MSO, LLC v. DeSimone

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MSO, LLC v. ANTHONY DESIMONE, COEXECUTOR
(ESTATE OF CHARLES E. DESIMONE), ET AL.
(SC 18979)
Rogers, C. J., and Palmer, Zarella, Eveleigh and Espinosa, Js.
Argued December 10, 2013—officially released August 12, 2014
Stuart Hawkins, with whom, on the brief, was Daniel
Shepro, for the appellant (plaintiff).
John A. Keyes, with whom was Martin M. Looney,
for the appellees (named defendant et al.).
Opinion
ROGERS, C. J. The sole issue in this certified appeal1
is whether the trial court improperly granted the defen-
dants’ motion for a stay pending arbitration because
the trial court determined, as a matter of law, that a
party cannot waive enforcement of an arbitration clause
in a contract. The plaintiff, MSO, LLC, appeals from
the judgment of the Appellate Court affirming the trial
court’s decision to stay this action brought against the
defendants,2 Anthony DeSimone and Charles DeSi-
mone, Jr., in their individual capacities and as coexecu-
tors of the estate of Charles E. DeSimone, pending
arbitration pursuant to an arbitration clause in the par-
ties’ lease agreement. MSO, LLC v. DeSimone, 134
Conn. App. 821, 830, 40 A.3d 808 (2012). The plaintiff
claims that the Appellate Court improperly concluded
that the record was inadequate for review because the
trial court failed to make any factual findings on the
issue of waiver. See id., 827. Specifically, the plaintiff
argues that the trial court concluded that waiver was
unavailable as a matter of law and, accordingly, the
record was adequate for review and the Appellate Court
should have reversed the trial court’s decision. We agree
with the plaintiff that the record was adequate for
review and that the trial court improperly concluded
as a matter of law that the defense of waiver was
unavailable to the parties. Accordingly, we reverse the
judgment of the Appellate Court.
The Appellate Court opinion sets forth the extensive
procedural background in the present case and we need
not recite it here. See id., 823–27. Rather, a brief over-
view of the relevant facts and procedural history, as
described by the Appellate Court, adequately situates
the issue on appeal in the present case. ‘‘The plaintiff
leased a commercial space for its liquor store, Budget
Rite Liquors, from the defendants pursuant to a lease
agreement. The lease agreement permitted sublease or
assignment of the lease only with the written consent
of the defendants. The lease agreement also included an
arbitration clause. The validity of the lease agreement is
not disputed by either party. In its original complaint,
filed May 9, 2006, the plaintiff claimed that the defen-
dants unlawfully withheld consent to assign the lease,
which withholding deprived the plaintiff of the opportu-
nity to enter into ‘contracts with multiple ready, willing
and able buyers’ for the sale of its business. . . . On
August 15, 2006, the defendants filed an answer, special
defense and counterclaim alleging, inter alia, that they
lawfully refused to consent to the assignment pursuant
to the lease agreement and that the plaintiff owed
unpaid rent and had damaged the subject property
before vacating.’’ Id., 823–24. While the litigation was
pending for more than two years, various discovery
disputes arose and the parties filed several motions in
the trial court. See id., 824–27.
The record reveals the following additional proce-
dural history relevant to our disposition of this appeal.
On December 16, 2008, the defendants filed a motion
for a stay of the proceedings, pursuant to General Stat-
utes § 52-409,3 pending arbitration under the parties’
lease agreement.4 The plaintiff objected to the motion
for a stay on the ground that the defendants had waived
their right to enforce the arbitration clause by engaging
in lengthy litigation with the plaintiff over the course
of more than two years. On March 10, 2009, the trial
court, Cronan, J., heard oral argument on the defen-
dants’ motion for a stay. The defendants argued that
the plaintiff’s lack of compliance in the discovery pro-
cess so ‘‘frustrated’’ their participation in the litigation
that they needed to enforce the arbitration clause in
the lease agreement.5 The plaintiff responded that the
parties’ discovery issues were not properly before the
trial court on the motion for a stay, and that the defen-
dants had waived their right to enforce the arbitration
clause by participating in the extensive litigation.
The trial court granted the defendants’ motion for a
stay pending arbitration. In ruling on the motion for a
stay, the trial court stated as follows: ‘‘When individuals
enter a contract fully aware of what the elements of
the contract are, and enter an agreement . . . I have
found in the past that if there is an arbitration clause,
that the arbitration clause is going to control, and . . .
I am being consistent in other decisions I have made
since coming to New Haven.’’ (Emphasis added.) The
plaintiff subsequently appealed from the trial court’s
decision in the defendants’ favor to the Appellate
Court.6
A majority of the Appellate Court concluded that the
plaintiff had failed to meet its burden to provide the
court with an adequate record for review. MSO, LLC
v. DeSimone, supra, 134 Conn. App. 827. Because the
plaintiff did not seek articulation of the trial court’s
succinct ruling on the defendants’ motion for a stay,
the majority could not conclude that the trial court
made any findings on the issue of waiver. Id., 828. In
the absence of pertinent factual findings regarding
waiver, the Appellate Court majority presumed that the
trial court ‘‘undertook the proper analysis of the law
and the facts in directing the parties to proceed to
arbitration as provided in the lease agreement.’’ Id.,
829; id. (‘‘in the absence of an articulation—which the
appellant is responsible for obtaining—we presume that
the trial court acted properly’’ [internal quotation marks
omitted]), quoting Orcutt v. Commissioner of Correc-
tion, 284 Conn. 724, 739 n.25, 937 A.2d 656 (2007). This
certified appeal followed.7
The plaintiff argues that the Appellate Court improp-
erly determined that the record was inadequate for
review and, therefore, incorrectly presumed that the
trial court undertook the proper analysis in ordering the
parties to arbitration. Rather than deciding the factual
question of waiver, the plaintiff contends that the trial
court concluded that waiver was unavailable as a matter
of law because of the written arbitration clause in the
parties’ lease agreement. Accordingly, the plaintiff
asserts that the record was adequate for review and
that the Appellate Court should have reversed the trial
court’s decision as neither legally nor logically correct.8
By contrast, the defendants argue that the trial court
made a factual determination that the defendants did
not waive their right to arbitration. The defendants fur-
ther contend that the trial court’s purported factual
findings regarding waiver were not clearly erroneous.
As alternative grounds for affirmance, the defendants
argue that the record was inadequate for review and,
accordingly, that the Appellate Court correctly pre-
sumed that the trial court undertook the proper analysis
in granting the defendants’ motion for a stay pending
arbitration. We agree with the plaintiff that the Appel-
late Court improperly concluded that the record was
inadequate for review. Despite the absence of any fac-
tual findings on waiver, the trial court concluded that
waiver was unavailable as a matter of law due to the
parties’ arbitration agreement. Accordingly, we con-
clude that the record was adequate for review. We fur-
ther conclude that the trial court’s decision was based
upon an erroneous statement of the law. As a result,
we reverse the judgment of the Appellate Court.
We begin with the standard of review. ‘‘The scope of
our appellate review depends upon the proper charac-
terization of the rulings made by the trial court. To the
extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings
were clearly erroneous. When, however, the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ Morton Buildings, Inc. v. Ban-
non, 222 Conn. 49, 53, 607 A.2d 424 (1992). ‘‘Therefore,
the trial court’s conclusions must stand unless they are
legally or logically inconsistent with the facts found or
unless they involve the application of some erroneous
rule of law material to the case.’’ (Internal quotation
marks omitted.) AFSCME, Council 4, Local 704 v. Dept.
of Public Health, 272 Conn. 617, 622–23, 866 A.2d 582(2005).
We now set forth the relevant statutory language and
legal principles. ‘‘[A]n agreement to arbitrate must meet
the requirements of the arbitration statute, [General
Statutes § 52-408]9 including the requirement that the
agreement be in writing, or it is invalid.’’ (Footnote
added.) Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d
553 (1988). ‘‘Arbitration is the voluntary submission, by
the interested parties, of an existing or future dispute
to a disinterested person or persons for final determina-
tion. It is intended to avoid the formalities, the delay,
the expense and vexation of ordinary litigation.’’ Gores
v. Rosenthal, 150 Conn. 554, 557, 192 A.2d 210 (1963).
When parties have a valid arbitration agreement, ‘‘the
courts are empowered to direct compliance with its
provisions.’’ Id. To this end, General Statutes § 52-409
‘‘provides relief when a party to a contract that contains
an arbitration clause desires arbitration of a dispute,
and the other party, instead of proceeding with arbitra-
tion, institutes a civil action to resolve the dispute. The
party desiring arbitration can then seek a stay of the
civil action.’’ (Emphasis omitted.) Success Centers, Inc.
v. Huntington Learning Centers, Inc., 223 Conn. 761,
768, 613 A.2d 1320 (1992).
‘‘[O]ur courts have wholeheartedly endorsed arbitra-
tion as an effective alternative method of settling dis-
putes intended to avoid the formalities, delay, expense
and vexation of ordinary litigation.’’ (Internal quotation
marks omitted.) Metropolitan District Commission v.
AFSCME, Council 4, Local 184, 237 Conn. 114, 118,
676 A.2d 825 (1996); see also AFSCME, Council 4, Local
704 v. Dept. of Public Health, supra, 272 Conn. 626(noting ‘‘the strong public policy favoring arbitration’’);
Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65,
71, 856 A.2d 364 (2004) (‘‘Connecticut has adopted a
clear public policy in favor of arbitrating disputes’’);
L & R Realty v. Connecticut National Bank, 246 Conn.
1, 12, 715 A.2d 748 (1998) (‘‘[a]rbitration agreements
illustrate the strong public policy favoring freedom of
contract and the efficient resolution of disputes’’);
Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426,
434, 324 A.2d 267 (1973) (‘‘arbitration is a favored proce-
dure in this state’’). Notwithstanding the decided public
policy in favor of arbitration, our case law is clear that
‘‘an arbitration clause may be waived by the parties
or by the one entitled to its benefit.’’ Batter Building
Materials Co. v. Kirschner, 142 Conn. 1, 11–12, 110
A.2d 464 (1954).
‘‘Waiver is the intentional relinquishment or abandon-
ment of a known right or privilege. . . . Waiver does
not have to be express, but may consist of acts or
conduct from which waiver may be implied.’’ (Citations
omitted; internal quotation marks omitted.) AFSCME,
Council 4, Local 704 v. Dept. of Public Health, supra,
272 Conn. 623. ‘‘[U]njustifiable delay in seeking arbitra-
tion may warrant a finding of waiver. . . . The same
result follows from going to trial without insisting upon
the arbitration condition.’’ (Citation omitted.) Batter
Building Materials Co. v. Kirschner, supra, 142 Conn.
11. Indeed, our courts have found waiver when a party
engages in substantial litigation without asserting its
right to arbitrate. See, e.g., Waterbury Teachers Assn.
v. Waterbury, supra, 164 Conn. 435 (party waived right
to arbitrate by proceeding to trial on identical issues
as those claimed for arbitration); Mattie & O’Brien
Contracting Co. v. Rizzo Construction Pool Co., 128
Conn. App. 537, 542–43, 17 A.3d 1083 (party waived
right to arbitrate by participating in two years of pretrial
activities before filing motion for stay), cert. denied,
302 Conn. 906, 23 A.3d 1247 (2011); Grey v. Connecticut
Indemnity Services, Inc., 112 Conn. App. 811, 814–16,
964 A.2d 591 (2009) (party waived right to arbitrate by
engaging in three years of litigation before filing motion
to compel arbitration on eve of trial).
Turning to the facts in the present case, the trial
court granted the defendants’ motion for a stay over
the plaintiff’s objection that the defendants had waived
their right to enforce the arbitration clause by engaging
in lengthy litigation. In its ruling granting the motion
for a stay pending arbitration, the trial court made no
express mention of waiver. Instead, the trial court sim-
ply asserted that ‘‘I have found in the past that if there
is an arbitration clause, that the arbitration clause is
going to control . . . .’’ (Emphasis added.) Likewise,
in the articulation ordered by this court; see footnote
7 of this opinion; the trial court explained its view that
‘‘the language of the agreement which was the basis of
the litigation should take precedent over any issue of
whether previous actions by either of the parties con-
stituted waiver.’’ (Emphasis added.)
There is no question that the trial court did not make
any factual findings on the issue of waiver. It is also
clear, however, from the trial court’s ruling on the
motion for a stay, and its subsequent articulation
thereof, that the trial court held that it always enforces
arbitration clauses no matter the circumstances, includ-
ing the claimed defense of waiver in the present case.10
Thus, the trial court implicitly held that the defense of
waiver is unavailable as a matter of law whenever there
is an arbitration clause in a contract.
Because the legal basis of the trial court’s decision
is at issue, a factual record on the question of waiver
is not necessary to review the trial court’s decision.
‘‘[W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally
and logically correct’’; Pandolphe’s Auto Parts, Inc. v.
Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980);
or whether the trial court’s decision ‘‘involve[s] the
application of some erroneous rule of law material to
the case.’’ (Internal quotation marks omitted.)
AFSCME, Council 4, Local 704 v. Dept. of Public
Health, supra, 272 Conn. 623.
As we have discussed previously in this opinion, our
case law clearly recognizes that a party may implicitly
waive the right to enforce an arbitration clause in a
contract. See Waterbury Teachers Assn. v. Waterbury,
supra, 164 Conn. 435; Batter Building Materials Co. v.
Kirschner, supra, 142 Conn. 11–12. In the present case,
the trial court ignored the settled principles surrounding
waiver when it concluded that waiver was unavailable
as a matter of law due to the parties’ written arbitration
clause. Because the trial court based its decision upon
an erroneous statement of the law, we conclude that
the trial court improperly granted the defendants’
motion for a stay pending arbitration. Accordingly, we
agree with the plaintiff that the Appellate Court incor-
rectly determined that the trial court undertook the
proper analysis of the law and facts when it directed
the parties to proceed to arbitration.11 As a result, this
matter must be remanded to the trial court for a new
hearing on the defendants’ motion for a stay pending
arbitration.12 At the rehearing, the trial court must deter-
mine whether the defendants have waived their right
to enforce the arbitration clause in the parties’ lease
agreement.
Finally, we take this opportunity to clarify the stan-
dard for waiver because this issue is likely to arise on
remand. See Nyenhuis v. Metropolitan District Com-
mission, 300 Conn. 708, 725–26, 22 A.3d 1181 (2011)
(addressing issue likely to arise on remand); State v.
Tabone, 292 Conn. 417, 431, 973 A.2d 74 (2009) (same).
In Advest, Inc. v. Wachtel, 235 Conn. 559, 569, 668 A.2d
367 (1995), this court, citing Rush v. Oppenheimer &
Co., 779 F.2d 885, 888 (2d Cir. 1985), stated that ‘‘[a]
party seeking to assert the defense of waiver must show
that he was substantially prejudiced.’’ The court further
stated that, ‘‘[i]n order to determine whether a party
has been substantially prejudiced, many factors must
be considered, not the least of which is whether the
claims that the defendants seek to assert in the arbitra-
tion are the same as those asserted in the prior litigation
and whether initiation of the arbitration constituted an
unjustifiable delay.’’ Advest, Inc. v. Wachtel, supra, 569,
citing Waterbury Teachers Assn. v. Waterbury, supra,
164 Conn. 435.
Today, we clarify that the court in Advest, Inc. v.
Wachtel, supra, 235 Conn. 569, did not announce a new
waiver standard, but, rather, made explicit a prejudice
requirement that was implicit in our prior case law
regarding waiver of arbitration. That is, each factor
that our court previously had identified as potentially
supporting an inference of waiver—for instance, an
unjustifiable delay or going to trial on identical issues as
those claimed for arbitration; see Waterbury Teachers
Assn. v. Waterbury, supra, 164 Conn. 435; Batter Build-
ing Materials Co. v. Kirschner, supra, 142 Conn. 11—
is conduct that may be prejudicial, either procedurally
or substantively,13 to the party opposing arbitration.
Appropriately, our courts have examined these and
other relevant factors that may be indicative of preju-
dice to the party opposing arbitration on the grounds
of waiver.14
Consistent with our prior case law, we hold that a
party opposing arbitration on the ground of waiver must
demonstrate that it will be prejudiced by enforcement
of the arbitration clause. In so holding, we reaffirm
the waiver standard that has developed through our
common law. We further recognize that our prejudice
requirement is consistent with the majority of federal
circuit courts which similarly require prejudice to the
party opposing arbitration on the grounds of waiver.15
This uniform approach allows our trial courts to resolve
the issue of waiver without having to determine, as a
threshold matter, whether state or federal law governs
a particular arbitration agreement. See Washington
Mutual Finance Group, LLC v. Bailey, 364 F.3d 260,
267 n.6 (5th Cir. 2004) (‘‘whether a court should apply
state law or the federal substantive law of arbitrability
. . . is often an uncertain question [citation omitted;
internal quotation marks omitted]’’).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new hearing on the motion
for a stay.
In this opinion the other justices concurred.
1
This court granted the plaintiff’s petition for certification to appeal lim-
ited to the following issue: ‘‘Did the Appellate Court correctly determine
that the trial court undertook the proper analysis of the law and facts when
it directed the parties to proceed to arbitration?’’ MSO, LLC v. DeSimone,
305 Conn. 911, 45 A.3d 98 (2012).
2
The defendants, in connection with a counterclaim they filed against the
plaintiff, also moved to implead Maria Shields as a defendant. The trial
court granted their motion. References to the defendants herein are to
only Anthony DeSimone and Charles DeSimone, Jr., in their individual and
representative capacities.
3
General Statutes § 52-409 provides: ‘‘If any action for legal or equitable
relief or other proceeding is brought by any party to a written agreement
to arbitrate, the court in which the action or proceeding is pending, upon
being satisfied that any issue involved in the action or proceeding is referable
to arbitration under the agreement, shall, on motion of any party to the
arbitration agreement, stay the action or proceeding until an arbitration has
been had in compliance with the agreement, provided the person making
application for the stay shall be ready and willing to proceed with the arbi-
tration.’’
4
Paragraph 23 of the parties’ lease agreement contains an arbitration
clause that provides as follows: ‘‘Any dispute arising under this lease shall
be settled by arbitration. Then [l]andlord and [t]enant shall each choose an
arbitrator, and the two arbitrators thus chosen shall select a third arbitrator.
The findings and award of the three arbitrators thus chosen shall be final
and binding on the parties hereto.’’
5
Although the defendants purportedly sought a stay pending arbitration
because of the plaintiff’s alleged noncompliance with discovery requests,
we note that a stay order is not a standard sanction for discovery violations.
See Practice Book § 13-14.
6
We note that before commencing an appeal in the Appellate Court, the
parties proceeded to arbitration in accordance with their agreement. On
September 15, 2010, the arbitrators issued a memorandum of decision finding
in the defendants’ favor. On December 16, 2010, the trial court, A. Robinson,
J., denied the plaintiff’s motion to vacate the arbitration award, and granted
the defendants’ motion to confirm the award. The plaintiff appealed from
the December 16, 2010 judgment to the Appellate Court.
This appeal is not moot on account of the arbitration judgment rendered
in the defendants’ favor. ‘‘Mootness is a question of justiciability that must
be determined as a threshold matter because it implicates [this] court’s
subject matter jurisdiction. . . . Because courts are established to resolve
actual controversies, before a claimed controversy is entitled to a resolution
on the merits it must be justiciable . . . . Justiciability requires . . . that
the determination of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the trial] court cannot grant
the appellant any practical relief through its disposition of the merits . . . .’’
(Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enter-
prises, LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013). On remand in the present
case, the trial court can afford the plaintiff relief through its disposition on
the merits. If the trial court determines that the defendants waived their
right to arbitrate under the parties’ lease agreement, then the trial court
must deny the defendants’ motion for a stay and vacate the arbitration
award that resulted from the original stay order.
7
After this court granted the plaintiff’s petition for certification to appeal,
the defendants sought an articulation from the trial court, Cronan, J., as
to the grounds for its decision granting the defendants’ motion for a stay
pending arbitration. The trial court denied the defendants’ motion, but this
court subsequently ordered the trial court to articulate its decision.
The trial court’s December 27, 2012 articulation provides in relevant part:
‘‘The court felt that because arbitration was available and that both original
parties to the lease agreement entered into a lease agreement recognizing
that paragraph 23 stated that ‘any dispute arising under this agreement shall
. . . be settled by agreement’ then that was the proper and practical course
to take. The court felt that the language of the agreement which was the
basis of the litigation should take precedent over any issue of whether
previous actions by either of the parties constituted waiver.’’ (Emphasis
altered.)
8
The plaintiff’s argument regarding the appropriate standard of review is
inconsistent and, in part, inaccurate. In portions of its brief, the plaintiff
appears to conflate plenary and abuse of discretion standards of review.
For example, the plaintiff states that ‘‘the Appellate Court should have
applied a plenary or abuse of discretion standard of review.’’ The plaintiff
further contends that ‘‘the Appellate Court should have determined that the
trial court’s decision directing the parties to arbitration was an abuse of
discretion and in any event under plenary review the Appellate Court was
in error and should be reversed . . . .’’ Our appellate courts have plenary
review over legal conclusions. Morton Buildings, Inc. v. Bannon, 222 Conn.
49, 53, 607 A.2d 424 (1992). Accordingly, we reject the plaintiff’s argument
insofar as it suggests that the Appellate Court should have reviewed the
trial court’s decision for abuse of discretion.
9
General Statutes § 52-408 provides in relevant part that ‘‘[a]n agreement
in any written contract . . . to settle by arbitration any controversy there-
after arising out of such contract, or out of the failure or refusal to perform
the whole or any part thereof . . . shall be valid, irrevocable and enforce-
able, except when there exists sufficient cause at law or in equity for the
avoidance of written contracts generally.’’
10
We note that ‘‘[t]he interpretation of a trial court’s judgment presents
a question of law over which our review is plenary. . . . Effect must be
given to that which is clearly implied as well as that which is expressed.’’
(Citation omitted; internal quotation marks omitted.) Sosin v. Sosin, 300
Conn. 205, 217, 14 A.3d 307 (2011).
11
In view of our holding in the present case, we reject the defendants’
alternative grounds for affirmance, namely, that the record was inadequate
for review and that the Appellate Court correctly presumed that the trial
court undertook the proper analysis in granting the defendants’ motion for
a stay pending arbitration.
12
The plaintiff argues in its brief that the ‘‘historical facts and pleadings
in this matter as applied to clearly recognized case law pertaining to waiver
manifests that there is no other legal or logical conclusion other than waiver.’’
Insofar as the plaintiff suggests that this court can decide waiver in the
present case as a matter of law, we reject this contention. The question of
whether the defendants waived the right to enforce the arbitration clause
is a factual question that must be decided in the first instance in the trial
court. See AFSCME, Council 4, Local 704 v. Dept. of Public Health, supra,
272 Conn. 622 (‘‘[w]aiver is a question of fact’’).
13
See Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991) (‘‘[p]rejudice
can be substantive, such as when a party loses a motion on the merits and
then attempts, in effect, to relitigate the issue by invoking arbitration, or it
can be found when a party too long postpones his invocation of his contrac-
tual right to arbitration, and thereby causes his adversary to incur unneces-
sary delay or expense’’).
14
A nonexhaustive list of some other relevant factors that our courts
have considered in deciding waiver include participating in lengthy pretrial
discovery or fact-finding, engaging in extensive pleading or motion practice,
initiating continuances, and moving for arbitration on the eve of trial; see
Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., supra,
128 Conn. App. 542–43; Grey v. Connecticut Indemnity Services, Inc., supra,
112 Conn. App. 815–16; invoking arbitration to avoid an unfavorable disposi-
tion; see Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602
A.2d 606 (1992); electing a jury determination of issues falling within an
agreement to arbitrate; see Giulietti v. Connecticut Ins. Placement Facility,
205 Conn. 424, 432–33, 534 A.2d 213 (1987); causing an opposing party to
expend undue time and expense in litigation prior to seeking arbitration;
see Riddle v. St. Paul Fire & Marine Ins., Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-00-0180704 (September 11, 2003) (35
Conn. L. Rptr. 417); Premier Roofing Co. v. Ins. Co. of North America,
Superior Court, judicial district of Danbury, Docket No. 312438 (November
22, 1996); and attempting to utilize the advantages derived from litigation
in a later arbitration, including discovery that is unavailable in arbitration.
See Flanagan v. Toll CT, II Ltd. Partnership, Superior Court, judicial district
of Fairfield, Docket No. CV-06-5004100-S (November 5, 2007); Richter v.
Danbury Radiological Associates, P.C., Superior Court, judicial district of
Danbury, Docket No. 316199 (April 17, 1995) (14 Conn. L. Rptr. 47).
15
Nine federal circuit courts require the party opposing arbitration on the
grounds of waiver to show prejudice. See Brown v. Dillard’s, Inc., 430 F.3d
1004, 1012 (9th Cir. 2005) (prejudice required to establish waiver of right
to compel arbitration); Republic Ins. Co. v. PAICO Receivables, LLC, 383
F.3d 341, 346 (5th Cir. 2004) (same); Patton Grading & Paving, Inc. v.
Skansa USA Building, Inc., 380 F.3d 200, 204 (4th Cir. 2004) (same); In re
Citigroup, Inc., 376 F.3d 23, 26 (1st Cir. 2004) (same); Kelly v. Golden, 352
F.3d 344, 349 (8th Cir. 2003) (same); O.J. Distributing, Inc. v. Hornell
Brewing Co., 340 F.3d 345, 356 (6th Cir. 2003) (same); Thyssen, Inc. v.
Calypso Shipping Corp., S.A., 310 F.3d 102, 105 (2d Cir. 2002) (same), cert.
denied sub nom. Thyssen, Inc. v. M/V Markos N., 538 U.S. 922, 123 S. Ct.
1573, 155 L. Ed. 2d 312 (2003); Ivax Corp. v. B. Braun of America, Inc.,
286 F.3d 1309, 1315–16 (11th Cir. 2002) (same); Hoxworth v. Blinder, Rob-
inson & Co., 980 F.2d 912, 925 (3d Cir. 1992) (same).
Although three federal circuit courts do not require prejudice to establish
waiver, prejudice is a relevant factor in the waiver analysis. See McWilliams
v. Logicon, Inc., 143 F.3d 573, 576 (10th Cir. 1998) (prejudice one of six
relevant factors in waiver analysis); St. Mary’s Medical Center of Evansville,
Inc. v. Disco Aluminum Products Co., 969 F.2d 585, 590 (7th Cir. 1992)
(prejudice relevant factor but court may find waiver absent prejudice);
National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc.,
821 F.2d 772, 777 (D.C. Cir. 1987) (same).