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DeRose v. Jason Robert’s, Inc.

Appellate Court of Connecticut

August 13, 2019

Michael DEROSE

         Argued January 31, 2019

         Superior Court in the judicial district of Ansonia-Milford, Hon. Arthur A. Hiller, judge

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          Lori Welch-Rubin, for the appellants (defendants).

         Thomas J. Weihing, Bridgeport, for the appellee (plaintiff).

         Keller, Prescott and Harper, Js.


         PRESCOTT, J.

         [191 Conn.App. 784] The defendants, Jason Robert’s, Inc., and Robert D. Hartmann, Sr., appeal from the judgment of the trial court denying their motion to vacate an arbitration award and granting an application to confirm the award filed by the plaintiff, Michael DeRose. On appeal, the defendants claim that the court improperly (1) found that the arbitrator effectively had defaulted the defendants for failing to appear at the final arbitration hearing, and that this allegedly erroneous factual finding colored the court’s decision-making process with respect to the motion to vacate; (2) failed to provide the defendants with an evidentiary hearing before ruling on the motion to vacate; (3) granted a motion to quash a subpoena duces tecum directed at the arbitrator and his files; (4) failed to vacate the arbitration award on the ground that the arbitrator had not addressed the entirety of the submission; (5) confirmed an award that violated public policy; and (6) confirmed an award made in manifest disregard of the law in violation of General Statutes § 52-418 (a) (4).[1] We disagree and, accordingly, affirm the judgment of the trial court.

         The facts underlying the parties’ long-standing dispute are set forth in our decision in [191 Conn.App. 785] Jason Robert’s, Inc. v. Administrator, Unemployment Compensation Act, 127 Conn.App. 780, 782-85, 15 A.3d 1145 (2011). Additional facts and procedural history are set forth in the arbitrator’s award and in the trial court’s oral decision and subsequent articulation. "[Jason Robert’s, Inc.,] is a concrete business. During the years 1998, 1999 and 2000, [it] employed [DeRose] as a concrete artisan. While [DeRose] was working for [Jason Robert’s, Inc.] as an employee, he asked for a raise in salary. In order to give [DeRose] the potential to earn more money, [Jason Robert’s, Inc.,] directed [DeRose] to set up a business so that he could enter into an agreement with [it] as a licensed dealer. In or about 2001, after [DeRose] had set up his own business, [Jason Robert’s, Inc.,] presented him with a licensed dealer authorization (agreement), and, on May 4, 2001, [DeRose] signed the agreement and became a licensed dealer for [Jason Robert’s, Inc.]

          * * *

         "[DeRose] was a licensed dealer of [Jason Robert’s, Inc.,] during the years 2001

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and 2002. During those years, [Jason Robert’s, Inc.,] classified [DeRose] as an independent contractor. At the end of 2002, [DeRose] terminated the agreement because the arrangement had become unprofitable for him. After terminating the agreement, [DeRose] filed a claim for benefits under the Unemployment Compensation Act (act), General Statutes § 31-222 et seq. This claim for benefits caused ... the administrator of the act [administrator] to issue a missing wage assignment.... On April 25, 2003 ... [a field auditor of the employment security division of the state department of labor] issued [a] written report, wherein he concluded that [DeRose] was an employee [of Jason Robert’s, Inc.,] during the years 2001 and 2002. In a letter dated April 29, 2003, the [administrator] informed [Jason Robert’s, Inc.,] of this determination and that there would be an assessment for the contributions due in the amount of [191 Conn.App. 786] $4366.03 plus interest. On May 16, 2003, [Jason Robert’s, Inc.,] appealed this determination to the appeals division .... On September 12, 2007 ... the appeals referee affirmed the determination. In its decision, the appeals referee applied § 31-222 (a) (1) (B) (ii), more commonly known as the ‘ABC test,’ ... and concluded that [DeRose] was an employee of [Jason Robert’s, Inc.] The referee reached this conclusion after having determined that [Jason Robert’s, Inc.,] failed to satisfy any of the three prongs of the ABC test." (Footnote omitted.) Id., at 782-84, 15 A.3d 1145.

         Both the Worker’s Compensation Review Board (board) and the Superior Court subsequently affirmed the decision of the appeals referee. Id., at 784-85, 15 A.3d 1145. Jason Robert’s, Inc., then appealed to this court claiming that, in determining whether DeRose was an employee, the board should have applied General Statutes § 42-133e (b), rather than the "ABC test" to the underlying facts. Id., at 785, 15 A.3d 1145. We disagreed and affirmed the judgment of the trial court. Id.

         In 2007, during the pendency of the worker’s compensation appeal, DeRose filed a civil action against the defendants.[2] The operative complaint contained seven counts in which DeRose alleged that the defendants (1) breached their agreement with him by failing to compensate him for various jobs, (2) breached the implied covenant of good faith and fair dealing, (3) made negligent misrepresentations, (4) made fraudulent misrepresentations, (5) violated several state labor statutes, (6) committed unfair trade practices, and (7) negligently inflicted emotional distress. In May, 2011, [191 Conn.App. 787] the defendants filed an amended answer to the complaint raising a number of special defenses.[3] Jason Robert’s, Inc., also filed a counterclaim against DeRose, alleging that he had breached the parties’ agreement by failing to complete work or utilizing poor workmanship, and committed statutory theft by retaining funds belonging to Jason Robert’s, Inc.

          On June 6, 2012, the parties entered into an agreement to resolve their civil action through binding arbitration. DeRose subsequently withdrew his civil action from the Superior Court. The arbitration agreement contains a clause titled "Submission to Arbitration and Scope of Arbitration,"

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which states as follows: "The controversy shall be submitted to a panel of one arbitrator (Attorney Daniel Portanova), who shall hear, settle and determine by arbitration the matters in controversy within the scope of the claim based upon the evidence and testimony presented. The arbitrator is permitted, but not required, to apply the rules of evidence in civil cases when considering the evidence presented. No party shall have the right or power to revoke the submission without the written consent of the other party except on the grounds as exist in law or equity for the rescission or revocation of any contract. All issues shall be submitted to and fully and finally adjudicated by the arbitrator ...

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