FORGE SQ. ASSOCIATES LTD. v. CONSTRUCTION SERV.

12127

33 Conn. App. 669 (1994) | Cited 3 times | Connecticut Appellate Court | March 8, 1994

The plaintiff appeals from the trial court'sdenial of its application to vacate an arbitrationaward pursuant to General Statutes 52-418 (a)(4).1The dispositive issue is whether the trial court improperly

[33 Conn. App. 670]

     refused to vacate an award in an unrestricted submissionbecause of the arbitrators' alleged manifest disregard ofapplicable law. We affirm the judgment of the trial court.

The relevant facts are as follows. In 1987, the plaintiff,Forge Square Associates Limited Partnership (Forge Square),contracted with the defendant Construction Services of Bristol,Inc. (CSB), to convert an old forge building in Middletowninto eighty-one residential rental units. Shortly afterCSB commenced work on the project, a series of problemsarose. These problems, the causes of which were vigorouslydisputed by the parties, resulted in the project's completiondate being pushed back considerably beyond the originaldeadline. Believing that blame for the problems andcorresponding delays rested with CSB, Forge Squaresought to discharge CSB. Toward this end and pursuantto 2.2.9 of the contract,2 Forge Square referred thematter to the architect who, after an investigation,certified that sufficient cause existed for Forge Square toterminate CSB's contract. On the basis of this certification,Forge Square terminated the employment of CSB. CSBresponded by filing a timely demand for arbitration,3seeking damages for each of the following:

[33 Conn. App. 671]

     breach of contract; failure to issue change orders;failure to make timely payment; and wrongful terminationof contract.4 Forge Square filed an answer andcounterclaim, also seeking damages for breach of contract.

After extensive hearings,5 the arbitration panel6awarded $617,740 to CSB on its claim and $278,069 toForge Square on its counterclaim. Forge Square then filedan application to vacate the award under 52-418 (a)(4)7on the ground that "the arbitrators had manifestly disregardedthe governing law in Connecticut with respect to the bindingeffect of the architect's certification on termination."CSB countered by filing a motion to confirm the arbitrationaward. After the submission of briefs and oral argument, thetrial court denied Forge Square's motion to vacate and confirmedthe award. This appeal followed.

The parties agree that the trial court's scope ofreview of an arbitration award under 52-418 (a)(4)is governed by Garrity v. McCaskey, 223 Conn. 1,612 A.2d 742 (1992). In Garrity, our Supreme Court heldthat a trial court should vacate an arbitrator's awardunder 52-418 (a)(4) where "the award reflects anegregious or patently irrational rejection of clearlycontrolling legal principles." Id., 11. Thecourt will generally examine whether the award conforms tothe submission; it will not review an arbitrator's decisionin an unrestricted submission merely for errors of law,

[33 Conn. App. 672]

     errors in the application of the law to the facts or therelative merits of an unsatisfied party's claim. Id.,10-13.

Forge Square argues that the architect's certificationstating that it had sufficient cause to terminatethe contract with CSB was final and binding on thearbitrators, absent proof that the architect's decisionwas the product of fraud, bad faith, or gross misconduct.Because there was no showing of fraud, bad faithor gross misconduct, Forge Square claims that thearbitrators' award in favor of the defendant ignoredthe architect's decision regarding termination "in manifestdisregard of the law." Id., 10.

CSB claims that under the terms of the contract thearchitect's decision on claims or disputes between theparties became final and binding on the arbitratorsunder only a limited number of situations, none of whichare applicable here.8 Because the decision of thearchitect was not final, CSB contends that the arbitrators'award in its favor, despite the architect's conclusionotherwise, reflects a result consistent with vigorouslycontested issues regarding the cause of the delays,contract interpretation and the applicability of thelaw to the facts.

[33 Conn. App. 673]

The parties submitted comprehensive briefs andengaged in robust oral argument in support of theirrespective claims on appeal. We have carefullyreviewed the briefs and oral argument as well as theentire record and are satisfied that the judgment of thetrial court should be affirmed. We have also reviewedthe trial court's memorandum of decision. Forge SquareAssociates Limited Partnership v. Construction Servicesof Bristol, Inc., 43 Conn. Sup. 32, 638 A.2d 653(1994). In that decision, the trial court determined thatthe arbitrators' award did not represent an "egregiousor patently irrational rejection of clearly controllinglegal principles." See Garrity v. McCaskey, supra, 11-12.

The trial court's memorandum of decision is anaccurate statement of the Connecticut law governingin this action. Little would be accomplished by ourrecitation of what the trial court, through its diligentefforts, has already ably furnished. Accordingly, weadopt the trial court's well reasoned decision as astatement of the facts and the applicable law in thiscase. See Daw's Critical Care Registry, Inc. v. Departmentof Labor, 225 Conn. 99, 102, 622 A.2d 518 (1993); see,e.g., Loeb v. Al-Mor Corp., 224 Conn. 6, 7,615 A.2d 149 (1992); State v. Mobley, 33 Conn. App. 103, 105,633 A.2d 726, cert. denied, 228 Conn. 917, 636 A.2d 849(1993); LaValley v. Correia, 33 Conn. App. 41, 43,632 A.2d 1143 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

1. General Statutes 52-418 (a)(4) provides in relevantpart: "Upon the application of any party to an arbitration, thesuperior court for the judicial district in which one of theparties resides or, in a controversy concerning land, for thejudicial district in which the land is situated or, when the

2. Section 2.2.9 of the contract states: "Claims,disputes and other matters in question between the Contractor andthe Owner relating to the execution or progress of the Work orthe interpretation of the Contract Documents shall be referredinitially to the Architect for decision which he will render inwriting within a reasonable time."

3. CSB filed for arbitration pursuant to 7.9.1 under theGeneral Conditions of the contract, which provides: "All claims,disputes and other matters in question between the Contractor andthe Owner arising out of, or relating to, the Contract Documentsor the breach thereof, except as provided in Subparagraph 2.2.11with respect to the Architect's decisions on matters relating toartistic effect, and except for claims which have been waived bythe making or acceptance of final payment as provided bySubparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration inaccordance with the Construction Industry Arbitration Rules ofthe American Arbitration Association then obtaining unless theparties mutually agree otherwise."

4. The defendant Seaboard Surety Company joined in andagreed to be bound by the arbitration.

5. The arbitration consisted of fifty-one days ofhearings, which included 619 exhibits entered into evidence,approximately 9000 pages of transcript, a visit to theconstruction site by the arbitrators and counsel, four hours oforal argument and, finally, a separate question and answersession called by the panel at the conclusion of the fifty-onedays of hearings.

6. The three arbitrators were John C. Travis, Jr., Esq.,Robert C. Canning and John Scholsky.

7. See footnote 1.

8. Under 2.2.11 of the parties' contract the"[a]rchitect's decision in matters relating to artistic effectwill be final if consistent with the intent of the ContractDocuments." Similarly, 2.2.12 of the contract between the parties states inrelevant part: "Any claim, dispute or other matter in questionbetween the Contractor and the Owner referred to theArchitect . . . shall be subject to arbitration upon the writtendemand of either party. . . . When such a written decision ofthe Architect states (1) that such a written decision is finalbut subject to appeal, and (2) that any demand for arbitration ofa claim, dispute or other matter covered by such decision must bemade within thirty days after the date on which the party makingthe demand receives the written decision, failure to demandarbitration within the said thirty days' period will result inthe Architect's decision becoming final and binding upon theowner and the Contractor."

The plaintiff appeals from the trial court'sdenial of its application to vacate an arbitrationaward pursuant to General Statutes 52-418 (a)(4).1The dispositive issue is whether the trial court improperly

[33 Conn. App. 670]

     refused to vacate an award in an unrestricted submissionbecause of the arbitrators' alleged manifest disregard ofapplicable law. We affirm the judgment of the trial court.

The relevant facts are as follows. In 1987, the plaintiff,Forge Square Associates Limited Partnership (Forge Square),contracted with the defendant Construction Services of Bristol,Inc. (CSB), to convert an old forge building in Middletowninto eighty-one residential rental units. Shortly afterCSB commenced work on the project, a series of problemsarose. These problems, the causes of which were vigorouslydisputed by the parties, resulted in the project's completiondate being pushed back considerably beyond the originaldeadline. Believing that blame for the problems andcorresponding delays rested with CSB, Forge Squaresought to discharge CSB. Toward this end and pursuantto 2.2.9 of the contract,2 Forge Square referred thematter to the architect who, after an investigation,certified that sufficient cause existed for Forge Square toterminate CSB's contract. On the basis of this certification,Forge Square terminated the employment of CSB. CSBresponded by filing a timely demand for arbitration,3seeking damages for each of the following:

[33 Conn. App. 671]

     breach of contract; failure to issue change orders;failure to make timely payment; and wrongful terminationof contract.4 Forge Square filed an answer andcounterclaim, also seeking damages for breach of contract.

After extensive hearings,5 the arbitration panel6awarded $617,740 to CSB on its claim and $278,069 toForge Square on its counterclaim. Forge Square then filedan application to vacate the award under 52-418 (a)(4)7on the ground that "the arbitrators had manifestly disregardedthe governing law in Connecticut with respect to the bindingeffect of the architect's certification on termination."CSB countered by filing a motion to confirm the arbitrationaward. After the submission of briefs and oral argument, thetrial court denied Forge Square's motion to vacate and confirmedthe award. This appeal followed.

The parties agree that the trial court's scope ofreview of an arbitration award under 52-418 (a)(4)is governed by Garrity v. McCaskey, 223 Conn. 1,612 A.2d 742 (1992). In Garrity, our Supreme Court heldthat a trial court should vacate an arbitrator's awardunder 52-418 (a)(4) where "the award reflects anegregious or patently irrational rejection of clearlycontrolling legal principles." Id., 11. Thecourt will generally examine whether the award conforms tothe submission; it will not review an arbitrator's decisionin an unrestricted submission merely for errors of law,

[33 Conn. App. 672]

     errors in the application of the law to the facts or therelative merits of an unsatisfied party's claim. Id.,10-13.

Forge Square argues that the architect's certificationstating that it had sufficient cause to terminatethe contract with CSB was final and binding on thearbitrators, absent proof that the architect's decisionwas the product of fraud, bad faith, or gross misconduct.Because there was no showing of fraud, bad faithor gross misconduct, Forge Square claims that thearbitrators' award in favor of the defendant ignoredthe architect's decision regarding termination "in manifestdisregard of the law." Id., 10.

CSB claims that under the terms of the contract thearchitect's decision on claims or disputes between theparties became final and binding on the arbitratorsunder only a limited number of situations, none of whichare applicable here.8 Because the decision of thearchitect was not final, CSB contends that the arbitrators'award in its favor, despite the architect's conclusionotherwise, reflects a result consistent with vigorouslycontested issues regarding the cause of the delays,contract interpretation and the applicability of thelaw to the facts.

[33 Conn. App. 673]

The parties submitted comprehensive briefs andengaged in robust oral argument in support of theirrespective claims on appeal. We have carefullyreviewed the briefs and oral argument as well as theentire record and are satisfied that the judgment of thetrial court should be affirmed. We have also reviewedthe trial court's memorandum of decision. Forge SquareAssociates Limited Partnership v. Construction Servicesof Bristol, Inc., 43 Conn. Sup. 32, 638 A.2d 653(1994). In that decision, the trial court determined thatthe arbitrators' award did not represent an "egregiousor patently irrational rejection of clearly controllinglegal principles." See Garrity v. McCaskey, supra, 11-12.

The trial court's memorandum of decision is anaccurate statement of the Connecticut law governingin this action. Little would be accomplished by ourrecitation of what the trial court, through its diligentefforts, has already ably furnished. Accordingly, weadopt the trial court's well reasoned decision as astatement of the facts and the applicable law in thiscase. See Daw's Critical Care Registry, Inc. v. Departmentof Labor, 225 Conn. 99, 102, 622 A.2d 518 (1993); see,e.g., Loeb v. Al-Mor Corp., 224 Conn. 6, 7,615 A.2d 149 (1992); State v. Mobley, 33 Conn. App. 103, 105,633 A.2d 726, cert. denied, 228 Conn. 917, 636 A.2d 849(1993); LaValley v. Correia, 33 Conn. App. 41, 43,632 A.2d 1143 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

1. General Statutes 52-418 (a)(4) provides in relevantpart: "Upon the application of any party to an arbitration, thesuperior court for the judicial district in which one of theparties resides or, in a controversy concerning land, for thejudicial district in which the land is situated or, when the

2. Section 2.2.9 of the contract states: "Claims,disputes and other matters in question between the Contractor andthe Owner relating to the execution or progress of the Work orthe interpretation of the Contract Documents shall be referredinitially to the Architect for decision which he will render inwriting within a reasonable time."

3. CSB filed for arbitration pursuant to 7.9.1 under theGeneral Conditions of the contract, which provides: "All claims,disputes and other matters in question between the Contractor andthe Owner arising out of, or relating to, the Contract Documentsor the breach thereof, except as provided in Subparagraph 2.2.11with respect to the Architect's decisions on matters relating toartistic effect, and except for claims which have been waived bythe making or acceptance of final payment as provided bySubparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration inaccordance with the Construction Industry Arbitration Rules ofthe American Arbitration Association then obtaining unless theparties mutually agree otherwise."

4. The defendant Seaboard Surety Company joined in andagreed to be bound by the arbitration.

5. The arbitration consisted of fifty-one days ofhearings, which included 619 exhibits entered into evidence,approximately 9000 pages of transcript, a visit to theconstruction site by the arbitrators and counsel, four hours oforal argument and, finally, a separate question and answersession called by the panel at the conclusion of the fifty-onedays of hearings.

6. The three arbitrators were John C. Travis, Jr., Esq.,Robert C. Canning and John Scholsky.

7. See footnote 1.

8. Under 2.2.11 of the parties' contract the"[a]rchitect's decision in matters relating to artistic effectwill be final if consistent with the intent of the ContractDocuments." Similarly, 2.2.12 of the contract between the parties states inrelevant part: "Any claim, dispute or other matter in questionbetween the Contractor and the Owner referred to theArchitect . . . shall be subject to arbitration upon the writtendemand of either party. . . . When such a written decision ofthe Architect states (1) that such a written decision is finalbut subject to appeal, and (2) that any demand for arbitration ofa claim, dispute or other matter covered by such decision must bemade within thirty days after the date on which the party makingthe demand receives the written decision, failure to demandarbitration within the said thirty days' period will result inthe Architect's decision becoming final and binding upon theowner and the Contractor."

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