author: HARPER, J.

text:
    HOWARD B. SOSIN v. SUSAN F. SOSIN
    (AC 27633)
    (AC 27829)
    Bishop, Harper and Peters, Js.

      Argued March 11
    officially released August 12, 2008

      Wesley W. Horton, with whom were Daniel J. Krisch and Mark R. Soboslai, for the appellant-appellee (plaintiff).

      Charles D. Ray, with whom was Frederic J. Siegel, for the appellee-appellant (defendant).
   Opinion

HARPER, J.

The plaintiff, Howard B. Sosin, appeals from the judgment of the trial court following a postdissolution contempt proceeding initiated by his former wife, the defendant, Susan F. Sosin. The court ordered the plaintiff to pay the defendant $3,828,081, calculated as the unpaid portion of moneys awarded to the defendant in a modified judgment of dissolution, as well as postjudgment interest. The plaintiff claims that (1) the court’s order that he pay the defendant $3,828,081 was improper because it contradicted the court’s earlier distribution of marital assets and (2) the court improperly awarded the defendant interest after finding that he had not withheld payment from the defendant wrongfully. The defendant filed a cross appeal related to the court’s award of interest. The defendant claims that the court improperly (1) awarded her interest under General Statutes § 37-1 instead of General Statutes § 37-3a and (2) failed to award such interest on all of the moneys to which it applied from the date that the defendant was obligated to have made payment to her. We disagree with the claims raised by the plaintiff. We agree with the claims raised by the defendant and, accordingly, reverse the judgment of the trial court and remand the case to that court to consider the claim for postjudgment interest in accordance with this opinion.

The following facts and procedural history are relevant to the appeal and cross appeal. By memorandum of decision issued March 22, 2005, the court dissolved the parties’ marriage and distributed the parties’ assets, which the court valued at approximately $147 million. The court awarded' the plaintiff exclusive possession of seventeen bank-brokerage accounts totaling $89,039,617.68. The court awarded the defendant one bank-brokerage account totaling $6,171,803. The court also awarded the defendant a lump sum cash award of $24 million. With regard to this award, the court stated: “The plaintiff shall choose to pay this amount from any of his seventeen accounts. This sum shall be paid within thirty (30) days of this decree.” April 21,2005, fell thirty days following the court’s decree.

On April 11, 2005, the plaintiff filed a motion to reargue on the ground that the court improperly had allocated and valued specific assets and that these improprieties were material to its distribution of assets. The court granted the motion and conducted a hearing on the motion. On September 8, 2005, the court issued an order modifying its earlier distribution of assets. The court agreed with the plaintiff that it had overstated the value of certain assets awarded to him. The court stated in relevant part: “The overstatement of value to the plaintiff is $459,700, one half of which ($229,850) should be credited to the plaintiff. It was the court’s intention to award the defendant the lump cash award of $24 million so the sum of $229,850 should be deducted from the cash award and credited to the plaintiff.” The court also awarded certain items to the plaintiff and ordered that “$64,750 in cash should be credited to the defendant.” Consequently, the court’s September 8, 2005 order affected the original cash award made to the defendant; the court’s modified judgment obligated the plaintiff to pay the defendant $23,834,900.

On November 3, 2005, the defendant filed a motion for contempt, citing the plaintiffs failure to pay any of the moneys due her by virtue of the court’s modified judgment, from which the plaintiff had not appealed. The defendant also asked the court to award her interest until such time as the plaintiff complied with the court’s judgment. By memorandum of law dated February 24, 2006, the defendant represented that on November 10, 2005, she received payment from the plaintiff in the amount of $20,006,819 but that a balance of $3,828,081 was still unpaid. The defendant asked that the plaintiff be held in contempt, for an award of counsel fees and for an award of interest under § 37-3a, on the entire monetary award from April 21 through November 10, 2005, as well as an award of interest on the unpaid balance of $3,828,081 from November 10, 2005, through February 24, 2006.

On March 23, 2006, the court issued an order denying the defendant’s motion for contempt, stating in relevant part: “An examination of the transcript and record makes it clear that the defendant was awarded the sum of $24 million. By order dated September 8, 2005, the court made slight modifications and reduced the $24 million by $165,100 leaving abalance due of $23,834,900. The plaintiff unilaterally deducted $3,828,081 from the sum due the defendant. There was no escrow of funds pending a judicial determination. The plaintiff shall pay to defendant the sum of $3,828,081 within ten days of the date of this order. Interest at the legal rate is ordered on said sum from September 8, 2005 (date of modification of decision). The court has some doubt as to whether the plaintiffs conduct was wilful and deliberate. The present motion for contempt is denied.”

Thereafter, both parties challenged the court’s award of interest. On April 11, 2006, the plaintiff filed a motion to reargue the court’s March 23,2006 order. The plaintiff represented that on April 3, 2006, he paid the defendant an additional $4,001,760.21, in compliance with the court’s judgment. The plaintiff nevertheless challenged the propriety of the court’s award of interest on the ground that the court had not rendered a final judgment concerning the payment to the defendant until after the September 8, 2005 judgment became final on October 11, 2005, and that interest should not begin to accrue prior to this date. The court denied the plaintiffs motion on April 19, 2006. Also, on April 11, 2006, the defendant filed a motion to reargue the court’s March 23, 2006 order. The defendant challenged the court’s award of interest, arguing that she was entitled to interest at the rate of 10 percent beginning on April 21, 2005, instead of September 8, 2005. The court denied the defendant’s motion on June 22, 2006.

Additionally, on April 11, 2006, the defendant filed a motion for contempt on the ground that the defendant had not paid her interest in compliance with the court’s judgment. Specifically, the defendant represented that the defendant had paid her interest on $3,828,081 as of September 8, 2005, but that he improperly calculated the interest at a rate of 8 percent rather than at the rate of 10 percent per § 37-3a, as was required by the court’s order.

On May 8,2006, the plaintiff filed an appeal, AC 27633, from the court’s March 23, 2006 order. On May 16, 2006, the defendant filed a cross appeal from the March 23, 2006 order. On June 28, 2006, following the court’s denial of her motion to reargue the March 23, 2006 order, the defendant filed an amended cross appeal. On July 7, 2006, following the court’s denial of his motion to reargue, the plaintiff filed a second appeal, AC 27829. On October 11, 2006, this court consolidated the pending appeals under AC 27633 and AC 27829.

On November 27,2006, the court issued the following order concerning the motion for contempt: “The court has carefully considered the claims of the parties and finds that § 37-3a of the Connecticut General Statutes is applicable and that 10 percent is the correct rate of interest. Upon payment of the balance due, the defendant shall release the judgment lien certificate dated March 9,2006. The motion for contempt is denied, without prejudice.” On December 18,2006, the plaintiff filed an amended appeal from this order.

On December 13, 2006, this court ordered the trial court to articulate the statutory basis for its March 23, 2006 award of interest. By articulation filed February 9, 2007, the court stated: “The rate of interest is 8 percent and is based on Connecticut General Statutes § 37-1.” The court subsequently granted the defendant’s motion to reconsider this order and, on June 8, 2007, issued an order stating as follows: “The motion to reconsider is granted. While there were inconsistent orders as they related to the amount of interest, the court articulated on February 9, 2007, that the rate of interest is 8 percent and is based on Connecticut General Statutes § 37-1. The articulation is rearticulated and remains the order of the court.” On June 25, 2007, the defendant filed a second amended cross appeal from this order. Additional facts will be set forth as necessary.

I

THE APPEAL

A

The plaintiff first claims that the court’s March 23, 2006 order that he pay the defendant $3,828,081 was improper because it contradicted the court’s March 22, 2005 distribution of marital assets. We disagree.

The plaintiff argues that in its March 22, 2005 judgment, the court plainly evidenced its intent “to award [him] accounts and funds with a total value of $89,039,617.69” by listing seventeen accounts, specifying the value of each of the accounts and awarding those accounts, with a specified total value of $89,039,617.69, to him. Stated otherwise, the plaintiff asserts that the court awarded him a lump sum cash award in this amount. The plaintiff argues that the court’s subsequent order of March 23, 2006, that he pay the defendant $3,828,081, rendered the court’s prior distribution of those accounts “a mathematical impossibility” and, thus, modified the prior distribution. The plaintiff posits that although the court in March, 2006, possessed the authority to clarify its earlier judgment, it was without jurisdiction to modify the earlier judgment, which it did. Accordingly, the plaintiff claims that this court should reverse the March 23, 2006 order that he pay the defendant $3,828,081.

The defendant responds that the plaintiff is relying on a flawed interpretation of the court’s March, 2005 distribution of marital assets. The defendant asserts that in the March, 2005 judgment, the court clearly evidenced its intent to award the plaintiff the seventeen accounts at issue, not a specific amount of money. The defendant, moreover, asserts that the court clearly evidenced its intent to award her a specific amount of money, namely, $24 million. The defendant further asserts that to the extent that the judgment of dissolution was ambiguous with regard to the award made to the plaintiff, the court properly clarified its judgment in subsequent orders, leaving no doubt that it had not awarded the plaintiff a lump sum cash award. Accordingly, the defendant argues that the March, 2006 order was not inconsistent with and did not modify the court’s earlier judgment, and, thus, the plaintiffs challenge to the order is without merit.

Resolving the plaintiffs claim requires that we construe the court’s March, 2005 judgment. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. . . . To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances. . . . We review such questions of law de novo.” (Internal quotation marks omitted.) Racsko v. Racsko, 102 Conn. App. 90, 92, 924 A.2d 878 (2007). “Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 428, 689 A.2d 1154 (1997).

In March, 2005, the court issued a twenty-two page memorandum of decision followed by several appendices consisting of specific orders. The “bank-brokerage accounts and retirement funds” section provided: “The plaintiff will maintain his interest in, and the defendant will transfer to the plaintiff all her right, title and interest in, the following bank-brokerage accounts and retirement funds. The plaintiff will have exclusive possession of these accounts and funds on the date of this decree.” The court thereafter listed, by account name and number, seventeen bank-brokerage accounts as well as the dollar value of each account. Beneath this information, the court stated the combined value of the accounts as follows: “Total $89,039,617.68.” Thereafter, the court listed, by account name and number, five retirement funds as well as the dollar value of each fund. Beneath this information, the court stated the combined value of the funds as follows: “Total $809,860.” The court clarified, in a footnote, that “per this order, each of the parties retains his-her retirement fund.”

The order further provided: “The defendant will maintain her interest in, and the plaintiff will transfer to the defendant all his right, title and interest in the following bank-brokerage accounts and retirement funds. The defendant will have exclusive possession of these accounts effective on the date of this decree.” The court listed, by account name and number, one bank-brokerage account, followed by its dollar value. Thereafter, the court reiterated the value of the account as follows: “Total $6,171,803.” The court also listed, by account name and number, two retirement funds followed by the dollar value of each fund. Under this information, the court stated the combined value of these funds as follows: “Total $56,706.” Following these distributions to the defendant, the court stated as follows: “Additionally, the court awards the defendant the sum of twenty-four million dollars ($24,000,000). The plaintiff shall choose to pay this amount from any of his seventeen accounts. This sum shall be paid within thirty (30) days from this decree.”

Affording the provisions at issue a reasonable meaning consistent with the court’s judgment as a whole, we conclude that the court awarded certain accounts and funds to each party but awarded only the defendant a lump sum cash payment. Although we recognize that the court assigned a dollar amount to each account and fund awarded the plaintiff and stated a total value for the accounts and funds, there is no basis on which to conclude that the court intended to distribute a $89,039,617.69 lump sum award to the plaintiff, as he asserts, rather than the accounts at issue.

The reasonableness of this construction is evidenced plainly by the manner in which the court did award a lump sum payment of $24 million to the defendant. In doing so, the court specified that it awarded her “the sum of twenty-four million dollars” to be paid by any of the plaintiffs accounts. The court did not use similar language or refer to any “sum” of money in its award to the plaintiff. To the contrary, the court referred only to the “accounts and funds” that it awarded to the plaintiff. There is no basis in fact or law to conclude, as the plaintiff suggests, that the court intended to award him $89,039,617.68, the precise value of the seventeen bank-brokerage accounts, merely because it listed and added the value of these accounts in its order. As the pleadings reveal, the value of these accounts was subject to fluctuation despite the court’s efforts to obtain up to date information concerning the value of the parties’ assets prior to distributing those assets. For this reason, it was both reasonable and practical for the court to have awarded the accounts themselves, and not specific dollar amounts, in distributing those accounts.

The plaintiffs interpretation clearly is contradicted by the fact that the court, within the same order, deducted $24 million from the accounts it had awarded the plaintiff. It belies a reasonable and consistent interpretation of the entire order to suggest that the court awarded the plaintiff a certain sum of money and then awarded a portion of those moneys to the defendant. It is, however, both reasonable and consistent with the terms of the entire order to conclude that the court awarded certain funds to the plaintiff and also a specific lump sum, to be paid from those funds, to the defendant. Viewed in this manner, the court’s subsequent order, for the plaintiff to pay the defendant the $3,828,081 that he had withheld from the lump sum award, was not a modification of, and did not contradict, its original distribution of assets.

B

Next, the plaintiff claims that regardless of whether the court awarded the defendant postjudgment interest pursuant to § 37-3a or § 37-1, the award of interest on $3,828,081 retroactive to September 8, 2005, was improper because the court did not find that he had withheld such payment wrongfully. We disagree.

As set forth previously, the court ultimately relied on § 37-1 in awarding interest to the defendant. The parties agree that the court’s reliance on this provision was improper. The interpretation of statutes presents a purely legal determination, one that this court affords plenary review. See Goodyear v. Discala, 269 Conn. 507, 512, 849 A.2d 791 (2004). On the basis of our review of § 37-1, we conclude that by its terms, it is not applicable to the present case, which does not involve the forbearance of a loan agreement between the parties, but the wrongful detention of funds.

As she did before the trial court, the defendant claims that she is entitled to interest under § 37-3a. We will address this claim in part IIA of this opinion and remand the case to the trial court to consider the claim for interest under this statute. Because we will resolve the claim in this manner, it is appropriate that we address the plaintiffs claim that an award under § 37-3a is not proper because the court did not find that he had acted wrongfully in withholding payment and that the evidence did not support such a finding.

General Statutes § 37-3a (a) provides in relevant part: “[IJnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .” It is not in dispute that such an award of interest may be made in marital dissolution actions. See, e.g., Crowley v. Crowley, 46 Conn. App. 87, 97, 699 A.2d 1029 (1997). “We have construed the statute to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances. . . . The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court. . . . We have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful.” (Internal quotation marks omitted.) McCullough v. Waterside Associates, 102 Conn. App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).

“Before awarding interest [under § 37-3a], the trial court must ascertain whether the [party against whom interest is sought] has wrongfully detained money damages due the [aggrieved party]. . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the [aggrieved party] .... The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule. . . .

“A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated. . . . Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review.” (Citations omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 31, 830 A.2d 240 (2003).

The determination of whether a retention of payment was wrongful is inherently fact bound, and reviewing courts permit lower courts to evaluate the unique facts of each case in exercising their discretion to award or to disallow interest under § 37-3a. See Maloney v. PCRE, LLC, 68 Conn. App. 727, 756, 793 A.2d 1118 (2002). This court has observed that a party’s burden of demonstrating a wrongful detention of payment “requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful.” Id. “Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a, we note that, in the context of the statute, ‘wrongful’ is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so.” Ferrato v. Webster Bank, 67 Conn. App. 588, 596, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002).

The court awarded the defendant interest in March, 2006. At that time, it also denied the defendant’s motion for contempt for the plaintiffs failure to pay the $3,828,081 at issue. In its ruling, the court stated that the plaintiff had “unilaterally deducted $3,828,081 from the sum due the defendant” by virtue of the court’s prior orders. The court deemed it relevant that the plaintiff had not deposited the funds at issue in escrow while awaiting a judicial determination related to the funds. The court ordered the plaintiff to pay the money he withheld with interest but stated that “[t]he court has some doubt as to whether the plaintiff’s conduct was wilful and deliberate.” During a hearing on a subsequent motion for contempt filed by the defendant, the defendant’s attorney referred to the fact that the court, in March, 2006, was “very clear that [there] was a wrongful detention of money due [the defendant].” The court responded, “I don’t think unilaterally deducted doesn’t mean [the plaintiff] didn’t have a right to, if you look at the language.” The defendant’s attorney responded, stating that “[a]t that point, you had said several times [that the defendant] was owed the sum of $24 million.” The court replied, “I wouldn’t go so far as to interpret the language that way.”

The plaintiff relies on the court’s denial of the defendant’s motion for contempt, as well as the court’s statements, in an attempt to persuade us that the court did not find that he had acted wrongfully in withholding payment. The plaintiff also asserts that it is reasonable to conclude that it was reasonable for him to have withheld the payment at issue and that he acted in “good faith” in an attempt to comply with the court’s orders. On these bases, the plaintiff argues that any award of interest pursuant to § 37-3a would be improper.

As our recitation of the court’s rulings reflects, the court stated in November, 2006, that its award of interest was pursuant to § 37-3a and, later, stated that it was awarding interest pursuant to § 37-1. Because the court’s reliance on § 37-1 was legally improper, we will remand the case with direction that the court consider the defendant’s claim for interest under the proper statutory authority, § 37-3a. The court did not make any factual findings with regard to its decision to award interest under § 37-3a. We are not persuaded by the plaintiffs claim that the court’s denial of the defendant’s motion for contempt, or its subsequent statements regarding its award of interest, preclude, on remand, a finding of wrongful detention of payment by the plaintiff in failing to pay any of the moneys awarded to the defendant when they were due and payable and, thus, an award of interest on those moneys under § 37-3a.

“In order to constitute contempt, a party’s conduct must be wilful. . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. ... A good faith dispute or legitimate misunderstanding of the terms of an . . . obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion.” (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001). The contempt remedy is appropriate on a finding of wilful conduct; an award of interest under § 37-3a is made on a finding that a party has wrongfully detained payment. These considerations are legally distinct such that the court’s denial of the defendant’s motion for contempt in no manner prohibits the court from finding that the plaintiff had detained payment wrongfully. Similarly, we are not persuaded that the court’s statements concerning the plaintiffs conduct, made during a hearing on a motion to reconsider its denial of the defendant’s motion for contempt, prohibit a finding that the plaintiff had detained payment wrongfully. Furthermore, because this court does not find facts and the trial court did not make any pertinent factual findings, we do not consider the factual assertion of the plaintiff, that he had acted in good faith in retaining part or all of the moneys that were due and payable to the defendant.

“A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court.” (Internal quotation marks omitted.) Bower v. D’Onfro, 45 Conn. App. 543, 550, 696 A.2d 1285 (1997). The decision to award interest must be made on the unique facts of each case. Here, the court clearly found that the plaintiff had acted “unilaterally” in withholding payment and, by ordering the plaintiff to pay the $3,828,081 at issue, concluded that the plaintiff was without a legal right to withhold payment. The record reflects that the plaintiff withheld the remainder of the lump sum payment until after the defendant filed the contempt motion. Nothing in the record before us legally or logically forecloses the court from finding that the plaintiff acted wrongfully in withholding payment of any portion of the moneys awarded the defendant when they were due and payable and awarding interest under § 37-3a.

II

CROSS APPEAL

A

First, the defendant claims that the court’s award of interest under § 37-1 was improper because that provision is not applicable. The defendant asks that this court reinstate the court’s November 27, 2006 order awarding her interest under § 37-3a at the rate of 10 percent.

In part I B of this opinion, we concluded that the court’s reliance on § 37-1 was improper as a matter of law and that the court should have considered an award of interest under the applicable statutory provision, § 37-3a. Additionally, we rejected the plaintiffs claim that under the facts and procedural history of this case, the court could not properly award interest under the latter provision.

The defendant claims that the proper remedy is that we reinstate the court’s November 27, 2006 order made under § 37-3a. We disagree. As explained previously, awarding interest under § 37-3a requires that the court make specific findings and exercise its equitable discretion. Here, the court rendered conflicting decisions concerning interest, ultimately articulating its reliance on § 37-1. The court’s rulings reflect uncertainty and ambiguity as to the award of interest; the court has not clearly set forth its rationale for awarding interest under the proper statute. Under these circumstances, we conclude that the appropriate remedy is to remand the case to the court to revisit the issue in accordance with the principles set forth in this opinion.

B

Apart from challenging the statutory basis for the court’s award of interest, the defendant also challenges the manner in which the court calculated interest. Specifically, the defendant claims that in its March 23,2006 order, the court improperly awarded her interest on $3,828,081, accruing as of September 8,2005. The defendant asserts that she was entitled to interest on the total amount that became payable to her on April 21, 2005, until payment was made.

As set forth previously, the decision to award the defendant interest under § 37-3a lies within the court’s sound discretion. If, however, the court decides to award such interest, the proper application of the statute presents an issue of statutory interpretation, which we afford plenary review. Section 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed . ...” A court “ha[s] no discretion to start its accrual from any time other than the date of judgment.” (Internal quotation marks omitted.) Bower v. D’Onfro, supra, 45 Conn. App. 551; see also TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 514, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002). “[Section 37-3a] provides for an award of interest on money from the time money is wrongfully withheld. . . . Money remains due until it is paid. Until such time as the damages are ascertained and are actually ordered to be paid, they remain due. Until a trial is over and judgment is rendered for a plaintiff, a plaintiff cannot be sure of any recovery. The money may have been wrongfully detained prior to judgment, and it is deemed as such when judgment is finally rendered, in effect awarding interest retroactively, but interest cannot be due and payable until judgment is rendered.” (Emphasis in original; internal quotation marks omitted.) Wallenta v. Moscowitz, 81 Conn. App. 213, 246, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).

In its March 22, 2005 judgment, the court awarded $24 million to the defendant with payment to be made within thirty days, by April 21, 2005. By the unambiguous terms of the court’s judgment, payment was payable to the defendant as of April 21,2005. Both parties assert, and we agree, that if the court determines that an award of interest under § 37-3a is warranted, it should begin to accrue on this date.

With regard to the amount on which interest may be awarded, the statute permits interest to accrue on money awarded in a civil action after it has become payable by virtue of the court’s judgment. General Statutes § 37-3a. According to the March 22,2005 judgment, $24 million became due and payable on April 21, 2005. The court modified its judgment on September 8, 2005, reducing the amount of the defendant’s lump sum payment to $23,834,900. When such a modification of a judgment occurs, it is appropriate to consider the modified amount as having become due and payable from the date of the original judgment. “It should be as if the correct judgment had been issued by the original trial court, with the interest running forward from that date.” Patron v. Konover, 43 Conn. App. 645, 652, 685 A.2d 1133 (1996), cert. denied, 240 Conn. 911, 690 A.2d 400 (1997). Accordingly, if the court determines that the plaintiff wrongfully withheld all of the $23,834,900 payment that became due and payable on April 21,2005, a proper application of the statute would permit an award of interest, up to 10 percent, on that amount until it was paid fully. It remains within the court’s discretion, in light of its factual findings, to award interest on any portion of this payment that it determines was withheld wrongfully until payment was made.

With regard to the issues raised in the plaintiffs appeal, the judgment is affirmed. With regard to the issues raised in the defendant’s cross appeal, the judgment is reversed as it relates to the court’s award of postjudgment interest and the case is remanded to the trial court to reconsider that issue in accordance with this opinion.

In this opinion the other judges concurred.

       By motion dated May 10, 2005, the plaintiff filed an amendment to his motion to reargue, representing that one of the accounts that the court awarded to him was overvalued by $3,650,000 and that another account awarded to him, valued at $41,941.58, was not subject to equitable distribution. Without explanation, the court provided the parties notice of its denial of this motion on October 11, 2005. The plaintiff did not appeal from this ruling, and, thus, it is not under consideration in this appeal.

       There being no ambiguity in the court’s distribution of assets, we reject the plaintiffs argument that the court’s March 23, 2006 order modified the earlier judgment. Under these circumstances, we view the court’s March 23, 2006 order to pay the remainder of the lump sum payment as a means of compelling the plaintiff to comply with the earlier order.

       General Statutes § 37-1 provides: “(a) The compensation for forbearance of property loaned at a fixed valuation, or for money, shall, in the absence of any agreement to the contrary, be at the rate of eight per cent a year; and, in computing interest, three hundred and sixty days may be considered to be a year.
      “(b) Unless otherwise provided by agreement, interest at the legal rate from the date of maturity of a debt shall accrue as an addition to the debt.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    LAMONT THERGOOD v. COMMISSIONER OF CORRECTION
    (AC 28005)
    Harper, Robinson and Poti, Js.

      Argued April 29
    officially released August 12, 2008

      KentDrager, senior assistant public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Lamont Thergood, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he claims that the court improperly determined that he had failed to demonstrate that he had been prejudiced by his counsel’s failure to challenge adequately the state’s contention that he knowingly and intelligently waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We affirm the judgment of the habeas court.

The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a). He was sentenced to a total effective term of fifty years incarceration. The petitioner appealed to this court. The following relevant facts were set forth in State v. Thergood, 75 Conn. App. 527, 816 A.2d 665, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003). “Prior to trial, the [petitioner] filed a motion to suppress several of his statements, including the confession. The court held a hearing on the motion on October 23, 2000, at which Detectives Heitor Teixeira and Emo Nandori of the Bridgeport police department testified. Teixeira’s and Nandori’s testimony at the suppression hearing revealed [that the] detectives held the [petitioner] in custody and interrogated him before advising him of his Miranda rights. See Miranda v. Arizona, [supra, 384 U.S. 436]. . . . Teixeira and Nandori reviewed with the [petitioner] the form used by the Bridgeport police for the waiver of Miranda rights. The form, which was admitted into evidence at the hearing, bears the handwritten initials LT next to each of the five numbered Miranda warnings. The [petitioner’s] full signature appears directly beneath a statement waiving his Miranda rights. After completing the form, the [petitioner] indicated to the detectives that he wanted to make a statement. The detectives asked the [petitioner] questions, and Nandori typed both the questions and the [petitioner’s] oral responses on a computer. In the statement, the [petitioner] admitted responsibility for the shooting on Knowlton Street.

“The court concluded that the [petitioner’s] confession was voluntary under the totality of the circumstances and, accordingly, denied [his] motion to suppress. At trial . . . the [petitioner] orally renewed his motion to suppress the confession on the ground of involuntariness. The court stated that the time line in and of itself . . . does give one pause, but nevertheless denied the renewed motion, concluding that the confession was voluntary under the totality of the circumstances. The confession was then admitted into evidence. The jury found the [petitioner] guilty of murder, and the court rendered judgment accordingly.” (Internal quotation marks omitted.) State v. Thergood, supra, 75 Conn. App. 529-30.

The petitioner claimed on direct appeal that “the use of his signed confession at trial violated his constitutional right to due process because the confession was made involuntarily. Specifically, [he] argue [d] that his confession should have been suppressed as having been made involuntarily because the police subjected him to two hours of continuous custodial interrogation prior to advising him of his Miranda rights. . . . [T]hat action by the police, when combined with what he terms his ‘subnormal mentality’ and his unfamiliarity with the judicial system, overbore his capacity to exercise his constitutional rights, thus rendering his subsequent confession as having been made involuntarily.” Id., 531. This court affirmed the petitioner’s conviction after concluding that the state had demonstrated, beyond a reasonable doubt, that the confession did not contribute to the petitioner’s conviction. Id., 533.

Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he alleged that he was deprived of the effective representation of trial defense counsel. Specifically, the petitioner claimed that his trial counsel failed to challenge adequately the state’s contention that he knowingly and intelligently waived his Miranda rights. The petition came before the habeas court on April 27, 2006. After hearing testimony from the petitioner’s trial counsel, a psychologist retained by trial counsel and a forensic psychiatrist retained by appellate counsel and admitting into evidence the police incident reports and the petitioner’s written statements, the court denied the petition. The court granted the petition for certification to appeal. This appeal followed.

“A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).

We set forth the standard of review applicable to the petitioner’s appeal. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of historical facts to the questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland, however, is a mixed question of law and fact subject to our plenary review.” (Citation omitted; internal quotation marks omitted.) Id., 717.

The petitioner claims that the court improperly determined that he had failed to establish prejudice. He argues that counsel’s deficient performance “improperly allowed the jurors to . . . rely upon [his] signed and sworn written confession, and the tainted fruit thereof, in finding [him] guilty of murder even though [the] confession was illegally obtained, involuntary and legally unreliable.” We disagree.

In its memorandum of decision, the court determined that trial counsel “should have had the petitioner evaluated as to whether [the petitioner] understood his Miranda rights and the implications of waiving them. He then could have offered some proof, in the form of expert testimony or a psychological report, in support of his argument that the petitioner did not knowingly, intelligently or voluntarily waive his Miranda rights. A reasonably competent defense attorney would not have failed to challenge the petitioner’s confession in such a way.”

The court further determined that although counsel’s performance was deficient, the petitioner failed to show prejudice as required by Strickland v. Washington, supra, 466 U.S. 687. In reaching that conclusion, the habeas court relied on this court’s conclusion in State v. Thergood, supra, 75 Conn. App. 533, that “the evidence of the [petitioner’s] guilt was overwhelming. Even if the court had suppressed [his] written confession, the jury still would have heard the testimony of two eyewitnesses who positively identified [him] and five police officers who collectively overheard him make statements at four different times indicating his responsibility for the shooting. In light of all of that highly inculpatory evidence . . . the state has carried its burden of demonstrating beyond a reasonable doubt that the [petitioner’s] written confession did not contribute to his conviction [and] any error by the [trial] court in denying [his] motion to suppress the confession was harmless beyond a reasonable doubt.” Id.

We emphasize that to satisfy the prejudice prong of the Strickland test, “[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. ... A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. ... [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Citations omitted; internal quotation marks omitted.) Woods v. Commissioner of Correction, 85 Conn. App. 544, 550, 857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004). On the basis of our review of the entire record, we conclude that the petitioner has failed to demonstrate that absent his written confession, the jury would have had a reasonable doubt with respect to his guilt. Therefore, the petitioner’s claim necessarily must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       The petitioner contends that the habeas court’s reliance on State v. Thergood, supra, 75 Conn. App. 533, was improper. He argues for the first time that but for counsel’s failure to offer evidence showing the petitioner’s inability to waive his Miranda rights knowingly and voluntarily, all of the statements that he made at the police station and during lockup would have been suppressed along with his written confession. He further argues that necessarily, the court’s denial of the motion to suppress could not have been harmless, and, therefore, he was prejudiced by his counsel’s conduct.

        The petitioner urges us to reexamine the legal analysis in State v. Thergood, supra, 75 Conn. App. 533, in which this court concluded that even if the trial court had granted the motion to suppress the confession, the jury still would have heard the testimony of five police officers who collectively overheard him make statements at four different times, at the police station and during lockup, indicating responsibility for the shooting. The petitioner, however, failed to challenge on direct appeal the admission of any of those statements. See id. He also failed to challenge in his petition for a writ of habeas corpus the conduct of his trial counsel with respect to the admission of those statements.
      Additionally, we note that the petitioner failed to provide adequate, relevant legal authority to support his argument that all of his inculpatory statements would have been suppressed had the court granted the motion to suppress his written confession.
      Finally, we emphasize that one panel of this court may not, on its own, overrule the decision of another panel. Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). If the petitioner believed that this court had committed legal error in State v. Thergood, supra, 75 Conn. App. 527, he had the opportunity to file a motion for reconsideration or a motion for reconsideration en banc pursuant to Practice Book § 71-5. See Fernandes v. Rodriguez, 100 Conn. App. 703, 708, 919 A.2d 516, cert. denied, 282 Conn. 929, 926 A.2d 665 (2007). The record does not reveal that he availed himself of this opportunity. Therefore, we decline the petitioner’s invitation to revisit our analysis in State v. Thergood, supra, 527.


author: McLACHLAN, J.

text:
    BRIDGEPORT CITY SUPERVISORS’ ASSOCIATION v. CITY OF BRIDGEPORT
    (AC 28466)
    McLachlan, Gruendel and Beach, Js.

      Argued April 17
    officially released August 12, 2008

      Thomas J. Weihing, with whom, on the brief, were John T. Bochanis and Janice L. Rosenfeld, for the appellant (plaintiff).

      John P. Bohannon, Jr., for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, the Bridgeport City Supervisors’ Association, appeals from the judgment of the trial court denying its application to confirm an arbitration award. On appeal, the plaintiff claims that the court improperly (1) concluded that the award of the arbitrator exceeded the scope of the submission because it awarded the grievant, Bonnie Nichols, rights under the collective bargaining agreement of a bargaining unit that was not a party to the arbitration, (2) concluded that the award was not mutual, final and definite, and (3) vacated the award in its entirety. We affirm the judgment of the trial court.

The arbitrator found the following facts. The plaintiff union and the defendant, the city of Bridgeport, are parties to a collective bargaining agreement that provides grievance procedures and permits the arbitration of disputes. The plaintiff filed three grievances on behalf of Nichols, its member, in June, 2001, and June, 2002. Those grievances alleged, inter alia, that the defendant improperly transferred Nichols to a different position in 2001 without completing the requisite paperwork, retaliated against her because she had cooperated in a federal investigation into alleged corruption in the Bridgeport mayor’s office and denied her request for a transfer when the city council adopted a budget eliminating her position in 2002.

As background, Nichols commenced her employment with the defendant in January, 1995. She was hired as a community planner in the office of policy and economic development, a position affiliated with the Laborers International Union of North America (LIUNA). In July, 1997, Nichols was appointed special project coordinator, a position also covered by the LIUNA collective bargaining agreement. In July, 1999, Nichols was appointed to the position of assistant director of mayoral initiatives. The new position was part of Bridgeport’s “Clean and Green Initiative,” which was funded through the budget of the public facilities department. At that point, Nichols was covered by the plaintiffs collective bargaining agreement.

When the city council did not fund the “Clean and Green Initiative” in its budget for the fiscal year 2001-2002, Nichols’ position and four others were transferred to the parks administration division of the public facilities department. Nichols’ job title, salary, department and union affiliation did not change when the city council eliminated the “Clean and Green” division. Although the city council eliminated the division, it did not eliminate the position of assistant director of mayoral initiatives.

In May, 2001, Nichols was reassigned to construction management services, also within the public facilities department. Nichols was never reclassified as a project manager, although she reported to the director of construction management services and was provided with business cards that identified her as a project manager. Some of Nichols’ duties were similar to those she had performed in the “Clean and Green” division, but to a lesser extent of involvement and complexity. Nichols contacted the defendant to discuss the discrepancy between her job title and her actual job duties but was unable to resolve the problem.

The city council eliminated Nichols’ position of assistant director of mayoral initiatives and the entire constructive management services division in the budget for the fiscal year 2002-2003 because of budgetary constraints. By letter dated June 10, 2002, Nichols was informed that she was laid off from her employment effective June 28, 2002. On June 14, 2002, she sent the defendant a letter requesting an immediate transfer to one of three enumerated positions. One of those positions, public works traffic foreman, was a funded position and was covered by the plaintiffs collective bargaining agreement. The defendant denied her request by letter dated June 25, 2002.

The three grievances filed by the plaintiff on Nichols’ behalf, relating to the transfer in 2001, the subsequent elimination of Nichols’ position in 2002 and the denial of her request for an immediate transfer, were denied and subsequently arbitrated. An arbitrator approved by the American Arbitration Association conducted a hearing and filed a written award on May 10, 2006, pursuant to the parties’ collective bargaining agreement. In that report, the arbitrator concluded that the defendant violated the terms of the parties’ collective bargaining agreement “by allegedly transferring, or laying off, Bonnie Nichols . . . .” In reaching that conclusion, the arbitrator found that Nichols “was constructively transferred in May, 2001,” that she held the title of assistant director of the “Clean and Green” division on the defendant’s records but functioned as a project manager for more than one year prior to her layoff, that she should have been covered by the LIUNA collective bargaining agreement as a project manager and that she should have had the transfer, bumping and recall rights as provided in the LIUNA collective bargaining agreement. By way of remedy, the arbitrator provided that Nichols was to be “reinstated to either (1) the Public Works Traffic Foreman position, or (2) a LIUNA position [that Nichols] would have been entitled to transfer into, bump into or recall into at the time of, or after, her layoff.” The arbitrator also awarded Nichols back pay, seniority and all other benefits, to be set off by any earnings that she received from the time of her layoff to the date of her reinstatement.

The plaintiff filed an application seeking confirmation of the arbitration award on June 8, 2006. The defendant filed a separate action to vacate the arbitration award on June 9, 2006. Because both matters addressed the same parties, arbitration decision and grievant, the court indicated that it would dispose of both cases with one memorandum of decision. In that decision, filed November 27,2006, the court concluded that the arbitrator exceeded the scope of the submission because neither the plaintiff nor the defendant had vested the arbitrator with authority to decide issues or to award relief concerning a position covered by LIUNA, another bargaining unit. Further, the court concluded that the arbitrator’s award was not mutual, definite and final because, inter alia, LIUNA and its members were not parties to the arbitration, and confirmation of the award would promote further litigation. Finally, the court concluded that it could not sustain part of the award and vacate the portion outside of the scope of the submission because the arbitrator’s findings were so indelibly intertwined and interrelated with the award of rights in a LIUNA position that separation could not be made without doing an injustice to the defendant. Accordingly, the court denied the plaintiffs application to confirm the award and granted the defendant’s application to vacate the award in its entirety. This appeal followed.

I

The plaintiff first claims that the court improperly concluded that the award of the arbitrator exceeded the scope of the submission because it awarded Nichols rights under the LIUNA collective bargaining agreement. Specifically, the plaintiff argues that the parties’ collective bargaining agreement permits the transfer of an employee into a position that is affiliated with a different bargaining unit and that the arbitrator properly gave the defendant the choice of reinstating Nichols to a position covered by the plaintiffs collective bargaining agreement or a position covered by the LIUNA collective bargaining agreement. For those reasons, the plaintiff argues that the award was within the scope of the submission.

Our standard of review is well settled. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . 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. . . . 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. . . .

“The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

In the present case, it is undisputed that the submission was unrestricted. The court vacated the award pursuant to § 52-418 (a) (4), concluding that the arbitrator exceeded his powers by awarding Nichols rights under the collective bargaining agreement of LIUNA, a bargaining unit that was not a party to the arbitration. By providing such a remedy, the court concluded, the award failed to conform to the parties’ submission.

“Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 109, 779 A.2d 737 (2001). “When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits.” (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 85, 777 A.2d 169 (2001). When the claim is that the award does not conform to the submission, the reviewing court conducts “in effect, de novo judicial review.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 84. “Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission, that standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. . . . Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that, as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission.” (Internal quotation marks omitted.) Id., 85-86. “[A] claim that the award does not conform to the submission is predicated on the arbitrators’ absolute lack of authority to decide an issue or to grant certain relief.” Id., 88.

Here, the parties agreed to the following submission: “Did the City of Bridgeport violate the provisions of the Collective Bargaining Agreement between the City of Bridgeport and the [Bridgeport City Supervisors’ Association union] by allegedly transferring, or laying off, Bonnie Nichols? If so, what shall the remedy be?” The arbitrator answered the first question in the affirmative, and fashioned a remedy requiring that Nichols be reinstated “to either (1) the Public Works Traffic Foreman position, or (2) a LIUNA position [that Nichols] would have been entitled to transfer into, bump into or recall into at the time of, or after, her layoff.”

The arbitrator’s decision incorporates the relevant provisions of the collective bargaining agreement between the plaintiff union and the defendant city. Article 11, § 11.1, of that agreement sets forth the grievance and arbitration procedures and provides for the settlement of “[a]ny grievance or dispute, which may arise between the parties, concerning the application, meaning or interpretation of this Agreement . . . .” That section farther provides that “[t]he arbitrator(s) shall limit the decision strictly to the application, meaning or interpretation of the provisions of this agreement. The arbitrator(s) shall not add to, nor subtract from, the terms of this agreement as written.” The arbitrator, therefore, had the authority to determine whether the challenged actions of the defendant violated the provisions of the collective bargaining agreement between the plaintiff and the defendant. Further, any remedy provided would likewise have to be consistent with that agreement in order to be within the scope of the submission. See State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 790, 830 A.2d 729 (2003).

“[T]he arbitrator is authorized from [an] unrestricted submission to fashion any remedy that is rationally related to a plausible interpretation of the agreement . . . . Put another way, when the submission is unrestricted, the remedy determined by an arbitrator will be upheld as long as the remedy draws its essence from the . . . agreement . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 570, 870 A.2d 473 (2005).

Here, the challenged remedy did not draw its essence from the parties’ agreement. LIUNA was not a party to the arbitration. The plaintiff, although arguing that Nichols should have been a member of LIUNA when she was transferred in 2001, agreed that she was a member of the plaintiff union at the time of her layoff. Her rights and remedies, therefore, had to be determined pursuant to the plaintiffs collective bargaining agreement. The arbitrator, however, made factual findings that Nichols had been constructively transferred to a LIUNA position in 2001 and should have had the layoff, bumping and recall rights under the LIUNA collective bargaining agreement. He then fashioned a remedy awarding Nichols a position under the LIUNA collective bargaining agreement. The remedy, being dependent on the interpretation of provisions of the collective bargaining agreement of a union that was not a party to the arbitration, was not within the scope of the parties’ submission and properly was vacated by the court.

II

The plaintiff next claims that the court improperly concluded that the award exceeded the scope of the submission because it was not mutual, definite and final. Because LIUNA and its members were not parties to the arbitration, the court reasoned that a confirmation of the award would promote further litigation. The plaintiff argues that the arbitrator settled all issues between the plaintiff and the defendant, and the fact that the award may invite controversy between separate parties about separate issues cannot be a ground for vacating the award.

“Despite the general rule counseling deference to arbitral awards, § 52-418 (a) lists circumstances under which vacatur of an award is required. One such circumstance is an award that is not mutual, final or definite.” (Internal quotation marks omitted.) Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn. App. 274, 280, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002). “[A]n award must be final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed.” (Internal quotation marks omitted.) Id. Whether an award is definite and final presents a question of law that we review de novo. State v. AFSCME, Council 4, Local 1565, 49 Conn. App. 33, 35, 713 A.2d 869 (1998), aff'd, 249 Conn. 474, 732 A.2d 762 (1999).

The arbitrator’s award in the present case is similar to an arbitrator’s award found to be indefinite by this court in State v. AFSCME, Council 4, Local 1565, supra, 49 Conn. App. 33. In that case, which we find controlling here, the award ordered an employee’s reinstatement to a position at “either [the] Niantic [correctional facility] or an alternate facility that would be agreeable to all parties.” (Emphasis in original.) Id., 37. The court concluded that the award was indefinite because it did not specify an exact location for placement. “[BJecause placement has yet to be determined, further litigation continues to be a possibility, and, thus, the award cannot be said to fix definitively the rights and obligations of the parties.” Id.

Here, the arbitrator’s award suffers from the same infirmity. The award ordered Nichols to be reinstated to either the public works traffic foreman position or a LIUNA position that she would have been entitled to transfer into, bump into or recall into at the time of, or after, her layoff. In addition to the concerns addressed in part I of this opinion, the LIUNA position is not specified and leaves open the possibility of disagreement and litigation as to her ultimate placement. We therefore conclude that the award was not definite, and the court properly vacated the award.

III

The plaintiffs final claim is that the court improperly vacated the entire award. The plaintiff argues that the court should have confirmed that portion of the arbitrator’s award that was within the scope of the submission. Specifically, the plaintiff claims that the court should have confirmed the portion that concluded that the defendant violated the provisions of the collective bargaining agreement and that portion that ordered reinstatement to the position of public works traffic foreman.

We first note that the plaintiffs application before the Superior Court requested confirmation of the entire award. The plaintiff did not file a motion to correct or to modify the award pursuant to General Statutes § 52-419. In the plaintiffs brief filed in the Superior Court, setting forth its arguments and legal authority, no mention is made of confirming part of the award if the court should determine that aportion of it exceeded the scope of the submission. The plaintiffs sole argument was that the award conformed to the submission in its entirety.

The court, nevertheless, sua sponte, in its memorandum of decision, addressed the issue of whether a portion of the arbitrator’s award could be confirmed. The court found that “the arbitrator’s findings regarding Nichols’ ‘constructive’ transfer, her previous union affiliation with LIUNA and her position at the time of her layoff are so indelibly intertwined and interrelated with the arbitrator’s award of rights in a LIUNA position that one cannot separate these findings and the award without doing an injustice to [the defendant].”

“Ordinarily, an award which does not respond to the submission cannot be upheld. ... It is void to the extent to which it is outside the submission. ... To that extent the award must be vacated by the Superior Court upon proper application.” (Citations omitted.) Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 613-14, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). “On the other hand, if part of an award is within the submission and part of it is not, the former may be sustained and the latter rejected if the two can be separated without doing an injustice.” Id., 614. “[W]hen an arbitrator exceeds his authority, the award is void only to the extent that he does so, if the part which is void can be separated from the rest without injustice and without affecting the merits of the part of the award which is within the submission.” (Emphasis added.) Id., 619.

Here, the court reasonably concluded that the alternative relief provided in the award could not be separated without creating an injustice. A review of the arbitrator’s twenty page decision provides ample support for the court’s determination that the arbitrator’s findings and award were inseparable from considerations involving the LIUNA union and the rights and remedies under its collective bargaining agreement. On this record, we cannot conclude that the court improperly chose to vacate the entire award rather than attempting to separate the portions within and outside the scope of the submission.

We recognize that arbitration awards are generally upheld and are extended great deference because the arbitration process is favored as a means of settling disputes. Nevertheless, we conclude that this is one of those rare cases in which the arbitrator exceeded his authority and the court properly vacated the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The appeal form filed on January 16, 2007, indicates that the plaintiff is appealing from the judgment rendered by the court denying the motion to confirm the arbitration award and granting the motion to vacate the award. The plaintiff, however, identifies the trial court docket number of only the case in which it sought to confirm the award, entitled Bridgeport City Supervisors’ Assn. v. Bridgeport. The trial court docket number of the case filed by the defendant seeking to vacate the award, Bridgeport v. Bridgeport City Supervisors’ Assn., is not listed on the plaintiffs appeal form.

       “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005).

       In its memorandum of decision, the court reasoned: “By granting Nichols a right to a LIUNA union position, the arbitrator implicated an analysis of the bumping rights and recall provisions of the collective bargaining agreement between [the defendant] and LIUNA, and that analysis would involve an analysis of Nichols’ rights in LIUNA both at the time of and following the layoff of Nichols. As such, the award is beyond the scope of the submission and must be vacated.”

         After noting the plaintiffs argument that the defendant, and not Nichols, would decide what position Nichols would assume under the award, the court stated: “The [plaintiff], however, ignores the reality that Nichols will once again become embroiled in litigation should she be awarded a LIUNA union position, as LIUNA, on behalf of its members, will very likely challenge any attempt by [the defendant] to award Nichols a LIUNA position that she may have been entitled to at the time of her layoff when she was not, in fact, a LIUNA member.”

       We note that in State v. AFSCME, Council 4, Local 1565, supra, 49 Conn. App. 33, the award contemplated placement at a facility covered by the parties’ bargaining agreement, unlike this case in which the alternate placement would be covered by a bargaining agreement between the defendant and a nonparty to the arbitration.

       General Statutes § 52-419 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court . . . 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.”