Girolametti v. Rizzo Corp. ( 2014 )

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JOHN GIROLAMETTI, JR., ET AL. v. RIZZO
CORPORATION ET AL.
(AC 35353)
Beach, Bear and Pellegrino, Js.*
Argued April 15—officially released August 5, 2014
(Appeal from Superior Court, judicial district of
Danbury, Doherty, J.)
Michael J. Barnaby, for the appellant (named
plaintiff).
Daniel J. Krisch, with whom, on the brief, was Alfred
A. DiVincentis, for the appellee (named defendant).
Opinion
PELLEGRINO, J. The plaintiff, John Girolametti, Jr.,1
appeals from the judgment of the trial court granting
the application to confirm an arbitration award in favor
of the defendant, Rizzo Corporation.2 On appeal, the
plaintiff claims that the court erred in confirming the
arbitration award because it disregarded the require-
ments of state law concerning professional licensing
and improperly determined that the plaintiff failed to
preserve the issue of the legality of the arbitration
agreement. We affirm the judgment of the trial court.
The following facts are relevant to the resolution
of the plaintiff’s claims. In 2007, the plaintiff and the
defendant entered into a contract, whereby the defen-
dant would serve as the general contractor in building
an addition to a Party Depot store owned by the plain-
tiff. The plaintiff submitted to the defendant a form
contract drafted by the American Institute of Architects
provided by the plaintiff’s architect. The defendant
signed the contract, which contained an agreement to
arbitrate disputes. This agreement provided in relevant
part: ‘‘All claims, disputes and other matters in question
between the Contractor and Owner arising out of, or
relating to, the Contract Documents or the breach
thereof . . . shall be decided by arbitration in accor-
dance with the Construction Industry Arbitration Rules
of the American Arbitration Association then obtaining
unless the parties mutually agree otherwise. . . . The
award rendered by the arbitrators shall be final, and
judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.’’
When a dispute arose in April, 2009, the defendant
submitted the dispute to arbitration in accordance with
its agreement with the plaintiff, which the plaintiff ini-
tially agreed to and cooperated in. The arbitration began
in December, 2009, and continued over a period of
thirty-five sessions. The plaintiff attended and partici-
pated in every session except the last two, which he
refused to attend. The arbitrator later entered his award
on March 28, 2011, in favor of the defendant.
Before the arbitrator rendered his award, the plaintiff,
on December 15, 2010, filed this action seeking a declar-
atory judgment and arguing that the contract between
the parties was void. Girolametti v. Rizzo Corp., Supe-
rior Court, judicial district of Danbury, Docket No. CV-
11-6005230-S (January 3, 2013).3 The defendant then
filed an application to confirm the arbitration award in
this action, to which the plaintiff filed an objection.
On January 3, 2013, the court granted the defendant’s
application and also rendered judgment in favor of the
defendant on the declaratory judgment complaint. This
appeal followed.
The standard of review for arbitration disputes is
well settled. ‘‘Judicial review of arbitral decisions is
narrowly confined. . . . When the parties agree to arbi-
tration 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. . . . When the scope
of the submission is unrestricted, the resulting award
is not subject to de novo review even for errors of law
so long as the award conforms to the submission. . . .
Because we 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. . . .
‘‘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. Courts will not review
the evidence nor, where the submission is unrestricted,
will they review the arbitrators’ decision of the legal
questions involved. . . . In other words, [u]nder an
unrestricted submission, the 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.) Zelvin v. JEM
Builders, Inc., 106 Conn. App. 401, 406, 942 A.2d 455
(2008).
The plaintiff contends that despite his untimely appli-
cation to vacate the arbitration award, this court can
still consider his claim of illegality because the contract,
and therefore the arbitration agreement, is void.4 He
argues that the parties’ contract violates state profes-
sional licensing laws because the defendant lacked the
capacity to enter into a contract with the plaintiff. He
also argues that he preserved this issue for appeal when
he raised the legality of the contract in his opening
statement at the arbitration hearing and when he
‘‘repeatedly demonstrated that [the] defendant ‘offered’
to provide professional engineering services for the
entire project’’ without being licensed as an engineer.
The plaintiff therefore concludes that the court erred
in granting the defendant’s motion to confirm the arbi-
tration award. The defendant argues that the court prop-
erly granted its application to confirm the arbitration
award for two primary reasons. First, the plaintiff failed
to preserve the issue for appeal because he did not
challenge the legality of the parties’ contract or its arbi-
tration clause during the arbitration, and, therefore, he
waived any right to appeal. Second, the plaintiff did not
file a timely application to vacate the arbitration award.5
The defendant therefore concludes that the plain lan-
guage of General Statutes § 52-4176 and Connecticut
case law required the court to grant its application. We
agree with the defendant.
‘‘We long have recognized two procedural routes by
which a party may preserve the issue of the arbitrability
of a particular dispute for judicial determination. . . .
A party initially may refuse to submit to an arbitration
and instead compel a judicial determination of the issue
of arbitrability. . . . Alternatively, the issue of arbitra-
bility may properly be left to an arbitrator or arbitration
panel for a determination, along with the merits of the
underlying dispute. . . . In the latter situation, a court
may properly entertain a challenge to an award alleging
disregard of the limits in the parties’ agreement with
respect to arbitration. . . . Such a claim may be raised
through a collateral judicial action prior to the arbitra-
tion, through an application or motion to vacate the
arbitration award or through an objection to the confir-
mation of the arbitration award. . . . [A] party seeking
to vacate an award on the basis of one or more of
the grounds enumerated in [General Statutes] § 52-4187
must comply with the requirements of § 52-420 (b). . . .
Specifically, a party who objects to an arbitration award
on the basis of a ground specified in § 52-418 must
do so within thirty days from notice of the award.’’8
(Citations omitted; footnote added; internal quotation
marks omitted.) MBNA America Bank, N.A. v. Boata,
283 Conn. 381, 392–93, 926 A.2d 1035 (2007).
Before reaching the merits of the plaintiff’s claims,
we first must determine whether the plaintiff properly
preserved the issue for appeal. A party has two proce-
dural options. Under the first method, a party may
refuse to submit to arbitration at the outset and instead
compel a judicial determination of the issue of arbitra-
bility. In the present case, the plaintiff participated in
the arbitration for thirty-three out of the thirty-five ses-
sions. Only after these thirty-three sessions did he stop
attending and file this action in court. The plaintiff,
therefore, did not refuse to submit to arbitration at
the outset. Thus, he failed to follow the appropriate
procedure for raising an objection with the trial court.
See JCV Investment Group, Inc. v. Manjoney, 56 Conn.
App. 320, 323, 742 A.2d 438 (2000).
The alternative method to preserve an issue for
appeal is for the party to present the issue to the arbitra-
tor during arbitration. The plaintiff claims that his
‘‘counsel raised concerns with the arbitrator in Decem-
ber of 2009 regarding code violations in the building
and [made] the arbitrator aware that he was waiting
for the review of the building inspector. [He] further
[contends] that [his] counsel specifically stated at the
beginning of the hearings that the arbitration and con-
tract were illegal because the defendant apparently
undertook engineering responsibilities without a
license.’’ The court, after considering this argument,
ruled against the plaintiff. It found that ‘‘[i]n [a] . . .
letter from the arbitrator to the parties, which discussed
the arbitrator’s inquiries regarding the [plaintiff’s]
absence from the previous hearings, the arbitrator
records the [plaintiff’s] reason as being ‘unwilling to
continue’ the arbitration. He did not mention as a reason
the alleged illegality of the contract. When the award
itself was completed, it only listed the [plaintiff’s] claims
regarding structural integrity, and did not make findings
on the illegality of the underlying contract or the arbitra-
tion agreement. Therefore, although the [plaintiff] may
have stated [his] suspicions that the contract and arbi-
tration agreement were illegal, the court must assume
that the arbitrator did not consider the issue as having
been raised during the arbitration. Under an arbitration
clause, the arbitrator is given broad discretion to deter-
mine the issues, and may ‘decide whether additional
evidence is required or would merely prolong the pro-
ceedings unnecessarily. . . . This relaxation of strict
evidentiary rules is both necessary and desirable
because arbitration is an informal proceeding designed,
in part, to avoid the complexities of litigation.’ . . .
Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 474,
899 A.2d 523 (2006). Thus, the [plaintiff] did not properly
preserve the issue of validity of the arbitration clause
by refusing to submit to arbitration . . . or by submit-
ting the issue to the arbitrator.’’ We concur with the
conclusion reached by the court.9
The plaintiff did not properly preserve the issue of
the legality of the contract through either of the required
procedural routes. The court, therefore, did not err in
granting the defendant’s application to confirm the arbi-
tration award.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
John Girolemetti, Jr., Cindy Girolametti, and 43 South Street, LLC, filed
this declaratory judgment action against the defendants. Only John Girolem-
etti, Jr., appealed from the court’s judgment. We therefore refer to him as
the plaintiff in this opinion.
2
The American Arbitration Association was also named as a defendant.
In order to accurately reflect the factual history, we refer in this opinion
to Rizzo Corporation as the defendant.
3
On May 18, 2011, the plaintiff filed a separate action against the defendant
seeking to vacate the arbitration award. Girolametti v. Rizzo Corp., 52
Conn. Supp. 592, 77 A.3d 217 (2012), aff’d, 144 Conn. App. 77, 70 A.3d 1162
(2013), which went to judgment on the defendant’s motion to dismiss. In
its memorandum of decision, the court stated that the plaintiff failed to
comply with General Statutes § 52-420 (b) because the application to vacate
was not filed within thirty days of the arbitrator’s March 28, 2011 decision.
Id., 600. The plaintiff appealed to this court on the ground that his application
was timely. We affirmed the judgment of the trial court. Girolametti v.
Rizzo Corp., 144 Conn. App. 77, 70 A.3d 1162 (2013). As a result of the
untimely application, the court in the present case concluded that it had
‘‘no discretion to consider an objection made by the plaintiff . . . on the
ground that the underlying contract is illegal.’’
4
In arguing that the contract is illegal, the plaintiff also disputes ‘‘that
there is an agreement to arbitrate between the parties because any such
agreement would be illegal.’’ He does not, however, make a separate legal
argument that the arbitration agreement itself is illegal or invalid.
The law regarding arbitration provisions in a contract is well settled. ‘‘[A]n
arbitration provision is severable from the remainder of the contract . . .
[and], unless the challenge is to the arbitration clause itself, the issue of
the contract’s validity is considered by the arbitrator in the first instance.’’
C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 75, 919 A.2d 1002
(2007). Moreover, Rule 8 of the Construction Industry Arbitration Rules of
the American Arbitration Association, which governs the parties’ dispute,
provides in relevant part: ‘‘The arbitrator shall have the power to determine
the existence or validity of a contract of which an arbitration clause forms
a part. Such an arbitration clause shall be treated as an agreement indepen-
dent of the other terms of the contract. A decision by the arbitrator that
the contract is null and void shall not for that reason alone render invalid
the arbitration clause. . . .’’
We therefore agree with the court when it stated that ‘‘since the arbitration
agreement is severable from the underlying contract, the [plaintiff] would
be required to state grounds which would render the agreement itself invalid.
The fact that the contract may be void by reason of violation of a statute does
not preclude enforcement of the arbitration clause. Nussbaum v. Kimberly
Timbers, Ltd, 271 Conn. 65, 856 A.2d 364 (2004). The [plaintiff has] failed
to argue any grounds for a defect within the arbitration agreement itself, an
agreement which [he] drafted. Therefore, even if [the plaintiff] had properly
preserved [his] claim that the arbitration clause was illegal, [he has] not
stated any grounds under which the court could find that the agreement
was illegal . . . .’’ Because the plaintiff challenges the contract, but not
specifically the arbitration agreement, the agreement is enforceable apart
from the remainder of the contract. Accordingly, the plaintiff’s argument that
the arbitration agreement is illegal, simply because he alleges the contract is
illegal, finds no support in our law.
5
That issue was decided in Girolametti v. Rizzo Corp., 52 Conn. Supp.
592, 77 A.3d 217 (2012), aff’d, 144 Conn. App. 77, 70 A.3d 1162 (2013).
6
General Statutes § 52-417 provides in relevant part: ‘‘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 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.’’
7
General Statutes § 52-418 (a) provides in relevant part: ‘‘Upon the applica-
tion of any party to an arbitration, the superior court . . . shall make an
order vacating the award if it finds any of the following defects: (1) If the
award has been procured by corruption, fraud or undue means; (2) if there
has been evident partiality or corruption on the part of any arbitrator; (3)
if the arbitrators have been guilty of misconduct in refusing to postpone
the hearing upon sufficient cause shown or in refusing to hear evidence
pertinent and material to the controversy or of any other action by which
the rights of any party have been prejudiced; or (4) if the arbitrators have
exceeded their powers or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted was not made.’’
8
We emphasize, again, that the court dismissed the plaintiff’s application
to vacate the arbitration award, which was affirmed by this court. See
Girolametti v. Rizzo Corp., 52 Conn. Supp. 592, 77 A.3d 217 (2012), aff’d,
144 Conn. App. 77, 70 A.3d 1162 (2013). The untimely application is not an
issue in this appeal.
9
The plaintiff continues to argue that despite the preservation issue, we
should hold that the court erred in granting the defendant’s application to
confirm the arbitration award. He relies on MBNA America Bank, N.A. v.
Boata, supra, 283 Conn. 381, for the proposition that ‘‘[§] 52-420 (b) will
not preclude an otherwise untimely objection to the confirmation of an
award on the ground that the party had not conferred upon the arbitrator
the legal authority to issue that award in the first place.’’ (Internal quotation
marks omitted.) Although the court’s holding is accurately stated, MBNA
America Bank, N.A., is distinguishable from the present appeal.
In MBNA America Bank, N.A., the defendant claimed that an agreement
to arbitrate between the parties never existed. MBNA America Bank, N.A.
v. Boata, supra, 283 Conn. 387. The nonexistence of an arbitration agreement
is not a basis enumerated in § 52-418 and therefore the court held that it
was not subject to the timeliness provisions of § 52-420 (b). Id., 395. In
the present appeal, the plaintiff claims that the contract is illegal and, by
extension, argues that the arbitration agreement is also illegal. As previously
noted, however, the arbitration agreement is severable from the remainder
of the contract. See footnote 4 of this opinion. Therefore, because the
plaintiff did not argue that the arbitration agreement itself is invalid, MBNA
America Bank, N.A., is inapplicable to the present appeal. This conclusion
is supported by Bloomfield v. United Electrical, Radio & Machine Workers
of America, Connecticut Independent Police Union, Local 14, 285 Conn.
278, 286, 939 A.2d 561 (2008), in which our Supreme Court concluded:
‘‘[MBNA America Bank, N.A.] did not involve a public policy challenge to
an otherwise validly entered award, but rather, involved a claim that the
arbitrator lacked authority over the dispute based on the alleged nonexis-
tence of an arbitration agreement between the parties to a credit card
contract. . . . We concluded in [MBNA America Bank, N.A.] that, because
a trial court cannot confirm an arbitration award unless the parties expressly
have agreed to arbitrate the matter, it follows that a [party] must be allowed
to object to the confirmation of that award if he properly has preserved a
claim as to the existence of an arbitration agreement. . . . [MBNA America
Bank, N.A.] stands only for the proposition that § 52-420 (b) will not preclude
an otherwise untimely objection to the confirmation of an award on the
ground that the parties had not conferred upon the arbitrator the legal
authority to issue that award in the first place.’’ (Citation omitted; internal
quotation marks omitted.)