DocketNumber: No. CV-98-0579571-S
Citation Numbers: 1998 Conn. Super. Ct. 15544
Judges: RITTENBAND, J.
Filed Date: 12/21/1998
Status: Non-Precedential
Modified Date: 7/5/2016
It should be noted that although the court has been furnished transcripts of the three (3) day hearing before the Arbitrator, the original exhibits were apparently destroyed by the Arbitrator. However, counsel for both parties have agreed upon copies to reconstruct the exhibits and have agreed upon the set of exhibits furnished to the court. Missing is the videotaped deposition of Roger Anderson, an agent of the plaintiff, Nesbitt, CT Page 15545 which was reviewed by the arbitrator. Nesbitt's counsel has moved to supplement the record with an affidavit of Mr. Anderson to which Magnolia has objected.1
Nesbitt brings this Application to Vacate Arbitration Award pursuant to Section 52-418 of the General Statutes upon the following grounds:
"1. The arbitrator exceeded his powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made." This is set forth in said Section 52-418(a)(4).
"2. The award evidences manifest disregard of the statutory or common law.
3. The arbitrator failed to review, interpret and apply the requirements of the contract which spells out the relationship between the parties."
A leading case concerning the powers of the court to vacate an arbitration award is Garrity v. McCaskey,
"Because we do not review an arbitrator's decision merely for errors of law, in the present case we do not decide the merits of the defendant's argument regarding the proper application of the statutes of limitations to the plaintiffs securities claims. Even if the arbitrators were to have misapplied the law of governing statutes of limitations, such a misconstruction of a law would not demonstrate the arbitrators' egregious or patently irrational rejection of clearly controlling legal principles. The defendant's claim in this case falls far short of an appropriate invocation of § 52-418(a)(4) for a manifest disregard of the law. . . . The defendant has not demonstrated anything more than his disagreement with the arbitrators' interpretation and application of established legal principles. . . . Acceptance of his argument would turn every disagreement with arbitrators' rulings of law into an allegation of manifest disregard of the law. We have never construed § 52-418(a)(4) so broadly and we decline to do so today."
Id. at 11-13 (emphasis added). CT Page 15548
". . . [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 construction placed upon the facts or the interpretation of theagreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will theyreview the arbitrators' decision of the legal questionsinvolved." Trumbull v. Trumbull Police Local, 1745,
Paragraphs 6 and 7 of the Complaint read as follows.
"6) Plaintiff subcontracted for certain work and materials to be supplied by the Defendant as identified in the Purchase Order Request dated December 12, 1994, a copy of which is attached hereto and incorporated herein as Exhibit A.
7) Said Contract called for the purchase by the Plaintiff from the Defendant through its `Nesbitt' division various equipment for a total purchase price of $51,200.00." (emphasis added).
The court concludes from that language that Magnolia was putting before the Arbitrator its claim that the contract was the purchase order of December 12, 1994 in response to a quote from Nesbitt.
Further, the court concludes that the language in the Stipulation and Stay of Proceedings5 indicates that the reference to paragraph 12 of the Terms and Conditions was not a statement by Magnolia that the parties were bound by the other Terms and Conditions and was not a statement by Magnolia that the acknowledgment of the purchase order even with the Terms and CT Page 15549 Conditions set forth constituted a contract between the parties. The court recognizes that paragraph 12 does refer to "this contract". However, based upon the totality of the evidence, including the submission of the complaint as aforesaid and the Stipulation referring only to paragraph 12 and referring to it in the Stipulation not as part of the contract but as "paragraph 12 of the Terms and Conditions set forth on the reverse side of Defendant's acknowledgment of plaintiff's purchase order dated January 9, 1995," (emphasis added) it was entirely reasonable for the Arbitrator to conclude that it was up to him to decide what contract was binding. He did decide that a contract between the parties was formed and became binding when the Defendant, Magnolia, mailed its purchase order dated December 12, 1994 in response to a quotation from Nesbitt dated October 25, 1994. The Plaintiff has agreed that this was the Arbitrator's decision by virtue of the footnote on page 6 of its brief dated October 23, 1998. Accordingly, this court concludes that the demand for arbitration and/or submission was unrestricted. Thus, the Arbitrator did have a right to decide when and how the contract was created, when it became binding and the contents of same.
Nesbitt also claims in said footnote that the fact that the Defendant received the Plaintiff's Terms and Conditions of Sale was not even an issue during the arbitration. However, the court concludes otherwise. There was substantial testimony, some of it conflicting, as to whether and when the Terms and Conditions of Sale were received by the Defendant, Magnolia. However, there does seem to be agreement between the parties that regardless of when the Defendant received the Plaintiff's Terms and Conditions of Sale, the Arbitrator decided that the binding contract was formed on December 12, 1994 and that, therefore, the said Terms and Conditions of Sale were not part of the contract.
"Sec. 42a-2-207. Additional Terms in Acceptance or Confirmation. (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a CT Page 15550 reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) The offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received." (emphasis added).
The Plaintiff claims that under this section the Terms and Conditions which were allegedly sent to the Defendant on the reverse side of the January 9, 1995 letter from Nesbitt to Magnolia acknowledging receipt of the purchase order are the additional terms which were added to the Contract and cites paragraph 11 which provides in pertinent part as follows:
". . . Claims by either party must be made in writing within forty-five (45) days after the occurrence of the event giving rise to such Claim, or within forty-five (45) days after claimant knew or should have known of the condition giving rise to the Claim, whichever is later . . . If the Claimant does not notify the other party of the Claim (including a claim for a continuing condition), within forty-five (45) days, Claimant shall be forever barred from asserting such Claim through arbitration or through a court of competent jurisdiction . . ."
The court rejects this claim made by the Plaintiff for two reasons:
1. The statute, section 2(b), provides for an exception, namely terms and conditions that ". . . materially alter it (the Contract)". The forty-five day limitation for submission of claims was not in the purchase order or the quote or Magnolia's Terms and Conditions which were part of the purchase order. Because that limitation alone, which the Plaintiff cites in moving to vacate the arbitration award, is a material alteration of the contract, C.G.S. § 42a-2-207 does not apply.
2. The Plaintiff did not raise the application of the Uniform Commercial Code before the Arbitrator. In oral argument, in this CT Page 15551 court, the Plaintiff conceded that. The first time the Plaintiff raised this issue as to whether the Arbitrator failed to properly apply the Uniform Commercial Code was in its Reply Brief to this court. Under the case of Saturn Construction Co., Inc. v. PremierRoofing Co., Inc.,
"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 perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel 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 arbitration panel is well defined, explicit, and clearly applicable."
The first two elements have not been satisfied since the Plaintiff failed to bring to the attention of the Arbitrator the Uniform Commercial Code.6 Element number three has not been satisfied because this court finds that the Uniform Commercial Code was not clearly applicable because of the exception of materially altering the contract as described above.
Accordingly, the court finds that the arbitration award does not evidence manifest disregard of the statutory or common law. Further, the Arbitrator was permitted to interpret the law and the provisions of the contract, including the existence of and content of the contract, and, therefore, the court finds that the Arbitrator did not exceed his powers or so imperfectly execute them that a mutual, final and definite award upon the subject matter was not made. Further, the court rejects the claim of the Plaintiff that the arbitrator failed to review, interpret and apply the requirements of the contract which spells out the relationship between the parties.
The Plaintiff's Motion to Supplement Record dated November 16, 1998, is hereby granted. The supplement to the record is, in effect, an affidavit of Roger A. Anderson dated November 3, 1998 which is, as claimed by Plaintiff, to replace the videotaped deposition of him which was presented to and watched by the Arbitrator, but which videotaped deposition was subsequently destroyed. The court has no problem with accepting the affidavit CT Page 15552 to be made part of the record.
The court has reviewed the transcripts of the arbitration proceeding and the exhibits and reviewed the briefs of the parties as well as a transcript of the oral argument of November 9, 1998 and concludes that there was conflicting testimony on many points which were disputed by the parties. However, the findings of fact by the Arbitrator were based upon his personally listening to witnesses, reviewing the exhibits presented and the videotaped deposition of Mr. Anderson, etc. This court will not interfere with the Arbitrator's assessment or judgment of the credibility of the witnesses. As is often stated to juries, the finder of fact has the discretion of believing all of a witness's testimony, none of it or believing part of it and rejecting the rest of it. The Arbitrator exercised his discretion in doing so. Further, the court finds that the Arbitrator did not apply the law or find the facts in a manner that manifests an egregious or patently irrational application of the law. As stated earlier under STANDARD OF REVIEW, the Arbitrator has the authority to decide factual and legal questions. Every reasonable presumption and intendment must be indulged in favor of the award. The court concludes that the Plaintiff has not sustained its burden of producing sufficient evidence to invalidate the award.
The court notes that the Arbitrator did not award attorney's fees in his award dated April 7, 1998, and further, there is no provision of which the court is aware under which it can authorize or award attorney's fees in this matter. Therefore, it will not award same.
Based upon the totality of the evidence, and for the reasons herein above stated, the Application to Vacate Arbitration Award dated April 22, 1998 is denied, and the Application to Confirm Arbitration Award dated May 5, 1998 is granted.
Rittenband, J.