White v. Kampner

623 A.2d 514, 31 Conn. App. 73, 1993 Conn. App. LEXIS 186
CourtConnecticut Appellate Court
DecidedApril 20, 1993
Docket11294
StatusPublished
Cited by8 cases

This text of 623 A.2d 514 (White v. Kampner) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Kampner, 623 A.2d 514, 31 Conn. App. 73, 1993 Conn. App. LEXIS 186 (Colo. Ct. App. 1993).

Opinion

Freedman, J.

The plaintiff appeals from the judgment of the trial court denying his application for an order to confirm an arbitration award and granting the defendants’1 application to vacate the arbitration award. The plaintiff contends that the trial court improperly disturbed the arbitrator’s decision regarding the arbitrability of the dispute. We agree and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On August 27, 1990, the plaintiff, the defendants and Jeffrey Larson entered into two separate contracts, a management contract and a purchase contract. These contracts set forth conditions under which the plaintiff and Larson were to manage and to have an option to purchase State Paint, Inc., a business owned by the defendants. Each contract contains two provisions of importance to this case, a mandatory negotiation provision2 and an arbitration provision.3

[75]*75In December, 1990, the defendants dismissed the plaintiff from his management position, alleging that he had stolen money from the business. The plaintiff demanded arbitration pursuant to the contracts. The defendants objected to the arbitration of the dispute, both before and during the hearing before the arbitrator, on the ground that the mandatory negotiation sessions had not taken place. After a hearing, the arbitrator found the issues for the plaintiff and ordered damages and other relief pursuant to the demand for arbitration. Although the arbitrator’s award did not specifically address the issue of arbitrability, the arbitrator concluded that “[tjhis award is in full and final settlement of any and all claims submitted to this arbitration.”

After the plaintiff filed his application to confirm the arbitration award, the defendants sought to vacate the award pursuant to General Statutes § 52-4184 on the ground that the dispute was not arbitrable due to the parties’ failure to negotiate as required by the contracts. See footnote 2, supra. The trial court found that the question of arbitrability had not been waived by the defendants and that it had been submitted to the arbitrator.5 The trial court then reviewed the evidence, both testimonial and documentary,6 presented to it regard[76]*76ing the reasons for the failure of the parties to conduct face-to-face negotiations concerning the dispute. Despite correspondence and numerous conversations between their attorneys, the parties never met face-to-face to discuss the matter prior to arbitration. The trial court found that “while the contract calls for two negotiation sessions . . . not even one negotiation session has ever occurred in this case.” After further finding that “the contractual requirement of two negotiation sessions was never waived by the [defendants],” the trial court concluded that “[i]t is very clear from the contracts that the occurrence of two negotiation sessions was a condition precedent to arbitration . . . [and that] until negotiation has been pursued, or some sufficient reason is given for not pursuing it, no arbitration can occur.” Consequently, the court found that “the award was in violation of the parties’ agreement” and vacated the award. This appeal followed.

There is no doubt that the arbitrability of the dispute between the parties is the central issue in this appeal. The resolution of this issue, however, must turn on the question of whose province it is to determine arbitrability — -the arbitrator’s or the court’s?

“The authority of an arbitrator to adjudicate the controversy is limited only if the agreement [between the parties] contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992); Carabetta Builders, Inc. v. Hotz Corporation, 30 Conn. App. 157, 160, 619 A.2d 13 (1993). “Arbitration is a creature of contract. It is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed. . . . Whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability, as well, depends upon the [77]*77intention manifested in the agreement they have made. . . . The intent to submit the question of arbitrability to an arbitrator may be demonstrated in an agreement by an express provision or by use of broad terms.” (Citations omitted; internal quotation marks omitted.) Turner Construction Co. v. Eppoliti, Inc., 28 Conn. App. 139, 142-43, 609 A.2d 1064 (1992). “In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 122, 318 A.2d 84 (1972).

Here, the contracts provide for arbitration of “[a]ny dispute or question arising under the provisions of [the contracts] which has not been resolved [through the mandatory negotiation procedure].” The parties’ intent to have the question of arbitrability decided by an arbitrator is reflected not in the express terms of their agreements but in the broad language of the arbitration clause of their contracts. See Turner Construction Co. v. Eppoliti, Inc., supra, 144. The contract contains no exclusionary language removing the question of arbitrability from the arbitrator’s domain. See id. Nowhere does the contract affirmatively state that failure to comply with the mandatory negotiation provision will operate as a bar to arbitration. See Gary Excavating, Inc. v. North Haven, supra, 123. Under such circumstances, we conclude that “the above all-inclusive language of the agreement requires a determination that the parties intended the question of arbitrability to be determined by the arbitrators.” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105, 438 A.2d 1171 (1981).

“[B]y virtue of the broad scope of [the arbitration clause] of the contracts], the appropriate body to hear [78]*78claims regarding procedural prerequisites to arbitration must be the arbitration panel.” Gary Excavating, Inc. v. North Haven, supra, 125. In the present case, the arbitrator resolved the issue in favor of arbitrability. See Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 320-21, 355 A.2d 279 (1974). In East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656-57, 539 A.2d 125

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Bluebook (online)
623 A.2d 514, 31 Conn. App. 73, 1993 Conn. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-kampner-connappct-1993.