Opinion
NNHCV126035148
03-17-2017
Lurrae Lupone et al. v. Larry Lupone et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, Judge.
This memorandum decides three interrelated applications relating to a series of arbitration awards entered in 2012 and 2013 as part of a multi-year arbitration involving a decades-old financial dispute between two siblings, Lurrae Lupone and Larry Lupone. The particular awards at issue are contained in two written decisions, namely: (1) Arbitrator's Decision on Refinance Matter, dated November 30, 2012 (the 11/30/12 Decision); and (2) Arbitrator's Decision on Damages, dated December 16, 2013 (the 12/16/13 Decision). In Docket Nos. NNH-126035148 and NNH-135034753, Lurrae Lupone asks the court to vacate, modify or correct these two arbitration awards; in Docket No. NNH-146051388, Larry Lupone asks the court to confirm the same awards. For the reasons that follow, the applications to vacate, modify or correct are denied, and the application to confirm is granted.
Lurrae Lupone (Lurrae) and Larry Lupone (Larry) have participated as parties in the arbitration and judicial proceedings both individually and in representative capacities, on behalf of various different trusts and business entities. For the sake of simplicity, this memorandum will refer to them individually.
Background Facts
The Lupone siblings have been fighting over various business dealings for many years. In late 2005, with four different lawsuits pending, they entered into a written Mediation and Arbitration Agreement (Agreement), which obligated them to mediate " all issues between them." The Agreement provides that the parties would proceed to arbitration in the event that the mediation proved unsuccessful, and binds Lurrae and Larry to arbitrate all unresolved issues. The Agreement states unequivocally that the arbitration submission will be unrestricted: " The agreement to arbitrate all remaining unresolved issues between Larry Lupone and Lurrae Lupone is agreed to be an unrestricted submission to arbitration." Agreement at 3. The Agreement further provides that the arbitrator would be retired United States Magistrate Judge F. Owen Eagan (" Judge Eagan" or the arbitrator), id., unless a replacement arbitrator became necessary, see p. 14 below. The Agreement also contains the parties' " request [for a] reasoned decision from Judge Eagan, " Agreement at 3, and states more than once that the arbitrator's decision shall be final and binding, id. at 3, 4.
The Agreement is dated August 27, 2005, and was amended/finalized on December 7, 2005. Reference herein to the " Agreement" is intended to include both the original and the amendment. There was also a separate written agreement between the parties regarding parcels of jointly-owned real estate in Ft. Myers, Florida, and on South Hoop Pole Road in Guilford, Connecticut. This latter agreement has no direct relevance to the matters presently before the court.
The arbitration proceeded in fits and starts over a period of approximately seven years. The parties were represented by counsel throughout. The court will summarize the course of proceedings here; a more particularized review of key events will be provided as those details become relevant to the discussion.
The dispute between the Lupone siblings encompasses numerous ventures and business entanglements, and the participants engaged in ongoing efforts during the course of the arbitration identifying the issues requiring determination and resolving a multitude of scheduling and procedural challenges. With a handful of exceptions, the court file contains no record of the planning-related communications that must have taken place between and among the attorneys and Judge Eagan during the long history of the arbitration. We know with certainty that a preliminary conference was held at Judge Eagan's office in West Hartford on August 23, 2006. Lurrae was represented at the time by Attorney Lawrence Grossman of Zeisler & Zeisler, see n.12 below, and Attorney Jack Keyes took over her representation at some point in time. Larry was represented by Attorney William Gallagher of New Haven and Attorney Mark Balaban of Middletown. After the preliminary conference, Judge Eagan circulated to the attorneys his typewritten notes regarding the proposed " discovery and procedure order which we fashioned [at the 8/23/06 meeting] on the [Lupone] case." These notes reflect deadlines for the exchange of appraisals, expert depositions and reports, and other information. According to Judge Eagan's notes, a deadline also was established for the lawyers to agree upon the issues to be arbitrated and the burden of proof as to each issue. In what can only be seen in retrospect as a display of wild optimism on the part of all participants, the notes indicate that the arbitration " will take approximately one week and should be scheduled for five (5) continuous days during the month of April 2007." Numerous other administrative items are also addressed in Judge Eagan's notes of the conference held on August 23, 2006.
Only one of these issues warrants mention here. Item 12 in Judge Eagan's typewritten notes states: " The parties agree to waive the 30-day decision period for the arbitrator to file his final decision." See pp. 7-10 below.
The arbitration process took much longer than originally anticipated. Issues multiplied as efforts at settlement spawned additional disputes, and busy lawyers required extensions of deadlines and hearing dates. See, e.g., Letter from Atty. Gallagher to Judge Eagan, dated 2/13/07; Scheduling Order dated April 16, 2007; Letter from Atty. Gallagher to Judge Eagan, dated 9/6/08 (enclosing agreed-upon revised schedule with respect to one issue). A unified arbitration soon became a series of proceedings, each addressing different (or overlapping) issues requiring determination. The parties have not provided a detailed record of arbitration-related events (briefs, stipulations and agreements, administrative correspondence, hearing dates, exhibits, transcripts, etc.), and therefore many aspects of what took place between the beginning of 2007 and the end of 2013 are not known to the court, but certain milestone events are evident from the record. The parties apparently realized early-on that a single unified hearing was not feasible, and agreed that the arbitration should proceed in stages. By February 2008, the parties had " stipulated to the issues to be arbitrated and the sequence in which the issues should be presented for arbitration." The issues and the schedule continued to shift and transform as the years passed. Despite the delays and complications, however, the record before the court reflects an attitude of ongoing commitment to the process on the part of all participants during the relevant time period.
Between February 2008 and December 2012, Judge Eagan issued no fewer than five written decisions. See Arbitrator's Decision on the 1031 Exchange Matter, dated February 12, 2008; Arbitrator's Decision on the Sivetta Matter, dated November 6, 2009; Arbitrator's Decision on Management Fees, dated July 6, 2010; Arbitrator's Decision on Motion for Judgment, dated October 22, 2011; and Arbitrator's Decision on Refinance Matter, dated 11/30/12. Hearings evidently were held on diverse dates prior to issuance of any decisions requiring evidence. The last of these decisions resulted in an award of compensatory damages of $85, 947.20 in favor of Larry. See 11/30/12 Decision, at 14, 18. Judge Eagan also awarded Larry punitive damages in an amount to be determined after the submission of evidence on that issue. Id.
To give one example, trial on the so-called " Refinance Matter" began on September 23, 2009, and apparently spanned twenty-one (21) days on diverse days over a long period of time. See Brief of Lurrae Lupone, dated March 10, 2014, at 3 (Doc. #103.00 in Docket No. NNH-135034753).
Notice of the 11/30/12 Decision was mailed to the parties on December 1, 2012. See Ex. H, attached to Lurrae's Brief dated March 10, 2014 (#103.00 in Docket No. CV-13-5034753).
Three additional written rulings were issued by the arbitrator in 2013. In a ruling dated January 11, 2013, Judge Eagan denied Lurrae's motion to reconsider, set aside and reargue the damages award. On April 8, 2013, Judge Eagan denied another post-award motion filed by Lurrae, this one seeking a recalculation of the damages award. Finally, on December 16, 2013, Judge Eagan (1) granted Larry's motion to recalculate damages, thereby increasing the compensatory award by $30, 994.67, from $85, 947.20 to $116, 942.87, and (2) awarded Larry punitive damages in the amount of $57, 085.34.
The Pending Superior Court Applications to Vacate/Correct/Confirm
Three applications are presently before the court. Lurrae seeks to correct, modify or vacate the 11/30/12 Decision and the 12/16/13 Decision in Docket Nos. NNH-126035148 and NNH-135034753; Larry seeks to confirm those awards in Docket No. NNH-146051388. The three cases have been handled in a consolidated fashion by counsel and the court, and all three are decided in this single decision. The parties have filed written briefs, appendices, and replies. A short hearing was held before Hon. William Hadden, Jr. on October 7, 2014. Judge Hadden later became unable to render a decision due to his medical condition, and the case was transferred to the undersigned judge, to be decided, by agreement, on the existing record.
Standard of Review
As noted, the parties expressly agreed in 2005 that all unresolved disputes between them would be decided by Judge Eagan based upon an " unrestricted submission to arbitration." See pp. 1-2 above. Lurrae now argues that the nature of the submission was actually restricted in nature, because the parties requested a " reasoned" decision from the arbitrator, id., and/or because the Agreement contains a provision that the agreements to arbitrate " shall be interpreted and governed by the laws of the State of Connecticut." Neither point has merit. A submission is restricted if it contains express language limiting the authority of the arbitrator by restricting the breadth of the issues, reserving explicit rights, or conditioning the award on court review. LaFrance v. Lodmell, 322 Conn. 828, 850-52, 144 A.3d 373 (2016); Alderman and Alderman v. Pollack, 100 Conn.App. 80, 917 A.2d 60, 64 (2007). " In the absence of any such qualifications, an agreement is unrestricted." LaFrance v. Lodmell, supra, 322 Conn. at 851 (quotation marks and citations omitted). The submission to arbitration in the present case was unrestricted.
The plural (" agreements") was used by the parties because the choice-of-law provision was intended to encompass the Agreement, as amended, as well as the separate agreement to arbitrate another dispute. See n.2 above.
The parties' " request" for a " reasoned decision" in no way constrained the decision-making authority of the arbitrator. Lurrae cites no authority suggesting otherwise. The request merely indicates the parties' preference for a decision accompanied by a brief explanation, rather than a simple unelaborated decree stating the result without any explanation or discussion whatsoever. It is very clear from the case law that an arbitration agreement requesting (or even requiring) a reasoned decision remains an unrestricted submission in the absence of language imposing express constraints on the substantive authority of the arbitrator. See, e.g., SBD Kitchens, LLC v. Jefferson, supra, 157 Conn.App. at 741-43.
A " reasoned award" is a term-of-art in the field of arbitration referring to the form of the award. A reasoned award " means something more than a simple result [i.e., " Plaintiff is awarded damages of $100, 000.00" ] and less than specific findings of fact and conclusions of law." SBD Kitchens, LLC v. Jefferson, 157 Conn.App. 731, 748, 118 A.3d 550 (2015). See also Leeward Construction Co. v. American University of Antigua, 826 F.3d 634, 638-40 (2d Cir. 2016) (same under federal law).
Likewise with respect to the Agreement's provision stating that it shall be governed and interpreted under Connecticut law. The choice-of-law provision does not change the unrestricted nature of the submission. To begin with, the provision does not purport to direct what law must be applied to decide the underlying dispute(s) subject to arbitration. It says only that the arbitration agreements themselves are to be interpreted and governed by Connecticut law. Moreover, even if the Agreement had designated Connecticut law as the substantive law selected by the parties to be applied by the arbitrator to decide the underlying disputes, the submission would remain unrestricted in any respect that matters. Parties do not change the standard of review applicable to an arbitration award merely by including a substantive choice-of-law provision in an arbitration agreement. See, e.g., George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577, 579 (7th Cir. 2011).
See n.6 above regarding use of the plural noun.
Lurrae would have a point here if the Agreement had provided that Connecticut law governed the matters to be arbitrated, and if Judge Eagan nevertheless had issued his arbitration award under, say, New York law. In such an instance, the award would be subject to judicial vacatur on the ground that the arbitrator had exhibited a manifest disregard of the law. See General Statutes § 52-418(a)(4) (requiring court to vacate award where arbitrator has exceeded powers/so imperfectly executed them). But the claim of error in this case is not that Judge Eagan applied the law of the wrong jurisdiction (e.g., New York rather than Connecticut); the claimed error is that he arrived at an erroneous result under Connecticut law. Such a claim is subject to the usual--and highly deferential--standard of review. None of the cases cited by Lurrae hold or suggest otherwise.
The applicable standard of review is well-settled:
When 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. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). 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. Garrity v. McCaskey, [ supra, 223 Conn. at 4-5]. 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 . . . Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 119, 676 A.2d 825 (1996). (Internal quotation marks omitted.) Groton v. United Steelworkers of America, 254 Conn. 35, 43-44, 757 A.2d 501 (2000).
" When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. Waterbury Board of Education v. Waterbury Teachers Assn., [168 Conn. 54, 62, 357 A.2d 466 (1975)]. An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977). " A challenge of the arbitrator's authority is limited to a comparison of the award to the submission . . . 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 the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the [arbitrator's] decision of the legal questions involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [(1977)]." (Internal quotation marks omitted.) Bic Pen Corp. v. Local No. 134, supra, 183 Conn. at 584. The party challenging the award bears the burden of producing evidence sufficient to demonstrate a violation of General Statutes § 52-418. See Metropolitan District Commission v. AFSCME, Council 4, Local 184, supra, 237 Conn. at 119.LaFrance v. Lodmell, supra, 322 Conn. at 854-55.
Discussion
The claims of error raised by Lurrae can be separated into three categories. First is the claim that the awards at issue are legally unenforceable because they were issued more than thirty days after the completion of the arbitration hearing, in violation of General Statutes § 52-416(a). Second, Lurrae contends that the arbitrator exceeded his powers and/or imperfectly executed those powers by committing various procedural errors in his administration of the arbitration and/or his arbitral decisions themselves. The third category consists of claimed substantive errors made by the arbitrator in arriving at the awards. The court has determined that none of these arguments succeeds.
1. The Thirty-Day Deadline Under General Statutes § 52-416(a)
Lurrae argues that the awards made on November 30, 2012 and December 16, 2013, were untimely under the mandatory thirty-day deadline imposed by General Statutes § 52-416(a) (" An award made after that [thirty-day period] shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification on writing"). In response, Larry contends that the thirty-day requirement was expressly waived by the parties, and the arbitrator's " late" decisions were consistently ratified by the parties throughout the entire course of the multi-year arbitration. See § 52-416(a). The court agrees with Larry.
The following procedural facts are relevant. Judge Eagan heard approximately twenty-one days of evidence over the course of two or three years in the " Refinance" proceeding. The parties submitted briefs, with the final brief filed on September 20, 2012. Judge Eagan issued a written decision seventy-one days later, on November 30, 2012. Various written motions were filed by the parties thereafter. Thus, on December 21, 2012, Lurrae moved to reconsider, set aside and reargue the 11/30/12 Decision. On December 31, 2012, Larry filed a motion to recalculate damages. On February 1, 2013, Lurrae filed a motion to recalculate damages and/or to articulate the arbitrator's findings. Additional briefs were submitted to the arbitrator during 2013 in support/opposition to the foregoing motions and other matters. The final brief appears to have been filed (by Lurrae) on or about October 18, 2013. A written decision was issued fifty-nine days later, on December 16, 2013.
For example, Larry was attempting, in 2013, to persuade Judge Eagan to enter remedial orders as a follow-up to Judge Eagan's 2008 decision on the " 1031 Exchange Matter." Both parties submitted written argument on this point. By letter dated August 20, 2013, Judge Eagan ruled that he would not proceed further with the 1031 Exchange Matter: " It is simply untimely, at this very late stage of the arbitration, scheduled to terminate on December 30, 2013, to allow counsel for Larry Lupone to now pursue the remedial aspects of the 2008 decision."
Correspondence addressing substantive issues was also exchanged among all participants during 2013. By way of example only, two letters containing argument were sent by Atty. John Keyes to Judge Eagan on January 9, 2013. Another substantive letter was sent by Atty. Keyes to Judge Eagan on August 13, 2013. Although not contained in the court file, it is clear that additional correspondence of this nature was exchanged throughout most of 2013. See, e.g., Items 5 and 6 in Larry's Appendix dated May 22, 2014 (#108.00 in NNH-CV13-5034753).
As noted previously, Judge Eagan issued a number of written rulings during 2013 in response to the motions filed in the wake of the 11/30/12 Decision. On January 11, 2013, Judge Eagan denied Lurrae's motion to reconsider, set aside and reargue the damages award. On April 8, 2013, Judge Eagan denied Lurrae's motion seeking a recalculation of the damages award and/or an articulation. Finally, on December 16, 2013, Judge Eagan granted Larry's motion to recalculate compensatory damages (increasing the award from $85, 947.20 to $116, 942.87) and awarded Larry punitive damages in the amount of $57, 085.34.
The parties agree that more than thirty days passed between the final submission in connection with the Refinance Matter and the issuance of a decision on that matter on November 30, 2012. They likewise agree that the 12/16/13 Decision was not issued within thirty days of submission. The question is not whether the thirty-day deadline contained in § 52-416(a) was met, but whether that deadline remained operative in this case. We have seen that § 52-416(a) expressly permits the parties to waive the thirty-day requirement (or ratify issuance of a late decision). It is clear to the court that neither the parties nor the arbitrator in this case considered the thirty-day deadline to apply at any stage during the seven years that Judge Eagan presided over the arbitration. That deadline had been expressly waived at the outset, and the parties thereafter repeatedly ratified the authority of the arbitrator, through the arbitration, to issue his decisions without regard to the long-abandoned thirty-day deadline.
The evidence of waiver and ratification is uniform and overwhelming. By 2005, Judge Eagan was known throughout the legal community as among the most experienced ADR arbitrator/mediator in Connecticut. The record establishes clearly that he knew about the statutory thirty-day deadline when the parties requested his service in this matter. The evidence supports Larry's assertion that Judge Eagan advised the attorneys, at the outset, that he would not serve as an arbitrator unless all participants were willing to waive the thirty-day deadline. See Affidavit of Atty. Mark Balaban dated 4/3/14. Judge Eagan evidently made this requirement clear at a meeting with counsel on August 23, 2006, and the lawyers agreed to that condition, as most lawyers would have done under the circumstances. Judge Eagan memorialized the agreement in writing in his proposed scheduling order, circulated the next day. (" The parties agree to waive the 30-day decision period for the arbitrator to file his final decision.") The waiver thus was explicitly set forth by him in writing and circulated among counsel. Lurrae points out that there is no signed acceptance or confirmation in response to Judge Eagan's memorandum, and while this appears to be true, the statutory requirement of a " writing" does not mandate such formality. See Diamond Fertiliser and Chemical Corp. v. Commodities Trading Int'l Corp., 211 Conn. 541, 553, 560 A.2d 419 (1989) (waiver of the thirty-day deadline based on party's failure to object to a letter from the arbitrator indicating that the decision would be issued late). The waiver was memorialized in writing and its terms were knowingly adopted and ratified by all participants consistently over the entire lifetime of the arbitration.
The memorandum was faxed to Attorney Larry Grossman (Lurrae's lawyer at the time) and Attorney William Gallagher (Larry's lawyer at the time). The court rejects Lurrae's claim that she had terminated Attorney Grossman prior to August 24, 2006. See TR 10/7/14 (testimony). Whatever may have occurred between Lurrae and Grossman behind the scenes, Grossman continued to represent her in the arbitration matter as of August 23, 2006. He attended the preliminary conference as her lawyer on that date, and agreed to waive the thirty-day time deadline on her behalf. Grossman was at some point replaced by Attorney Keyes, whose conduct throughout the arbitration over the following six years manifested the very same intention and understanding with respect to waiver of the thirty-day deadline.
There is not a scintilla of evidence in the record suggesting that Lurrae (or anyone else) objected to Judge Eagan's proviso waiving the thirty-day requirement at any point from August 23, 2006 (the date of the preliminary meeting) through December 16, 2013 (the date of Judge Eagan's last decision). To the contrary, every participant in the arbitration, at all times after August 23, 2006, acted in a manner demonstrating complete agreement with the thirty-day waiver. Counsel acknowledged at oral argument to this court, for example, that some of Judge Eagan's written decisions between 2007 and 2013 were issued within thirty days of the completion of the related proceeding, while others were not--yet no objection or concern regarding the deadline was ever raised at any time during the arbitration. Indeed, when Lurrae moved to reconsider, set aside and reargue the 11/30/12 Decision, she challenged the ruling solely on substantive grounds, claiming the damages were miscalculated. She did not contend that the 11/30/12 decision was untimely or legally ineffective under § 52-416(a). Nor was the thirty-day issue ever raised in the many letters to the arbitrator or other written submissions made on Lurrae's behalf throughout 2013. Far from objecting to further proceedings, Lurrae actually requested an additional hearing in connection with the open issues to be decided in late 2013. See Letter from Judge Eagan to Counsel, dated 8/6/13 (noting that Attorney Keyes requested a one-hour final hearing, and granting that request). The bottom line is that Lurrae's conduct after the 11/30/12 Decision demonstrates that while she disagreed with the result, she considered that decision to be legally binding. Every written submission Lurrae made in the arbitration seeking to modify or vacate the 11/30/12 Decision (or to oppose Larry's efforts to increase the award) had the effect, at the same time, of ratifying its timeliness.
Likewise, Lurrae did not raise the timeliness issue as a claim of error in her application to correct, modify or vacate the 11/30/12 Decision. See Lupone v. Lupone, No. NNH-CV-126035148, Application to Correct, Modify or Vacate Arbitration Award, December 19, 2012 (#100.31).
Lurrae knew how to make a timeliness argument when she wanted to do so. See Letter from Atty. Keyes to Judge Eagan dated August 13, 2013 (arguing that it was too late in the arbitration to revisit the so-called 1031 Exchange issue, originally decided by Judge Eagan in 2008).
The court understands that the statutory thirty-day deadline under § 52-416(a) is mandatory in the absence of extension or ratification, see Marsala v. Valve Corp. of America, 157 Conn. 362, 369, 254 A.2d 469 (1969), and that waiver cannot be inferred from mere failure to object on a timely basis to a late award, without more, see Remax Right Choice v. Aryeh, 100 Conn.App. 373, 385-86, 918 A.2d 976 (2007). As demonstrated by the foregoing analysis, however, the present case involves both an express waiver at the outset of the arbitration, and also a long chain of subsequent acts and conduct on Lurrae's part demonstrating waiver and ratification. See Remax Right Choice, supra, at 384 (noting that waiver need not be express, but may be inferred from the circumstances). There is no doubt in the court's mind that all parties to the arbitration assented unequivocally to waive the thirty-day deadline and ratify the arbitral decisions issued beyond that deadline. The express waiver alone is sufficient to defeat Lurrae's untimeliness claim. Even were it not, the circumstances of the present case fall squarely within the waiver/ratification rules applicable to § 52-416(a), as reflected in cases including Diamond Fertiliser and Chemical Corp. v. Commodities Trading Int'l Corp., supra ; Capozzi v. Liberty Mutual Fire Insurance Co., 32 Conn.App. 250, 629 A.2d 424, 426-28 (1993), aff'd, 229 Conn. 448, 642 A.2d 1 (1994); Nathan v. United Jewish Center of Danbury, Inc., 20 Conn.Supp. 183, 185-87, 129 A.2d 514 (Superior Court, 1955).
The statutory timing issue decided by the Appellate Court in Capozzi was not presented on certification to the Supreme Court, so the Supreme Court's affirmance did not pass upon that issue.
The same analysis applies to the 12/16/13 Decision. There was an express waiver of the thirty-day deadline, as well as a consistent and unbroken pattern of conduct, throughout the entire course of the arbitration proceedings, manifesting assent and ratification with respect to the timing of the decisions.
A party who wishes to do so has every right to hold the arbitrator to the statutory thirty-day deadline. But this must be done in plain sight and good faith. A person may not play by one set of rules for seven years, hope for the best, and then reverse direction opportunistically after receiving an unfavorable decision. See, e.g., Capozzi v. Liberty Mutual Fire Ins. Co., supra, 32 Conn.App. at 256. Lurrae cannot be heard now to complain about the arbitrator's failure to abide by the thirty-day time limit under the circumstances of this case.
2. Claims Regarding Improper Decisonmaking Procedures
Lurrae contends that the 11/30/12 and 12/16/13 awards should be vacated under General Statutes § 52-418(a)(3) and (4), on the ground that the arbitrator (A) improperly awarded punitive damages in an unauthorized follow-up proceeding after issuance of the 11/30/12 Decision, (B) improperly heard and granted Larry's motion to recalculate compensatory damages after issuance of the 11/30/12 Decision; (C) improperly incorporated factual findings from decisions made by the arbitrator at previous stages of the same arbitration, and (D) failed to decide issues that necessarily were submitted as part of the proceedings leading to the 11/30/12 Decision. The court finds no merit in any of these claims.
The first of these procedural arguments relates to the award of punitive damages as part of the follow-up proceedings after issuance of the 11/30/12 Decision. In the 11/30/12 Decision, the arbitrator found that Lurrae's refusal to execute the mortgage in the Sivetta matter was a breach of duty, undertaken recklessly and wantonly, and without any legitimate justification whatsoever. 11/30/12 Decision, at 10-12. Judge Eagan specifically addressed the legal standard applicable to a claim for common-law punitive damages, and found that " the evidence is clear and convincing that Lurrae's action in refusing to execute the Sivetta mortgage was done in reckless and wanton indifference to the rights of Larry, as well as Sivetta. As such, punitive damages in the amount of attorneys fees, the other costs of litigation, minus taxable costs, can be assessed against her, and, while discretionary, will be so assessed." Id. at 15. Judge Eagan also expressly discussed the procedural issue raised here:
Lurrae [argues] that, to date, Larry has submitted no evidence as to the amount of damages warranted and the evidence is now closed. In Bridgeport Harbour v. Ganim, 131 Conn.App. 99, 145, 30 A.3d 703 (2011), the approved procedure was to have postjudgment evidence submitted as to [the] amount of punitive damages after it was determined that punitive damages were appropriate.
Here, such a procedure is particularly appropriate as Larry has claimed common law punitive damages, as well as CUTPA damages, in several of his claims for relief and, therefore, could not foresee the relevant evidence until these issues were resolved.Id.
No rule prevented the arbitrator from managing the proceedings in this fashion. The statutory thirty-day deadline was not applicable. See pp. 7-10 above. The court is not aware of any legal authority that would prohibit the procedures employed by the arbitrator, and Lurrae cites none. To the contrary, the procedure followed by Judge Eagan is commonly used in courtside trials in Connecticut judicial proceedings. See, e.g., Carlson Construction, LLC v. A& B Mechanical, LLC, Docket No. FBT-CV12-5029828, 2016 WL 1371248, at *9 (March 22, 2016); White v. Van Rhijn, Docket No., CV00-0438540, 2001 WL 1479117, at *1 (Nov. 7, 2001); Brewer v. Gutierrez, Docket No. CV90-0700638, 1994 WL 411089, at *4 (July 27, 1994). It makes good practical sense, as a general matter, to defer hearing evidence on the amount of punitive damages until after a decision on the merits is made, particularly where (as here) the measure of such damages is based on the prevailing party's attorneys fees. There was no procedural impropriety. Furthermore, no prejudice resulted to Lurrae as a result of the approach adopted by the arbitrator.
The next issue relates to the arbitrator's decision to grant Larry's motion to recalculate damages. As background, the arbitrator's 11/30/12 Decision awarded Larry compensatory damages in the amount of $85, 947.20. See 11/30/12 Decision, at 14. The calculation evidently was based on losses over the 10 and one-half year period from March 1999 through late 2009. Both parties moved for reconsideration of the award as it relates to damages. (Lurrae actually filed two different motions to set aside or reargue the damages award, the first dated December 21, 2012, the second dated February 1, 2013.) Larry's motion sought to recalculate the damages period through the date of the actual award, November 30, 2012. Judge Eagan denied Lurrae's motions. See 1/11/13 Decision; 4/8/13 Decision. The recalculation requested by Larry was included among the issues to be addressed at a final hearing to be held on October 17, 2013. See Letter from Judge Eagan to Counsel, dated 8/6/13; Application to Correct, Modify or Vacate dated December 23, 2013, at 3. The parties also submitted written briefs on the issue. See 12/16/13 Decision, at 2 (referencing Lurrae's Brief Re: Fees and Sivetta Recalculation, dated 8/15/13); Application to Correct, Modify or Vacate dated December 23, 2013, at 3 (referring to brief filed by Lurrae on 10/18/13). Judge Eagan thereafter issued his ruling on December 16, 2013, in which he granted Larry's motion to recalculate damages and increased the compensatory award to $116, 942.87. See 12/16/13 Decision, at 2.
See 12/16/13 Decision, at 1-2.
Lurrae argues that the arbitrator lacked authority to hold any additional hearing or revisit the compensatory award more than thirty days after the date of the original decision (11/30/12). See Lurrae's Brief dated March 10, 2014, at 37 (#103.00. in Docket No. CV-135034753). This claim is rejected, for multiple reasons. First, this arbitration was not conducted as a single, unitary proceeding culminating in a single, final decision on all issues. Quite the opposite; the custom and practice of the parties involved submission (and reformulation) of issues on an ongoing basis over virtually the entire seven-year lifetime of the arbitration. Some issues were not resolved fully and completely in an absolute and definitive decree. The 1031 Exchange Matter and the punitive damages issue are the clearest examples. The basic point perhaps is best illustrated by the fact that both parties filed motions asking the arbitrator to revisit a variety of issues after issuance of the 11/30/12 Decision. In fact, both parties timely moved for recalculation of the damages awarded in the 11/30/12 Decision. Lurrae filed two motions for reconsideration, one dated February 1, 2013, two months after issuance of the decision. It is far too late in the day for her to argue that the damages recalculation is tainted by the arbitrator's use of a procedure that exceeded his powers or otherwise violated limitations imposed by § 52-418(a).
Lurrae also argues that Larry's motion to recalculate was untimely, but the assertion is unaccompanied by supporting analysis. Written notice of the 11/30/12 Decision was mailed to the parties on December 1, 2012. See above n.5. Larry's motion to recalculate the award was filed on Monday, December 31, 2012, which is within thirty days of the notification date. See, e.g., Brennan v. Fairfield, 255 Conn. 693, 698, 768 A.2d 433 (2001). This claim of untimeliness, like the other claims of untimeliness, apparently was not raised by Lurrae in the arbitration.
Lurrae argues that the arbitrator could not lawfully incorporate prior factual findings, made earlier in the arbitration, into his 11/30/12 Decision. See Lurrae's Brief dated March 10, 2014, at 27-29 (#103.00 in Docket No. CV-135034753). Her theory appears to be that these " incorporated" findings were based on (or themselves constituted) " evidence outside the record, " and that she therefore was deprived of her procedural rights to a " full and fair hearing" by this procedure. Id. This claim is baseless. To the extent that issues in the " Refinance" matter overlapped with, or rationally related to issues already decided in the same arbitration, the arbitrator sensibly referenced and relied upon those earlier findings. The overlap cannot have surprised anyone under these circumstances. No evidence of prejudice or procedural unfairness has been submitted to this court, and, after reviewing the portions of the 11/30/12 Decision at issue (see Lurrae's Brief at pp. 28, citing pages 2, 10-13 of 11/30/12 Decision), it is hard to believe that anyone could have been surprised, much less prejudiced, as a result of the arbitrator's " incorporation" of previous findings. Neither of the cases cited by Lurrae supports her argument on this record.
In her final procedural challenge, Lurrae contends that the arbitrator failed to decide various issues submitted for decision, thus leading to prejudice, injustice, and imperfect execution within the meaning of § 52-418(a). See Lurrae's Brief dated March 10, 2014, at 17-27 (#103.00 in Docket No. CV-135034753). In substantial part, this argument in reality challenges the merits of the arbitrator's decision(s); the issues that Lurrae identifies as undecided were, in fact, decided against her by necessary implication. The arbitrator, in other words, could not have arrived at the conclusions as stated in his decisions without rejecting Lurrae's position on the issues that she claims were not addressed. The fact that the arbitrator did not explicitly address the subsidiary issues identified by Lurrae is of no legal significance, because he was not required to do so, as Lurrae herself acknowledges. Id. at 27 (citing Ramos v. Franklin Construction, 174 Conn. 583, 589, 392 A.2d 461 (1978) (arbitrator not required to make specific findings); Darien Education Ass'n v. Board of Education, 172 Conn. 434, 438, 374 A.2d 1081 (1977) (arbitrator need not even make mention of the claim made by a party)). The arbitrator was, at most, expected to issue a " reasoned" decision, nothing more.
A " reasoned" decision is a term-of-art meaning something less than a decision containing full-blown findings of fact and conclusions of law. See n.7 above. Moreover, the arbitration submission here did not even require a reasoned decision; the Agreement provides only that the parties request a reasoned decision. See Agreement at 3 (" The parties request a reasoned decision from Judge Eagan"). Judge Eagan's decisions in the arbitration provided substantially more elaboration than required.
As for any issues that were not decided (expressly or by necessary implication) by Judge Eagan, Lurrae's claim of error is also without merit. There was no requirement that Judge Eagan serve in perpetuity. To the contrary, the Agreement expressly contemplates the possibility that someone other than Judge Eagan might be appointed as arbitrator at some point in time. See Agreement at 4 (" In the event Judge Eagan cannot serve, another Arbitrator shall be agreed upon by the parties"). On August 6, 2013, after presiding over the arbitration for over six years, Judge Eagan notified the parties that he would resign as arbitrator, effective December 31, 2013. The fact that before resigning he had not decided all of the issues identified by the parties does not undermine the finality of the many decisions he did render during his tenure as arbitrator. The parties have now agreed upon a substitute arbitrator to handle the remaining issues under the original submission. See Lurrae Lupone v. Larry Lupone, Docket No. NNH-CV156052571S, Order dated 10/21/15 [#100.40] (by agreement of the parties, referring the matter to arbitration before Judge (Ret.) Elaine Gordon). The issues that remain open presumably will be decided by Judge Gordon in due course.
Judge Eagan planned to terminate his involvement in this matter in 2012, but, as explained by Lurrae's counsel, his participation " was extended because of Mr. Gallagher's illness, delaying resolution of many, many issues to 2013." Lurrae's Brief dated March 10, 2014, at 10 (#103.00 in Docket No. CV-135034753) (referring to Attorney William F. Gallagher, Larry's attorney throughout the arbitration).
3. Claims of Substantive Errors in Arbitration Decisions
Lurrae contends that the 11/30/12 Decision and 12/16/13 Decision contain errors in the arbitrator's calculation of compensatory damages, and she asks the court to correct the errors pursuant to General Statutes § 52-419(a)(1). See Lurrae's Brief dated March 10, 2014, at 30-34 (#103.00 in Docket No. CV-135034753); see also id. at 19-26 (under heading of " undecided" issues); Reply Brief dated August 5, 2014, at 1-2 (#111.00 in Docket No. CV-135034753). She contends that Judge Eagan failed to include any meaningful explanation of the original award ($85, 947.20), see 11/30/12 Decision, or the recalculation adding four additional years of damages, see 12/16/13 at 1-2 ($30, 994.67 additional); and argues that no rational explanation for the calculations is possible, because the evidence does not support Larry's damages claim.
The applicable standard of review largely disposes of Lurrae's claims regarding damages. See pp. 5-6 above (reviewing standard of review under unrestricted submission). The submission in this case authorized the arbitrator to decide " all remaining unresolved issues between Larry Lupone and Lurrae Lupone, " Agreement at 3, and the two awards at issue unquestionably fall squarely within the scope of that broad submission. This indisputable point effectively ends the judicial inquiry as to the claimed substantive errors regarding compensatory damages.
Lurrae's argument itself demonstrates why she cannot succeed under § 52-419(a)(1); to show why the arbitrator's calculations are wrong, she relies directly and explicitly on the evidence submitted to the arbitrator, and contends that the arbitrator could not have reached the conclusion that he did if he had properly analyzed and understood various evidentiary submissions, including especially (though without limitation) Exhibits 218A, 218AA, 219B, 221, 222.
But the applicable standard of review under the statute does not allow the court to engage in the analysis advanced by Lurrae, because a party cannot obtain relief under § 52-419(a)(1) if the claimed error can be discerned only by examining the underlying evidentiary record:
In order for the court to modify an award pursuant to subdivision (1) of § 52-419(a), there must be a miscalculation or misdescription that is evident on the face of the award. Milford v. Coppola Construction Co., 93 Conn.App. 704, 717-18, 891 A.2d 31 (2006). The court will not examine, de novo, the evidence presented to the arbitrator in order to recalculate the award. See id., at 718.Between Rounds Franchise Corp. v. EDGR Real Estate, LLC, 52 Conn.Supp. 295, 302, 40 A.3d 833 (Super. Ct. 2011) (emphasis added), aff'd, 134 Conn.App. 857, 40 A.3d 342 (2012) (per curiam). The Milford v. Coppola Construction case, cited in Between Rounds Franchise Corp., explains that 52-419(a)(1)
does not apply . . . [where] there has not been an evident material miscalculation of figures or an evident material mistake in the description of any thing or property referred to in the award . . . [I]n 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 . . . 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.City of Milford v. Coppola Const. Co., supra, 93 Conn.App. at 717-18.
Lurrae's argument seems to be that the alleged calculation error would have been evident from the face of the award if the arbitrator had provided the explanation that is required by the parties' arbitration agreement. This argument carries no weight, however, for at least two reasons. First, the arbitration agreement does not require a reasoned decision. See n.18 above. Second, even if a reasoned decision had been required, Judge Eagan provided it. Id. The 11/30/12 Decision does not simply announce an award without explanation. Instead, Judge Eagan makes numerous express findings in support of the damages award. He finds that the Citizens Bank loan (the loan that Lurrae refused to execute) would have resulted in " substantially lower" interest rates than charged under the existing loan, 11/30/12 Decision at 10. He explains at length why he rejected the financial analysis provided by Lurrae's expert, Stanley A. Gniazdowski. Id. at 12-14. He also twice refers to his earlier decision rejecting Lurrae's argument that no damages could be established. Id. at 12 (referring to 10/22/11 Decision); at 14 (same). And he further explains that his award is based on the " newly submitted Expert's Report [on behalf of Larry], testimony, additional briefs and [oral argument] hearing . . ." Id. at 14. This is more than enough to constitute a reasoned decision. Lurrae cites no case law or other authority suggesting that more is required.
In the court's view, Lurrae's argument does not give sufficient attention to the arbitrator's 10/22/11 Decision, which contains an in-depth discussion reflecting Judge Eagan's careful consideration and understanding of the parties' respective claims regarding damages. Id. at 5-7.
Conclusion
The fundamental theory underlying the restrictive standard of review guiding the court's analysis emanates from the very same principle that Lurrae and Larry themselves expressly and unequivocally acknowledged in their arbitration submission: " The ruling of Judge Eagan or any other arbitrator shall be final and binding." The deference paid by the court to the arbitrator's decisionmaking authority should be understood as enforcing the parties' own agreement.
The applications to vacate, correct or modify the arbitration awards are denied. The application to confirm the awards is granted.
Steven D. Ecker, Judge