2003). Second,
we are mindful that, although this arbitrator was an
attorney with extensive experience in construction law,
not all American Arbitration Association arbitrators
would have the same level of expertise. Imposing on
all such arbitrators the stringent drafting standard that
the defendants’ argument entails would be unduly
restrictive on those arbitrators who, although expert in
the field of construction, probably would not possess
the acumen in opinion drafting that would be required
under that standard. Thus, it is the wiser policy, consis-
tent with the judicial policy of favoring arbitration, to
permit the reviewing court to examine the entire record
for factual and evidentiary support of the award.
II
In the third appeal, AC 36613, the plaintiff makes a
single claim: the trial court improperly denied its motion
for attorney’s fees and costs incurred in litigating the
applications to vacate and to confirm the arbitration
awards in the trial court following the arbitration pro-
ceedings and award. We disagree and, accordingly,
affirm the judgment of the court denying the plaintiff’s
motion for attorney’s fees.
The following procedural posture of the case is rele-
vant to this appeal. Following the arbitrator’s award of
damages and injunctive relief in favor of the plaintiff,15
considerable litigation and procedural wrangling took
place. The defendants filed two separate applications,
one to vacate in part and the other to confirm in part;
and the plaintiff objected to both applications, claiming
that the court lacked subject matter jurisdiction to
decide the applications because they were filed in the
arbitration action. The plaintiff filed its own application
to confirm the award in the contract action, as well as
a motion regarding the defendants’ assertion that they
would be paying the compensatory damage award of
$25,000, which they did not challenge, in coins.16
The court heard argument on the competing applica-
tions and the motion regarding payment of the compen-
satory damage award over the course of three different
days. The court identified what was not disputed by
the defendants, namely, the validity of the agreement to
arbitrate, the arbitrator’s authority to decide the matters
submitted to him, including the request for injunctive
relief, the award of compensatory damages, and the
award of fees and expenses of the arbitration associa-
tion. In addition, the defendants acknowledged that the
submission was unrestricted. The defendants did not
dispute at the time the court heard argument on the
motions the validity of the arbitrator’s award regarding
liability and compensatory damages, including those
portions adverse to it.17 The only disputed issues, there-
fore, at that time, were that the award of punitive dam-
ages and the scope of the injunctive relief were in
manifest disregard of the law, as claimed by the defen-
dants, as well as the outstanding issue of the form of
payment of the award of $25,000 in compensatory
damages.
With regard to this latter issue, the defendants
asserted that they had the right to pay the award in
coins because coins are legal tender. During the pro-
ceedings, the court noted that, if the defendants were
correct in this regard, the court would probably require
them to file an affidavit attesting to the examination of
every coin to ensure that it was in fact legal tender. In
response, the defendants eventually represented on the
record that any payment of the compensatory damages
award would be made by check, as a result of which
the court took no formal action on the matter. But see
footnote 18 of this opinion.
With respect to the merits of the applications, the
court denied the defendants’ application to vacate the
award, and granted the plaintiff’s application to confirm
the award. Subsequently, the plaintiff moved for attor-
ney’s fees and costs in both cases—the arbitration
action and the contract action—in the total amount of
$86,296.58. The court denied that motion. The plaintiff’s
appeal followed.
The plaintiff claims that it is entitled to an award of
attorney’s fees and costs for the trial court proceedings
because the original fees and costs were awarded by
the arbitrator based upon the defendants’ ‘‘ ‘intentional
and wrongful conduct,’ ’’ and the trial court proceedings
were necessary ‘‘ ‘to obtain judgment in the matter.’ ’’
Thus, the plaintiff maintains, such an award is justified
to ensure that it is made whole and to avoid rewarding
the defendants’ ‘‘clear strategy to effectively gut the
Award—or wipe it out in full—by forcing [the plaintiff]
to incur substantial additional fees.’’18 In short, the plain-
tiff argues that the attorney’s fees and costs it seeks
are simply an extension of the fees and costs awarded
it by the arbitrator. We disagree.
We first address, briefly, our scope of review.
Because the issue involves the question of the court’s
authority to award attorney’s fees in the present case,
rather than whether the court abused its discretion in
denying such an award, the question is one of law and
our scope of review is plenary. See Deutsche Bank
National Trust Co. v. Bertrand, 140 Conn. App. 646,
655–56, 59 A.3d 864 (challenges to trial court’s authority
to act raises questions of law resulting in plenary
review), cert. dismissed, 309 Conn. 905, 68 A.3d 661(2013).
Our starting point in the plaintiff’s claim, as with
many claims for attorney’s fees and costs associated
with litigation, is Connecticut’s adherence to the Ameri-
can rule. ‘‘The general rule of law known as the Ameri-
can rule is that attorney’s fees and ordinary expenses
and burdens of litigation are not allowed to the success-
ful party absent a contractual or statutory exception.
. . . This rule is generally followed throughout the
country. . . . Connecticut adheres to the American
rule. . . . There are few exceptions. For example, a
specific contractual term may provide for the recovery
of attorney’s fees and costs . . . or a statute may con-
fer such rights. . . . This court also has recognized a
bad faith exception to the American rule, which permits
a court to award attorney’s fees to the prevailing party
on the basis of bad faith conduct of the other party or
the other party’s attorney.’’ (Internal quotation marks
omitted.) ACMAT Corp. v. Greater New York Mutual
Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).19
The short answer to the plaintiff’s claim is that there is
neither a specific contractual term between the parties
providing for attorney’s fees and costs in the event of
litigation between them, nor a statute providing for
litigation expenses in proceedings to confirm or vacate
an arbitration award. See, e.g., General Statutes § 42-
110g (d) (providing for recovery of attorney’s fees under
CUTPA).20 It is true, as the plaintiff points out, a court
or jury (or arbitrator, as in the present case), may, in
addition to using contract or statute as a basis for an
award of punitive damages, award such damages on
the basis of a party’s wanton or wilful malicious miscon-
duct. See, e.g., Stohlts v. Gilkinson, 87 Conn. App. 634,
646, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d
1000 (2005). But that award already has been made by
the arbitrator in the present case, in the form of his
award of punitive damages, which both the trial court
and this court have affirmed. See part I of this opinion.
The longer answer to the plaintiff’s claim lies in the
reasoning of O’Leary v. Industrial Park Corp., 211
Conn. 648, 560 A.2d 968 (1989). In O’Leary, the two
plaintiffs prevailed in the trial court on a civil claim for
fraud, and the jury awarded them punitive damages,
including attorney’s fees, as part of the verdict in their
favor. Id., 649. After successfully defending the judg-
ment on the defendants’ appeal to this court, the plain-
tiffs sought, in the trial court, additional attorney’s fees
incurred in opposing the defendants’ appeal. Id., 651.
The trial court denied their motion for such fees, and
our Supreme Court affirmed, holding that the trial court
was without authority to modify its judgment ‘‘to
include attorney’s fees incurred in defending an
appeal.’’ Id., 649.
The court began its reasoning with a restatement of
the American rule, namely, that ‘‘[a]bsent contractual
or statutory authorization there can be no recovery,
either as costs or damages . . . for counsel fees by a
party opponent from his opponent.’’ (Internal quotation
marks omitted.) Id., 651. The court then stated that an
exception to this general rule is that such fees may be
awarded as a component of punitive damages upon a
showing of fraud. Id. The court concluded, however,
that ‘‘[t]here is no authority to support the plaintiffs’
contention that the common law rule providing for the
recovery of punitive damages in actions of fraud
includes recovery for the costs incurred in defending
a subsequent appeal.’’ Id.
Although not strictly controlling because of its differ-
ent procedural posture from the present case, O’Leary
is analogous. In both cases, the party seeking further
punitive damages bases its claim, not on the prelitiga-
tion substantive, tortious conduct of the other party—
which had already been taken into account in the mone-
tary award—but on the subsequent litigation tactics
of the other party. In O’Leary, the party seeking the
appellate fees did so on the purported basis that they
were necessary to preserve the judgment secured in
the trial court. In the present case, the plaintiff seeks
such fees and costs on the basis that they were necessar-
ily incurred in obtaining the judgment of confirmation
of the underlying award. In our view, however, this is
a distinction without a difference. In both, the parties
seeking the additional fees argued that they were neces-
sary to preserve the award gained in the underlying
litigation. In sum, we can see no principled reason for
distinguishing our Supreme Court’s conclusion in
O’Leary from the present case.
We are not persuaded by the plaintiff’s contention
that the attorney’s fees and costs it seeks in the present
case are simply an extension of the award made by the
arbitrator. That award was made not on the basis of
any litigation tactics of the defendants, but on the basis
of their prearbitration tortious and malicious conduct.
In the present appeal, the plaintiff seeks attorney’s fees
as compensation for the defendants’ postarbitration liti-
gation tactics in the trial court. Thus, contrary to the
plaintiff’s argument, the fees and costs they seek here
are not an extension of those awarded by the arbitrator.
They are, instead, fees and costs incurred because of
what they claim to be unnecessary and ill-founded litiga-
tion tactics employed by the defendants and their coun-
sel in the trial court. This is more than a difference in
degree; it is a difference in kind.
Nor are we persuaded by the five trial court authori-
ties presented to us by the plaintiff in support of its
position—all cases in which the trial court awarded
the party who prevailed in an arbitration, including an
award of attorney’s fees and costs, additional attorney’s
fees and costs for the confirmation and vacating pro-
ceedings. In four of those cases, there was either a
fee shifting contractual provision between the parties
authorizing attorney’s fees and costs to the prevailing
party; see Loeb v. Blue Star Jets, LLC, United States
District Court, Docket No. 09-CV-7858 (SAS) (S.D.N.Y.
December 17, 2009); or a statute, such as CUTPA,
authorizing such an award. See Gomez v. People’s
United Bank, United States District Court, Docket No.
3:10-CV-00904 (CSH) (D. Conn. September 5, 2012);
Hadelman v. DeLuca, Superior Court, judicial district
of Ansonia-Milford, Docket No. CV-97-0060279-S (April
19, 2006) (41 Conn. L. Rptr. 238); Saturn Construction
Co. v. Premier Roofing Co., Superior Court, judicial
district of New Haven, Docket No. CV-94-0363698-S
(October 24, 1996) (18 Conn. L. Rptr. 106). In the fifth
case; Harris v. Bradley Memorial Hospital, Superior
Court, judicial district of New Britain, Docket No. CV-
02-0516962-S (February 17, 2011), rev’d on other
grounds, 306 Conn 304, 50 A.3d 841 (2012), cert. denied,
U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013);
the trial court awarded such fees and costs despite the
absence of any contract or statute authorizing them.
We simply disagree with that case, for the reasons we
have stated herein.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although their formal status as plaintiff and defendant may differ as to
each of the appeals, for convenience we refer in this opinion to SBD Kitchens,
LLC, as the plaintiff, and to Brett Jefferson and Catherine Jefferson as
the defendants.
2
The parties agree that their arbitration agreement required the arbitrator
to render a ‘‘Reasoned Award,’’ which is a term contained in Rule 44 (b) of
the American Arbitration Association Rules that governed the arbitration
proceeding in the present case. That rule provides in relevant part that ‘‘[t]he
parties may request a specific form of award, including a reasoned opinion,
an abbreviated opinion, findings of fact and conclusions of law. . . . If the
parties agree on a form of award other than that specified in R-44 (b) of
these Rules the arbitrator shall provide the form of award agreed upon.’’
(Emphasis added.) We discuss the meaning of this requirement later in
this opinion.
3
The arbitrator, Robert J. O’Brien, is a partner in a Connecticut law firm,
and was a past Chair of the Construction Law Section of the Connecticut
Bar Association, and is a member of the American Bar Association’s Forum
Committee of the Construction Industry.
4
The record does not reflect all of the counterclaims and defenses raised
by the defendants. The arbitrator noted in his decision that the defendants
raised twelve distinct counterclaims and defenses, six of which addressed
the plaintiff’s breach of contract claim. Among those defenses raised in
response to the plaintiff’s defamation claim, the arbitrator specifically
addressed the defendants’ assertion that the speech was protected opinion,
that it was immunized by the ‘‘fair comment’’ doctrine or other qualified
privilege, and a defense of truth. The remaining defenses and counterclaims
have not been specifically stated in the record.
5
The arbitrator rejected the plaintiff’s breach of contract claim on the
ground that the two contracts were, for various reasons, not in compliance
with the Connecticut Home Improvement Act, General Statutes § 20-148 et
seq. Nonetheless, the arbitrator declined to award any monetary relief to
the defendants because they had not established an ascertainable loss.
Neither party has challenged these determinations.
6
The basis for this counterclaim, as described in the defendants’ appellate
brief in this court, was that the plaintiff ‘‘misled the [defendants] concerning
the markup they would be charged on their kitchen and bathroom renova-
tion. The basis of this good faith belief was that both [the plaintiff] and
another designer who[m] they interviewed told them that, in response to
the [defendants’] question as to how they made their money, they made it
through a markup on cabinetry.’’ Instead, according to the defendants, the
plaintiff ‘‘charged the [defendants] an undisclosed 90 percent markup on
nearly every aspect of the project, except appliances . . . .’’ Thus, it was
the defendants’ contention in essence that, despite the written contracts
that, albeit not enforceable under the Home Improvement Act, specified
amounts for the plaintiff’s work, the plaintiff had agreed to charge on the
basis that there would be a markup on the cabinetry only and that all other
work, except for appliances, would be performed for the defendants on the
basis of the plaintiff’s cost only. As part of this contention, the defendants
had claimed that Jennifer Howard, the other designer mentioned in the
arbitrator’s award, had agreed to this pricing model. At the hearing, however,
Howard denied any such agreement, and instead confirmed that she provided
estimates at above cost for all portions of the project.
7
In addition, the arbitrator permanently enjoined the defendants from
making certain specified further statements on the website. The defendants
do not challenge that part of the award.
8
The parties agree that, despite the requirement of a ‘‘reasoned award,’’
the submission was unrestricted.
9
The plaintiff argues that, not only did the arbitrator not manifestly disre-
gard the governing law, but that he applied it as properly as a trial court
would have because a finding of actual malice is implicit in his award. It
is not, however, necessary for us to decide whether the arbitrator correctly
applied the law; we have only to decide whether the arbitrator manifestly
disregarded the law. See Saturn Construction Co. v. Premier Roofing Co.,
238 Conn. 293, 308 n.12, 680 A.2d 1274 (1996).
10
In this opinion, we note that the defendants do not claim that the arbitral
award is ambiguous, and we agree. Thus, this is not an occasion for a
remand to the arbitrator for clarification of an ambiguous award. See, e.g., All
Seasons Services, Inc. v. Guildner, 94 Conn. App. 1, 13, 891 A.2d 97 (2006).
11
The record also indicates that the defendants failed to exercise any due
diligence to determine the following: whether Howard had ever made any
of the statements attributed to her on the website, which she denied having
made; whether they inquired of their architect if the statements published
on the website regarding the plaintiff’s role in the design of one of the
bathrooms was accurate, as the evidence showed that the architect, not the
plaintiff as claimed on the website, designed the bathroom in question;
whether the statements on the website regarding the plaintiff’s knowledge
of residential glass door refrigerators should have been removed, as the
defendants acknowledged the falsity of said statements and the arbitrator
ultimately enjoined them from further publication; and whether the defen-
dants should have considered the general accuracy of the content on the
website or its potential impact on the plaintiff’s business, which the defen-
dants testified they failed to do.
12
In this regard, among the e-mails that the arbitrator referred to in his
decision for tone and content, was one from Russell to the webhost: ‘‘How
hard is it to change that by the way? He [Jefferson] wants to incorporate
Scam or some BS. He cares far less now about discretion. Do you see the
crap I deal with?’’ (Emphasis added.)
13
Although the rules of the American Arbitration Association refer to it
as a ‘‘reasoned opinion,’’ the parties have used the term ‘‘reasoned award.’’
Accordingly, we adopt the terminology used by the parties.
14
This court has only once contemplated the notion of a ‘‘reasoned award,’’
and in those circumstances the term was used to mean a decision which
‘‘contains findings.’’ Alderman & Alderman v. Pollack, 100 Conn. App. 80,
94, 917 A.2d 60 (2007). We note that in Alderman this court was using the
term ‘‘reasoned’’ as a colloquialism under a different set of arbitration rules
than those set out by the American Arbitration Association, and thus that
case does not provide guidance in the present case.
15
The award specifically contemplated that confirmation would be
required because it specified that interest on the award would start to accrue
thirty days from the date of its confirmation.
16
The motion regarding the method of payment from the award stemmed
from an e-mail to the plaintiff asserting that the defendants had elected to
pay the $25,000 award in coins, to be delivered in fifty-five gallon containers.
The e-mail noted that the coins would be dumped from the containers upon
delivery unless the plaintiff paid the defendants $5000 per container. The
defendants stated in the e-mail that failure to accept the coins would result
in them deeming the plaintiff to have abandoned the award. The plaintiff
immediately objected to this form of payment, and requested sanctions
against both the defendants and their counsel. Because the trial court took
no formal action on this motion due to the defendants agreeing to change
the means of payment, the request for sanctions was not addressed.
17
Before the trial court ruled on the applications to vacate and confirm,
the defendants reversed this position, claiming that the compensatory award
was ‘‘fatally flawed’’ because it did not set a date certain for payment of
the award. Because the defendants’ retraction was by motion for permission
to submit an affidavit of their counsel, and was collateral to the existing
application to vacate, the court ruled the affidavit immaterial and denied
the defendants’ motion. Following the trial court’s decision regarding the
applications to vacate and confirm, the plaintiff filed a judgment lien against
the defendants’ property. On August 18, 2014, the defendants filed a motion
to discharge the judgment lien upon substitution of a bond, or, in the alterna-
tive, for declaratory judgment that the arbitrator’s decision was unenforce-
able due to the ‘‘fatal flaws’’ that they asserted in the affidavit. The trial
court denied the defendants’ motion as to the argument that the arbitrator’s
decision was unenforceable on September 22, 2014. The defendants then
appealed that decision to this court. That appeal was dismissed by this court
on February 11, 2015.
18
The plaintiff points to the following tactics of the defendants in the trial
court as support for its claim of attorney’s fees and costs: the defendants’
initial threat to pay the compensatory award in coins; their subsequent
attempt to retract their earlier representation on the record that they would
pay it by check; their threat to the plaintiff’s counsel that ‘‘[Brett] Jefferson
would like you to know that he has acquired the right to the web domain
[a title that included the name of plaintiff’s counsel], where he intends to
elaborate on your legal tactics’’; and their threat, following the issuance of
the award by the arbitrator, to sue the plaintiff for vexatious litigation in
connection with its defamation claim, in which suit the plaintiff’s present
counsel would be precluded from representing the plaintiff, notwithstanding
that the plaintiff had prevailed on the defamation claim and that, under
Connecticut law, a claim asserted in arbitration cannot form the basis of a
vexatious litigation claim. Thus, the plaintiff asserts, ‘‘[t]hat conduct, and
the communications, legal research and motion practice arising therefrom,
caused the cost of what should have been a straightforward confirmation
proceeding to increase dramatically.’’
19
The plaintiff in the present action specifically does not rely on the bad
faith exception for its claim of attorney’s fees and costs.
20
General Statutes § 42-110g (d) provides in relevant part: ‘‘In any action
brought by a person under [CUTPA], the court may award, to the plaintiff,
in addition to the relief provided in this section, costs and reasonable attor-
neys’ fees based on the work reasonably performed by an attorney and not
on the amount of recovery. . . .’’