Bobbin v. Sail the Sounds, LLC

153 Conn.App. 716

107 A.3d 414

David BOBBIN

v.SAIL THE SOUNDS, LLC, et al.

No. 35596.

Appellate Court of Connecticut.

Argued Sept. 18, 2014.

Decided Nov. 18, 2014.

Santa Mendoza, for the appellant (plaintiff).

DiPENTIMA, C.J., and KELLER and MIHALAKOS, Js.

Opinion

KELLER, J.

The plaintiff, David Bobbin, appeals from the judgment of the trial court granting the defendants' motion to dismiss his application to compel arbitration for failure to prosecute with reasonable diligence.¹ On appeal, the plaintiff claims that (1) his application to compel arbitration, under General Statutes § 52–410, is not a civil action, and, therefore, is not subject to dismissal pursuant to Practice Book § 14–3, and (2) in the alternative, he did not fail to prosecute his application with reasonable diligence in violation of Practice Book § 14–3. We affirm the judgment of the trial court.²

The following facts, either as found by the court or apparent in the record before the court, and procedural history are relevant to this appeal. The defendant Sail the Sounds, LLC, while in operation, was a company involved in the boat chartering business.³ The defendant James Scoggins and his late wife, Teresa Scoggins, were the sole members of the company. The plaintiff began working for the company in March, 1998, and entered into a written contract that entitled him to a share of the profits from the company's sailing division. The plaintiff voluntarily terminated his relationship with the company in November, 2000.

In 2002, the plaintiff commenced an action against Sail the Sounds, LLC, and both James Scoggins and Teresa Scoggins, alleging that he did not receive an appropriate share of the profits owed to him under the written contract. In January, 2004, the parties agreed to have the plaintiff withdraw his pending case and instead collectively pursue mediation or arbitration. Upon a joint motion filed by the parties, the court entered their agreement as an order on January 23, 2004. Under the agreement, the parties had to mediate their dispute by May 15, 2004. If the mediation was unsuccessful, the agreement required the parties to participate in a binding arbitration proceeding by September 15, 2004. The parties failed to mediate or arbitrate at any time following the order.

On July 7, 2008, the plaintiff filed an application to compel arbitration under § 52–410.⁴ The court scheduled a hearing on the application for August 11, 2008, but the plaintiff agreed to mark the hearing off at the defendants' request.⁵ On July 7, 2009, the plaintiff filed a form to reclaim his application on the court's short calendar list, but the court did not subsequently schedule a hearing on the matter.

On July 30, 2010, the plaintiff filed a motion for default for the defendants' failure to appear, which the court clerk granted on August 6, 2010. The defendants' counsel subsequently filed an appearance on August 18, 2010.

Following nearly two years of inactivity, the court sent a notice to the parties on April 10, 2012, stating that the court had scheduled a status conference because there had been no activity in the case for the previous six months. The notice further stated that the attorneys could be excused from attending the conference by, inter alia, withdrawing the action or submitting a certificate of closed pleadings. In response, the plaintiff filed a certificate of closed pleadings on April 27, 2012. The defendants filed an objection to the certificate and subsequently filed a motion to dismiss the plaintiff's application to compel arbitration for failure to prosecute with reasonable diligence pursuant to Practice Book § 14–3.⁶

The court, Hon. Thomas F. Parker, judge trial referee, granted the defendants' motion to dismiss. The court found that the plaintiff never made any requests to the defendants for mediation or arbitration, and further found no evidence to substantiate the plaintiff's claim that the defendants had refused to submit to mediation. In addition, the court noted that the plaintiff's minimal activity from August, 2008, to July 30, 2010, and from August, 2010, to April 27, 2012, “halted the progress” of the case. Finally, the court emphasized that the plaintiff's delays were particularly dilatory in light of the expedited proceedings mandated under § 52–410. For these reasons, the court dismissed the plaintiff's action. The plaintiff filed a motion for reargument, which the trial court denied. This appeal followed. Additional facts will be set forth as necessary.

I

First, the plaintiff claims that the court erred in granting the defendants' motion to dismiss because his application to compel arbitration is not a civil action for the purposes of dismissal pursuant to Practice Book § 14–3. We disagree.

Our review of the applicability of Practice Book § 14–3 involves a question of law and is therefore plenary. See Cunniffe v. Cunniffe, 150 Conn.App. 419, 429, 91 A.3d 497 (2014).

As this court succinctly explained in Fishman v. Middlesex Mutual Assurance Co., 4 Conn.App. 339, 494 A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985), courts generally have viewed arbitration proceedings as distinct from civil actions. Id., at 344, 494 A.2d 606 ; see also Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 503, 472 A.2d 780 (1984) (arbitration proceedings are not civil actions in regard to suit, attachment, and service of process on partnerships under General Statutes §§ 52–112 and 52–57 [d] ); Waterbury v. Waterbury Police Union, Local 1237, 176 Conn. 401, 408, 407 A.2d 1013 (1979) (applications to confirm, modify, or vacate arbitration awards are not civil actions under title 52 of General Statutes); Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn.Supp. 76, 86, 197 A.2d 83 (1963) (arbitration proceeding is not civil action within bar of statute of limitations). These cases indicate that “whether an arbitration proceeding is a civil action turns on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose.... [T]he word action has no precise meaning and the scope of proceedings which will be included within the term ... depends upon the nature and purpose of the particular statute in question.... What the legislature may have intended to be a civil action for some purposes may not be a civil action for others.” (Citation omitted; internal quotation marks omitted.) Fishman v. Middlesex Mutual Assurance Co., supra, at 344, 494 A.2d 606.

Relying on Fishman, the plaintiff claims that his application to compel arbitration cannot be treated as a civil action that is subject to dismissal pursuant to Practice Book § 14–3. In Fishman, the plaintiff, an insured party, filed a complaint seeking an order to compel the defendant, an insurance company, to participate in arbitration proceedings pursuant to an arbitration provision in the plaintiff's homeowners policy. Id., at 340–41, 494 A.2d 606. The defendant filed a motion to dismiss the action on the ground that, inter alia, it was a civil action requiring a recognizance for costs, which the plaintiff did not provide. Id., at 341, 494 A.2d 606. After the trial court denied its motion, the defendant filed requests to revise the complaint, notices of interrogatories, and requests for production. Id., at 341–42, 494 A.2d 606. The plaintiff did not comply with the requests or interrogatories and filed objections, on which the court did not rule. Id., at 342, 494 A.2d 606. Subsequently, the plaintiff filed a motion for an order to proceed with arbitration under § 52–410. Id. The court granted the motion following a hearing. Id.

On appeal, this court held that an application to compel arbitration is not a civil action in the context of the recognizance for costs requirement. Id., at 345, 347, 494 A.2d 606. This court explained that our arbitration statutes created mechanisms for the purposes of “avoid[ing] the formalities, the delay, the expense and vexation of ordinary litigation.” (Internal quotation marks omitted.) Id., at 345, 494 A.2d 606. Subsection (c) of § 52–410 conforms to those purposes in providing that “the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay....” Id., at 346, 494 A.2d 606. According to this court, those purposes would be frustrated if a party “is able to slow down this favored process not only by requiring the other party to seek the court's intervention, but also by insisting on all the procedural formalities, delays, and costs of an ordinary civil action.” Id. Consequently, this court determined that requiring a recognizance for costs to accompany an application to compel arbitration would “serve only to obstruct the legislative intent behind General Statutes § 52–410.” Id.

Similarly, this court concluded that requests to revise and discovery procedures were not applicable to the proceedings contemplated under § 52–410. Id., at 349–51, 494 A.2d 606. According to this court, “[s]ince a proceeding under General Statutes § 52–410 does not follow the pattern of an ordinary civil action it cannot be seen as a civil action for purposes of discovery as well as for purposes of pleading.... The policies behind a proceeding to compel arbitration are equally frustrated by a delay due to discovery as a delay due to insistence on pleading formalities.” Id., at 351, 494 A.2d 606.

Upon our review of Fishman, we are not persuaded by the plaintiff's claim that his application to compel arbitration is not a civil action for the purposes of applying Practice Book § 14–3. Fishman does not stand for the broad proposition suggested by the plaintiff that applications to compel arbitration under § 52–410 are never treated as civil actions; rather, this court merely held that such applications are not civil actions in the context of recognizance for costs requirements, discovery requests, and requests to...