MSO LLC v. Estate of Charles DeSimone et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO VACATE ARBITRATION AWARD (# 151) AND MOTION TO CONFIRM ARBITRATION AWARD (# 152)

The plaintiff, MSO, LLC, d/b/a Budget Rite Liquor, filed a motion to vacate the arbitration award on September 20, 2010, on the grounds that the arbitrators exceeded their power or imperfectly executed it.   The defendants, the Estate of Charles DeSimone, Anthony DeSimone, and Charles DeSimone, Jr., filed a Motion to Confirm the Arbitration Award on the grounds that the submission was unrestricted and absolute.   For the following reasons, this court confirms the arbitration award.

On March 10, 2009, this court (Cronan, J.) granted the defendants' motion to stay.¹  The Lease Agreement, which was executed by the parties, contains an Arbitration Clause:  “Any dispute arising under this lease shall be settled by arbitration.   Then landlord and Tenant shall each choose an arbitrator, and the two arbitrators thus chosen shall select a third arbitrator.   The findings and awards of the three arbitrators thus chosen shall be final and binding on the parties.”   Twenty-third paragraph of Lease Agreement, dated December 2, 2003.

“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.   Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved ․ In other words, [u]nder an unrestricted submission, the arbitrator's decision is considered final and binding;  thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.'  (Internal quotation marks omitted.)   Harty v. Cantor Fitzgerald & Co., 272 Conn. 72, 80, 881 A.2d 139 (2005).”   AFSCME, Council 4, Local 1565 v. Dept. of Corrections, 298 Conn. 824, 834-35 (2010).

“The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.   In the absence of any such qualifications an agreement is unrestricted.  Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992), Carroll v. Aetna Casualty and Surety, Co., 189 Conn. 16, 20, 453 A.2d 1158” Alderman & Alderman v. Pollock, 100 Conn.App. 80, 85, 917 A.2d 60 (2007).

There were no limitations placed upon the submission to the arbitrators in this case.   Therefore, the submission was unrestricted.   The court has recognized only three grounds for vacating an award in a case of unrestricted submission. “(1) the award rules on the constitutionality of a statute ․ (2) the award violates clear public policy ․ or (3) the award contravenes one or more of the statutory proscriptions of § 52-418(a).”  AFSCME v. Dept of Corrections, supra, 298 Conn. 835.

Although the plaintiff argues that the award violated § 52-418(a)(4) in that it “exceeded [the arbitrators'] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made,” they have provided no substantive support for this claim.

The arbitrators delineated the issue in dispute as whether the plaintiff was prevented from selling its business due to the acts of the defendant-landlords.   See Memorandum of Decision, p. 1. This issue was one that was generally alleged by the plaintiff in its complaint.   Though the plaintiff argues that its Amended Complaint alleges that it was prevented from attempting to sell its business, rather than from selling its business.   This is a distinction without a difference.   The arbitrators resolved the disputed issues by concluding that the plaintiff had failed to meet its burden of proof.   The plaintiff has failed to establish how this finding either exceeded the authority granted by arbitration or imperfectly executed an award.

This court finds that the award conforms to the submission of the parties.   Therefore, the court denies the Motion to Vacate the Arbitration Award and grants the Motion to Confirm the Arbitration Award.

Robinson, A., J.

FOOTNOTES

FN1. Motion to Stay, # 131, dated December 8, 2008, requested a stay pursuant to § 52-409, so that the parties could proceed to arbitration.   This motion was granted on March 10, 2009..  FN1. Motion to Stay, # 131, dated December 8, 2008, requested a stay pursuant to § 52-409, so that the parties could proceed to arbitration.   This motion was granted on March 10, 2009.

Robinson, Angela C., J.