Opinion
FBTCV156050015S
04-13-2017
Rita Galbo v. Real Home Restorations & Remodeling, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendants Real Home Restorations & Remodeling, LLC (" RHRR") and Frederick J. Zinsser have moved to modify an arbitration award issued by arbitrator Neal Moskow on February 21, 2017 (the " Award"). Plaintiff Rita Galbo (" Galbo") has objected to the motion to modify and has moved to confirm the Award. Defendants have made a limited objection to the motion to confirm the Award. For the reasons stated below, the motion to modify the Award is denied and the Award is confirmed.
The Court does not find the motion to modify to be untimely under C.G.S. § 52-420(b); the motion was filed on the thirtieth day after notice of the Award.
C.G.S. § 52-419 provides, in pertinent part, as follows:
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.
In Willington Education Ass'n v. Board of Education of Willington, 45 Conn.App. 769, 773, 699 A.2d 186 (1997), the Appellate Court noted the limited scope of judicial review of an award where, as here, there was an unrestricted submission to arbitration: " [w]hen parties mutually agree to submit their dispute to arbitration, judicial review is limited in scope and the resulting award is not reviewable for errors of law or fact." The movant bears the burden of proving the grounds for modification of an award pursuant to C.G.S. § 52-419. " We note that '[s]ince the parties 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 . . . 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 proscriptions of [§ 52-419] . . . or procedurally violates the parties' agreement will the determination of an arbitrator be subject to judicial inquiry." Id. at 772-73 (citations omitted).
Modification of an arbitration award is even more circumscribed than grounds permitted for vacation of an award. See e.g., R.W. Granger & Sons, Inc. v. Envirotest Systems Corp, 1999 WL 417057 *5 (Conn.Super. 1999) (Langenbach, J.) (manifest disregard of the law not ground for modification of award). See generally 13 Conn. Prac., Construction Law § 9:12 (2016 ed.). It is extremely difficult to have an arbitration award modified even in the face of clear error by the arbitrators. See e.g., Sandhu v. Haverson Construction Management, LLC, 2010 WL 3960785 **15, 17, 19, 22, 23 (Conn.Super. 2010) (Tierney, J.T.R.).
Defendants argue the Award must be modified and/or corrected under C.G.S. § 52-419(a)(1) " because the arbitrator explicitly found that the parties entered into a settlement agreement, there is clear evident miscalculation and mistake regarding Ms. Galbo's damages such that the Award must be modified and/or corrected."
Section 52-419(a)(1) appears to address computational errors by the phrase " [i]f there has been an evident material miscalculation of figures . . ." See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 677-80, 591 A.2d 101 (1991). The Award does not contain an evident computational error and plaintiff has not made such claim.
Rather, plaintiff points to the arbitrator's finding that " the parties agreed at the time of the termination to forgo other remedies in return for the following: RHRR agreed to refund Galbo the $31, 608 deposit LESS the reasonable value of the work performed, and Galba agreed to accept that resolution." (Award ¶ 5d. p. 7) (emphasis in original). Plaintiff argues that having found there was a settlement agreement " to forgo other remedies, " the arbitrator made a mistake in awarding damages for violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), which is a remedy Galbo agreed to " forgo." Plaintiff points out that the arbitrator enforced the settlement agreement in awarding net damages to RHRR on the breach of contract claims and to be consistent should have enforced the agreement to " forgo other remedies" like CUTPA damages.
In City of Milford v. Coppola Construction Co., Inc., 93 Conn.App. 704, 710, 891 A.2d 31 (2006), the Appellate Court cautioned against a reviewing court substituting its judgment for that of an arbitrator:
When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law as 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 . . . Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings . . . Further, [j]udicial review of arbitral decisions is narrowly confined . . . 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.
In the Milford case the Court of Appeals held that modification under C.G.S. § 52-419(a)(1) was not appropriate " because there has not been an evident material miscalculation of figures . . ." 93 Conn.App. at 717. The Court distinguished the Supreme Court's decision in Chmielewski, 218 Conn. at 677-80, as a case " where the modification required only undisputed mathematical calculations and where the trial court properly had upheld the arbitrators' factual findings and properly reversed their determination." 93 Conn.App. at 717. By contrast, in Milford the court found no " evident material miscalculation of figures" to modify the award because the court would have to examine and analyze the evidence underlying the award to justify the requested modification:
However, in this case, any claimed miscalculation is not evident from the succinct award, which does not contain underlying findings. Establishing such a claimed miscalculation would require an examination of exhibits and testimony and require inquiry into factual matters of how the award, in fact, was calculated. For instance, the plaintiff claims that the errors in damages calculation readily can be ascertained on the basis of two or three exhibits that contradict the calculations in a fourth exhibit, exhibit 59, which the plaintiff states was the basis for the arbitrator's award. This hardly is evident because no miscalculations appear on the face of the award. The plaintiff is, in essence, asking that we review the evidence presented to the arbitrator de novo. We decline to undertake such review in this case of voluntary arbitration. Section 52-419(a)(1) permits modification if there is an evident material miscalculation. One does not exist when the award is compared to the submission in this case. Id. at 717-18 (footnote omitted).
Plaintiff seeks to distinguish Milford because there already is a finding that the party settled their dispute and agreed " to forgo other remedies." However, there is no finding that Galbo intended to forgo remedies under CUTPA. For the Court to interpret the finding as a general release of all remedies, including those available under CUTPA, would require an interpretation obviously at odds with the arbitrator's interpretation of his own finding because he awarded remedies under CUTPA in addition to the remedies under the settlement agreement. To adopt RHRR's interpretation of the settlement agreement I would have to review the underlying evidence, which is contrary to the caution against de novo review in Milford, 93 Conn.App. at 717-18. Moreover, the conduct found to violate CUTPA related to plaintiff's performance of the work " without a valid home improvement contractor license and by negligently misrepresenting the extent and quality of RHRR's experience and ability to perform the contracted work." The contractual remedy related to the difference between the reasonable value of the work performed by RHRR and the deposit paid by Galbo, which resulted in a refund of defendant's deposit, a distinctly different matter than the conduct found to violate CUTPA. The Award is not inconsistent on its face, which may reasonably be interpreted to uphold the Award as an agreement to forgo remedies for breach of contract. " [I]n applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings . . ." Milford, 93 Conn.App. at 710. There is no evident miscalculation of figures to support modification of the award under C.G.S. § 52-419(a)(1).
The motion to modify the Award is denied and the motion to confirm the Award is granted. Judgment may enter in favor of Galbo and against RHRR in the amount of $27, 754.34.
The parties agreed that after the motion to modify is resolved the Award should be confirmed.