Lemma v. York & Chapel, Corp.

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APPENDIX
DOMINIC LEMMA v. YORK AND CHAPEL, CORP.*
Superior Court, Judicial District of Ansonia-Milford
File No. CV-XX-XXXXXXX-S
Memorandum filed December 19, 2019
Proceedings
Memorandum of decision on defendant’s application
to vacate and plaintiff’s motion to confirm arbitration
award. Judgment denying the application to vacate
and granting the application to confirm.
Stephen J. Curley, for the plaintiff.
Bruce L. Elstein, for the defendant.
Opinion
PIERSON, J.
STATEMENT OF THE CASE
This action was commenced by an application for
an order pendente lite in aid of arbitration and for a
prejudgment remedy. According to a supporting affida-
vit filed by the applicant, Dominic Lemma, on March
2, 2018, he and the respondent, York & Chapel, Corp.,
entered into an executive agreement pursuant to which
the applicant agreed to be employed by the respondent,
part-time, from January 2, 2018 through December 31,
2018 (agreement). Further, according to the applicant,
the respondent agreed to compensate the applicant at
a rate of $50,000 per year on a semimonthly basis; permit
the applicant to participate in group insurance and other
health benefit plans; reimburse the applicant for busi-
ness expenses; and provide paid holidays, vacation
days, and sick leave.
The applicant alleges that, despite complying fully
with his obligations under the agreement, the respon-
dent terminated his employment on or about August
15, 2018, without cause or notice. The applicant further
alleges that, as of the date of his termination, the respon-
dent had failed to pay him wages and reimburse busi-
ness expenses in accordance with the agreement. The
applicant claims that a ‘‘Termination Payment’’ due
under the agreement was not paid. He further claims
that the failure to pay him wages may constitute a
violation of General Statutes § 31-72, ‘‘which may entitle
[him] to double damages.’’ The applicant averred that
probable cause exists to support an arbitration award
in his favor ‘‘in at least the amount of $35,450.10 . . . .’’
According to the applicant, on August 22, 2018, he
demanded arbitration pursuant to the agreement ‘‘under
the auspices of the American Arbitration Association.’’
Section 11 of the agreement provides, at subsection (f),
in part as follows: ‘‘At either party’s option, any dispute
arising directly or indirectly from the performance or
breach of a party’s obligations under this Agreement
shall be resolved by binding arbitration before the
American Arbitration Association [AAA], using its then
current Commercial Arbitration Rules. The panel shall
consist of one arbitrator. The Arbitration Panel shall
be authorized to resolve all questions of law and fact
between the parties, but shall not be authorized to
award special, consequential or punitive damages.’’
The AAA ‘‘Online Filing Acknowledgement’’ form
filed by the applicant, which served as a ‘‘Demand for
Arbitration,’’ reflects, inter alia, several claims—
namely, that the respondent (1) failed to pay the appli-
cant $2083.34 in salary through August 15, 2018, (2)
failed to reimburse expenses of $4200 through August
15, 2018, and (3) owed a termination payment of ‘‘at
least’’ $29,166.76. The ‘‘Claim Amount’’ listed on the
form is $34,450.10. The form also reflects that the
respondent’s alleged breach ‘‘constitutes a violation of
[§] 31-72 entitling [the applicant] to double damages.
Claimant also seeks interest, attorney’s fees and arbitra-
tion costs.’’
The facts and circumstances surrounding the arbitra-
tion are largely undisputed. An arbitration hearing was
scheduled to be held before James F. Stapleton, as
arbitrator, on May 22 and 23, 2019. According to the
respondent, on May 16, 2019, the respondent’s attorney
was informed ‘‘of the impending death of a close per-
sonal friend of over [forty] years. He . . . passed on
May 16, 2019.’’ On May 17, 2019, at 5:11 p.m., the appli-
cant’s attorney wrote to the arbitrator, stating that, ‘‘as
of the close of business on May 17, 2019, Claimant
has not received Respondent’s Exhibits in conformance
with Scheduling Order #1 as modified by the Arbitrator
earlier this week. This situation compounds the preju-
dice suffered by Claimant, who timely complied with
Scheduling Order #1.’’
In response, the respondent’s attorney sent an e-mail
to opposing counsel at 6:15 p.m. on May 17, 2019—on
which the arbitrator was copied—which reads in part
as follows: ‘‘I was informed Thursday morning of an
impending death of a friend of over [forty] years. He
passed yesterday afternoon. I knew he was in hospice.
I was unable to work at all yesterday and very little
today. The arrangements are still not firm but are antici-
pated to be Monday/Tuesday or Tuesday/Wednesday.
It will be in [Foxborough] MA. I am giving the eulogy.
I plan to work Monday [morning, as] I have a [long-
standing] mediation in an important case and then will
be out of town. Because I was unable to attend to this,
I request a continuance of both the exhibits and the
hearing.’’
The arbitrator continued the hearing by one day, from
May 22, 2019, to May 23, 2019. An e-mail from the arbitra-
tor dated May 18, 2019, reads, ‘‘[g]iven what has
occurred [t]o date on this case and to be fair to all
the following orders are hereby entered: the hearing is
reduced to one day to be held on Thursday May 23, at
9 [a.m. . . .] and if [the respondent’s counsel, Attorney
Bruce L.] Elstein is unavailable [Attorney John J.] Ribas
or another lawyer from that firm should handle the case
on behalf of the [r]espondent.’’
The respondent’s attorney did not return home from
Massachusetts ‘‘until very late on May 22, 2019.’’ On
May 22, 2019, in the early afternoon, the respondent’s
attorney sent a second continuance request, which was
denied.1 Prior to the denial, counsel for the applicant
sent two e-mails to the respondent’s counsel (on which
the arbitrator was copied) dated May 22, 2019, in which
he stated in part as follows: ‘‘[M]y client is literally en
route from points west to attend the hearing tomorrow.
[The] [r]espondent has an entire firm (including Attor-
ney Ribas, who participated in the preliminary confer-
ence call in the arbitration and has represented [the]
[r]espondent in related litigation proceedings) available
to handle this proceeding. [The] [c]laimant has paid all
of the fees for this arbitration, the hearing of which
was scheduled in November. [The] [r]espondent has
ignored deadlines, failed to make payments and caused
avoidable motion practice (motion to dismiss counter-
claim). Enough is enough. As I wrote last week, I, as
a solo attorney, do not have availability to handle a
rescheduled hearing for several weeks. The prejudice
to [the] [c]laimant is therefore even more palpable than
it was several days ago. [The] [c]laimant insists that we
proceed as ordered tomorrow.’’ Sometime later, the
applicant’s attorney wrote: ‘‘One last point—at least
one [third-party] witness has been subpoenaed to the
hearing tomorrow as well. Disrupting the hearing there-
fore causes inconvenience to more than just the [p]anel,
the parties and counsel.’’
The arbitration hearing was held on May 23, 2019,
before the AAA arbitrator. According to the respon-
dent’s counsel, ‘‘[b]ecause the undersigned counsel was
unavailable, Attorneys Matthew Woods and John Ribas
were required, at the last second, to scramble to prepare
for a hearing they never intended to attend, never mind
actually conduct.’’
The arbitrator issued a written award in the matter
on July 9, 2019. In the award, the arbitrator concluded
that the respondent ‘‘did not have [c]ause under the
[a]greement to terminate the [c]laimant and is therefore
liable for damages under the terms in the [a]greement
as provided under Connecticut law as set forth herein.’’
The arbitrator further concluded that the applicant was
entitled to recover the following items of damage: (1)
$1923.07 in salary for time worked before he received
notice of his termination; (2) $2907.73 for uncovered
expenses; (3) a $33,566.68 termination payment; and
(4) $1923.07 in unpaid wages, doubled pursuant to § 31-
72, on the grounds that the termination was unreason-
able or arbitrary. Thus, the arbitrator awarded total
damages of $40,320.55. The respondent was also
directed to reimburse the applicant the sum of $8150,
representing a one-half portion of administrative and
arbitration fees, which were divided equally between
the parties. Additional facts are recited below, as neces-
sary.
On August 2, 2019, the respondent filed a motion to
vacate and/or modify the arbitration award (No. 120.00).
In the motion, the respondent asks the court to vacate
or modify the arbitrator’s award on four grounds: (1)
by failing to continue the arbitration hearing held on
May 23, 2019, the arbitrator was guilty of misconduct
in violation of General Statutes § 52-418 (a) (3), for
refusing to postpone a hearing for sufficient cause
shown or other action by which the rights of any party
have been prejudiced; (2) the arbitrator exceeded his
authority in violation of § 52-418 (a) (4) by requiring
the respondent to pay more than the sum demanded
in the arbitration; (3) the arbitrator exceeded his power
in violation of § 52-418 (a) (4) in ordering the respon-
dent to pay one-half of the arbitration expenses and
denying the respondent’s request for attorney’s fees;
and (4) an award of double damages pursuant to § 31-
72 is unavailable in arbitration.
Thereafter, on August 29, 2019, the applicant filed an
application to confirm the arbitration award pursuant
to General Statutes §§ 52-417 and 52-420 (No. 123.00).
On September 4, 2019, the applicant filed an objection
to the respondent’s motion to vacate and/or modify the
arbitration award (No. 124.00).
The motion to vacate and/or modify, and the applica-
tion to confirm, were submitted to the court on Septem-
ber 9, 2019, following oral argument, on which date the
court took the matters under advisement. No eviden-
tiary hearing was requested, and none is necessary for
the court to resolve the motion and application pre-
sented. See DeRose v. Jason Robert’s, Inc., 191 Conn.
App. 781, 797–98, 216 A.3d 699, cert. denied, 333 Conn.
934, 218 A.3d 593 (2019).
DISCUSSION
I
Our Supreme Court has held that, ‘‘for many years
[it has] wholeheartedly endorsed arbitration as an effec-
tive alternative method of settling disputes intended to
avoid the formalities, delay, expense and vexation of
ordinary litigation. . . . When arbitration is created by
contract, we recognize that its autonomy can only be
preserved by minimal judicial intervention. . . .
Because the parties themselves, by virtue of the submis-
sion, frame the issues to be resolved and define the
scope of the arbitrator’s powers, the parties are gener-
ally bound by the resulting award. . . . Since the par-
ties consent to arbitration, and have full control over
the issues to be arbitrated, a court will make every
reasonable presumption in favor of the arbitration
award and the arbitrator’s acts and proceedings. . . .
The party challenging the award bears the burden of
producing evidence sufficient to invalidate or avoid it,
and only upon a showing that it falls within the proscrip-
tions of § 52-418 of the General Statutes, or procedurally
violates the parties’ agreement will the determination
of an arbitrator be subject to judicial inquiry.’’ (Citations
omitted; internal quotation marks omitted.) O & G/
O’Connell Joint Venture v. Chase Family Ltd. Partner-
ship No. 3, 203 Conn. 133, 145–46, 523 A.2d 1271 (1987).
‘‘A party’s choice to accept arbitration entails a trade-
off. A party can gain a quicker, less structured way of
resolving disputes; and it may also gain the benefit of
submitting its quarrels to a specialized arbiter. . . .
Parties lose something, too: the right to seek redress
from the courts for all but the most exceptional errors
at arbitration.’’ (Internal quotation marks omitted.)
DeRose v. Jason Robert’s, Inc., supra, 191 Conn. App.
794, quoting Bridgeport v. Kasper Group, Inc., 278
Conn. 466, 478–79, 899 A.2d 523 (2006). ‘‘The propriety
of arbitration awards often turns on the unique standard
of review and legal principles applied to decisions ren-
dered in this forum. [Thus, judicial] review of arbitral
decisions is narrowly confined. . . . Because we favor
arbitration as a means of settling private disputes, we
undertake judicial review of arbitration awards in a
manner designed to minimize interference with an effi-
cient and economical system of alternative dispute reso-
lution.’’ (Internal quotation marks omitted.) Board of
Education v. New Milford Education Assn., 331 Conn.
524, 531, 205 A.3d 552 (2019).
‘‘The party challenging the award bears the burden
of producing evidence sufficient to invalidate or avoid
it . . . . [W]e have . . . recognized three grounds for
vacating an [arbitrator’s] award: (1) the award rules on
the constitutionality of a statute . . . (2) the award
violates clear public policy . . . or (3) the award con-
travenes one or more of the statutory proscriptions of
§ 52-418.’’ (Internal quotation marks omitted.) Marulli
v. Wood Frame Construction Co., LLC, 124 Conn. App.
505, 509, 5 A.3d 957 (2010), cert. denied, 300 Conn.
912, 13 A.3d 1102 (2011), quoting Bridgeport v. Kasper
Group, Inc., supra, 278 Conn. 474. ‘‘If such party fails
to carry [this] burden, then the court has no discretion
but to confirm the award.’’ Between Rounds Franchise
Corp. v. EDGR Real Estate, LLC, 52 Conn. Supp. 295,
298, 40 A.3d 833 (2011), aff’d, 134 Conn. App. 857, 40
A.3d 342, cert. denied, 305 Conn. 905, 44 A.3d 181 (2012),
citing Middlesex Mutual Assurance Co. v. Komondy,
120 Conn. App. 117, 128, 991 A.2d 587 (2010).
Section 52-418 (a) reads in part as follows: ‘‘Upon
the application of any party to an arbitration, the supe-
rior court for the judicial district in which one of the
parties resides . . . shall make an order vacating the
award if it finds any of the following defects . . . (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.’’ Here, the respondent moves to vacate the
arbitration award pursuant to § 52-418 (a) (3) and (4).
II
‘‘The concept of arbitral ‘misconduct’ does not lend
itself to a precise definition but is, instead, best illus-
trated by example. . . . Among the actions that have
been found to constitute such misconduct on the part
of an arbitrator as would warrant vacating an arbitration
award are the following: participation in ex parte com-
munications with a party or a witness, without the
knowledge or consent of the other party . . . ex parte
receipt of evidence as to a material fact, without notice
to a party . . . holding hearings or conducting deliber-
ations in the absence of a member of an arbitration
panel, or rendering an award without consulting a panel
member . . . undertaking an independent investiga-
tion into a material matter after the close of hearings
and without notice to the parties . . . and accepting
gifts or other hospitality from a party during the pro-
ceedings. . . . An award may likewise be set aside on
the basis of procedural error by an arbitration panel if,
for instance, the panel arbitrarily denies a reasonable
request for postponement of a hearing . . . or commits
an egregious evidentiary error, such as refusing to hear
material evidence or precluding a party’s efforts to
develop a full record. . . . Though not exhaustive,
these examples of arbitral misconduct delineate the
broad contours of conduct that is unacceptable and
prohibited under § 52-418 (a) (3). The presumptive
validity of consensual arbitration awards depends upon
the underlying integrity of the arbitration process. When
that integrity is tainted either by actual impropriety or
the appearance of impropriety, the arbitration award
cannot be permitted to stand.’’ (Citations omitted.) O &
G/O’Connell Joint Venture v. Chase Family Ltd. Part-
nership No. 3, supra, 203 Conn. 146–48. In order ‘‘to
vacate an arbitrator’s award on the ground of miscon-
duct under § 52-418 (a) (3), the moving party must estab-
lish that it was substantially prejudiced by the
improper ruling.’’ (Emphasis added.) Bridgeport v.
Kasper Group, Inc., supra, 278 Conn. 476.
The court’s analysis is aided further by reference
to federal case law. As noted by our Supreme Court,
‘‘[u]nder 9 U.S.C. § 10 (a) (3),2 a District Court ‘may
make an order vacating the award upon the application
of any party to the arbitration . . . [w]here the arbitra-
tors were guilty of misconduct in refusing to postpone
the hearing, upon sufficient cause shown, or in refusing
to hear evidence pertinent and material to the contro-
versy; or of any other misbehavior by which the rights
of any party have been prejudiced.’ This court pre-
viously has recognized that federal case law applying
this statute is instructive because of the substantial
similarity between the language of this statute and § 52-
418 (a) (3).’’ (Footnote added.) Id., 475–76 n.7; see also
Windham v. Doctor’s Associates, Inc., Superior Court,
judicial district of Ansonia-Milford, Docket No. CV-10-
6004162 (January 3, 2012) (Keegan, J.) (53 Conn. L.
Rptr. 264, 265) (‘‘[o]ur Supreme Court regularly finds
that federal cases pertaining to nearly identical provi-
sions in the Federal Arbitration Act, 9 U.S.C. § 10, are
instructive in analyzing § 52-418’’), aff’d, 146 Conn. App.
768, 81 A.3d 230 (2013).3
As observed by the United States District Court for
the District of Connecticut, ‘‘[t]he [United States Court
of Appeals for the] Second Circuit has interpreted [§]
10 (a) (3) to mean that, except where fundamental fair-
ness is violated, arbitration determinations will not be
opened up to evidentiary review. . . . Arbitral miscon-
duct typically arises where there is proof of either bad
faith or gross error on the part of the arbitrator. . . .
The party moving for vacatur must show not only that
the arbitrator committed misconduct but also that the
party was prejudiced as a result.’’ (Citations omitted;
internal quotation marks omitted.) Vyas v. Doctor’s
Associates, Inc., United States District Court, Docket
No. 3:17-cv-1774 (JCH) (D. Conn. March 21, 2018).
‘‘When determining whether to vacate an arbitral award
on the ground that the arbitrator refused to continue
a hearing, the court ‘examines the facts and circum-
stances surrounding the arbitrator’s refusal to grant an
adjournment.’ ’’ Id.
A
‘‘Parties to an arbitration are not entitled to a post-
ponement merely by asking for one, nor is every deci-
sion of an arbitrator to deny a request for a postpone-
ment and proceed with the arbitration grounds for
vacating the award. In passing on requests for postpone-
ments an arbitrator may balance the prejudice to the
moving party resulting from the failure to postpone
against the prejudice to the opposing party due to grant-
ing a postponement, the avoidability of such postpone-
ment, and other circumstances as warranted in each
case.’’ Two Sisters, Inc. v. Gosch & Co., 171 Conn. 493,
499 n.4, 370 A.2d 1020 (1976); see also Local Union No.
251 v. Narragansett Improvement Co., 503 F.2d 309,
312 (1st Cir. 1974) (‘‘Appellant’s position in this case
reduces to a claim that it is entitled to a postponement
merely by asking for it. Such a view is obviously unac-
ceptable.’’).
‘‘The arbitrary denial of a reasonable request for a
postponement may serve as grounds for vacating an
arbitration award. . . . However, the expeditious reso-
lution of a dispute remains one of the principal purposes
for referring the matter to arbitration, and [9 U.S.C. § 10(a) (3)] limits the [c]ourt’s review to a determination
as to whether the arbitrators were guilty of misconduct
in refusing a postponement. As such, it follows that
arbitrators are to be accorded a degree of discretion
in exercising their judgment with respect to a requested
postponement.’’ (Citation omitted; emphasis omitted.)
Fairchild & Co. v. Richmond, Fredericksburg & Poto-
mac Railroad Co., 516 F. Supp. 1305, 1313 (D.D.C. 1981).
In fact, ‘‘[a]rbitrators are given broad latitude to grant or
deny parties’ adjournment requests at their discretion.’’
Rai v. Barclays Capital, Inc., 739 F. Supp. 2d 364, 371
(S.D.N.Y. 2010) (citing Tempo Shain Corp. v. Bertek,
Inc., 120 F.3d 16, 19 (2d Cir. 1997)), aff’d, 456 Fed. Appx.
8 (2d Cir. 2011), cert. denied, 566 U.S. 979, 132 S. Ct.
2113, 182 L. Ed. 2d 877 (2012). ‘‘The court will not
interfere with an award on these grounds as long as
there exists a reasonable basis for the arbitrators’
refusal to grant a postponement.’’ (Internal quotation
marks omitted.) Rai v. Barclays Capital, Inc., supra,
371.
The court concludes that the arbitrator did not engage
in misconduct in violation of § 52-418 (a) (3) and acted
within his discretion when he denied the respondent’s
second request to continue the arbitration. This is
because there were reasonable grounds for the refusal.
To begin, the reason for the requested postponement—
attendance at a close friend’s funeral in a neighboring
state—is insufficiently compelling to require an arbitra-
tor to postpone, twice, a previously scheduled hearing.
While the court takes seriously the attorney’s loss of a
close personal friend, that circumstance does not rise
to the level of an event that would prescribe an adjourn-
ment in many circumstances, such as a medical emer-
gency materially affecting the admission or presenta-
tion of evidence. See, e.g., Bisnoff v. King, 154 F. Supp.
2d 630, 638 (S.D.N.Y. 2001) (‘‘absent a reasonable basis
for its decision, a refusal to grant an adjournment of a
hearing, due to a medical emergency, constitutes mis-
conduct under the Federal Arbitration Act if it excludes
the presentation of evidence material and pertinent to
the controversy thus prejudicing the parties in the dis-
pute’’); Allendale Nursing Home, Inc. v. Local 1115
Joint Board, 377 F. Supp. 1208, 1214 (S.D.N.Y. 1974)
(granting motion to vacate arbitration award where the
plaintiff’s administrative assistant became ill during
arbitration proceeding and was taken to the hospital,
and plaintiff had requested an adjournment on the
ground that presence of administrative assistant was
necessary to proper cross-examination of the defen-
dant’s witnesses). Here, the respondent has not demon-
strated sufficient cause for the second requested post-
ponement. See Between Rounds Franchise Corp. v.
EDGR Real Estate, LLC, supra, 52 Conn. Supp. 301(motion to vacate denied where the moving party sub-
mitted ‘‘no evidence establishing that it had demon-
strated to the [arbitration] panel sufficient cause to
obtain a postponement’’); see also Vyas v. Doctor’s
Associates, Inc., supra, United States District Court,
Civil Action No. 3:17-cv-1774 (JCH) (denial of requests
to postpone hearing not fundamentally unfair where
sufficient cause not shown).
Moreover, according to the respondent, Attorney
Elstein was back home from the funeral on May 22,
2019, albeit ‘‘very late.’’ Thus, the respondent’s attorney
had returned by May 23, 2019, and the record does not
reflect that Attorney Elstein was unable to attend the
hearing. See Vyas v. Doctor’s Associates, Inc., supra,
United States District Court, Civil Action No. 3:17-cv-
1774 (JCH) (motion to vacate denied where there was
no allegation that parties, attorneys, or witnesses were
unable to attend the scheduled hearing). In addition,
and while Attorney Elstein did not attend the hearing,
the respondent was represented by counsel at the hear-
ing, namely, by two of Attorney Elstein’s colleagues, at
least one of whom had been involved previously in
the case.
Finally, in declining the respondent’s request for a
second continuance, the arbitrator was not limited to
a consideration of the respondent’s concerns. Rather,
the arbitrator was required to balance ‘‘the prejudice to
the moving party resulting from the failure to postpone
against the prejudice to the opposing party due to
granting a postponement . . . and other circum-
stances as warranted in each case.’’ (Emphasis added.)
Two Sisters, Inc. v. Gosch & Co., supra, 171 Conn. 499n.4. Here, in opposing the second requested continu-
ance, the applicant’s counsel cited as prejudicial, inter
alia, the fact that (1) the applicant was ‘‘en route from
[the West Coast] to attend the hearing,’’ (2) at least one
third-party witness had been subpoenaed to the hearing,
and (3) the applicant’s counsel, as a solo attorney, could
not handle a rescheduled hearing for a period of time.
In light of the fact that arbitration is designed to afford
parties a more expeditious resolution of their disputes,
and in balancing the prejudice to the parties and the
other circumstances existing, it was within the arbitra-
tor’s discretion to deny the second requested continu-
ance of the hearing date. No proof of bad faith or gross
error on the part of the arbitrator has been presented,
and the arbitrator did not engage in misconduct under
§ 52-418 (a) (3).
B
Furthermore, even if the arbitrator’s refusal to grant
a second continuance constituted misconduct, the
respondent has not demonstrated that it was prejudiced
by the arbitrator’s actions, let alone substantially preju-
diced. The respondent was represented by counsel in
the arbitration proceeding. No evidence was allegedly
precluded at the hearing. See, e.g., Bridgeport v. Kasper
Group, Inc., supra, 278 Conn. 483–86 (affirming trial
court order vacating arbitration award where party was
prejudiced by arbitrator’s failure to consider testimony
that was highly probative and likely to have altered
outcome if introduced).
The only specific ground of prejudice cited by the
respondent is that Attorney Elstein had interviewed
personally a third-party witness in advance of the hear-
ing and that the witness testified at the hearing ‘‘in
direct contravention to her prior statements.’’ Even if
accepted as true, this fails to demonstrate substantial
prejudice to the respondent. The respondent fails to
show, specifically and by sufficient evidence, that Attor-
ney Elstein’s presence at the hearing would have altered
the impact of this testimony or the arbitrator’s award.
See, e.g., Jenkins v. Jenkins, 186 Conn. App. 641, 650,
200 A.3d 1193 (2018) (affirming trial court’s denial of
motion to vacate arbitration award and noting that
plaintiff failed to show that particular witness’ testi-
mony ‘‘would have impacted the outcome of the pro-
ceedings’’); see also Hartford Municipal Employees
Assn. v. Hartford, 128 Conn. App. 646, 659, 19 A.3d 193(testimonial evidence from individual witness was not
so central to plaintiff’s case that panel’s failure to con-
sider it constituted misconduct), cert. denied, 301 Conn.
934, 23 A.3d 730 (2011). Thus, the respondent has not
demonstrated substantial prejudice resulting from the
arbitrator’s refusal to grant a second continuance of
the arbitration hearing.
III
The respondent also argues that the arbitrator
exceeded his powers because he awarded the applicant
an amount in excess of the amount listed on the demand
for arbitration form submitted by the applicant to the
AAA. The argument is rejected.
In Quinn Associates, Inc. v. Borkowski, 41 Conn.
Supp. 17, 20, 548 A.2d 480 (1988), the defendant sought
to vacate an arbitration award on the ground that the
arbitrator exceeded his authority in making an award.
According to the defendant in that case, ‘‘the submis-
sion is restricted by the amount of $21,854.06 that the
plaintiff claimed in the original demand for arbitration
and . . . the arbitrator exceeded his power by award-
ing $29,283.’’ Id., 21. In denying the motion to vacate
on this ground, the court in Quinn Associates, Inc.,
observed, ‘‘[t]he defendant cites no authority in Con-
necticut or elsewhere for this contention, and this court
can find none. . . . In this court’s view, it makes no
sense for the amount of the claim or relief sought to
constitute a restriction on the arbitrator. If the parties
submitted to the arbitrator the question of whether a
claimant should be compensated a specified sum, then,
by awarding a different sum, the arbitrator exceeds his
power. But when the submission is general, as here,
and includes an agreement to decide by arbitration all
disputes under the contract, the arbitrator is free to
award more or less than the amount claimed. The
essence of the submission is that the arbitrator resolve
all disputes. A statement of the amount claimed is a
guide to the arbitrator, but not a limitation on his
power.’’ (Citations omitted; emphasis added.) Id., 21–22.
This court agrees and holds that the claim amount listed
in the applicant’s demand for arbitration did not limit
the arbitrator’s power to award a larger sum.
Moreover, the respondent misapprehends the nature
of the submission in this case. The ‘‘submission’’ to
which the arbitration award must conform is defined
by § 11 (f) of the agreement, not by the demand for
arbitration form filed by the applicant. ‘‘The arbitra-
tion clause in a contract constitutes the written submis-
sion to arbitration. . . . If the parties have agreed in
the underlying contract that their disputes shall be
resolved by arbitration, the arbitration clause in the
contract is a written submission to arbitration.’’ (Cita-
tions omitted; internal quotation marks omitted.) Exley
v. Connecticut Yankee Greyhound Racing, Inc., 59
Conn. App. 224, 229, 755 A.2d 990, cert. denied, 254
Conn. 939, 761 A.2d 760 (2000). Section 11 (f) of the
agreement defined the parties’ submission in broad
terms to include ‘‘any dispute arising directly or indi-
rectly from the performance or breach of a party’s obli-
gations under this [agreement]’’ and ‘‘all questions of
law and fact between the parties . . . .’’4 Thus, and as
noted by the court in Quinn Associates, Inc. v. Borkow-
ski, supra, 41 Conn. Supp. 17, ‘‘[t]he agreement of sub-
mission in this case is the . . . contract between the
parties, which provided: ‘All claims, disputes and other
matters in question . . . arising out of or relating to
this [a]greement or the breach thereof, shall be decided
by arbitration . . . . The demand for arbitration identi-
fied the nature of the dispute as the contract balance
due the plaintiff. In deciding the defendant’s claim that
the arbitrator exceeded his powers, within the meaning
of § 52-418 (a) (4), this court need only examine the
submission and the award to determine whether the
award conforms to the submission. . . . Here the sub-
mission covered all claims in question under the con-
tract, and the award was in full and final settlement
of all such claims. Thus, the award conforms to the
submission and is within the authority of the arbitrator.’’
Id., 20–21; see also Blatt v. Farley, 226 Cal. App. 3d
621, 627, 276 Cal. Rptr. 612 (1990) (rejecting party’s
attempt to convert demand for arbitration into submis-
sion agreement). The arbitrator did not exceed his
authority in awarding a sum in excess of the claim
amount reflected in the demand for arbitration filed by
the applicant, as the award was within the scope of the
parties’ prearbitration submission as set forth in § 11
(f) of the agreement.5
IV
The respondent also contends that the arbitrator
exceeded his authority under § 52-418 (a) (4) by requir-
ing the respondent to pay one-half of the arbitration
fee and denying the respondent an award of attorney’s
fees. The respondent’s argument is based on the claim
that the agreement was unambiguous with respect to
an award of fees, and that the arbitrator mistakenly
interpreted and applied, and improperly reformed, the
fee provisions of the arbitration clause of the agree-
ment.
The respondent does not dispute that the submission
was unrestricted, except as to an award of special,
consequential, or punitive damages. ‘‘Even in the case
of an unrestricted submission, however, a reviewing
court will vacate an award when an arbitrator has
exceeded the power granted to [him or] her by the
parties’ submission. . . . [A] claim that [an arbitrator
has] exceeded [his or her] powers may be established
under § 52-418 in either one of two ways: (1) the award
fails to conform to the submission, or, in other words,
falls outside the scope of the submission; or (2) the
[arbitrator] manifestly disregarded the law.’’ (Internal
quotation marks omitted.) Board of Education v. New
Milford Education Assn., supra, 331 Conn. 531–32.
Thus, the court is faced with a two part inquiry.
As for conforming with the submission, ‘‘[w]hen 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.
. . . [Moreover] the factual findings of the arbitrator
. . . are not subject to judicial review.’’ (Citation omit-
ted; internal quotation marks omitted.) Norwalk Police
Union, Local 1727, Council 15, AFSCME, AFL-CIO v.
Norwalk, 324 Conn. 618, 628, 153 A.3d 1280 (2017).
‘‘[U]nder an unrestricted submission, the [arbitrator’s]
decision is considered final and binding; thus the courts
will not review the evidence considered by the [arbitra-
tor] nor will they review the award for errors of law
or fact. . . . A submission is deemed restricted only if
the agreement contains express language restricting the
breadth of issues, reserving explicit rights, or condition-
ing the award on court review.’’ (Internal quotation
marks omitted.) Board of Education v. New Milford
Education Assn., supra, 331 Conn. 531. Given the
unrestricted nature of the parties’ submission with
respect to all issues other than the award of special,
consequential, or punitive damages, the court will not
review the errors of law or fact alleged by the respon-
dent with respect to the arbitrator’s award of fees. See,
e.g., Quinn Associates, Inc. v. Borkowski, supra, 41 Conn.
Supp. 21 (‘‘Here the submission covered all claims in
question under the contract, and the award was in full
and final settlement of all such claims. Thus, the award
conforms to the submission and is within the authority
of the arbitrator.’’).
As for the claim that the arbitrator acted in manifest
disregard of the law in awarding fees, our Supreme
Court has ‘‘outlined the following burden of proof for
claims that an arbitrator . . . issued a decision in mani-
fest disregard of the law in violation of § 52-418 (a) (4)
[as follows]: (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 [arbi-
trator] 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 [arbi-
trator] is well defined, explicit, and clearly applicable.’’
(Internal quotation marks omitted.) Board of Education
v. New Milford Education Assn., supra, 331 Conn. 533.
‘‘We have emphasized . . . that the manifest disre-
gard 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 estab-
lished legal principles.’’ (Internal quotation marks omit-
ted.) Norwalk Police Union, Local 1727, Council 15,
AFSCME, AFL-CIO v. Norwalk, supra, 324 Conn. 629.
‘‘[Courts] are not at liberty to set aside an [arbitrator’s]
award because of an arguable difference regarding the
meaning or applicability of laws urged upon it. . . .
Even if an arbitrator misapplies the relevant law, such
a misconstruction of the law [does] not demonstrate
the [arbitrator’s] egregious or patently irrational rejec-
tion of clearly controlling legal principles.’’ (Citations
omitted; internal quotation marks omitted.) Lathuras
v. Shoreline Dental Care, LLC, 65 Conn. App. 509, 514,
783 A.2d 83, cert. denied, 258 Conn. 936, 785 A.2d 231(2001). ‘‘[M]anifest disregard of the law may be found
only where the arbitrators understood and correctly
stated the law but proceeded to ignore it.’’ (Internal
quotation marks omitted.) Id.; see also Rai v. Barclays
Capital, Inc., supra, 739 F. Supp. 2d 372 (‘‘To constitute
manifest disregard, the court must find that the arbitra-
tor knew of the relevant [legal] principle, appreciated
that this principle controlled the outcome of the dis-
puted issue, and nonetheless [wilfully] flouted the gov-
erning law by refusing to apply it. Obtaining judicial
relief on these grounds is rare.’’ (Footnote omitted;
internal quotation marks omitted.)).6
The respondent fails to meet its burden of proof here.
The respondent argues that the fee award ‘‘is in direct
contravention of the unambiguous language of the
[a]greement . . . .’’ In doing so, the respondent demon-
strates only its disagreement with the arbitrator’s inter-
pretation and application of legal principles. See Lath-
uras v. Shoreline Dental Care, LLC, supra, 65 Conn.
App. 515 (affirming denial of motion to vacate where
applicant had not demonstrated anything more than
disagreement with arbitrator’s interpretation and appli-
cation of established legal principles). Such a disagree-
ment is insufficient to satisfy the exacting standard
required to demonstrate a manifest disregard of the law.
By way of example, in JEM Builders, Inc. v. Zelvin,
Superior Court, judicial district of New London, Docket
No. CV-XX-XXXXXXX (March 11, 2005) (Hendel, J.) (38
Conn. L. Rptr. 866), aff’d, 106 Conn. App. 401, 942 A.2d
455 (2008), the court considered a motion to vacate an
arbitration award based in part on the argument that
the arbitrators manifestly disregarded the law in inter-
preting a contract. In that case, the moving parties
argued ‘‘that contract interpretation begins with the
plain and ordinary meaning of the contract language.
In effect, the defendants argue that the arbitrators
ignored the normal rules of contract interpretation in
arriving at the meaning of [a section of] the contract.
The parties agreed that disputes would go to arbitration
. . . unless there is manifest disregard of the law. The
defendants do not argue that the arbitrators ignored
the law but rather that they ignored rules of contract
interpretation.’’ Id., 871. In denying the motion to
vacate, the court in JEM Builders, Inc., held that, ‘‘even
if this court were to find that the interpretation of the
contract should be other than what the arbitrators
decided, in such a voluntary arbitration with an
unrestricted submission, the court is not entitled to
substitute its judgment for that of the arbitrators. This
is true even if the arbitrators are wrong as regarding
questions of law.’’ Id.; accord Henry v. Imbruce, 178
Conn. App. 820, 843, 177 A.3d 1168 (2017), quoting
Oxford Health Plans, LLC v. Sutter, 569 U.S. 564, 569,
133 S. Ct. 2064 186 L. Ed. 2d 113 (2013) (‘‘[O]nce bound
to arbitration, ‘[a] party seeking relief under [9 U.S.C.
§ 10 (a) (4)] bears a heavy burden. It is not enough . . .
to show that the [arbitrator] committed an error—or
even a serious error. . . . Because the parties bar-
gained for the arbitrator’s construction of their agree-
ment, an arbitral decision even arguably construing or
applying the contract must stand, regardless of a court’s
view of its (de)merits. . . . Only if the arbitrator act[s]
outside the scope of his contractually delegated author-
ity . . . may a court overturn his determination. . . .
So the sole question . . . is whether the arbitrator
(even arguably) interpreted the parties’ contract, not
whether he got its meaning right or wrong.’ ’’); South-
eastern Connecticut Resources Recovery Authority v.
American Ref-Fuel Co. of Southeastern Connecticut,
44 Conn. Supp. 482, 488, 692 A.2d 874 (1996), aff’d, 44
Conn. App. 728, 692 A.2d 832 (‘‘[i]f the arbitrator did,
in fact, make a mistake, the plaintiffs assumed that risk
by agreeing to submit the dispute to arbitration’’), cert.
denied, 241 Conn. 914, 696 A.2d 341 (1997); see also
Beumer Corp. v. ProEnergy Services, LLC, 899 F.3d
564, 566 (8th Cir. 2018) (in case involving arbitrator’s
interpretation of attorney’s fees provision, holding that
‘‘[t]he parties bargained for the arbitrator’s decision; if
the arbitrator got it wrong, then that was part of the
bargain’’).
Moreover, ‘‘[t]o prevail on its application to vacate
an arbitration award pursuant to § 52-418 (a) (4), a party
must show that the arbitrator knew that [his] award
was contrary to the law.’’ Lathuras v. Shoreline Dental
Care, LLC, supra, 65 Conn. App. 515. This has not been
demonstrated by the respondent.
In addition, the respondent argues that there was ‘‘no
evidence’’ introduced that would support reformation
of the fee and cost provisions of the arbitration clause.
As there is no record of the arbitration proceeding,
the court is unable to conclude whether or not such
evidence was presented. Thus, the evidentiary record
here is insufficient to support the respondent’s chal-
lenge.7
Importantly, and as reflected in his written decision,
the arbitrator’s award with respect to attorney’s fees
and costs was made pursuant to § 31-72. As held by the
arbitrator, ‘‘[§] 31-72, which is controlling, leaves the
costs and attorney’s fees to the discretion of the [a]rbi-
trator.’’ Costs and reasonable attorney’s fees may be
awarded pursuant to § 31-72 (1). See, e.g., Lathuras v.
Shoreline Dental Care, LLC, supra, 65 Conn. App. 514(‘‘[s]ection 31-72 authorizes the award of double dam-
ages and attorney’s fees under circumstances where an
employer has failed to pay an employee wages’’). Sec-
tion 31-72 is remedial and must be given a liberal con-
struction in favor of those whom the legislature
intended to benefit, namely, employees such as the
applicant. See Harty v. Cantor Fitzgerald & Co., 275
Conn. 72, 98, 881 A.2d 139 (2005). Although the recovery
of attorney’s fees and double damages is appropriate
‘‘only when [it is] found that the defendant acted with
bad faith, arbitrariness or unreasonableness’’; (internal
quotation marks omitted) Schoonmaker v. Lawrence
Brunoli, Inc., 265 Conn. 210, 269, 828 A.2d 64 (2003);
in this case, the arbitrator made a specific finding that
the respondent’s termination of the applicant’s employ-
ment was unreasonable or arbitrary. Thus, the award
of attorney’s fees and costs does not involve any obvi-
ous error of law or the arbitrator’s decision to ignore
the law. As the respondent has not demonstrated egre-
gious or patently irrational rejection of clearly control-
ling legal principles by the arbitrator, its argument with
respect to the award of fees and costs fails.
V
Finally, the respondent argues that it was beyond the
arbitrator’s authority to award double damages as to
the applicant’s proven lost wages, pursuant to § 31-72.
The argument is not based on the restriction in § 11
(f) prohibiting the arbitrator from awarding special, con-
sequential, or punitive damages. Rather, the claim is
based on the contention that an arbitration is a not a
‘‘civil action,’’ and § 31-72 provides that, ‘‘in a civil action,’’
an employee may recover ‘‘twice the full amount of
such wages, with costs and such reasonable attorneys
fee’s as may be allowed by the court . . . .’’
In Harty v. Cantor Fitzgerald & Co., supra, 275 Conn.
77–78, our Supreme Court considered a party’s applica-
tion to vacate an arbitration award under § 52-418 (a)
(4), in part, on the ground that the arbitrator manifestly
disregarded the law in awarding double damages, attor-
ney’s fees, and costs pursuant to § 31-72. In asserting
this argument, the applicant pointed to the fact that
the employment agreement containing the arbitration
submission prohibited the arbitrators from awarding
punitive, exemplary, or special damages—language
similar to that contained in § 11 (f) of the agreement.
Id., 78. In rejecting the argument, the court discussed
the distinction between punitive and exemplary dam-
ages, on the one hand, and statutory multiple damages,
on the other. Id., 93–99. Following this discussion, the
court in Harty concluded that the employment contract
was ‘‘ambiguous with respect to whether the contract
provision was designed to exclude the double damages
provided for under § 31-72’’; id., 98; and held that ‘‘the
award of double damages under § 31-72 did not exceed
the scope of the submission.’’ Id., 99; see also Lathuras
v. Shoreline Dental Care, LLC, supra, 65 Conn. App.
514–15 (rejecting argument that arbitrator’s award of
double damages under § 31-72 was in manifest disre-
gard of law and affirming trial court’s denial of applica-
tion to vacate). Thus, our appellate courts have sanc-
tioned arbitral awards that include double damages
under § 31-72.
The respondent attempts to distinguish the holdings
in Harty and Lathuras on the grounds that, in those
cases, the parties did not argue that an arbitrator is
barred from awarding double damages under § 31-72
because an arbitration is not a ‘‘civil action.’’ Although
the respondent is correct that the foregoing argument
was not specifically raised in those cases, the holdings
in Harty and Lathuras fairly imply that an arbitration
is a ‘‘civil action’’ under § 31-72.
More important to the respondent’s motion to vacate
is that, as characterized by the respondent’s counsel at
oral argument, the issue of whether an arbitration is
a civil action for purposes of § 31-72 is one of first
impression. This characterization is fatal to the respon-
dent’s argument that the award of double damages was
‘‘beyond the authority of the arbitrator.’’ If the issue
raised by the respondent presents an unsettled question
of law, the respondent cannot demonstrate the ele-
ments necessary to prove a manifest disregard of the
law under § 52-418 (a) (4). See, e.g., Wulfe v. Valero
Refining Co.-California, 687 Fed. Appx. 646, 648 (9th
Cir. 2017) (‘‘[t]hat the arbitrator failed to correctly pre-
dict future judicial decisions does not mean that she
acted in ‘manifest disregard’ of the law’’ (citation omit-
ted)); G&K Services LUG, LLC v. Talent Creation, Ltd.,
United States District Court, Case No. 3:16-cv-180 (S.D.
Ohio February 23, 2017) (‘‘[a]s the law . . . is unset-
tled, the arbitrator’s decision . . . could not have vio-
lated clearly established precedent . . . and the [arbi-
trator’s decision] was not in manifest disregard of [the]
law’’ (citation omitted; internal quotation marks omit-
ted)). If the question is unresolved, the alleged error
could not be ‘‘obvious and capable of being readily and
instantly perceived by the average person qualified to
serve as an arbitrator . . . .’’ (Internal quotation marks
omitted.) Board of Education v. New Milford Educa-
tion Assn., supra, 331 Conn. 533. Furthermore, where
a novel legal issue is involved, the arbitrator cannot be
presented with a clearly governing legal principle that
he decided to ignore. Finally, as the respondent claims
that the issue is one of first impression, the governing
law alleged to have been ignored by the arbitrator can-
not be well defined, explicit, and clearly applicable. The
respondent has not demonstrated that, in connection
with the award of double damages under § 31-72, the
arbitrator exceeded his powers or imperfectly executed
them in violation of § 52-418 (a) (4).
CONCLUSION
For the foregoing reasons, the motion to vacate and/
or modify the arbitration award (No. 120.00) is DENIED,
and the objection thereto (No. 124.00) is SUSTAINED;
the application to confirm the arbitration award (No.
123.00) is GRANTED.
* Affirmed. Lemma v. York & Chapel, Corp., 204 Conn. App. , A.3d
(2021).
1
On both occasions, the respondent’s attorney’s continuance requests
were sent to the applicant’s counsel, with the arbitrator copied on the
correspondence.
2
Section 10 of title 9 of the United States Code is part of the Federal
Arbitration Act, 9 U.S.C. § 1 et seq.
3
This court has considered at length the history of arbitration in our
common-law tradition. Silverstone v. Connecticut Eye Surgery Center
South, LLC, Superior Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX-S (October 23, 2018) (Pierson, J.). In so doing, the court noted
the similarity between Connecticut public policy and the public policy of
the United States, both of which favor the arbitration of private disputes
between litigants. Id.4
The only express limitation imposed by the submission is a prohibition
against an award of special, consequential, or punitive damages.
5
Although the ‘‘Claim Amount’’ reflected in the demand for arbitration
was $35,450.10, the affidavit in support of the applicant’s ‘‘Application for
Order Pendente Lite in Aid of Arbitration and for Prejudgment Remedy,’’
dated September 5, 2018, reads, in part, at paragraph 11, that ‘‘probable cause
exists to support an award in my favor . . . and against [the] [r]espondent in
at least the amount of $35,450.10, taking into account all of the [r]espondent’s
known defenses, counterclaims and setoffs.’’ (Emphasis added.)
6
In its brief, the respondent fails to cite a single case in which a court
vacated an arbitration award based on manifest disregard of the law under
§ 52-418 (a) (4) or 9 U.S.C. § 10 (a) (4). With respect to § 52-418 (a) (4), it
was recently noted in a decision considering a motion to vacate and a cross
motion to confirm an arbitration award that ‘‘both parties conceded at oral
argument that whether the arbitrator manifestly disregarded the law [is] a
claim on which litigants have yet to prevail in our courts . . . .’’ (Citation
omitted; internal quotation marks omitted.) Monroe v. Directory Assistants,
Inc., Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S (August 8, 2018) (Gordon, J.) (66 Conn. L. Rptr. 793, 794); see also Trumbull
v. UPSEU, Local 424, Unit 4, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX (January 10, 2008) (Arnold, J.) (‘‘[t]he exception-
ally high burden for proving a claim of manifest disregard of the law under
§ 52-418 (a) (4) is demonstrated by the fact that, since the test was first
outlined in Garrity v. McCaskey, [223 Conn. 1, 612 A.2d 742 (1992)], our
Supreme Court [has] yet to conclude that an arbitrator manifestly disre-
garded the law’’).
7
In any case, as an award of fees and costs was within the parties’
submission, the court will not review the arbitrator’s decision for alleged
errors of fact upon which the arbitrator’s legal conclusions were based.