Opinion
No. 319110
May 4, 1995
MEMORANDUM OF DECISION
The plaintiff, Sutri Giavara, filed an application for an order appointing an arbitrator to resolve a wage dispute between him and the defendants, EICON Group, Inc. and Environmental Infrastructure Consultants, Inc. Giavara also filed an application for an order pendente lite pursuant to General Statutes § 52-422 during the pendency of the arbitration. In that application, Giavara seeks an order requiring the defendants to post security for his claim in the event he prevails. The defendants oppose that application.
The plaintiff does not seek relief pursuant to chapter 903a of the General Statutes which defines and governs "prejudgment remedies" in civil actions. See General Statutes § 52-278a(d). An arbitration is not a civil action. Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 344, 494 A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985), and cases cited therein.
The dispute between the parties arose from Giavara's employment by the defendants. According to Giavara's affidavit, he sold his company to EICON Group, Inc., the parent of a wholly-owned company Environmental Infrastructure Consultants, Inc. As part of the purchase of Giavara's business, he and the defendants agreed to a long-term employment contract. The crux of Giavara's complaint is that the defendants withheld his salary and other compensation due him because of their financial difficulties.
In pertinent part, the agreement provides "[a]ny dispute, controversy, or claim arising out of, or relating to, this Agreement, or the breach thereof, shall be settled by an arbitrator in the State of Connecticut jointly designated by one arbitrator selected by the Company and one arbitrator selected by the Employee."
In support of his application for an order pendente lite, Giavara argues that Connecticut law permits a court to order a security while arbitration is pending. Giavara argues that in Goodson v. State, 228 Conn. 106, 112, 635 A.2d 285 (1993), modified, 232 Conn. 175, CT Page 4696 653 A.2d 177 (1995), the Supreme Court recognized that General Statutes § 52-422 permits a court to enter orders pendente lite, pending resolution of an arbitration claim. Giavara stresses that the agreement between himself and the defendants does not preclude the court from granting his application for security.
The defendants argue that the court should not grant Giavara's application for an order pendente lite because the parties' agreement mandates arbitration. Citing State v. Connecticut Employees Union Independent, 184 Conn. 578, 440 A.2d 229 (1981), the defendants state that autonomy of arbitration requires a minimum of judicial intrusion and that an order pursuant to General Statutes § 52-422 may only be sought after it has presented to an arbitrator who has declined to entertain it. The defendants further argue that General Statutes § 52-422 authorizes relief pendente lite only regarding issues that are not reserved for arbitration.
General Statutes § 52-422 provides: "At any time before an award is rendered pursuant to an arbitration under this chapter, 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 said court is not in session, any judge thereof, upon application of any party to the arbitration, may make forthwith such order or decree, issue such process and direct such proceedings as may be necessary to protect the rights of the parties pending the rendering of the award and to secure the satisfaction thereof when rendered and confirmed."
In Goodson v. State, 232 Conn. 175, 180, 653 A.2d 177 (1995), the Connecticut Supreme Court considered the requirements of General Statutes § 52-422. "By its express terms, § 52-422 allows the trial court to issue an order only `upon application of any party to the arbitration. . . .' Thus, a pending arbitration is an essential condition that must exist before § 52-422 may be invoked." Id.
In this case, the defendants essentially argue that the court may not enter an order pendente lite because an arbitration proceeding is pending. This argument is a nonsequitur. An order pendente lite is permitted only when an arbitration is pending. Goodson v. State, supra, 232 Conn. 180. General Statutes § 52-422 unambiguously authorizes the relief which the plaintiff seeks. The court holds that General Statutes § 52-422 authorizes the Superior Court to issue an order pendente lite to secure assets that could be used to pay a judgment in a pending arbitration. Other jurisdictions, state and federal, have recognized the authority of a court to issue such a pendente lite order. See, e.g., Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co., 749 F.2d 124 (2d Cir. 1984) (granting preliminary injunction to prevent defendant from cancelling distribution agreement); McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan Co., Inc., 114 App. Div. 2d 165, 498 N.Y.S.2d 146, 151 (1986) (granting preliminary injunction related to former employer's clients); Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243, 245 (1965) (holding that the plaintiff was entitled to a temporary restraining order to prevent the defendant from conveying or encumbering property during an arbitration); see also Note, Availability of Provisional Remedies in Arbitration Proceedings, 17 N YUniv.L.Q. 638 (1940).
Neither party has offered any discussion as to when an arbitration is "pending" within the contemplation of general Statutes § 52-422. Giavara commenced this action with an "application for an order appointing an arbitrator." In an affidavit, he states that by letter he "demanded arbitration." In response, the defendants have stated that they "have no objection to the matter being referred to arbitration." Under these circumstances, the "issue will be treated as presented and briefed by the parties"; Mitchell v. King, 169 Conn. 140, 145, 363 A.2d 68 (1975); and the court will assume that an arbitration proceeding is pending.
Because the statute is clear on its face and since Goodson v. State is controlling, the court does not consider the Superior Court cases cited by the parties which addressed the issue. Yellin v. Premier Development, Superior Court, judicial district of Hartford-New Britain at Hartford, No, 704598 ( 9 CSCR 502; 11 Conn. L. Rptr. 276) (1994); Reichenbach v. McIvor, Superior Court, JD of Stamford-Norwalk, No. 135577 (granting temporary injunctive relief to enjoin defendants from transferring assets during the arbitration); Spicer v. Spicer, Superior Court, JD of New London, No. 523339 8 CONN. L. RPTR. 131 (granting a motion for an order pendente lite during an arbitration); Twin Manufacturing Co. v. Twin Manufacturing, Inc., 3 CSCR 410, 411 (1988); Cebulski Construction Co. v. Dorman, 12 CLT No. 24, p. 33 (1988) (denying request for an order pendente lite) All of these cases were decided before Goodson v. State, supra.
The plaintiff's application for an order pendente lite is granted. The parties are to appear before the court to argue the appropriate scope of the order.
BY THE COURT
Levin, J.