Opinion
No. CV 08-4029687 S
June 11, 2008
MEMORANDUM OF DECISION RE MOTION TO REARGUE
The plaintiffs have moved to reargue this court's March 26, 2008 decision denying the plaintiffs' motion to partially vacate an arbitrator's award finding that the defendant had violated a non-compete clause in his contract with the plaintiffs, but also reforming the liquidated damages portion of the agreement, concluding that it was too harsh, and awarding $75,000 as damages instead of the $150,000 contemplated in the contract. In submitting the case for arbitration, the parties had also agreed that the arbitrator was to award attorneys fees to the plaintiff "only if [the plaintiff] prevails in its claims under [the non-compete clause] of the employment agreement." The arbitrator ruled that, "in view of the reformation," no attorneys fees ought to be awarded, thereby implicitly finding that the plaintiffs had not prevailed.
This court concluded that the submission to the arbitrator was unrestricted, and the plaintiff had not suggested anything to the contrary in their briefs. This court ruled:
When the arbitration agreement is in the form of an unrestricted submission, as is the case here, the arbitrator may fashion any remedy that is rationally related to a plausible interpretation of the agreement. See Cianbro Corp. The National Eastern Corp., 102 Conn.App. 61 (2007). Among the issues that the arbitrator had to consider in this case was whether the plaintiffs had in fact "prevailed" in its claims under the non-compete clause. Those claims were specifically that the defendants had violated that clause and were obligated to pay it $150,000 as liquidated damages in consequence. Neither party appears to dispute the notion that the arbitrator had the authority to reform the restrictive covenant and thereby to reduce the amount of liquidated damages due. Under these circumstances, and in light of the fact that the submission to the arbitrator was unrestricted, it would be just as reasonable for the arbitrator to have concluded that the plaintiff did not prevail on the claim as submitted, based on the fact that he felt that it was entitled to only half of the amount sought, as it would be to conclude that, by winning a full 50% of the amount claimed, the plaintiffs did prevail. That choice, however, is within the province of the arbitrator, and not within that of a court reviewing the arbitrator's decision. See Kelvin v. Jem Builders, Inc., 106 Conn.App. 401 (2008).
For this arbitrator, the case boiled down to the proverbial question of whether the glass should be deemed to be half empty or half full, and under such circumstances, courts will not substitute their judgment for that of the arbitrator. This arbitrator clearly viewed the glass as half empty; that is, that by being found entitled to only half of what it had asked for in damages, the plaintiff did not prevail on its claims. Since the submission to the arbitrator was unrestricted, the arbitrator's implicit conclusion that the plaintiff did not prevail, and his consequent decision not to award attorneys fees and costs in light of that determination, cannot be upset by this court. The application by the plaintiffs to partially vacate the arbitration award is therefore denied.
An alternative basis for denying the application to vacate, not raised by the defendant, is that the agreement required that the plaintiff prevail on its claims (plural) in order to be entitled to attorneys fees and costs. As the plaintiff prevailed in its factual contention that the non-compete clause was violated, but not in its claim that the amount due was the $150,000 called for by the parties' agreement, the argument could well be made that the plaintiff only prevailed on one claim, but not on its "claims."
(Memorandum of Decision, March 25, 2008).
The defendant, while the plaintiffs' motion to vacate was pending, had also filed a motion to confirm the award. The parties had agreed that if the court were to deny the motion to partially vacate the award, the court would be free to review and decide the motion to confirm on the papers. The court granted the motion to confirm on April 14, 2008, and the parties were notified of that decision on April 21, 2008.
On April 11, the plaintiffs purported to file a Motion to Reargue the court's first decision denying their motion to partially vacate the award. The clerk's office date-stamped the motion "April 11, 2008" but then returned it to the plaintiffs' counsel because it lacked an order page pursuant to Practice Book Sec. 7-6 ("[any document to be filed by the clerk] shall contain . . . if required by Section 11-1 . . . a proper order and order of notice if one or both are necessary") and Section 11-1 ("Every motion . . . shall . . . have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary." By the time the plaintiffs' attorney had received the returned document and resubmitted it with a proper order page annexed to it, it was already April 25, or beyond both the 20-day appeal period for final judgments and the period for filing motions to reargue. The defendant therefore argues that with the time for appeal having expired before the motion to reargue was actually filed on April 25, there is nothing to reargue (as well as nothing to appeal.) If the motion to reargue had been filed timely pursuant to Practice Book Section 11-11, of course, the filing of the motion would have tolled the appeal period until the court had rendered a decision on the motion.
The plaintiffs argue that it is unfair to penalize them so harshly (i.e. with the loss of the right to appeal as well as the right to seek reargument) for so trivial a violation of the rules when they had clearly made a good faith effort to file the motion on time. The defendant argues that the rules are the rules, and one who ignores or disobeys them does so at his or her peril.
It has been this court's experience that the rule requiring the annexing of an order page to motions has been enforced somewhat serendipitously. When it has been enforced, implementation appears most often to have been in the form of the return of the document by the clerk, rather than denial by the court or a refusal by a judge to consider it. From a judge's perspective, the lack of an order page is sometimes little more than a source of annoyance ("Where do I sign?"), requiring him or her to find a place on the motion to write either "granted" or "denied" instead of circling one and crossing out the other as they would appear in a basic order form. Sometimes, on the other hand, where more complicated relief is sought, the lack of an order page can make it quite difficult to determine what the elements of an order ought to be or exactly what relief is being sought. There is no doubt that strict adherence to these two Practice Book rules would permit the Short Calendar and Special Proceedings Docket to proceed a good deal more smoothly, and it would make life easier for judges, but it would run the risk of elevating form over substance. See, Whitehead v. Planning and Zoning Commission, 50 Conn.Sup. 453, 459 (2007). (The Rules of Practice, includng P.B. Secs, 7-6 . . . are not a straitjacket.") See, also, Shokite v. Perez, 19 Conn.App. 203, 206-07 (1989). Under all the circumstances, the court finds that the plaintiffs' motion to reargue should not be denied based solely on the date on which it was eventually filed in proper form.
Having concluded that the motion to reargue is not time-barred, the court nonetheless denies the motion. The plaintiffs, rather than drawing the court's attention to an argument that was overlooked or misconstrued by the court, instead seek to raise issues that they did not present to the court at the time of the original argument, most specifically the claim that the submission to the arbitrator was restricted, rather than unrestricted as had been argued extensively by the defendant and found by the court. "[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . [A] motion to reargue . . . is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument. Opoku v. Grant, 63 Conn.App. 686, 692-93 (2001). Here, "the plaintiff proffered no controlling authority or set of facts overlooked or misconstrued by the court in denying the motion to restore, instead offering only additional facts and authority available at the time of the original argument." Chartouni v. DeJesus, 107 Conn.App. 127, 129 (2008).
Moreover, the parties had agreed in their submission that the arbitrator was to resolve "any and all claims they have against each other." The language of the submission did not restrict the scope of the issues to be considered; the only limitations were based on the parties' own decisions concerning what it was that they wished to present to the arbitrator for resolution. No explicit rights were reserved, and the award was not conditioned on court review. See Industrial Risk Insurers v. Hartford Steam Boiler Inspection and Insurance Co., 273 Conn. 86, 92-93 (2005). The plaintiff points to a provision in the agreement that requires the arbitrator to apply Connecticut law and cites Pons v. Maskery, No. CV 054006158 S, Judicial District of New Britain at New Britain (September 22, 2005, R. Robinson, J.) 2005 Ct.Sup. 12812, a case in which the court found that a similar provision contained in an addendum to the original arbitration agreement, after the original agreement had already been signed by the parties, rendered the submission "restricted." The reported facts of that case do not make clear why the court concluded that such an addendum restricted the submission, but, in this case, in any event, the requirement that the arbitrator apply the law of the jurisdiction in which all parties resided and in which the contract was executed and enforced, does not seem to this court to have restricted, in any meaningful way, the scope of the submission.
Even if the submission were to be viewed as restricted, however, there is no basis for concluding that the arbitrator exceeded his authority. The arbitrator concluded that the defendant had in fact violated the covenant not to compete, but there is nothing in the submission that prevented him from reforming the terms of the parties' underlying agreement, and in particular the liquidated damages portion of that agreement, so as to resolve "any and all claims [the parties] have against each other." Given the plaintiffs' claim that they were entitled to the full $150,000 contemplated by the parties' contract, and given the arbitrator's conclusion that the plaintiffs were entitled to only half that amount, his determination that the plaintiffs had not prevailed on this issue, and were therefore not entitled to attorneys fees, was consistent with the authority granted to him in the arbitration agreement. For all of the above reasons, the request for reargument of the court's March 26, 2008 decision is denied.
Although motions to reargue are not, as of right, themselves arguable, the court had granted the parties the opportunity to argue the question of the allegedly untimely filing of that motion. During the course of that argument, counsel for the defendant suggested that the court had erred when it had not granted his motion to confirm the award at the same time that it had denied the plaintiffs' motion to partially vacate it. This court disagrees. Despite the denial of the motion to partially vacate, the motion to confirm needed to be considered on its own merits, and the defendant has offered no authority establishing an entitlement to have the two motions decided on the same day, or to have the date of the second decision relate back to the date of the first. For various reasons, the court was not able to turn its attention to a consideration of the motion to confirm until April 14, just under three weeks after denying the plaintiffs' motion, at which time when it granted the defendant's motion. That date therefore stands as the date on which judgment confirming the arbitration award entered.