Ippolito v. Olympic Construction, LLC

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PAUL IPPOLITO ET AL. v. OLYMPIC
CONSTRUCTION, LLC
(AC 37437)
Alvord, Sheldon and Mullins, Js.
Argued December 9, 2015—officially released March 1, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. David R. Tobin, judge trial
referee.)
Joseph DaSilva, Jr., with whom, on the brief, was
Marc J. Grenier, for the appellants (plaintiffs).
Thomas M. Cassone, for the appellee (defendant).
Opinion
SHELDON, J. The plaintiff homeowners, Paul Ippol-
ito and Lisa Ippolito, appeal from the judgment of the
trial court, Hon. David R. Tobin, judge trial referee,
denying their motion to vacate an arbitration award in
favor of their home improvement contractor, defendant
Olympic Construction, LLC, and granting the defen-
dant’s motion to confirm that award. The arbitration
involved a claim by the defendant for lost profits for
work repairing water damage to the plaintiffs’ home,
which it was not permitted to complete under the terms
of their home improvement contract due to the plain-
tiffs’ alleged termination of that contract without just
cause. The plaintiffs claim that the trial court erred in
confirming the arbitrator’s award of lost profit damages
to the defendant because the contract did not comply
with certain provisions of the Home Improvement Act
(HIA), General Statutes § 20-418 et seq. In particular,
the plaintiffs argue that the contract did not comply
with General Statutes § 20-429 (a) (6), which requires
that every home improvement contract contain a notice
of the homeowner’s right to cancel the contract in
accordance with the provisions of the Home Solicitation
Sales Act (HSSA), General Statutes §§ 42-134 through
42-143, or with § 20-429 (a) (7), which requires that each
such contract contain a starting date and completion
date.1 The plaintiffs claim that the arbitrator’s award of
damages to a contractor for work he agreed to perform
under a home improvement contract that is noncompli-
ant with the HIA violated the clear public policy of this
state and demonstrated a manifest disregard of the law.
We affirm the judgment of the trial court confirming
the arbitration award.
The following facts are relevant to this appeal. The
plaintiffs, owners of a residential property located at
131 Pequot Lane in New Canaan, suffered water damage
at their home following a storm. As a result, the plain-
tiffs entered into a contract with the defendant to repair
the damage. That contract, dated May 26, 2011, con-
sisted of an American Institute of Architects (AIA) Stan-
dard Form A133–2009 and several other documents,
which were incorporated therein by reference, includ-
ing AIA Document A201–2007, General Conditions of
the Contract for Construction. The contract provides
that all disputes between them arising out of or related
to the contract will be subject to arbitration before an
arbitrator from the American Arbitration Association
in accordance with the association’s Construction
Industry Arbitration Rules.
During the course of repairs, another storm caused
more water damage to the plaintiffs’ home, prompting
Paul Ippolito to terminate the parties’ contract before
the defendant could complete the agreed upon work.
The defendant then filed a claim for arbitration, seeking
to recover lost profits for work it had agreed to perform
under the contract but had not been allowed to
complete.
The plaintiffs defended themselves in the arbitration
by arguing that the contract was void for noncompli-
ance with the HIA, and thus that it was unenforceable
against them by the defendant, because it failed to give
them proper statutory notice of their cancellation rights
under the contract, and failed to include a starting date
and completion date for the work to be performed there-
under. The arbitrator rejected the plaintiffs’ defense,
found that Paul Ippolito’s termination of the contract
had not been for cause, and thus awarded the defendant
$46,448.19 in lost profits for the plaintiffs’ breach of
contract.
After the arbitration, the plaintiffs moved to vacate
the arbitration award in the Stamford Superior Court
pursuant to General Statutes § 52-418 (a),2 and the
defendant moved to confirm the award pursuant to
General Statutes § 52-417.3 The plaintiffs claimed that
the award violated the clear public policy of this state
because it contravened the previously described provi-
sions of the HIA, and that the arbitrator, by not strictly
enforcing those statutory provisions, had manifestly
disregarded the law. The trial court rejected the plain-
tiffs’ claims, and thus denied their motion to vacate and
granted the defendant’s motion to confirm the arbitra-
tor’s award. This appeal followed.
‘‘Judicial review of arbitral decisions is narrowly con-
fined. . . . When the parties agree to arbitration and
establish the authority of the arbitrator through the
terms of their submission, the extent of our judicial
review of the award is delineated by the scope of the
parties’ agreement. . . . When the scope of the submis-
sion is unrestricted, the resulting award is not subject
to de novo review even for errors of law so long as the
award conforms to the submission. . . . Because we
favor arbitration as a means of settling private disputes,
we undertake judicial review of arbitration awards in
a manner designed to minimize interference with an
efficient and economical system of alternative dispute
resolution. . . .
‘‘Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that . . . the interpretation of the agreement
by the arbitrators was erroneous. Courts will not review
the evidence nor, where the submission is unrestricted,
will they review the arbitrators’ decision of the legal
questions involved. . . . In other words, [u]nder an
unrestricted submission, the arbitrators’ decision is
considered final and binding; thus the courts will not
review the evidence considered by the arbitrators nor
will they review the award for errors of law or fact. . . .
‘‘Even in the case of an unrestricted submission, we
have . . . recognized three grounds for vacating an
award: (1) the award rules on the constitutionality of
a statute . . . (2) the award violates clear public policy
. . . [and] (3) the award contravenes one or more of
the statutory proscriptions of [General Statutes] § 52-
418.’’ (Internal quotation marks omitted.) Economos v.
Liljedahl Bros., Inc., 279 Conn. 300, 305–306, 901 A.2d
1198 (2006). The plaintiffs challenge the award for viola-
tion of public policy and for contravention of § 52-418
on the ground that, in issuing the award, the arbitrator
manifestly disregarded the law.
I
We first address the plaintiffs’ claim that the arbitra-
tor’s award violates the clear public policy of this state
because it enforces against a homeowner, on a claim for
damages by a contractor, a home improvement contract
that does not comply with the HIA. The plaintiffs argue,
more particularly, that the location of the cancellation
notice within the contract does not comply with § 20-
429 (a) (6), and that the contract does not contain a
starting date and completion date, as required by § 20-
429 (a) (7).
We begin by setting forth our standard of review.
‘‘[W]e favor arbitration as a means of settling private
disputes, [thus] we undertake judicial review of arbitra-
tion awards in a manner designed to minimize interfer-
ence with an efficient and economical system of
alternative dispute resolution. . . . We will, however,
submit to higher scrutiny an arbitration award that is
claimed to be in contravention of public policy. . . .
[P]arties cannot expect an arbitration award approving
conduct which is . . . contrary to public policy to
receive judicial endorsement any more than parties can
expect a court to enforce such a contract between them.
. . . When a challenge to the arbitrator’s authority is
made on public policy grounds, however, the court is
not concerned with the correctness of the arbitrator’s
decision but with the lawfulness of enforcing the
award. . . .
‘‘Thus, when a party challenges a consensual arbitral
award on the ground that it violates public policy, and
where that challenge has a legitimate, colorable basis,
de novo review of the award is appropriate in order to
determine whether the award does in fact violate public
policy. . . . As this court maintained in [State v.
AFSCME, Council 4, Local 391, 309 Conn. 519, 528, 69
A.3d 927 (2013)], we defer to the arbitrator’s interpreta-
tion of the agreements regarding the scope of the [con-
tract] provision . . . . We conclude only that as a
reviewing court, we must determine, pursuant to our
plenary authority and giving appropriate deference to
the arbitrator’s factual conclusions, whether the con-
tract provision in question violates those policies. . . .
‘‘To determine whether an arbitration award must be
vacated for violating public policy, we employ a two-
pronged analysis. . . . First, we must determine
whether the award implicates any explicit, well-defined,
and dominant public policy. . . . To identify the exis-
tence of a public policy, we look to statutes, regulations,
administrative decisions, and case law. . . . Second, if
the decision of the arbitrator does implicate a clearly
defined public policy, we then determine whether the
contract, as construed by the arbitration award, violates
that policy.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, 316 Conn. 618, 629–
31, 114 A.3d 144 (2015) (Burr Road). ‘‘Our case law
. . . has emphasized, however, that a reviewing court
still is bound by the arbitrator’s factual findings in mak-
ing such a determination.’’ AFSCME, Council 4, Local
1565 v. Dept. of Correction, 298 Conn. 824, 837, 6 A.3d
1142 (2010).
The plaintiffs claim that the arbitrator’s award vio-
lates public policy because the contract is noncompliant
with two sections of the HIA: (1) § 20-429 (a) (6), which
requires that home improvement contracts include a
notice of the homeowner’s cancellation rights in accor-
dance with the provisions of the HSSA; and (2) § 20-
429 (a) (7), which requires that a home improvement
contract contain a starting date and completion date.
The plaintiffs argue that, ‘‘[t]o enforce a noncompliant
home improvement contract is contrary to the public
policy of the state of Connecticut, and thus, said non-
compliance compels the concomitant conclusion that
the award itself violates the public policy of the state
of Connecticut and it must therefore be vacated.’’ The
defendant responds that strict enforcement of the HIA
is not a well-defined, explicit, and dominant public pol-
icy of this state.
A
We first turn to the plaintiffs’ claim that the contract
violates public policy because it does not comply with
the notice of cancellation requirements of the HIA under
§ 20-429 (a) (6), which requires that a home improve-
ment contract include notice of the homeowner’s can-
cellation rights in accordance with the provisions of
the HSSA. The plaintiffs do not dispute that the parties’
contract contains a notice of their cancellation rights,
nor do they argue that the language or typeface of that
cancellation notice is in any way deficient. Instead, they
argue that the location of the notice within the contract
documents does not comply with General Statutes § 42-
135a (1) and (2) of the HSSA.
Section 42-135a (1) of the HSSA requires, inter alia,
that the seller include a cancellation notice ‘‘in immedi-
ate proximity to the space reserved in the contract for
the signature of the buyer . . . .’’4 Section 42-135a (2)
of the HSSA, in turn, requires that the seller provide the
buyer with ‘‘a completed form in duplicate, captioned
‘NOTICE OF CANCELLATION’, which shall be attached
to the contract . . . and easily detachable . . . .’’5 The
plaintiffs argue that the cancellation notice in the con-
tract here at issue does not comply with the foregoing
requirements because it is ‘‘buried’’ on pages thirty-
eight and thirty-nine of a thirty-nine page document
separate from the contract, entitled AIA Document
A201–2007, General Conditions of the Contract for Con-
struction.
The plaintiffs initially argued before the arbitrator
that the contract did not contain any notice of cancella-
tion rights, but the arbitrator disagreed, finding as fol-
lows: ‘‘The [plaintiffs] claim . . . that the contract
failed to contain a notice of cancellation rights. This
claim does not hold up. The contract, in section 12.2,
directly above Mr. Ippolito’s signature, states that the
contract includes AIA document A201–2007, General
Conditions of the Contract for Construction. On pages
38–39 of that document is the notice of cancellation,
which states explicitly that the Owner may cancel the
contract ‘without any penalty or obligation’. The effec-
tiveness of this inclusion is not affected by the fact that
the date of the notice was changed from June 6 to June
10 and the date of the notice limit was changed from
June 9 to June 13. The contract clearly does contain
the notice of cancellation rights required by the [HIA].’’
The plaintiffs argued in the trial court, however, as
they do before this court, that even if the contract did
contain a cancellation notice, its location in the contract
was improper. The trial court concluded that the award
did not violate a clear public policy because the plain-
tiffs were unable to produce any case law holding that
a defect in the location of the notice of cancellation,
absent any other defect, was fatal.
Although the plaintiffs argued in the trial court that
the contract violated § 42-135a (2), the trial court’s deci-
sion did not reference that claim and was based solely
on the portion of § 42-135a (1) that requires a seller to
include a cancellation notice ‘‘in immediate proximity
to the space reserved in the contract for the signature
of the buyer.’’ The plaintiffs never filed a request for
articulation to receive a ruling on their claim under
§ 42-135a (2). Moreover, the plaintiffs have failed to
adequately brief their claim as to § 42-135a (2) by failing
to set forth how the contract here at issue violates that
subdivision. Thus, we decline to review the plaintiffs’
claim to the extent that it asserts a violation of that sub-
division.6
Our first step is to ‘‘determine whether the award
implicates any explicit, well-defined, and dominant pub-
lic policy.’’ Burr Road, supra, 316 Conn. 630. We con-
clude that the arbitration award, insofar as it rejects
the plaintiffs’ challenge to the contract’s notice of can-
cellation, does not ‘‘[implicate] any explicit, well-
defined, and dominant public policy.’’ Id. Although our
Supreme Court has recognized that compliance with
§ 20-429 (a) is mandatory, it has not required perfect
compliance. Wright Bros. Builders, Inc. v. Dowling,
247 Conn. 218, 230–31, 720 A.2d 235 (1998). ‘‘The HIA
is a remedial statute that was enacted for the purpose of
providing the public with a form of consumer protection
against unscrupulous home improvement contractors.
. . . The aim of the statute is to promote understanding
on the part of consumers with respect to the terms of
home improvement contracts and their right to cancel
such contracts so as to allow them to make informed
decisions when purchasing home improvement ser-
vices. . . . While the purposes of the statute are
advanced by an interpretation that makes compliance
with the requirements of § 20-429 (a) mandatory, it does
not necessarily follow that advancement of the pur-
poses also requires that the mandatory compliance with
each subsection be technically perfect.’’ (Citations
omitted.) Id., 231.
In Dowling, our Supreme Court concluded that it
would be inappropriate to require ‘‘technically perfect
compliance’’ with § 20-429 (a), and instead required ‘‘an
interpretation of that section that acknowledges and
furthers the remedial purposes of the statute . . . .’’
Id. The plaintiff contractor in that case sought to fore-
close a mechanic’s lien after the defendant homeowners
had failed to submit complete payment for renovations
that the plaintiff had completed on their home. Id.,
223–24. The defendants claimed that their contract did
not comply with the HIA because the plaintiff: (1) had
not attached two copies of the notice of cancellation
to it, in violation of § 42-135a (2); see footnote 5 of
this opinion; and (2) had not entered the date of the
transaction or the date by which the transaction could
be cancelled on the notice of cancellation, in violation of
§ 42-135a (3).7 Id., 226. The court in Dowling disagreed,
noting first that, although the plaintiff had supplied only
one copy of the cancellation notice to the homeowner,
it had supplied another copy to the homeowner’s hus-
band, who was then acting as her agent. Id., 232. Second,
it noted that, even though there were no dates on the
cancellation notice, ‘‘[t]he missing information . . .
easily could have been gleaned from even the most
cursory review of the contract.’’ Id., 233. Therefore, the
court concluded that ‘‘the alleged deviations . . . were
of a minor and highly technical nature, and did not
result in a lack of notice to the defendants that they
had a right to cancel the contract within three days of
the contract’s signing.’’ Id., 232. Accordingly, when a
minor or technical defect in the cancellation notice of
a home improvement contract does not result in a lack
of notice to the homeowners of their right to cancel
the contract within three days of the contract’s signing,
an arbitrator’s award enforcing the contract against the
homeowners cannot be found to violate an ‘‘explicit,
well-defined, and dominant public policy’’; Burr Road,
supra, 316 Conn. 630; of this state.
The arbitrator in this case found that the cancellation
notice complied in substance with the requirements of
the HIA, because, even though it was set forth on pages
thirty-eight and thirty-nine of a separate document that
had been incorporated into the contract by reference,
the incorporated document itself was referenced in
close proximity to the signature line on the contract.
Here, then, because the plaintiffs have not demon-
strated that the cancellation notice was missing from
the contract, or that the language or typeface or any
other aspect of the cancellation notice was deficient
in such a way as to deprive them of notice of their
cancellation rights under the HIA, we cannot conclude
that enforcement of the contract against the homeown-
ers violated an explicit, well-defined and dominant pub-
lic policy of this state.
B
We turn next to the plaintiffs’ claim regarding § 20-429
(a) (7), which provides that: ‘‘No home improvement
contract shall be valid or enforceable against an owner
unless it . . . (7) contains a starting date and comple-
tion date . . . .’’ The plaintiffs claim that the contract
does not comply with that provision because it does
not contain specific calendar dates for starting and com-
pleting work under the contract.
The arbitrator made the following findings as to the
starting date and completion date of work to be per-
formed under the parties’ contract: ‘‘The . . . claim
. . . that the contract does not include a start date and
a completion date . . . fails. The General Conditions
state in section 8.1.2: ‘[t]he date of commencement of
the Work is the date established in the agreement.’
Section 2.3.1.1 of the agreement states: ‘For purposes
of Section 8.1.2 of A201–2007, the date of commence-
ment of the Work shall mean the date of commencement
of the Construction Phase.’ In the following section
2.3.1.2, it states, ‘The Construction Phase shall com-
mence upon the Owner’s acceptance of the Construc-
tion Manager’s Guaranteed Maximum Price proposal or
the Owner’s issuance of a Notice to Proceed, whichever
occurs earlier.’ The completion date for the contract is
defined in Section 9.8 of the General Conditions.8 In
this matter, the start dates and the completion date can
be readily adduced by looking at the entire contract
. . . .’’ (Citation omitted; footnote added.)
The trial court thus rejected the plaintiffs’ claim that
the contract violated the starting date and completion
date requirement of the HIA, and with it the claim that
enforcement of that contract against them violated an
explicit, well-defined, and dominant public policy of
this state. On that score, the court expressly noted that
the plaintiffs could not provide any case law that held
that ‘‘the starting date and/or completion date need to be
fixed calendar dates rather than dates to be determined
upon the occurrence of certain events. (E.g., the com-
pletion of plans; issuance of a building permit; notifica-
tion of closing on construction financing.)’’
The plaintiffs again claim on appeal that enforcement
against them of a home improvement contract that is
noncompliant with the starting date and completion
date requirement of the HIA violates public policy. We
are bound by the arbitrator’s factual findings; AFSCME,
Council 4, Local 1565 v. Dept. of Correction, supra,
298 Conn. 837; including the finding that ‘‘the start date
and the completion date can be readily adduced by
looking at the entire contract.’’ On the basis of those
findings, the arbitrator concluded that the parties’ con-
tract was compliant with the HIA requirement that it
contain a starting date and completion date. Accord-
ingly, the plaintiffs’ claim on appeal fails, for even if
strict enforcement of the starting date and completion
date requirement of the statute were an explicit, well-
defined, and dominant public policy of this state, the
contract here at issue does not violate that requirement
or the public policy it is designed to promote.
II
The plaintiffs next claim that the arbitrator’s enforce-
ment of a contract that is noncompliant with § 20-429
(a) (6) and (7) of the HIA demonstrates a manifest
disregard of the law, and thus that the award should
be set aside pursuant to § 52-418 (a) (4).
‘‘[Section] 52-418 (a) (4) provides that an arbitration
award shall be vacated 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. . . . [A]n award that mani-
fests an egregious or patently irrational application of
the law is an award that should be set aside pursuant
to § 52-418 (a) (4) because the arbitrator has exceeded
[his] powers or so imperfectly executed them that a
mutual, final and definite award upon the subject matter
submitted was not made. We emphasize, however, that
the manifest disregard of the law ground for vacating
an arbitration award is narrow and should be reserved
for circumstances of an arbitrator’s extraordinary lack
of fidelity to established legal principles.
‘‘So delimited, the principle of vacating an award
because of a manifest disregard of the law is an
important safeguard of the integrity of alternate dispute
resolution mechanisms. Judicial approval of arbitration
decisions that so egregiously depart from established
law that they border on the irrational would undermine
society’s confidence in the legitimacy of the arbitration
process. . . . Furthermore, although the discretion
conferred on the arbitrator by the contracting parties
is exceedingly broad, modern contract principles of
good faith and fair dealing recognize that even contrac-
tual discretion must be exercised for purposes reason-
ably within the contemplation of the contracting
parties. . . .
‘‘In Garrity [v. McCaskey, 223 Conn. 1, 9, 612 A.2d 742
(1992)], we adopted the test enunciated by the United
States Court of Appeals for the Second Circuit in inter-
preting the federal equivalent of § 52-418 (a) (4). . . .
The test consists of the following three elements, all
of which must be satisfied in order for a court to vacate
an arbitration award on the ground that the arbitration
panel manifestly disregarded the law: (1) the error was
obvious and capable of being readily and instantly per-
ceived by the average person qualified to serve as an
arbitrator; (2) the arbitration panel appreciated the exis-
tence of a clearly governing legal principle but decided
to ignore it; and (3) the governing law alleged to have
been ignored by the arbitration panel is well defined,
explicit, and clearly applicable.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Economos v. Liljedahl Bros., Inc., supra, 279 Conn.
306–307.
The plaintiffs argue that the contract does not comply
strictly with the HIA and the HSSA, and that mandatory
strict compliance with the HIA and the HSSA is a well-
defined, explicit, and clearly applicable law. Moreover,
the plaintiffs argue that the arbitrator recognized the
existence of the requirements of § 20-429 (a) (6) and
(7), but ignored those provisions.
The arbitrator found that the notice of cancellation
in the contract here at issue deviated from the strict
requirements of the HIA in only a minor and technical
manner, and concluded that the contract complied fully
with the HIA’s requirement that the contract contain a
starting date and completion date. As for the latter
determination, it completely undermines the plaintiffs’
claim that by enforcing a contract that failed to contain
a starting and completion date, the arbitrator issued
his award in manifest disregard of the law. The relevant
provisions of the HIA simply were not violated at all.
As for the former determination, although the court
determined that the location of the cancellation notice
in the parties’ contract constituted a minor and techni-
cal deviation from the requirements of the HIA, we
already have determined that no such deviation
required the nonenforcement of the contract unless it
was shown to have deprived the plaintiffs of notice of
their statutory cancellation rights under the contract.
By failing to plead and prove such a deprivation of
notice of their statutory cancellation rights as a result
of the minor and technical deviation here at issue, the
plaintiffs have failed to prove that the arbitrator ignored
the requirements of a well-defined, explicit, and clearly
applicable law, or that he thereby demonstrated an
‘‘extraordinary lack of fidelity to established legal prin-
ciples’’; (internal quotation marks omitted.) id., 306; as
required to establish a manifest disregard of the law
within the meaning of § 52-418 (a) (4).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 20-429 (a) provides: ‘‘No home improvement contract
shall be valid or enforceable against an owner unless it: (1) Is in writing, (2)
is signed by the owner and the contractor, (3) contains the entire agreement
between the owner and the contractor, (4) contains the date of the transac-
tion, (5) contains the name and address of the contractor and the contractor’s
registration number, (6) contains a notice of the owner’s cancellation rights
in accordance with the provisions of chapter 740, (7) contains a starting
date and completion date, (8) is entered into by a registered salesman or
registered contractor, and (9) includes a provision disclosing each corpora-
tion, limited liability company, partnership, sole proprietorship or other
legal entity, which is or has been a home improvement contractor pursuant
to the provisions of this chapter or a new home construction contractor
pursuant to the provisions of chapter 399a, in which the owner or owners of
the home improvement contractor are or have been a shareholder, member,
partner, or owner during the previous five years. Each change in the terms
and conditions of a contract shall be in writing and shall be signed by the
owner and contractor, except that the commissioner may, by regulation,
dispense with the necessity for complying with the requirement that each
change in a home improvement contract shall be in writing and signed by
the owner and contractor.’’
2
General Statutes § 52-418 (a) provides: ‘‘Upon the application of any
party to an arbitration, the superior court for the judicial district in which
one of the parties resides or, in a controversy concerning land, for the
judicial district in which the land is situated or, when the court is not in
session, any judge thereof, shall make an order vacating the award if it
finds any of the following defects: (1) If the award has been procured by
corruption, fraud or undue means; (2) if there has been evident partiality
or corruption on the part of any arbitrator; (3) if the arbitrators have been
guilty of misconduct in refusing to postpone the hearing upon sufficient
cause shown or in refusing to hear evidence pertinent and material to the
controversy or of any other action by which the rights of any party have
been prejudiced; or (4) if the arbitrators have exceeded their powers or so
imperfectly executed them that a mutual, final and definite award upon the
subject matter submitted was not made.’’
3
General Statutes § 52-417 provides: ‘‘At any time within one year after
an award has been rendered and the parties to the arbitration notified
thereof, any party to the arbitration may make application to the superior
court for the judicial district in which one of the parties resides or, in a
controversy concerning land, for the judicial district in which the land is
situated or, when the court is not in session, to any judge thereof, for an
order confirming the award. The court or judge shall grant such an order
confirming the award unless the award is vacated, modified or corrected
as prescribed in sections 52-418 and 52-419.’’
4
General Statutes § 42-135a provides: ‘‘No agreement in a home solicita-
tion sale shall be effective against the buyer if it is not signed and dated by
the buyer or if the seller shall: (1) Fail to furnish the buyer with a fully
completed receipt or copy of all contracts and documents pertaining to
such sale at the time of its execution, which contract shall be in the same
language as that principally used in the oral sales presentation and which
shall show the date of the transaction and shall contain the name and address
of the seller, and in immediate proximity to the space reserved in the contract
for the signature of the buyer, or on the front page of the receipt if a contract
is not used, and in boldface type of a minimum size of ten points, a statement
in substantially the following form:
‘YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME
PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE
OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLA-
TION FORM FOR AN EXPLANATION OF THIS RIGHT.’ ’’
5
General Statutes § 42-135a provides: ‘‘No agreement in a home solicita-
tion sale shall be effective against the buyer if it is not signed and dated by
the buyer or if the seller shall (2) Fail to furnish each buyer, at the time
such buyer signs the home solicitation sales contract or otherwise agrees
to buy consumer goods or services from the seller, a completed form in
duplicate, captioned ‘NOTICE OF CANCELLATION’, which shall be attached
to the contract or receipt and easily detachable, and which shall contain in
ten-point boldface type the following information and statements in the
same language as that used in the contract:
‘NOTICE OF CANCELLATION
. . . . (Date of Transaction)
YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR
OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.
IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE
BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE
INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN
BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CAN-
CELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF
THE TRANSACTION WILL BE CANCELLED.
IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT
YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN
RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT
OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUC-
TIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE
GOODS AT THE SELLER’S EXPENSE AND RISK.
IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE
SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE
DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE
GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE
THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO
RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU
REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER
THE CONTRACT.
TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND
DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRIT-
TEN NOTICE, OR SEND A TELEGRAM TO . . . . (Name of Seller) AT
. . . . (Address of Seller’s Place of Business) NOT LATER THAN MIDNIGHT
OF . . . . (Date)
I HEREBY CANCEL THIS TRANSACTION
. . . . (Date)
. . . . (Buyer’s Signature)’ ’’
6
We are aware that Practice Book § 61-10 was recently amended to include
subsection (b), which provides in relevant part that ‘‘[t]he failure of any
party on appeal to seek articulation pursuant to Section 66-5 shall not be
the sole ground upon which the court declines to review any issue or claim
on appeal. . . .’’ The commentary for § 61-10 provides, however, that ‘‘[t]he
adoption of subsection (b) is not intended to preclude the court from declin-
ing to review an issue where the record is inadequate for reasons other
than solely the failure to seek an articulation . . . .’’
7
General Statutes § 42-135a provides in relevant part: ‘‘No agreement in
a home solicitation sale shall be effective against the buyer if it is not signed
and dated by the buyer or if the seller shall . . . (3) Fail, before furnishing
copies of the ‘Notice of Cancellation’ to the buyer, to complete both copies
by entering the name of the seller, the address of the seller’s place of
business, the date of the transaction, and the date, not earlier than the third
business day following the date of the transaction, by which the buyer may
give notice of cancellation.’’
8
Section 9.8.1 of the General Conditions of the contract states: ‘‘Substan-
tial Completion is the stage in the process of the Work when the Work or
designated portion thereof is sufficiently complete in accordance with the
Contract Documents so that the Owner can occupy or utilize the Work for
its intended use.’’