Rosenthal Law Firm, LLC v. Cohen , 165 Conn. App. 467 ( 2016 )

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ROSENTHAL LAW FIRM, LLC v. JAMES COHEN
(AC 37830)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued February 4—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Hartford, Scholl, J.)
James Cohen, self-represented, the appellant
(defendant).
Edward Rosenthal, for the appellee (plaintiff).
Opinion
MULLINS, J. The self-represented defendant, James
Cohen, appeals from the judgment of the trial court
granting the application to confirm an arbitration award
in favor of the plaintiff, Rosenthal Law Firm, LLC. On
appeal, the defendant argues that the court improperly
concluded that his application to vacate the arbitration
award1 was untimely and that it should have denied
the defendant’s application to confirm the arbitration
award. We affirm the judgment of the trial court.
The following procedural history informs our resolu-
tion of the defendant’s appeal. On December 1, 2011,
the parties entered into an agreement for legal services
whereby they agreed to submit any fee disputes to the
Connecticut Bar Association for binding arbitration.2
On March 3, 2014, the plaintiff petitioned the legal fee
resolution board of the Connecticut Bar Association
(board) to resolve a fee dispute that had arisen between
the parties. After a hearing, a panel of three arbitrators
found in favor of the plaintiff. The defendant received
notice of the board’s award on December 24, 2014.
On January 26, 2015, the plaintiff filed an application
to confirm the arbitration award in the Superior Court
for the judicial district of Hartford. On February 2, 2015,
the defendant filed an application to vacate the arbitra-
tion award.3 On March 17, 2015, the court held a hearing
on the application to confirm and the application to
vacate. The plaintiff argued, among other things, that
the court could not consider the defendant’s application
to vacate because it was untimely. The defendant coun-
tered that although his initial attempt to file the applica-
tion to vacate was unsuccessful, the application
nevertheless was timely filed at the time of the initial
attempt. At the conclusion of the hearing, the court
rendered an oral decision granting the plaintiff’s appli-
cation to confirm the arbitration award.4 This appeal
followed.
On appeal, the defendant claims that the court incor-
rectly concluded that his application to vacate was
untimely and should have denied the plaintiff’s applica-
tion to confirm for one or more of the following reasons:
the defendant was deprived of due process in the com-
mencement of and during arbitration; the arbitration
panel demonstrated bias by failing to consider his testi-
mony and evidence; the panel’s findings were errone-
ous; and the award was contrary to public policy. The
plaintiff argues, inter alia, that because the defendant
did not file the application to vacate within thirty days
of receiving notice of the arbitration award, as required
by General Statutes § 52-420 (b), the court lacked sub-
ject matter jurisdiction over the application to vacate
and was obligated to confirm the award. We agree with
the plaintiff that because the defendant did not make
a timely application to vacate the arbitration award, the
court, pursuant to General Statutes § 52-417, properly
granted the application to confirm the award.
Our resolution of the defendant’s appeal requires us
to determine whether the court properly confirmed the
arbitration award under the circumstances of this case.
‘‘[A] party may apply for the confirmation of an arbitra-
tion award within one year after it has been rendered.
Section 52-417 provides that upon such an application,
[t]he court or judge shall grant such an order confirming
the award unless the award is vacated, modified or
corrected as prescribed in [General Statutes §§] 52-418
and 52-419. . . .
‘‘[Section] 52-418 (a) provides that a court shall grant
a motion to vacate if it finds one of the following enu-
merated 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 submit-
ted was not made. General Statutes § 52-420 (b) creates
a time limitation on bringing a motion to vacate: No
motion to vacate, modify or correct an award may be
made after thirty days from the notice of the award to
the party to the arbitration who makes the motion.
‘‘The trial court lacks any discretion in confirming
the arbitration award unless the award suffers from any
of the defects described in . . . §§ 52-418 and 52-419.
. . . Furthermore, if a motion to vacate, modify or cor-
rect is not made within the thirty day time limit specified
in . . . § 52-420, the award may not thereafter be
attacked on any of the grounds specified in §§ 52-418
and 52-419.’’ (Emphasis in original; internal quotation
marks omitted.) Directory Assistants, Inc. v. Big Coun-
try Vein, L.P., 134 Conn. App. 415, 420, 39 A.3d 777
(2012).
‘‘[Section] 52-420 (b) does not limit the thirty day
filing period to applications arising out of the grounds
for vacatur enumerated in § 52-418, but also applies to
common-law grounds, such as a claimed violation of
public policy.’’ Asselin & Connolly, Attorneys, LLC v.
Heath, 108 Conn. App. 360, 366, 947 A.2d 1051 (2008).
‘‘If the motion [to vacate] is not filed within the thirty
day time limit, the trial court does not have subject
matter jurisdiction over the motion.’’ (Internal quota-
tion marks omitted.) Id., 370.
In the present case, the parties received notice of the
board’s award on December 24, 2014. Thus, pursuant
to § 52-420 (b), the mandatory thirty day deadline to
make an application to vacate the award was Friday,
January 23, 2015. Notwithstanding his unsuccessful ini-
tial attempt to file an application to vacate, which was
returned to him for several reasons; see footnote 3 of
this opinion; the defendant did not make an application
to vacate the award until he successfully filed it on
February 2, 2015; see Van Mecklenburg v. Pan Ameri-
can World Airways, Inc., 196 Conn. 517, 518–19, 494
A.2d 549 (1985) (motion submitted to and returned by
clerk not deemed filed until resubmitted free from
defect noted by clerk); Boltuch v. Rainaud, 137 Conn.
298, 301, 77 A.2d 94 (1950) (application to vacate arbitra-
tion award made when filed with clerk of Superior
Court); which was after the expiration of the thirty day
time limitation. Consequently, by the time he actually
filed his application to vacate, the defendant had lost the
ability to raise any statutory or common-law grounds
for vacating the award. Asselin & Connolly, Attorneys,
LLC v. Heath, supra, 108 Conn. App. 366. Because the
defendant did not timely move to vacate, modify or
correct the arbitration award, the trial court had no
choice but to confirm the award. Amalgamated Transit
Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn.
App. 1, 4–5, 632 A.2d 713 (1993). Accordingly, the court
properly granted the plaintiff’s application to confirm
the award.
The defendant also argues that ‘‘the motion to vacate
the award was made when it was properly served upon
[the] plaintiff.’’5 We disagree. There is ample authority
that it is the timely filing of an application to vacate
that amounts to compliance with § 52-420 (b), not timely
service. ‘‘A proceeding to vacate an arbitration award
is not a civil action, but is rather a special statutory
proceeding. . . . As a special statutory proceeding, it
is not controlled by the formal requirements for service
of process. . . . Section 52-420 (b) requires that a
motion to vacate an arbitration award be filed within
thirty days of the notice of the award to the moving
party.’’ (Citations omitted; internal quotation marks
omitted.) Middlesex Ins. Co. v. Castellano, 225 Conn.
339, 344, 623 A.2d 55 (1993); see also Boltuch v. Rai-
naud, supra, 137 Conn. 301.
Because the defendant did not file an application to
vacate the arbitration award within the time prescribed
by statute, the court properly granted the plaintiff’s
application to confirm the award.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In actuality, the defendant filed a document entitled ‘‘Appeal of Findings
and Award of Arbitrators and Objection to Application to Confirm Award.’’
The trial court treated this filing as an application to vacate the arbitration
award. For purposes of our analysis, we accept the trial court’s characteriza-
tion of this filing, which the parties do not challenge; see Bloomfield v. United
Electrical, Radio & Machine Workers of America, Connecticut Independent
Police Union, Local 14, 285 Conn. 278, 291, 939 A.2d 561 (2008); Wu v.
Chang, 264 Conn. 307, 310 n.4, 823 A.2d 1197 (2003); and refer to the
defendant’s filing throughout this opinion as an application to vacate.
2
Paragraph 11 of the parties’ agreement provides that ‘‘[a]ll disputes
involving attorney’s fees, expenses, this agreement, or any aspect of [the
firm’s] representation of client shall be submitted for binding arbitration to
the Connecticut Bar Association. Any costs related to any arbitration shall
be split between [the firm] and client.’’
3
The defendant initially mailed his application to vacate dated January
20, 2015, to the Superior Court for the judicial district of New Britain. The
court admitted into evidence this initial application to vacate, which bears
a crossed-out date stamp of January 26, 2015. A New Britain Superior Court
clerk returned the initial application to the defendant accompanied by a
return of papers form indicating numerous reasons for return, including the
lack of certification, case title, docket number, and fee, and the return to
the wrong court. The court’s electronic filing system indicates that the
plaintiff subsequently filed, and the court accepted, an application to vacate
in the judicial district of Hartford on February 2, 2015, forty days after he
received notice of the board’s award.
4
The trial court file contains a transcript of the March 17, 2015 hearing,
signed by the court and dated January 29, 2016, and bearing the handwritten
statement that ‘‘[t]his transcript reflects the basis of my decision in this
matter.’’
In its decision, the court stated, among other things, that ‘‘under the law,
I can’t really review whether [the arbitrators] made errors of facts or even
errors of law. And even assuming that your request to . . . vacate the
arbitration [award] was—was timely, which it appears it wasn’t, under the
statute . . . [the basis of] [y]our argument . . . is that you disagree with
their decision on the facts, and I don’t have the authority to set that aside.’’
5
The defendant states that on January 20, 2015, he mailed the plaintiff a
copy of the application to vacate that he had mailed to the judicial district
of New Britain on that same date. See footnote 3 of this opinion.