text:
    Arthur F. Butzgy et al. v. Town of Glastonbury
    (12821)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 11, 1986
    decision released April 7, 1987

      Charles C. Greenwald, with whom, on the brief, was Thomas M. Stephens, for the appellants (plaintiffs).

      William S. Rogers, with whom was Michael B. Dashjian, for the appellee (defendant).
   Dannehy, J.

On appeal, the plaintiffs challenge the dismissal of their complaint in which they were seeking a declaratory judgment and injunctive relief. The action arose out of the proposed construction of an extension of a road in Glastonbury. The trial court, in dismissing the complaint, ruled that the court lacked subject matter jurisdiction because the claims should have been brought by way of an administrative appeal.

It appears from the record that all of the plaintiffs own real property on Eastbury Hill Road in Glastonbury. At the time this action was commenced, that road began at Manchester Road and ended in a cul-de-sac. In March, 1984, Hilltop Woods, Inc., a nonparty, applied to the Glastonbury town plan and zoning commission (commission) for approval to subdivide land adjacent to Eastbury Hill Road. In May, 1984, the commission approved the application for the subdivision on the condition that the applicant construct an extension to Eastbury Hill Road. The extension would connect the road to Thompson Street, thereby opening East-bury Hill Road to through traffic. Some of the plaintiffs in this action, together with other Eastbury Hill Road residents, filed an administrative appeal from the commission’s decision contesting only the extension of Eastbury Hill Road to Thompson Street. The commission, as well as Hilltop Woods, Inc., and its principal, Lloyd Moody, were joined as appellees in that appeal. The appellants alleged, inter alia, that the proposed extension violated town ordinances, would have an adverse effect on traffic, noise and the safety of East-bury Hill Road, and would unreasonably impair the public trust in natural resources. The appeal was withdrawn on December 21, 1984, and on the same day, Hilltop Woods, Inc., and its principal withdrew an action they had filed against the residents. At no time during these proceedings did the residents of Eastbury Hill Road seek any temporary relief by way of a stay or a temporary injunction. Construction of the extension began on February 26, 1985.

The complaint which forms the basis of this appeal was filed in April, 1985. The plaintiffs generally alleged that the extension “would result in an illegal and hazardous road condition and create a dangerous nuisance to persons residing along Eastbury Hill Road.” Specifically, they alleged that the road as extended would violate minimum road width requirements and would fail to preserve the integrity of the area. They further alleged that the original portion of the road is inadequately designed and constructed to meet the requirements for safely handling the increased volume and speed of traffic that would result from the extension. Based on these allegations, the plaintiffs requested a declaratory judgment and injunctive relief.

Upon motion of the defendant, the trial court dismissed the action on jurisdictional grounds. The court based its decision on the rule that “when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); see also Davis v. Yudkin, 3 Conn. App. 576, 578, 495 A.2d 714 (1985). Because the plaintiffs abandoned their appeal from the decision of the commission, the court held that it lacked subject matter jurisdiction over the action.

Before addressing the issue of whether the motion to dismiss was properly granted, we must first consider whether this appeal is moot. On August 30, 1985, the extension of Eastbury Hill Road was completed and opened to traffic. At the time this appeal was argued, the parties were uncertain whether the extension had been officially accepted by the town of Glastonbury. The defendant pointed out, however, that such an acceptance does not involve the exercise of discretion on the part of town officials but is instead, a ministerial act. The extension having been completed, the defendant asked this court, prior to our hearing the appeal, to dismiss the appeal on mootness grounds. We denied the motion without prejudice to the defendant so that the mootness claim could be renewed at the argument on the merits.

It is beyond dispute that “the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); see also Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). “ ‘In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . . ’ Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).” Shays v. Local Grievance Committee, supra, 571-72.

The defendant contends that we can no longer grant any of the relief sought by the plaintiffs and that their appeal is therefore moot. We do not agree. In the second request for relief, the plaintiffs seek an injunction prohibiting the town of Glastonbury and/or the commission “from requiring and/or permitting that East-bury Hill Road be connected to Thompson Street” until the road is upgraded to meet adequate safety standards and is in conformance with town zoning regulations. The third prayer for relief contains language similar to that quoted from the second request. The defendant asserts that an injunction prohibiting the construction of the extension can no longer be granted because the extension is completed. This argument, however, overlooks the language of the second and third prayers for relief. The plaintiffs do not seek an injunction against the “construction” of the extension, but instead wish to prevent Eastbury Hill Road from being “connected” with Thompson Street. Although the extension has been completed, we see no reason, assuming, arguendo, that the plaintiffs are successful on the merits of their appeal, why a court could not grant the relief requested by ordering that temporary barricades be erected at the ends of the extension. These barricades would effectively prevent the connection of Eastbury Hill Road to Thompson Street until the alleged illegalities and safety problems are eliminated. Having determined that a court could still afford the plaintiffs relief under their second and third prayers for relief, we need not consider whether the requests for- relief made in the first and fourth prayers are also efficacious.

We turn to the main issue raised in this appeal, namely, whether the trial court properly dismissed the plaintiffs’ action. Under the rule set forth in Carpenter v. Planning & Zoning Commission, supra, a party who has a statutory right of appeal from the decision of an administrative agency may not, instead of appealing, institute an independent action to litigate the very issue which the appeal is designed to test. See also Davis v. Yudkin, supra. This doctrine is, in essence, a restatement of the rule that “when an adequate administrative remedy is provided by law, it should be exhausted.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977). Relying on the Carpenter doctrine, the trial court dismissed the plaintiffs’ action, ruling that it lacked subject matter jurisdiction over the case because the plaintiffs had not pursued their statutory right of appeal. See General Statutes § 8-28. We find no error in the trial court’s dismissal of the present action.

The plaintiffs acknowledge the holding of Carpenter, but assert that an appeal from the action of the commission here could not resolve the issues raised in their complaint, specifically, their claim of p.- vate nuisance. Although paragraph 8 of the plaintiffs’ complaint alleges that the extension of Eastbury Hill Road would “create a dangerous nuisance to persons residing along Eastbury Hill Road, including the Plaintiffs,” an examination of the specific allegations made in support of this “nuisance” claim reveals that the plaintiffs are actually seeking to resolve the questions of whether the commission acted in accordance with town ordinances and whether the road as extended is a safety hazard to drivers and pedestrians. These issues are of a sort that must have been considered by the commission at the time it ordered the extension and that would have been reviewable by a court in an administrative appeal from the commission’s decision.

Subparagraphs 8 (a), (b) and (c) of the plaintiffs’ complaint allege respectively that Eastbury Hill Road, as extended, “would violate the minimum road width requirements of Section 9.0 et seq.” of the Glastonbury subdivision and resubdivision regulations, would fail “to preserve the integrity of the area as required by Section 9.2.5 (a)” of those regulations, and would “result in an upgrading of the classification of said road under [town regulations] to a ‘collector street’ ” despite the fact the road is inadequately constructed to meet mimimum requirements for such a classification. Under General Statutes § 8-25, a planning commission is authorized to adopt regulations to control the subdivision of land and in passing on plans for a proposed subdivision, a commission is bound by its own regulations. See Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 91, 368 A.2d 24 (1976). The Glastonbury town plan and zoning commission has adopted specific regulations pertaining to subdivisions. Whether Eastbury Hill Road, as extended, complied with the Glastonbury subdivision regulations was clearly a matter which the commission was empowered to determine, and the question of whether the commission acted illegally or in excess of its authority was a matter which might have been considered in an administrative appeal. See Nicoli v. Planning & Zoning Commission, supra, 91-94; Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). It is interesting to note that one of the claims made by the plaintiffs in the administrative appeal which was later withdrawn was that the road as extended violated town ordinances.

The remaining subparagraphs supporting the plaintiffs’ allegation of nuisance allege respectively that a curve on Eastbury Hill Road will become more hazardous because of the extension, that the road as extended will result in an increase in traffic volume, creating a safety hazard to drivers and pedestrians, and finally that the extension will lead to increased traffic speed, creating a safety hazard. Similar allegations were made in the withdrawn administrative appeal. Section 3.4 of the subdivision and resubdivision regulations of the town of Glastonbury provides that no subdivision plan shall be approved unless the proposed streets are in harmony with other streets and are of such width as to provide adequately for traffic needs. Other provisions require the commission to consider other aspects of public health and safety in determining whether to approve a proposed subdivision application. The commission here clearly was empowered and, in fact, was required to consider traffic safety in ruling on the proposed subdivision and in ordering Eastbury Hill Road extended. Whether the commission has acted rationally and reasonably in exercising the police powers of the municipality to protect the health, safety and welfare of its residents could properly have been considered through an administrative appeal. See, e.g., Nicoli v. Planning & Zoning Commission, supra, 94-97.

We have already stated that the rule of Carpenter precludes a party from litigating in an independent action, the same issues which could be resolved in an administrative appeal. The plaintiffs vigorously assert that what they seek to put at issue is not the legality or propriety of the administrative decision but instead the effect of the commission’s actions on the plaintiffs’ enjoyment of their land. They argue that our holding in Brainard v. West Hartford, 140 Conn. 631, 103 A.2d 135 (1954), creates a “private nuisance” exception to Carpenter and that like the plaintiff in that action, they should be allowed to maintain a nuisance action without having first exhausted their administrative remedies. Whether Brainard v. West Hartford, supra, in fact creates a “private nuisance” exception to the rule of Carpenter, need not be determined. Even if there were such an exception, the allegations underlying the plaintiffs’ claim simply do not support an action in private nuisance. We have already said that the plaintiffs assert essentially only that the extension violates town ordinances and will pose a risk to the safety of drivers and pedestrians. These issues are the very issues which an administrative appeal is designed to resolve. In deciding the narrow jurisdictional issue before us, we are, of course, limited to the well pleaded facts of the plaintiffs’ complaint. Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 593, 424 A.2d 285 (1979). The plaintiffs have not alleged an injury by reason of their ownership of land, such as a decrease in the value of their property. Brainard v. West Hartford, supra, 633. Nor have they alleged any noxious quality that the “natural tendency of the condition was to cause damage and inflict injury.” Warren v. Bridgeport, 129 Conn. 355, 359, 28 A.2d 1 (1942); see generally D. Wright & J. Fitzgerald, Connecticut Law of Torts § 128, p. 288.

The rule of Carpenter is subject to a few limited exceptions, one being that a party may bring an independent action to test certain constitutional issues without first having resorted to an administrative appeal. See Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979). We have not, however, allowed conclusory assertions of unconstitutionality which are unsupported by the record and by the allegations underlying the claims to provide a bypass of the administrative appeal mechanism. See LaCroix v. Board of Education, 199 Conn. 70, 86, 505 A.2d 1233 (1986); see also Cretaro v. Equitec Real Estate Investors Fund XII, 6 Conn. App. 317, 320, 505 A.2d 22 (1986). The same reasoning may be applied in the present case. The mere use of the term “nuisance” in a complaint will not magically create a right to circumvent the administrative appeal process. Our focus in a case such as the present one has been and continues to be whether the issues actually raised in the plaintiffs’ complaint can be fully adjudicated in an administrative appeal. See LaCroix v. Board of Education, supra, 84. In this case, the issues underlying the plaintiffs’ action could have been resolved by the appeal process set forth in General Statutes § 8-28. The trial court’s dismissal of the action was therefore not erroneous.

The plaintiffs also argue that a dismissal of this action violates article first, § 10, of the Connecticut constitution in that it would deprive them of the right to redress for the common law right of action for nuisance. Article first, § 10, provides that “[a]ll courts shall be open, and every person for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale or delay.” This provision guarantees the availability of courts for redress of recognized injuries and also creates a class of rights which, because of their existence prior to the adoption of the provision, are incorporated into and protected by the state constitution. Gentile v. Altermatt, 169 Conn. 267, 286-87, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). We explained in Gentile v. Altermatt, supra, that the legislature may restrict or abolish common law rights to recover for certain injuries, if it creates a “reasonable alternative” for the enforcement of such rights.

The plaintiffs contend that unless the administrative appeal procedure constitutes a reasonable alternative to an action for nuisance, a dismissal of their action violates article first, § 10. Our response to this claim is closely tied to our response to the previous claim made by the plaintiffs. The issues underlying the plaintiffs’ action, an action which they label one of nuisance, are issues which could have been resolved in an administrative appeal. The plaintiffs did possess, therefore, a “reasonable alternative” to litigating their claims in an independent action but chose not to pursue the statutory appeal procedure. We fail to discern how any infringement on rights protected by article first, § 10, will result from our decision.

There is no error.

In this opinion the other justices concurred.

       Because we will refer repeatedly to various portions of the complaint in our analysis, the entire complaint is hereinafter reproduced:
      “1. The following Plaintiffs are residents of the Town of Glastonbury and all own property on Eastbury Hill Road: Arthur F. Butzgy, 335 East-bury Hill Road; Diana Butzgy, 385 Eastbury Hill Road; Lee Cancellieri, 133 Eastbury Hill Road; John Cancellieri, 133 Eastbury Hill Road; Luther Weeks, 123 Eastbury Hill Road; Denise Weeks, 123 Eastbury Hill Road; Edward S. Elfman, 106 Eastbury Hill Road; Ronald Bogdan, 252 East-bury Hill Road; Janet Bogdan, 252 Eastbury Hill Road; Charles H. Nightingale, 266 Eastbury Hill Road; Loretta R. Nightingale, 266 East-bury Hill Road; Robert Morrison, 411 Eastbury Hill Road; Laurel Morrison, 411 Eastbury Hill Road; James F. Fasi, 427 Eastbury Hill Road; Michael V. Rosenberg, 151 Eastbury Hill Road; Victoria Rosenberg, 151 Eastbury Hill Road; H. Ronald Kirkland, 414 Eastbury Hill Road; Victoria Kirkland, 414 Eastbury Hill Road; Michael Gentile, 406 Eastbury Hill Road; Josephine Gentile, 406 Eastbury Hill Road; Eugene S. Mendelson, 160 Eastbury Hill Road; Mary Ann Mendelson, 160 Eastbury Hill Road; all of the Town of Glastonbury, County of Hartford and State of Connecticut.
      “2. Manchester Road, also known as Route 83, and Thompson Street, are public thoroughfares running in a generally North-South direction in the Town of Glastonbury, Connecticut.
      “3. Eastbury Hill Road is a Town Road in the Town of Glastonbury, Connecticut, running in a generally easterly direction from Manchester Road and ending in a cul-de-sac.
      “4. On or about March 21,1984, Hilltop Woods, Inc. and/or Lloyd Moody (hereinafter ‘Applicant’), not parties to this action, applied to the Defendant, Town Plan and Zoning Commission (hereinafter ‘Commission’), for approval of a subdivision known as Hilltop Woods Subdivision, to be located on land adjacent to Eastbury Hill Road.
      “5. On or about May 1,1984, after several public hearings, the Defendant Commission published an approval of said subdivision application with a number of conditions attached thereto.
      “6. The approval included a condition that Eastbury Hill Road be extended by the Applicant to intersect with Thompson Street, thereby opening Eastbury Hill Road to local, flow-through traffic.
      “7. The action of the Commission in requiring that the Applicant connect Eastbury Hill Road, which is not an integral part of the subdivision being developed, to Thompson Street is an illegal and unconstitutional delegation of the Town’s duty.
      “8. The extension of Eastbury Hill Road to Thompson Street would result in an illegal and hazardous road condition and create a dangerous nuisance to persons residing along Eastbury Hill Road, including the Plaintiffs, in that:
      “a. As extended, Eastbury Hill Road would violate the minimum road width requirements of Section 9.0 et seq. of the Subdivision and Resubdivision Regulations of the Town of Glastonbury.
      “b. As extended, Eastbury Hill Road fails to preserve the integrity of the area as required by Section 9.2.5 (a) of the Subdivision and Resubdivision Regulations of the Town of Glastonbury in that all local streets shall be laid out so that their use for through traffic will be discouraged with particular attention being given to eliminating possible by-passes around congested areas and major intersections.
      “e. The connection of Eastbury Hill Road to Thompson Street will result in an upgrading of the classification of said road under the Glastonbury Town Plan and Zoning Regulations to a ‘collector street,’ despite that the road is inadequately constructed to meet the minimum requirements for such classification.
      “d. Eastbury Hill Road contains a substandard and dangerous curve, the hazard of which will be greatly exacerbated by the increased traffic volume and speed resulting from the connection of the road with Thompson Street.
      “e. The connection of Eastbury Hill Road with Thompson Street will result in a substantial increase in traffic volume and thereby create a significant safety hazard to both drivers and pedestrians using the inadequate roadway.
      “f. The introduction of non-local, flow-through traffic to Eastbury Hill Road will result in a substantial increase in traffic speed and thereby create a significant safety hazard to both drivers and pedestrians using the inadequate roadway.
      “9. The Eastbury Hill Road extension has not yet been accepted as a public highway of the Town of Glastonbury pursuant to Section 2451 et seq. of the Ordinances of the Town of Glastonbury. Acceptance of the road by the Town would be a violation of said Ordinance.
      “10. The imminent extension of Eastbury Hill Road to Thompson Street will result in irreparable harm, to the Plaintiffs individually and to the public, for the redress of which the Plaintiffs are without an adequate remedy at law.
      “WHEREFORE, the Plaintiffs pray:
      “1. For a declaratory judgment determining that the connection of East-bury Hill Road to Thompson Street would be a violation of the Zoning Regulations of the Town of Glastonbury and creates a nuisance.
      “2. That the Plan and Zoning Commission and/or the Town of Glastonbury be permanently enjoined from requiring and/or permitting that East-bury Hill Road be connected to Thompson Street as a condition of the above stated subdivision approval until said Eastbury Hill Road is upgraded to meet adequate safety standards and is in conformance with town zoning regulations.
      “3. That the Town Plan and Zoning Commisison or the Town of Glastonbury be permanently enjoined from permitting Eastbury Hill Road be connected to Thompson Street directly or indirectly, in any manner until Eastbury Hill Road is upgraded to meet adequate safety standards and be in conformance with town zoning regulations.
      “4. That the Town of Glastonbury be permanently enjoined from accepting Eastbury Hill Road and/or any extension of Eastbury Hill Road as a Town road until said road is upgraded to conform to Zoning Regulation requirements.
      “Dated at Glastonbury, Connecticut this 1st day of March, 1985.”

       The applicable Glastonbury subdivision and resubdivision regulations are as follows:
      Section 3.3 provides: “public health and safety. No land shall be subdivided unless it shall be of such character that it can be used for building purposes without danger to health and the public safety regulations of the Town and State of Connecticut, as may be amended hereafter, and unless it provides adequately for water, drainage and sewerage, and, in areas contiquous to brooks, rivers, or other bodies of water subject to flooding, including tidal flooding, for protective flood control measures.”
      Section 3.4 provides: “streets. No subdivision plan shall be approved unless the proposed streets are in harmony with existing or proposed principal thoroughfares and so arranged and of such width to provide an adequate and convenient system for present and prospective traffic needs.”
      Section 9.2 provides: “streets. Streets shall be laid out in such a way as to provide a safe and efficient street system and network to accomodate present and future needs of the area in accordance with the Plan of Development of the Town.”
      Section 9.2.1 provides: “classification of streets and highways. The Commission shall classify all the streets shown on the subdivision map. There shall be four (4) classifications of streets:
      “(a) ARTERIAL STREET. The Commission shall classify a street an ‘Arterial Street’ as one which provides for thru traffic movement between areas and across the town, direct access to abutting property, and where the projected average daily traffic 20 years after the completion of construction is over 3,000 vehicles.
      “(b) commercial and/or industrial street. The Commission shall classify a street a ‘Commercial and/or Industrial Street’ as one which provides direct access to or circulation within business and industrial areas, and where the percentage of truck traffic is over 10% of the average daily traffic immediately after completion of construction.
      “(c) collector STREET. The Commission shall classify a street a ‘Collector Street’ as one which provides for traffic movement between arterials and local streets, direct access to abutting property, and where the projected average daily traffic 20 years after completion of construction is between 800 and 3,000 vehicles.
      “(d) local street. The Commission shall classify a street a ‘Local Street’ as one which provides for direct access to abutting land, for local traffic movements, and where the projected average daily traffic 20 years after completion of construction is under 800 vehicles.”
      Section 9.2.2 provides: “street width. The following dimensions shall be satisfied according to their classification:
      “Classification Right-of-Way Roadway-Width
      Arterial Street 80 Feet 48 Feet
      Commercial and/or Industrial Street 60 Feet 34 Feet
      Collector Street 60 Feet 30 Feet
      Local Street 50 Feet 26 Feet (24’)*”
      “*24’ local roadway width may be approved by the Town Plan & Zoning Commission only upon receipt of a recommendation from the Director of Public Works. [Footnote in original.]”
      Section 9.2.3 provides: “cul-de-sac street. Where permanent cul-desac streets are included in a subdivision, they shall not exceed one thousand (1000) feet in length. They shall be equipped with a turnaround which has a minimum right of way radius of sixty (60) feet and a minimum pavement radius of fifty (50) feet.
      “When a cul-de-sac is proposed as a temporary measure pending future development of adjoining properties, it shall be so designed as to be feasible of continuation in the adjacent tract. When there is a possibility of an extension of a street, all portions of the cul-de-sac, including pavement, grass strip and sidewalk and fall outside the limits of the normal right-of-way width shall occupy the space by virtue of an easement delivered to the Town before acceptance of the subdivision.
      “The developer extending a street from cul-de-sac shall be required to remove the existing pavement outside of the standard travelled way, loam and seed said area in which pavement has been removed, and install curbs and sidewalks in the original cul-de-sac in accordance with Town requirements all at his own expense.
      “The Commission may waive the 1000’ maximum length of a cul-de-sac street after considering public health, safety, and welfare.”
      Section 9.2.5 provides: “preserving the integrity op the area. In the development of an area, the developer shall take adequate steps to minimize adverse effects that such development might have on the areas. The following guidelines should be followed whenever possible:
      “(a) THROUGH-TRAFFIC prohibition. All local streets shall be laid out so that their use for through traffic will be discouraged. Particular attention should be given to eliminating possible by-passes around congested areas and major intersections.
      “(b) relation to topography. The street of a proposed subdivision shall bear a logical relationship to the topography, and all streets shall be arranged so as to obtain as many of the building sites as possible at or above the grade of the street. All natural features shall be preserved where so required by the Commission.”


source: Caselaw Access Project

author: Pickett, J.

license: Public Domain

text:
    Thompson and Peck, Inc. v. Harbor Marine Contracting Corporation et al.
    (12874)
    Healey, Shea, Dannehy, Callahan and Pickett, Js.

      Argued November 7, 1986
    decision released April 14, 1987

      Gary P. Sklaver, with whom, on the brief, was Irving H. Perlmutter, for the appellant (plaintiff).

      John F. Lambert, for the appellees (defendants).
   Pickett, J.

The principal issues on this appeal after certification from a judgment of the Appellate Court are whether the Appellate Court erred in holding that General Statutes § 42a-3-802 (1) did not apply to the facts of this case, and whether the Appellate Court erred in holding that the determination of whether a payment is conditional under the circumstances of this case is a question of law rather than a question of fact. The plaintiff insurance agency, Thompson and Peck, Inc., brought this action against the defendants, Harbor Marine Contracting Corporation, Harbor Marine Towing Company, and Harbor Marine Equipment Corporation to recover an unpaid insurance premium. The trial court found for the plaintiff and, on appeal, the Appellate Court reversed the trial court’s judgment. Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 5 Conn. App. 366, 368, 497 A.2d 1049 (1985). We affirm the judgment of the Appellate Court.

Beginning in 1978, the plaintiff, a general insurance agency, had written several insurance policies for the defendant corporations covering the defendants’ marine operations. In May, 1981, the defendants, who were engaged in the operation of marine tugboats, scows and barges, requested the plaintiff to procure casualty and liability coverage for their vessels and equipment. At the time of this request, the defendants owed the plaintiff an outstanding balance of $12,502.53 on prior insurance policies issued to the defendants. The plaintiff procured a new insurance policy covering the defendants’ equipment, the premium for which was $27,000. To finance the payment of the insurance premium and to bring the defendants’ balance current with the plaintiff, the named defendant, Harbor Marine Contracting Corporation, executed a promissory note to the Bank of New Haven (bank) for $42,877, a sum equalling the premium for the new policy, the outstanding balance for premiums due on the previous policies, and a finance charge consisting of interest to accrue on the note. Because of the bank’s reluctance to accept the named defendant as sole maker on the note, the plaintiff entered into an agreement with the bank, agreeing that, if the conditions of the note were breached, the insurance policy would be cancelled at the bank’s request, and the plaintiff would pay to the bank a portion of the return premium sufficient to liquidate the unpaid balance of the note at the time the cancellation was requested. The terms of this agreement were set forth on the reverse side of the named defendant’s promissory note. The proceeds of the note were then paid to the plaintiff.

From the proceeds, the plaintiff deducted the amount of the past due balance, and retained the remainder for disbursement as the insurance premium installments became due. The named defendant paid the installments due under the promissory note through November 5,1981, but failed to make the payment due on December 5,1981, or any payment due thereafter. After the named defendant failed to make the February, 1982 installment on the note, the insurance policy was cancelled and coverage was terminated. The plaintiff paid to the bank the full balance of the note, although the agreement between the plaintiff and the bank required the plaintiff to pay only the unearned premium refunded at the time of the cancellation of the policy.

The plaintiff then brought an action to recover from the defendants the unpaid installments due on the note, or in the alternative, the unpaid balance of the premium for the insurance policy. The trial court found that the plaintiffs action was not brought on the note, but on the underlying obligation for the policy premium. Holding that the liability of the defendants was governed by General Statutes § 42a-3-802 (1) (b), the court reasoned that the note did not constitute payment of the underlying obligation unless the parties had agreed that it was to be accepted as payment, and the intent of the parties was a question of fact to be determined by the court. The court concluded that the note was given, and accepted, as conditional payment on the insurance premium obligation, and that the obligation was revived when the named defendant failed to pay the note. The trial court therefore awarded the plaintiff the unpaid balance of the premium on the insurance policy. The defendants appealed, claiming, inter alia, that General Statutes § 42a-3-802 (1) (b) was inapplicable, and the proceeds of the note were not a conditional payment to the plaintiff.

The Appellate Court reversed the decision of the trial court, holding that General Statutes § 42a-3-802 (1) did not apply because the plaintiff did not take a negotiable instrument from the named defendant. Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, supra, 367-68. The court further held that the intent of the parties did not govern the plaintiff’s duties; rather, the language of the contract between the bank and the plaintiff governed its obligations, and that language required the plaintiff only to pay to the bank the unearned premiums received upon the cancellation of the defendants’ insurance policy. Id., 368. The court concluded that, as a matter of law, the payment received by the plaintiff from the proceeds loaned on the promissory note under these circumstances was absolute and had discharged the defendants’ indebtedness for the insurance premium. Id.

Upon the granting of certification, the plaintiff appealed, claiming that the Appellate Court erred in: (1) finding that § 42a-3-802 (1) (b) did not apply to this case; (2) finding that the determination of whether a payment is conditional is a question of law, and not a question of fact; (3) failing to find that the defendants were precluded from proving payment of the obligation because they had failed to specifically plead payment; and (4) directing the trial court to render judgment for the defendants.

I

Initially we note that, upon the granting of certification, “[w]e do not hear this appeal de novo; the focus of our review is not the judgment of the trial court but the judgment of the Appellate Court. ‘The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.’ State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).” State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).

The plaintiff first alleges that General Statutes § 42a-3-802 (1) is controlling on this matter, and claims that the amount it received from the bank under the promissory note was conditioned upon the named defendant making its installment payments to the bank as required by the promissory note. General Statutes § 42a-3-802 (1) states: “Unless otherwise agreed where an instrument is taken for an underlying obligation (a) the obligation is pro tanto discharged if a bank is drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; and (b) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.” (Emphasis added.) For General Statutes § 42a-3-802 (1) to apply, the creditor must have taken an instrument for an underlying obligation. The trial court’s finding of fact establishes that the plaintiff never took an instrument from the named defendant, but instead received the proceeds of the promissory note from the bank. Since the plaintiff did not take an instrument from the named defendant for an underlying obligation, the Appellate Court did not err in deciding that General Statutes § 42a-3-802 (1) does not apply.

II

The plaintiff further alleges that it was the intent of the parties that the payment that it received from the bank be conditioned on the named defendant making its installment payments on the promissory note. Relying on the language of § 42a-3-802 (1), which states that “[u]nless otherwise agreed where an instrument is taken for an underlying obligation . . . the obligation is suspended,” the plaintiff argues that the intent of the parties is a question of fact for the trial court. (Emphasis added.) The trial court in this case did conclude that the note was accepted as a conditional payment on the underlying obligation. The plaintiff, however, concedes that it did not accept the note from the named defendant. Therefore, the court’s finding was factually incorrect, and the plaintiff’s reliance on § 42a-3-802 (1), as we concluded in part I of this decision, is inapposite.

For the plaintiff to succeed on this claim it must prove that it had accepted the proceeds from the bank conditioned on the named defendant making its installment payments. Such a determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached. Bead Chain Mfg. Co. v. Saxon Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). In the present case, although the court found that the plaintiff accepted the note as conditional payment, a finding that was concededly incorrect, there was no evidence that the plaintiff accepted the proceeds of the loan conditioned on the named defendant making the installment payments on the note. Upon the receipt of the proceeds, the plaintiff deducted the amount of the past due balance and retained the remainder for disbursement as the installments for the insurance premium became due. There is no indication that the plaintiff held the funds in escrow to be paid only on the condition that the named defendant paid the installments due on the note. The defendants, thus, could reasonably have understood the plaintiff’s actions as an unconditional discharge of the underlying debt.

Additionally, there is nothing in the agreement between the plaintiff and the bank to indicate that the plaintiff accepted the proceeds conditioned upon the named defendant making the installment payment on the note. As we have stated, in situations in which the parties have their agreement in writing, “ ‘their intention is to be determined from its language and not on the basis of any intention either may have secretly entertained.’ ” Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983). Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Accord Bead Chain Mfg. Co. v. Saxon Products, Inc., supra.

Absent evidence that the plaintiff accepted the proceeds of the loan conditioned upon the named defendant making the note’s installment payments, we conclude that, as a matter of law, the acceptance of the proceeds was absolute.

III

The plaintiff next contends that the Appellate Court erred in failing to find that the defendants were precluded from proving payment because they had failed to plead such payment specially. It claims that the trial court’s purported misapplication of General Statutes § 42a-3-802 was not dispositive, as the Appellate Court reasoned, because the issue of payment, whether conditional or not, was not specifically pleaded. Although the Appellate Court did not address this issue, the defendants concede that the court’s decision, which held that the payment was absolute, implicitly rejected the plaintiff’s argument.

The trial court held that the defendants did not plead payment as a special defense and failed to prove payment. The issue addressed by the trial court, however, was not whether payment was or was not made to the plaintiff; it was whether the payment was conditional. The plaintiff admitted that the note was executed for the payment of the insurance policy premium, and testimony was elicited on the question of the nature, not the existence, of the payment. Further, the trial court seemed to rest its conclusion on the fact that the payment of the premium was made conditional upon the fulfillment of the payment on the note.

Although Practice Book § 164 requires that payment must be pleaded as a special defense even when nonpayment of the debt is alleged by the plaintiff; see Connecticut Bank & Trust Co. v. Dadi, 182 Conn. 530, 532, 438 A.2d 733 (1980); the failure to raise a special defense is waived when evidence comes in without objection. See, e.g. Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981). The plaintiff in this case alleged that the acceptance of the payment was conditional upon the payment of the note, and in fact introduced evidence that the note was given, and accepted, as conditional payment. The plaintiff cannot now claim that the defendants are precluded from proving the defendants’ obligation. Therefore, the Appellate Court did not err in failing to hold that the defendants were precluded from proving payment because the defendants did not specifically plead payment.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The obligation of the plaintiff was as follows:
      “In consideration of your company advancing funds for the account of Harbor Marine Contracting Corp.....
      “We hereby agree to cancel such policy(ies) at your request by serving notice of cancellation on the assured and mortgage, if any, provided such cancellation be necessary because of a breach of any of the conditions of the above contract.
      “We further agree to pay to The Bank of New Haven that portion of the return premium which will be sufficient to liquidate the unpaid balance due under said agreement at the date said cancellation is requested by The Bank of New Haven.
      “We further agree that if any of the premiums on the above mentioned policy(ies) are subject to audit and the return premium is not sufficient to liquidate the unpaid balance due under said agreement, we will pay the difference.
      “We further agree to notify and protect The Bank of New Haven of any changes in any policy, cancellation in whole or in part, or of any loss that would affect the security of The Bank of New Haven.”

       Although the plaintiff agreed “that if any of the premiums on the above mentioned policy(ies) are subject to audit and the return premium is not sufficient to liquidate the unpaid balance due under said agreement, we will pay the difference,” we need not consider whether the plaintiff was a volunteer paying the entire balance on the note to the bank because this action was brought, and decided, on the theory that the debt for the premium was never fully discharged at the time of the loan.

       “[General Statutes] Sec. 42a-3-802. effect of instrument on obligation for WHICH IT IS given. (1) Unless otherwise agreed where an instrument is taken for an underlying obligation (a) the obligation is pro tanto discharged if a bank is drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; and (b) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.
      “(2) The taking in good faith of a check which is not postdated does not of itself so extend the time on the original obligation as to discharge a surety.”

       “[Practice Book] Sec. 164. —denials; special defenses
      “No facts may be proved under either a general or special denial except such as show that the plaintiff's statement of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpaymnet is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.”

       Because we find that the Appellate Court did not err in holding that General Statutes § 42a-3-802 did not apply and that the payment, as a matter of law, was absolute, we find that the court correctly ordered judgment for the defendants. We therefore find the plaintiff’s final argument, that the Appellate Court erred in directing the rendition of judgment for the defendant, to be without merit.


author: Peters, C. J.

text:
    O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3 et al. Chase Family Limited Partnership No. 3 et al. v. O & G/O’Connell Joint Venture
    (12964)
    Peters, C. J., Healey, Santaniello, Dupont and Curran, Js.
    Argued February 4
    decision released April 14, 1987

      John C. Yavis, Jr., with whom was Barry J. Waters, for the appellant (plaintiff in the first case and defendant in the second case).

      Frank J. Silvestri, Jr., with whom was Charles F. Corcoran III, for the appellees (defendants in the first case and plaintiffs in the second case).
   Peters, C. J.

The dispositive issue in this appeal is whether an arbitration panel engaged in misconduct warranting the vacation of an arbitration award under General Statutes § 52-418 (a) (3) when the panel failed to admit into evidence a single document proffered by the defendants after the completion of extensive hearings. Pursuant to an arbitration clause in the construction contract between the parties, the plaintiff, O & G/O’Connell Joint Venture, submitted to the American Arbitration Association (AAA) a demand to arbitrate a dispute arising out of the defendants’ allegedly wrongful termination of that contract. Upon the completion of arbitration hearings and the submission of post-hearing briefs, a three member arbitration panel awarded the plaintiff the sum of $1,877,084 plus interest as damages, and the defendants the sum of $52,570 plus interest on a counterclaim. The defendants then filed an application in the Superior Court to vacate the award pursuant to General Statutes § 52-418, and the plaintiff filed an application for confirmation of the award pursuant to General Statutes § 52-417. Concluding that the arbitration panel had engaged in misconduct in violation of General Statutes § 52-418 (a) (3), the trial court granted the defendants’ application and denied the plaintiff’s application. The plaintiff has appealed from those judgments. We find error.

The parties stipulated to the following underlying facts. The plaintiff is a joint venture contractor comprised of O & G Industries, Inc. (O & G), and Daniel O’Connell’s Sons, Inc. (O’Connell). The defendants, Chase Family Limited Partnership No. 3 and Olympia & York Hartford, Inc., are the owners of a multistory office building, known as One Commercial Plaza, in downtown Hartford. After negotiations that began in June, 1981, the parties entered into a written contract, dated March 8, 1983, but effective as of October 15, 1981, for the construction of that building. Subsequently, on January 5, 1984, while the building was under construction, the defendants notified the plaintiff of the termination of its employment.

Pursuant to an arbitration agreement providing for the arbitration of disputes in accordance with the Construction Industry Arbitration Rules of the AAA, the plaintiff submitted to the AAA on January 12, 1984, an unrestricted demand for arbitration. The demand alleged, inter alia, wrongful termination of the plaintiffs employment, and requested two types of relief, a declaration that the construction contract remained in full force and effect and damages “in an amount as yet undetermined.” In response, the defendants filed an answer and an amended counterclaim. Between June, 1984 and June, 1985, a three member arbitration panel held fifty-two hearings, during which it heard extensive testimony and received voluminous documentary evidence. The panel rendered an award on October 10, 1985, providing the relief set forth above.

The defendants filed a timely application in the Superior Court to vacate the award of the arbitration panel. Among the issues that they raised was their claim that the plaintiff was not entitled to recover damages resulting from the lost business opportunity it had allegedly suffered in its capacity as a joint venturer. General Statutes § 52-418. The defendants’ application complained further that the arbitration panel was guilty of misconduct because it had declined to admit into evidence a copy of the joint venture agreement entered into by the two joint venturers, which the defendants had attempted to proffer after the completion of the arbitration hearings. Shortly thereafter, on November 29, 1985, the plaintiff filed an application for an order confirming the arbitration award. General Statutes § 52-417. The two applications were heard together in the trial court.

In the defendants’ argument to the trial court concerning the applicability of § 52-418, they relied on a detailed history of the significance of the joint venture agreement and the circumstances surrounding their efforts to bring the agreement to the attention of the arbitration panel. This history is recited in the stipulation of facts.

The defendants explained that the joint venture agreement was significant because it negated the plaintiff’s claim for lost opportunity damages which, according to the defendants, was not supported by evidence presented at the hearings and had been raised for the first time in the plaintiffs post-hearing brief to the arbitration panel. In that brief, the plaintiff asserted that the defendants’ “wrongful and bad faith termination of the Contractor has effectively destroyed the Contractor’s ability to bid projects as a joint venture.” The plaintiff argued further that “[although the evidence is circumstantial, the Panel may rightfully—and conservatively—infer that but for the termination the Contractor would have been awarded at least two highrise jobs within the reasonable life-expectancy of the joint venture.” (Emphasis in original.) Anticipating and responding to this claim in their brief, filed simultaneously with that of the plaintiff, the defendants asserted that “[t]he contractor has offered no convincing evidence that the termination will cause the O & G/O’Connell joint venture any economic harm . . . .” In their subsequent reply brief to the arbitrators, the defendants again maintained that the plaintiff had no viable claim for loss of business opportunity, because “[t]he reality is that this joint venture between O & G and O’Connell was formed specifically and only to construct One Commercial Plaza.” The defendants, nonetheless, argued to the court that the joint venture agreement was essential to show that the joint venture had no life expectancy beyond the construction project at issue here and that lost opportunity damages were therefore inappropriate.

In the arbitration proceedings, the defendants had proffered the document in the following manner. After the scheduled hearings had been completed in June, 1985, and both parties had submitted their initial post-hearing briefs, the defendants’ counsel sent to the AAA on August 14, 1985, a letter addressed to the arbitrators, requesting permission to introduce a copy of the joint venture agreement into evidence. The defendants’ counsel did not, however, enclose with the letter a copy of the agreement itself. The letter explained that the document was being offered to negate the plaintiffs claim for lost opportunity damages, and that the defendants had not submitted it earlier because that claim had not been raised by the plaintiff at the hearings. Upon being telephonically advised by an AAA administrator of this request, the plaintiff’s counsel informed the AAA by letter, dated August 16, 1985, that he had no objection to the admission of the agreement as part of the record. On August 19, 1985, the AAA sent each arbitrator a copy of the defendants’ August 14 letter. The AAA did not send them a copy of the agreement itself, because it had never received a copy, and did not send to either the arbitrators or the defendants’ counsel the August 16 letter from the plaintiff’s counsel consenting to admission of the document.

At no time subsequent to his initial request did the defendants’ counsel communicate with the arbitrators or the plaintiff’s counsel to pursue his request for submission of the document. The arbitrators never responded to the request of the defendants’ counsel and therefore never received a copy of the agreement. Subsequently, in a letter dated October 10, 1985, the arbitrators declared the hearings closed and enclosed therein a written arbitration award.

On the basis of these stipulated facts, the trial court concluded, in a written memorandum of decision, that the defendants’ application to vacate should be granted, and the plaintiff’s application for confirmation denied. The court found that $1,730,578.16 of the total sum of $1,877,084 awarded to the plaintiff represented compensation for “lost business opportunity.” The court agreed with the defendants that the plaintiff had offered no evidence during the hearings to support its claim for lost opportunity damages and that the plaintiff had raised this claim for the first time in its post-hearing briefs. Finding that the panel had wrongfully “refused to receive” the joint venture agreement, the court concluded that it was “guilty of misconduct” under General Statutes § 52-418 (a) (3) in “refusing to hear evidence pertinent and material to the controversy.” It also determined that the panel had failed to comply with the “absolute mandate of Section 35 of the Construction Industry Arbitration Rules which requires that prior to closing the hearings [it] ‘specifically inquire’ whether the parties have any additional evidence.”

In response to this adverse determination, the plaintiff filed with the trial court two timely motions to open and modify the judgment. The first of these motions sought to have the case remanded to the panel for a rehearing and for submission of the joint venture agreement. The second asked the trial court to set its judgment aside and to confirm the award.

The trial court filed a second memorandum of decision in explaining its denial of these motions. Clarifying its ruling under § 52-418 (a) (3), the court acknowledged that the arbitration panel’s failure to receive the contested document had resulted from a “mix-up” in communications between the parties and the arbitrators. Accordingly, the basis for the statutory violation was not that the panel had acted in “bad faith,” since there had been “misconduct” only in the technical sense, but rather “that there was something inherently unfair in the hearing . . . .” The court further determined that under the time constraints set forth in General Statutes §§ 52-416 (a) and 52-418 (b), and in Rule 36 of the Construction Industry Arbitration Rules, it had no authority to reopen the hearings after October 10,1985, the date on which the panel had issued its award.

In this appeal from the trial court’s judgments, the plaintiff claims that the court erred in: (1) finding the arbitration panel guilty of misconduct in refusing to receive the joint venture agreement into evidence; (2) reviewing the sufficiency of the evidence presented to the panel; (3) declining to remand the case to the panel for consideration of the joint venture agreement; and (4) refusing to admit the transcripts and exhibits from the arbitration hearings into evidence. Because we agree with the plaintiff’s first two claims and conclude that the arbitration award should be confirmed, we need not address the remaining issues that the plaintiff has raised.

I

The plaintiff’s first claim of error is that the trial court erred in finding the arbitration panel guilty of misconduct under § 52-418 in refusing to admit into evidence the joint venture agreement proffered by the defendants. Pointing to the unusual circumstances surrounding the defendants’ proffer, the plaintiff claims that the panel never in fact refused to receive the document, and that even if it did, the defendants were in no way prejudiced by that ruling because the agreement was merely cumulative evidence which would not have affected the award rendered by the arbitrators. We agree.

Before we undertake our analysis of whether the circumstances surrounding the exclusion of the agreement support a finding of arbitral misconduct, it is useful to recall the principles that guide our review of private consensual arbitration. This court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes “intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Administrative & Residual Employees Union v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986). When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. Stratford v. Local 134, IFPTE, 201 Conn. 577, 585, 519 A.2d 1 (1986); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 64, 357 A.2d 466 (1975). Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. Bic Pen Corporation v. Local No. 134, supra, 584; Waterbury Board of Education v. Waterbury Teachers Assn., supra, 62; Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., 164 Conn. 472, 476-77, 325 A.2d 274 (1973). Since the parties consent to arbitration,"and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. Administrative & Residual Employees Union v. State, supra; Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983); Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978). The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it “falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement” will the determination of an arbitrator be subject to judicial inquiry. Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974); Stratford v. Local 131, IFPTE, supra; Administrative & Residual Employees Union v. State, supra; Schwarzschild v. Martin, supra; Milford Employees Assn. v. Milford, 179 Conn. 678, 682, 427 A.2d 859 (1980); Ramos Iron Works, Inc. v. Franklin Construction Co., supra; Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 (1960).

In their application for vacation of the award, the defendants in this case relied principally upon § 52-418 (a) (3), which provides that the court “shall make an order vacating the award . . . 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.” Specifically, the defendants alleged that the panel engaged in statutory misconduct by acting in “neglectful disregard” of their request to submit the joint venture agreement into evidence, thereby blocking their fundamental right to be heard. See Cofinco, Inc. v. Bakrie & Bros., N. V., 395 F. Sup. 613, 615 (S.D.N.Y. 1975).

The concept of arbitral “misconduct” does not lend itself to a precise definition but is, instead, best illustrated by example. See generally A. Rothstein, “Vacation of Awards for Fraud, Bias, Misconduct and Partiality,” 10 Vand. L. Rev. 813 (1957). Among the actions that have been found to constitute such misconduct on the part of an arbitrator as would warrant vacating an arbitration award are the following: participation in ex parte communications with a party or a witness, without the knowledge or consent of the other party; Whitehair v. Kansas Flour Mills Corporation, 127 Kan. 877, 879, 275 P. 190 (1929); Matter of Goldfinger v. Lisker, 68 N.Y.2d 225, 232, 500 N.E.2d 857, 508 N.Y.S.2d 159 (1986); ex parte receipt of evidence as to a material fact, without notice to a party; Hewitt v. Village of Reed City, 124 Mich. 6, 8, 82 N.W. 616 (1900); Reisman v. Ranoel Realty Co., 224 Pa. Super. 220, 224, 303 A.2d 511 (1973); holding hearings or conducting deliberations in the absence of a member of an arbitration panel, or rendering an award without consulting a panel member; see Continental Bank Supply Co. v. International Brotherhood of Bookbinders, 239 Mo. App. 1247, 1258, 201 S.W.2d 531 (1947); undertaking an independent investigation into a material matter after the close of hearings and without notice to the parties; Matter of Goldfinger v. Lisker, supra; and accepting gifts or other hospitality from a party during the proceedings. See Robinson v. Shanks, 118 Ind. 125, 130, 20 N.E. 713 (1889). An award may likewise be set aside on the basis of procedural error by an arbitration panel if, for instance, the panel arbitrarily denies a reasonable request for postponement of a hearing; Fairchild & Co. v. Richmond, F. & P. R. Co., 516 F. Sup. 1305, 1313 (D.D.C. 1981); see Two Sisters, Inc. v. Gosch & Co., 171 Conn. 493, 499 n.4, 370 A.2d 1020 (1976); or commits an egregious evidentiary error, such as refusing to hear material evidence or precluding a party’s efforts to develop a full record. Bell Aerospace Co. v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974); Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.), cert. denied, 393 U.S. 954, 89 S. Ct. 378, 21 L. Ed. 2d 365 (1968); Fairchild & Co. v. Richmond, F. & P. R. Co., supra, 1314; Cobec Brazilian Trading & Warehousing Corporation v. Isbrandtsen, 524 F. Sup. 7, 10 (S.D.N.Y. 1980). Though not exhaustive, these examples of arbitral misconduct delineate the broad contours of conduct that is unacceptable and prohibited under § 52-418 (a) (3). The presumptive validity of consensual arbitration awards depends upon the underlying integrity of the arbitration process. When that integrity is tainted either by actual impropriety or the appearance of impropriety, the arbitration award cannot be permitted to stand. See Commonwealth Coatings Corporation v. Continental Casualty Co., 393 U.S. 145, 147-48, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968), reh. denied, 393 U.S. 1112, 89 S. Ct. 848, 21 L. Ed. 2d 812 (1969).

In the present case, we must determine whether, by not admitting into evidence the joint venture agreement between O & G and O’Connell, the arbitration panel committed an egregious evidentiary error requiring the award to be vacated. We note, at the outset, that arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which “relieve[s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision.” Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., supra, 477; Bridgeport v. Bridgeport Police Local 1159, supra, 106. Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. Fairchild & Co. v. Richmond, F. & P. R. Co., supra; Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F. Sup. 549, 553 (S.D.N.Y. 1968). This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules.

In light of these well settled principles governing evidentiary issues in arbitration proceedings, we decline to interpret § 52-418 (a) (3) as mandating that every failure or refusal to receive evidence, even relevant evidence, constitutes misconduct. See Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., supra; Fairchild & Co. v. Richmond, F. & P. R. Co., supra. To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., supra; Capital District Chapter v. International Brotherhood of Painters, 581 F. Sup. 840, 845 n.9 (N.D.N.Y. 1983), aff’d in part, rev’d and remanded in part, vacated in part, 743 F.2d 142 (2d Cir. 1984); Fairchild & Co. v. Richmond, F. & P. R. Co., supra. Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel. Grahams Service, Inc. v. Teamsters Local 975, 700 F.2d 420, 422 (8th Cir. 1982); Bell Aerospace Co. v. Local 516, supra, 923; Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., supra; Fairchild & Co. v. Richmond, R. & P. R. Co., supra, 1315; Cobec Brazilian Trading & Warehousing Corporation v. Isbrandtsen, supra, 10; Reichman v. Creative Real Estate Consultants, Inc., 476 F. Sup. 1276, 1285 (S.D.N.Y. 1979); Cofinco, Inc. v. Bakrie & Bros., N. V., supra, 615; Good v. Kaiser Foundation Hospital, 152 Cal. App. 3d 819, 823, 199 Cal. Rptr. 581 (1984); Dahn v. Luchs, 92 App. Div. 2d 537, 538, 459 N.Y.S.2d 101 (1983);Reisman v. Ranoel Realty Co., supra, 224.

In considering whether in the present case the panel’s exclusion of the joint venture agreement was an egregious evidentiary error, we must examine the entire factual background of the defendants’ unsuccessful effort to have that document placed into evidence. In pursuing this claim based upon the shortcomings of the arbitrators, the defendants downplay the critical tactical errors they themselves made during the course of the proceedings. These tactical errors relate to the timing of their evidentiary request, and the manner in which it was implemented.

With respect to timing, the defendants obtained a copy of the joint venture agreement no later than February, 1984, and perhaps even earlier. Nevertheless, they did not attempt to introduce the agreement until August, 1985, two months after the hearings had been completed. Although the defendants insist that they were surprised by the plaintiff’s claim for lost opportunity damages, the defendants clearly anticipated that claim to some extent in that they addressed it in their own post-hearing briefs. We therefore conclude that the defendants could have foreseen the relevance of the document and could reasonably be expected to have introduced it prior to the completion of the hearings in June, 1985. In light of the fact that, with one exception, the panel admitted all of the 278 exhibits offered by the defendants, as well as 184 exhibits offered by the plaintiff, the panel would likely have admitted the agreement had it been offered in a timely fashion.

The more significant error made by the defendants was their failure to perfect their proffer of the agreement. On June 17,1985, the final day of the scheduled hearings, the panel expressly declined to close the hearings, recognizing the possibility that it might require further evidence before rendering its award. The defendants initially followed the proper procedure, as described above, in seeking to introduce the agreement. Faced with the panel’s failure to respond to its written request, however, the burden was on the defendants to press for an evidentiary ruling regarding the admissibility of the agreement, which they never sought. See State v. George, 194 Conn. 361, 372, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Williams, 169 Conn. 322, 333, 363 A.2d 72 (1975). Instead, the defendants awaited the arbitration panel’s award on the merits before pursuing their evidentiary claim in the Superior Court. On this record, we agree with the plaintiff that the panel never refused to receive into evidence the agreement offered by the defendants. Absent such a refusal, the defendants have not established the factual predicate for arbitral misconduct.

Furthermore, we note that even if, on some theory, we were to overlook the defendants’ shared responsibility for the unavailability of the joint venture agreement in the arbitration, the defendants have not proven that they were denied a full and fair hearing by virtue of its exclusion. See Cofinco, Inc. v. Bakrie & Bros., N. V., supra; Pfeiffer v. Merrill Lynch Pierce Fenner & Smith, Inc., 184 N.Y.L.J. No. 121, p. 10 (Sup. Ct.N.Y. Cty. 1980). Although the joint venture agreement was relevant, its precise text was not as crucial as the defendants allege. First, the defendants, in their post-hearing briefs to the panel, had two opportunites to respond to the plaintiff’s claim for lost opportunity damages, and addressed that claim on both occasions. Second, the plaintiff expressly conceded, in its post-hearing reply brief, that the joint venture was created solely for the construction of One Commercial Plaza and insisted that it was nevertheless entitled to recover damages for lost business opportunities. Given this express acknowledgment of the contents of the agreement, the panel was well aware of its relevant provisions and their significance, even though the document was never formally admitted into evidence. The document was, in these circumstances, merely cumulative evidence which would not have provided any new information relating to the plaintiff’s damage claim for lost business opportunity. Third, and finally, we note that the arbitration panel in this case was extremely professional and thorough in conducting the hearings, and in no way denied the parties an opportunity to develop a full record. The panel patiently heard extensive testimony, resulting in over 7000 pages of transcript, admitted 462 exhibits, over one half of which had been introduced by the defendants, traveled to Florida to take testimony from a recalcitrant witness, and personally visited the construction site of One Commercial Plaza. We therefore conclude that, on the record before us, there is no basis for vacating the arbitration award on the ground of arbitral misconduct. The trial court was in error in ruling to the contrary.

II

In seeking to have the award vacated, the defendants relied secondarily upon General Statutes § 52-418 (a) (4), claiming that the arbitrators “exceeded their powers,” and upon § 52-418 (a) (1), alleging that the plaintiff procured the award by “undue means.” These claims warrant only brief discussion.

“In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.” Bic Pen Corporation v. Local No. 134 supra, 584; New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977). Unless the submission provides otherwise, an arbitrator has authority to decide factual and legal questions, and courts will not review the evidence, or, where the submission is unrestricted, the arbitrator’s determination of legal questions. Bic Pen Corporation v. Local No. 134, supra; Milford Employees Assn. v. Milford, supra, 683; Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979); Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977). In this case, because neither the plaintiff’s demand for arbitration nor the defendants’ answer contained any conditional language restricting the powers of the arbitrators, the submission was unrestricted. See Bic Pen Corporation v. Local No. 134, supra, 584-85; Bridgeport v. Bridgeport Police Local 1159, supra, 107; Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 594-95, 96 A.2d 209 (1953). Since the award conforms to the submission, the defendants’ claim that the arbitrators exceeded their powers is without merit.

In fact, the defendants’ assertion that the arbitrators exceeded their powers is but a thinly veiled attempt to have the award vacated on the ground that it was not supported by any evidence presented at the hearings. Although the trial court agreed with the defendants’ argument that there was insufficient evidence to support the plaintiff’s claim for lost opportunity damages, the court had no authority to make that determination. We have stated frequently a point that bears reiteration; because consensual arbitration is a contractual remedy and the powers of the arbitrator are determined by the parties themselves, judicial review of such arbitration awards is limited in scope. Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporations. Local No. 14, supra, 583; Waterbury v. Waterbury Police Union, supra, 403. As we noted earlier, a court is bound by the award of the arbitrator unless it “falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement.” Costello Construction Corporation v. Teamsters Local 559, supra, 318; Milford Employees Assn. v. Milford, supra, 682. Thus, the trial court’s review of an arbitral award is a far cry from a trial de novo. Compare, e.g., General Statutes § 12-237; Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978); Yale University v. New Haven, 169 Conn. 454, 465, 363 A.2d 1108 (1975). Indeed, judicial review of arbitration awards is even more restrictive than judicial review of a decision of an administrative agency under the Uniform Administrative Procedure Act, which has been interpreted as allowing a court to “do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported ... by substantial evidence.” Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983); General Statutes § 4-183 (g); Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977). Only upon a showing of egregious error, which this record does not substantiate, does a court have authority to review the record to determine the sufficiency of the evidence in support of an arbitration award.

Finally, the defendants contend that the plaintiff procured the arbitration award by undue means, requiring that it be vacated under § 52-418 (a) (1). The thrust of this argument is that the plaintiff manipulated the proceedings by waiting until it submitted its post-hearing brief to raise its claim for lost opportunity damages. According to the defendants, since the hearings had been completed by that time and no further testimony could be presented, they were deprived of an adequate opportunity to rebut that claim. We note, however, that the plaintiff was not required to raise this claim formally prior to the submission of post-hearing briefs and therefore followed the proper procedure for presenting its claims to the panel. More important, the plaintiff clearly presented at the hearings some evidence in support of this claim, as demonstrated by the defendants’ own discussion of that issue in both of their post-hearing briefs. The defendants thus had sufficient notice of that claim, as well as a full opportunity to address it. We conclude that there is no evidence whatsoever that the plaintiff procured the award by undue means.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to render judgment for the plaintiff on its motion to confirm the arbitration award.

In this opinion the other justices concurred.

       General Statutes § 52-418 (a) provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, 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.”

       General Statutes § 52-417 provides: “application foe order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Upon the denial of its application for confirmation of the arbitration award and the granting of the defendants’ application for vacation of the award, the plaintiff filed both a motion to open and modify that judgment and a motion to open and set aside that judgment. The trial court denied both motions. The case before us is a combined appeal from those judgments as well.

       The arbitration clause in the construction contract provides:
      “All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect’s decision on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. No arbitration arising out of or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, the Architect, his employees or consultants except by written consent containing a specific reference to the Owner-Contractor Agreement and signed by the Architect, the Owner, the Contractor and any other person sought to be joined. No arbitration shall include by consolidation, joinder or in any other manner, parties other than the Owner, the Contractor and any other persons substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration. No person other than the Owner or Contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Any consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein. The foregoing agreement to arbitrate and any other agreement to arbitrate with an additional person or persons duly consented to by the parties to the Owner-Contractor Agreement shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
      “Notice of the demand for arbitration shall be filed in writing with the other party to the Owner-Contractor Agreement and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Subparagraph 2.2.12 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
      “Unless otherwise agreed in writing, the Contractor shall carry on the Work and maintain its progress during any arbitration proceedings, and the Owner shall continue to make payments to the Contractor in accordance with the Contract Documents.”

       The plaintiff submitted the following demand for arbitration:
      “AMERICAN ARBITRATION ASSOCIATION
      CONSTRUCTION INDUSTRY ARBITRATION RULES DEMAND FOR ARBITRATION
      Date: January 12, 1984
      To: (Name) Olympia & York-Hartford, Inc.
      and Chase Family Limited Partnership No. 3.
      (of party upon whom the Demand is made)
      (Address) P.O. Box 3661
      (City and State) Hartford, Connecticut 06103
      Named claimant, a party to an arbitration agreement contained in a written contract, dated October 15,1981 and signed March 8,1983, as amended by an agreement dated March 8, 1983, providing for arbitration, under the Construction Industry Arbitration Rules, hereby demands arbitration thereunder.
      NATURE OF DISPUTE:
      Olympia & York-Hartford, Inc. and Chase Family Limited Partnership No. 3 have breached the contract as amended by (1) wrongfully attempting to terminate the employment of the Claimant and take possession of the construction site; (2) wrongfully refusing to grant Claimant access to the site; and (3) refusing to pay Claimant the amounts due for work performed under the contract.
      CLAIM OR RELIEF SOUGHT: (amount, if any)
      1. A declaration that the contract as amended is in full force and effect and that the Claimant’s employment may not be terminated.
      2. Damages in an amount as yet undetermined, plus interest and costs.
      HEARING LOCALE REQUESTED: (city and state) Hartford, Connecticut.
      You are hereby notifed that copies of our Arbitration Agreement and of this Demand are being filed with the American Arbitration Association at its Hartford, Connecticut Regional Office, with the request that it commence the administration of the arbitration. Under Section 7 of the Arbitration Rules, you may file an answering statement within seven days after notice from the Administrator.
      Signed: Isl John C. Yavis, Jr.
      (May be signed by attorney)
      Address (to be used in connection with this case): 112 Wall Street, P.O. Box 907
      City and State: Torrington, Connecticut 06790
      Telephone: 489-9261
      Name of Attorney: John C. Yavis, Jr., Murtha, Cullina, Richter and Pinney
      Address: 101 Pearl Street, P.O. Box 3197
      City and State: Hartford, Connecticut 06103
      Telephone: 549-4500
      To institute proceedings, please send three copies of this Demand and the arbitration agreement, with the filing fee, as provided in Section 47 of the Rules.”

       In its post-hearing brief, dated July 25, 1985, the plaintiff asserted a claim for $3.5 million for the loss of business opportunity suffered by both the joint venture contractor and by the individual joint venturers. The plaintiff subsequently withdrew that claim with respect to the individual joint venturers, stating in its reply brief: “[T]he Contractor’s $3.5 million claim for lost business opportunities does not include a claim by the individual joint venturers. The claim is strictly that the joint venture itself has been damaged.”

       In their initial post-hearing brief, the defendants devoted two pages to the argument that the evidence as to damages suffered by the joint venture was merely speculative.

       The joint venture agreement provides, in relevant part, that O & G Industries, Inc., and Daniel O’Connell’s Sons, Inc., “constitute themselves as Joint Venturers for the purpose of performing and completing the Construction Contract, but not for any other purposes, it being expressly understood that this Agreement contemplates only the furnishing and the performance of the work, labor and materials necessary to the completion of the Construction Contract and that the parties are not making any permanent partnership agreement or permanent joint venture agreement to bid for or undertake any contract other than the Construction Contract . . . .”

       The letter sent by the defendants’ counsel to the AAA on August 14, 1985, read as follows:
      “August 14, 1985
      Mssrs. John C. Heffeman, Richard W. LaMay and Daniel J. Tasillo
      c/o American Arbitration Association
      Two Hartford Square West
      Hartford, Connecticut 06106
      Re: 12 110 0033 84
      O & G/O’Connell -and- Olympia & York, et al.
      Gentlemen:
      On behalf of the respondents Chase Family Limited Partnership No. 3 and Olympia & York Hartford, Inc., I am writing to request permission to supplement the record by submitting to the Panel as an exhibit a copy of the Joint Venture Agreement between O & G Industries, Inc., and Daniel O’Connell’s Sons, Inc.
      This request is prompted by the following statement at page 28 of the claimant’s brief of July 25, 1985:
      ‘Although the evidence is circumstantial, the Panel may rightfully—and conservatively—infer that but for the termination the Contractor would have been awarded at least two highrise jobs within the reasonable life-expectancy of the joint venture.’ (Emphasis in original.)
      This specific claim of two additional jobs within the ‘reasonable life-expectancy of the joint venture’ was not raised at the hearings either by argument or testimony. Had it been so raised, the respondents would have had the opportunity to offer the contractor’s joint venture agreement— which is already marked as Exhibit XX in the delay arbitration—on the issue of what the ‘reasonable life-expectancy of the joint venture’ is and whether this joint venture could have been awarded two additional jobs during that life expectancy. Since the hearings have been left open to receive such additional evidence as the Panel may deem appropriate, and since the proffered document is highly relevant to this newly raised claim, the respondents submit that their request to supplement the record is reasonable and should be granted.
      Thank you for your consideration.
      Respectfully,
      /s/Frank Silvestri
      Frank J. Silvestri, Jr.
      FJS/pc
      cc: John Yavis, Jr., Esquire
      Charles F. Corcoran, III, Esquire”
      The defendants thereby followed the procedure set forth in Rule 40 of the Construction Industry Arbitration Rules, which provides in relevant part: “There shall be no communication between the parties and an arbitrator other than at oral hearings. Any other oral or written communications from the parties to the arbitrator shall be directed to the AAA for transmittal to the arbitrator.”

       General Statutes § 52-416 (a) provides: “time WITHIN which award shall be rendered, notice, (a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”
      General Statutes § 52-418 (b) provides: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”
      Rule 36 of the Construction Industry Arbitration Rules provides: “reopening of hearings
      “The hearings may be reopened by the arbitrators at will, or upon application of a party at any time before the award is made. If the reopening of the hearing would prevent the making of the award within the specific time agreed upon by the parties in the contract out of which the controversy has arisen, the matter may not be reopened, unless the parties agree upon the extension of such time limit. When no specific date is fixed in the contract, the arbitrator may reopen the hearings, and the arbitrator shall have thirty days from the closing of the reopened hearings within which to make an award.”

       We note that, in general, arbitrators are permitted to consult independently with third party sources when necessary to confirm technical information presented in a proceeding. Matter of Goldfinger v. Lisker, 68 N.Y.2d 225, 232, 500 N.E.2d 857, 508 N.Y.S.2d 159 (1986); Matter of Gerli & Co. v. Heineman Corporation, 258 N.Y. 484, 488, 180 N.E. 243 (1932).

       Federal case law is instructive on this issue because General Statutes § 52-418 (a) (3) essentially tracks the language of the federal statute governing arbitral misconduct. Title 9 of the United States Code, § 10, provides in relevant part: “[T]he United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration . ... (c) Where the arbitrators were 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 misbehavior by which the rights of any party have been prejudiced.”

       Furthermore, under Rule 36 of the Construction Industry Arbitration Rules, the defendants could have applied to have the hearings reopened at any time before the award was issued on October 10, 1985.

       The plaintiff asserted in its reply brief: “The joint venture agreement, offered into evidence by [the defendants] after the close of hearings . . . does not preclude a finding by the Panel that the Contractor would have been awarded at least two highrise jobs within its reasonable life expectancy. While the joint venture agreement specifically pertained to One Commercial Plaza and did not constitute a ‘permanent partnership agreement or permanent joint venture agreement,’ it was anticipated that, if successful, the individual joint venturers would collaborate on future projects.”

       The trial court also ruled that the panel had failed to comply with the mandate of Rule 35 of the Construction Industry Arbitration Rules, which provides that prior to closing the hearings, “[t]he arbitrator shall specifically inquire of the parties whether they have any further proofs to offer or witnesses to be heard.” Although the panel in this case did not expressly make such an inquiry, one of the arbitrators stated at the final scheduled hearing on June 17, 1985: “One of the reasons I don’t want to close the hearing is it’s conceivable that there may be some question we have which may require some small amount of further evidence.” In leaving the hearings open for the submission of additional evidence, the panel thereby substantially complied with Rule 35. Moreover, under Rule 38, the defendants are deemed to have waived any objection to the panel’s failure to comply strictly with that rule. Rule 38 provides: “Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules has not been complied with and who fails to state an objection thereto in writing, shall be deemed to have waived the right to object.” The defendants filed no such written objection.


author: Per Curiam.

text:
    Beverly A. Arsenault, Administratrix (Estate of David W. Arsenault), et al. v. Pa-Ted Spring Company, Inc., et al.
    (12877)
    (13035)
    Peters, C. J., Shea, Santaniello, Hull and Higgins, Js.
    Argued March 4
    decision released April 14, 1987

      Steven J. Errante, with whom, on the brief, was Cindy L. Robinson, for the appellant (plaintiff).

      Jon S. Berk, with whom was Philip J. O’Connor, for the appellee (defendant Despatch Industries, Inc.).

      Molly S. Levan, for the appellee (defendant Etter Engineering Company, Inc.).
   Per Curiam.

This case concerns the applicability and the constitutionality of the ten year statute of limitations for product liability claims; General Statutes § 52-577a (a); to a suit to recover for personal injuries sustained in an accident that occurred after the expiration of the statute. The plaintiff, Beverly A. Arsenault, suing as administratrix of the estate of David W. Arsenault and in her own right, brought an action in thirteen counts to recover for the fatal injuries that her late husband sustained at his place of employment when an explosion occurred in 1983 as he was placing a tray of springs in an industrial oven. The plaintiffs complaint contained three counts, based upon General Statutes §§ 52-572m through 52-572r, alleging that the defendant Despatch Industries, Inc., the manufacturer of the oven bought in 1959 by the employer of the plaintiffs decedent, was liable to the plaintiff on a theory of negligent failure to warn that the oven was defective. That defendant moved for summary judgment on the basis of the statute of limitations, § 52-577a, which it had interposed as a special defense. The trial court, Zoarski, J., granted the motion for summary judgment and rendered judgment for the defendant Despatch Industries, Inc. Thereafter, the trial court, McKeever, J., granted a similar motion filed on behalf of Etter Engineering Company, Inc., the distributor who had sold the oven to the employer. The plaintiff has appealed from these judgments.

These appeals are entirely governed by our recent decision in Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986). There, as here, an action was brought to recover for injuries resulting from the use of a machine more than ten years after its vendor had parted with possession and control thereof. There, too, the trial court granted the defendant vendor’s motion for summary judgment on the ground that the action was time barred. Concluding that the judgment should be affirmed, we held that § 52-577a is a complete defense to such a vendor because “the products liability statute provides an exclusive remedy and the plaintiffs cannot bring a common law cause of action for a claim within the scope of the statute.” Id., 571. We also held that § 52-577a does not violate the rights established by article first, §§10 and 20, of the Connecticut constitution or the equal protection clause of the fourteenth amendment to the United States constitution. Id., 575-86. We specifically considered and rejected the argument, made by the plaintiff in this case, that § 52-577a deprives her of the constitutional right to redress “by due course of law” guaranteed by article first, § 10, of the Connecticut constitution. Id., 582-86. For these reasons, the plaintiffs appeals cannot succeed.

There is no error.

       General Statutes § 52-577a (a) provides: “limitation of action based ON product liability claim, (a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c) and (d), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.”