Opinion
No. CV 06-4021904
November 15, 2006
MEMORANDUM OF DECISION
I
The plaintiff, the state department of transportation (state), commenced this action on March 10, 2006, seeking to enjoin the defendant, White Oak Corporation (White Oak) from conducting any further arbitration proceedings in connection with White Oak's contract for the replacement of the Tomlinson Bridge in New Haven, Connecticut. The state argues that in light of the extensive past arbitration and judicial proceedings, White Oak has exhausted all permissible legal avenues to pursue its claims and now, "enough is enough."
On June 6, 1994, the state and White Oak entered into a contract for the construction of the Tomlinson Bridge over the Quinnipiac River in New Haven. The contract required White Oak to construct a temporary bridge to accommodate traffic during construction, demolish and remove the existing bridge, construct a new vertical lift truss bridge and finally, remove the temporary bridge. Construction was to commence on September 4, 1994, and completion was scheduled for January 5, 1998. White Oak experienced numerous delays and on April 28, 2000, the parties, together with White Oak's surety, AIG, executed an assignment agreement by which Cianbro Corporation (Cianbro) became the successor contractor. The permanent bridge was not completed until December 31, 2001.
Notwithstanding a number of extensions that the state granted to White Oak, the two parties made various claims against each other and White Oak filed its first notice of claim for arbitration, pursuant to General Statutes § 4-61(b), on July 9, 1998. White Oak's claim focused on damages suffered due to the state's allegedly wrongful termination of the contract. The state sought to enjoin the arbitration in an August 23, 2002 action captioned, Dept of Transportation v. White Oak Corp., Superior Court, judicial district of Hartford, Docket No. CV 02 0819031, but, notwithstanding, simultaneously sought, inter alia, liquidated damages pursuant to the contract and proceeded to arbitration before the AAA. The arbitration hearings commenced on April 24, 2003, and, after forty-two days, ended on July 8, 2004. As noted by the state, the evidence and testimony covered all areas of the project "including, but not limited to, delay, design deficiencies, differing site conditions, incomplete plans, specifications and drawings, failure to provide design criteria, allegations of non-constructible design, improper changes in design, improper conduct in regulating construction activities, failure to accurately disclose subsurface conditions, failure to provide camber values for structural steel and accompanying delays, withholding approval for various components of the contract, failure to issue time extensions, failure to act in accordance with the partnering charter, failure to act in good faith, and destruction of WOC's [White Oak's] business." Additionally, according to the state, White Oak also introduced evidence regarding the claims of two of its subcontractors. On December 29, 2004, the panel issued its decision both rejecting White Oak's claim of damages and awarding the state $1,169,648.33 in actual damages for increased costs of railroad transportation (transloading costs) and bridge maintenance and overhead costs.
General Statutes § 4-61(b) provides: "As an alternative to the procedure provided m subsection (a) of this section, any such person, firm or corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such person, firm or corporation and the agency head and (2) the provisions of subsections (b) to (e), inclusive, of this section, except that if the parties cannot agree upon a dispute resolution entity, the rules of the American Arbitration Association and the provisions of said subsections shall apply. The provisions of this subsection shall not apply to claims under a contract unless notice of each such claim and the factual bases of each claim has been given in writing to the agency head of the department administering the contract within the time period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier. A demand for arbitration of any such claim shall include the amount of damages and the alleged facts and contractual or statutory provisions which form the basis of the claim. No action on a claim under such contract shall be brought under this subsection except within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends three years after the acceptance of the work by the agency head of the department administering the contract evidenced by a certificate of acceptance issued to the contractor or three years after the termination of the contract, whichever is earlier. Issuance of such certificate of acceptance shall not be a condition precedent to the commencement of any action."
That notice of claim was later amended on May 31, 2001, and again on July 25, 2001; the notice of claim relevant to the present case is dated March 3, 2005.
Paragraph 13, Verified Complaint, March 10, 2006.
The state sought to confirm the arbitrator's decision and White Oak sought to have the decision vacated. While the state maintained that White Oak had either waived or not properly preserved its claims, "the parties primarily focused on White Oak's central claim that the panel had violated § 4-61(e) by failing to 'interpret the contract and apply it to the facts found.'" Dept of Transportation v. White Oak Corp., Superior Court, judicial district of Hartford, Docket No. CV 05 4017594. White Oak argued, quoting Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992), that such a failure made the decision "[a]n award that manifests an egregious or patently irrational application of the law [and] is an award that should be set aside pursuant to [General Statutes § ]52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made."
General Statutes § 52-418 provides in relevant part: "(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."
As noted by White Oak, § 4-61(e) specifically incorporates § 52-418 as the last sentence of § 4-61(e) provides that "[a]wards shall be final and binding and subject to confirmation, modification or vacation pursuant to chapter 909." Chapter 909, entitled "Arbitration Proceedings," includes § 52-418.
On February 22, 2005, the state issued a certificate of acceptance of work and acceptance of project. On March 3, 2005, White Oak delivered a notice of claim to the state, and on March 1, 2006, White Oak filed a demand with the AAA seeking arbitration for the matters submitted in the 2005 notice. On March 10, 2006, the state filed the present action seeking to enjoin any further arbitration. On April 25, 2006, this court held a hearing on the pending motions to confirm and vacate and on the May 16, 2006, this court granted the state's motion to confirm and denied White Oak's motion to vacate the arbitration panel's decision. Neither party appealed.
On July 5, 2006, White Oak filed a motion to dismiss the present action. On August 16, 2006 this court heard oral arguments on the application for a permanent injunction based upon a joint stipulation of facts.
In its motion to dismiss, White Oak argued that "[t]his Court is without subject matter jurisdiction to rule on the Plaintiff's Application for an Injunction, which seeks to enjoin the Plaintiff and White Oak from engaging in an arbitration Demanded by White Oak pursuant to [§]4-61." Another ground for the motion to dismiss is that "[t]he Court is also without subject matter jurisdiction to render the declaratory relief sought by the Plaintiff." Neither party filed any memoranda. Nevertheless, as this motion raises subject matter jurisdiction, the court cannot simply ignore it as the Supreme Court has stated: "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . ." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).
The parties have argued similar motions before although their positions were reversed. See, e.g., Dept. of Transportation v. White Oak Corp., Superior Court, judicial district of Hartford, Docket No. CV 02 0819031 (October 24, 2005, Sheldon, J.), in which the court both granted a motion to dismiss certain of the plaintiff's claims on the ground of mootness and denied the motion as to other claims made by the plaintiff, noting that the court had jurisdiction . . . to determine the arbitrability of the dispute. As the Appellate Court has stated: "A court always has jurisdiction to determine its own jurisdiction. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570-71, 651 A.2d 1246 (1995); Castro v. Viera, 207 Conn. 420, 430, 541 A.2d 1216 (1988)." Lindo v. Lindo, 48 Conn.App. 645, 652, 710 A.2d 1387 (1998). Therefore, this court determines that it has the subject matter jurisdiction to decide whether to grant the permanent injunction.
II
The state posits three reasons why White Oak may not return to arbitration: (1) the waiver of sovereign immunity from suit applies to one and only one arbitration, (2) any additional arbitration for delay damages is barred under the doctrines of res judicata and collateral estoppel, and (3) the demand for arbitration is untimely.
The state first argues that it has waived immunity from suit and consented to only one lawsuit under § 4-61(a). It therefore maintains that the arbitration alternative under § 4-61(b) is no broader and should not and does not expand the state's limited consent to suit under the doctrine of sovereign immunity. In § 4-61(b) the legislature authorized "[a]s an alternative to the procedure provided in subsection (a) . . . any such . . . corporation . . . may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity . . ." The state argues that the submission of "a demand" means only a demand for all claims ("such claim or claims") and therefore, White Oak may not make multiple demands. The state asserts that no part of § 4-61 allows contractors to obtain greater rights by pursuing their claims in arbitration instead of in the Superior Court.
General Statutes § 4-61(a) provides in relevant part: (a) Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Public Works, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier.
See footnote one.
White Oak argues that its current demand is not new or additional, rather, that it was encompassed in the prior arbitration and for reasons of simplicity, the parties only focused on one aspect of the demand: the wrongful termination claim. Hence, White Oak maintains that it should not be penalized for the fact that the first arbitration dealt only with the segmented termination claim. In fact, acknowledging that even though the prior arbitration lasted forty-two days, White Oak argues that segmenting actually saved the panel many days of hearings. White Oak also argues that it clearly stated that should the panel reject its termination claim, it would then raise other claims. Plaintiff's Exhibit 1 to August 16, 2006 Hearing, CD-ROM of Hearing Transcripts before arbitration panel in White Oak Corporation v. State of Connecticut Department of Transportation, AAA Case No. 12 Y 110 00208-98. It is clear that White Oak chose to pursue only the issue of the wrongful termination in the first arbitration. As noted in the arbitration decision: "The Revised Amended Demand is partially ambiguous in that it purportedly seeks certain specified types of damages in Paragraph 29 attributable to the prior discrete breaches pled in paragraphs 17-23 but then seeks 'any and all damages for the DOT's wrongful termination.' This raised the question as to whether White Oak was maintaining a claim or claims other than a claim for damages arising out of wrongful termination, despite the limitations of § 4-61. Any uncertainty on this point was conclusively eliminated in the view of the panel on numerous occasions during these proceedings by the positions taken and the representations made by White Oak in this arbitration and in the related court proceedings." Exhibit D to Verified Complaint, March 10, 2006, White Oak Corporation v. State of Connecticut Department of Transportation, AAA Case No. 12 Y 110 00208-98, Decision, p. 18.
The panel discussed the state's jurisdictional objections, which are not dissimilar to those made in this case, that White Oak had not properly put the state on notice of the "facts and circumstances underlying all of the delay and disruption claims that White Oak asserted." Id. The panel then stated, "White Oak, in turn, defended the motion on the basis that it was not advancing discrete claims; it was advancing only a claim for damages due to wrongful termination, a wrongful termination claim that had as support the various denominated breaches set forth in the Revised Amended Demand." Id. The panel added: "Thus according to White Oak, the individual breaches and delays alleged in its revised Amended Demand did not represent multiple individual claims, but instead were alleged in order to support a single overarching wrongful termination claim. The panel accepted White Oak's argument and ruled in its favor." Id., p. 19. Again, the arbitration panel stated, "After that ruling, White Oak repeatedly acknowledged that it was pursuing a claim of wrongful termination and nothing else." Id. It also discussed the hearing before Judge Sheldon and noted White Oak's attorney's response that the case concerned "[o]nly damages that flow from termination. So, it's all based on the termination . . . I think you're quite right, we have brought a wrongful termination claim. I think we have to live and die by it at this point." Id. The panel mentions other admissions made by White Oak's counsel during the process, but it is clear that the matter was framed as a wrongful termination review.
The state asserts that although White Oak maintains that the sole issue decided by the previous arbitration panel was whether White Oak was terminated, the issue of delays was, in fact, submitted to and decided by the arbitration panel. According to the state, not only did White Oak submit evidence of alleged delays to support its wrongful termination claim, but the state also sought damages for White Oak's delay in completing the project.
The state argues that the statutory waiver of sovereign immunity is subject to the procedural and substantive rules of the Superior Court, which include the doctrines of res judicata and collateral estoppel. According to the state, the doctrine of res judicata bars the claims that White Oak made in its 2006 demand for arbitration because no claims accrued after April 28, 2000. As the arbitration hearings for the July 25, 2001 notice of claim did not commence until April 28, 2003, the state, quoting Efthimiou v. Smith, 268 Conn. 499, 506, 846 A.2d 222 (2004), contends that White Oak knew about all the claims in the 2006 demand at the time of the earlier arbitration, and those claims "were actually made or . . . might have been made." The state maintains that it is clear that an action brought in the Superior Court would have to be bound by the doctrines of res judicata and collateral estoppel and permitting contractors to expand the waiver of sovereign immunity by pursuing their claims in arbitration instead of in the Superior Court does not make sense.
"'Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved.' State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985)." LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 589, 898 A.2d 803 (2006).
"'The subtle difference between claim preclusion and issue preclusion has been so described: [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401-02, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). Under claim preclusion analysis, a claim-that is, a cause of action-includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986), quoting 1 Restatement (Second), Judgments § 24(1) (1982). Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made. Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973).' (Emphasis added; internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992)." (Emphasis in original.) LaSalla v. Doctor's Associates, Inc., supra, 278 Conn. 590.
White Oak asserts that the state has waived its sovereign immunity with regard to all of White Oak's contract claims pursuant to § 4-61. White Oak also argues that regardless of whether White Oak and the state proceeded to arbitration to resolve disputes pertaining to the Tomlinson Bridge contract, there is no doctrine or law precluding the state and White Oak from going to arbitration again to resolve later disputes that have arisen under the same contract.
According to White Oak, the arbitrator is to decide all of the issues raised by the state, and "arbitrators do not have to apply doctrines of preclusion to prior arbitration decisions, even as between the same parties and with respect to the same issues." White Oak argues that § 4-61 permits serial litigation between the same parties pursuant to the same contract and that § 4-61 does not require White Oak to bring all of its contract claims in one arbitration or court action. White Oak further argues that the doctrines of res judicata and collateral estoppel are inapplicable to arbitration proceedings as a result of our Supreme Court's decision in LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 898 A.2d 803 (2006).
In LaSalla, our Supreme Court reaffirmed its prior holding in Stratford v. International Ass'n. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 728 A.2d 1063 (1999) and stated, at 587-88, that the court in Stratford held that "as a matter of public policy, arbitrators are not required to give collateral estoppel effect to prior arbitral awards." The LaSalla court stated: "We explained [in Stratford] that collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . We recognized that whether a subsequent arbitral panel must, as a matter of public policy, be bound by a determination on the same question of a prior panel presented a conflict between two competing policy considerations: (1) the desire to promote stability and finality of judgments, and the closely related interest of judicial economy; and (2) the desire to maintain the flexibility of the arbitral process . . . We concluded that, in the absence of a specific contract provision to the contrary, an arbitrator is not bound to follow prior arbitration decisions, even in cases in which the grievances at issue involve the same parties and interpretation of the same contract provisions. Although an arbitrator may find well reasoned prior awards to be a compelling influence on his or her decision-making process, the arbitrator need not give such awards preclusive effect. Rather, the arbitrator should bring his or her own independent judgment to bear on the issue to be decided, using prior awards as the arbitrator sees fit, as it is the arbitrator's judgment for which the parties had bargained." (Citations omitted; internal quotation marks omitted.) LaSalla v. Doctor's Associates, Inc., supra, 587-88.
The LaSalla court then stated: "We turn, therefore, to the aspect of the defendant's claim that we have not squarely decided, namely, that the doctrine of claim preclusion should be imposed in voluntary arbitration as a matter of public policy. Put another way, the defendant claims that an award that does not follow the doctrine of claim preclusion violates an explicit, well-defined and dominant public policy, and, specifically, that this award, by permitting the plaintiff to recover monetary damages that he did not seek to recover in the 1998 arbitration, violated that public policy. We disagree. We conclude that the public policy exception does not require that arbitrators in a second arbitration between the same parties, involving interpretation and application of the same contractual provision, apply the doctrine of claim preclusion." Id., 589.
Lasalla's holding that the claim preclusion doctrines do not apply to consensual arbitration brings us back to the state's claims that the § 4-61 demand is a singular waiver and that the demand was not timely. This court rejects the state's all too inviting argument that White Oak's "live or die" wrongful termination demand forecloses consideration of all other claims. White Oak's July 25, 2001 revised amended demand and companion revised amended notice of claim included a claim for delay damages and other claims and thus the singular demand argument, while interesting, is rejected. Courts and arbitration panels regularly bifurcate matters as needed and as appropriate. To argue that the process of deciding one issue first forecloses further consideration of other issues, if not waived, and if appropriate, has no merit. In this case, it is clear that while the panel did make certain findings concerning extensions and delays, it considered its only task — for whatever reason, whether notice deficiencies or stipulations — to be the wrongful termination claim: "Thus, the Panel must in accordance with § 4-61 and established principles governing the exercise of subject matter jurisdiction, limit its analysis to the question of whether CDOT [the state] wrongfully terminated, the contract . . . Thus White Oak is also judicially estopped from asserting that any claim other than wrongful termination is properly before this panel now." Exhibit D to Verified Complaint, March 10, 2006, White Oak Corporation v. State of Connecticut Department of Transportation, AAA Case No. 12 Y 11000208-98, Decision, p. 21. The panel certainly did not discuss any evidence on delay claims as none was submitted: "White Oak has failed to articulate and maintain a delay claim under which the Panel could have awarded damages to White Oak." Id., 25.
Despite the state's claims to the contrary, this court finds that LaSalla does apply to the present case. This court assumes that the legislature was aware of the law promulgated in Connecticut Light Power Co. v. Local 420, International Brotherhood of Electrical Workers, AFL-CIO, 718 F.2d 14, 20 (2d Cir. 1983) ("[c]ourts reviewing inconsistent arbitration awards have generally concluded that arbitrators are not bound by the rationale of earlier decisions and that inconsistency with another award is not enough by itself to justify vacating an award"), when it enacted No. 86-253 of the 1986 Public Acts. Accordingly, the other claims contained within the March 3, 2005 demand are, assuming all other requirements are met, still entitled to be heard.
Finally, the state claimed that the March 3, 2005 notice of claim was untimely and thus not made within the § 4-61(b) standards. "Notice of each such claim and the factual bases of each claim [must be] given in writing to the agency head of the department administering the contract within the time period which . . . ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier." Additionally, a demand for arbitration must be filed within three years of either the acceptance of the work or the termination of the contract. The state has strenuously argued that, for this analysis, the notice of claim and demand for arbitration were untimely because the contract was actually or constructively terminated as of the assignment to Cianbro on April 28, 2000. As previously discussed, this argument is contrary to the state's prior position, which the arbitration panel adopted in rejecting White Oak's claim that White Oak had been wrongfully terminated. The panel stated that, "based on its findings of fact and this Decision, [it] finds that no termination took place and, instead, White Oak, CDOT [the state] and AIG negotiated a consensual take over agreement over time culminating in the March and April agreements by which the financially troubled White Oak was replaced by Cianbro." Exhibit D to Verified Complaint, March 10, 2006, White Oak Corporation v. State of Connecticut Department of Transportation, AAA Case No. 12 Y 110 00208-98, Decision, p. 25. The state argued both in the arbitration and after, in this court, that there was no termination; this court confirmed the arbitrator's decision.
The argument that the contract was terminated by assignment also does not withstand scrutiny in light of the obligations and reservations contained in the assignment document. White Oak was still liable for liquidated damages, was still working and was still liable under its bond as well as under the contract. The contract was simply never terminated; Cianbro finished the job under the then extant contract. As noted by White Oak, had the contract actually been terminated, the state would have had to rebid the approximately $36 million remaining portion. See General Statutes § 13a-95.
The certificate of acceptance of work and acceptance of project was signed by necessary signatories on February 22, 2005, and March 2, 2005, and, interestingly, it indicates that the date of the award of the contract is June 6, 1994 — the date that White Oak entered into the contract with the state. As White Oak delivered its required notice of claim on March 3, 2005, and filed its required demand for arbitration on March 1, 2006, it certainly met the requirements of § 4-61(b), and its notice of claim and demand for arbitration can be considered timely.
As the notice of claim and demand for arbitration are timely, as LaSalla precludes a claim preclusion prohibition and Stratford precludes an issue preclusion prohibition, this court must reject the state's claims. As our Supreme Court stated in LaSalla: "Furthermore . . . the panel in the present case was requested to, and could have, applied the doctrine of issue preclusion if it determined that to be the more appropriate course. It declined to do so, and that decision cannot be disturbed by the court." LaSalla v. Doctor's Associates, Inc., supra, 278 Conn. 589. A new panel may choose to accept or reject White Oak's claims; it may chose to simply adopt the findings of the prior panel — or it may choose not to. Moreover, to the extent any issues impact the jurisdiction of the arbitration panel, that would be a question for the panel under its rules. Section 4-61(b) provides in relevant part: "[A]ny such person, firm or corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such person, firm or corporation and the agency head . . . except that if the parties cannot agree upon a dispute resolution entity, the rules of the American Arbitration Association . . . shall apply."
AAA Construction Industry Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Construction Disputes), Construction Industry Arbitration Rules Regular Track Procedures, Rule R-8 provides in relevant part: "(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement."
"A mandatory injunction . . . is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . Moreover, [w]here the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant a mandatory injunction and the plaintiff may be remitted to her remedy by way of damages . . . In sum, [m]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances. 42 Am.Jur.2d 560, Injunctions § 5 (2000)." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004). "[I]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." (Internal quotation marks omitted.) Wallingford v. Werbiski, 274 Conn. 483, 494, 877 A.2d 749 (2005). "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . ." Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807, 894 A.2d 946 (2006). "The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). "Whether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." (Internal quotation marks omitted.) Patry v. Board of Trustees, 190 Conn. 460, 472, 461 A.2d 443 (1983). The state has not satisfied this court that it has no adequate remedy at law or that it will suffer irreparable harm. Yes, it may be forced to go back to arbitration, but that is not an irreparable harm. It has all of its rights concerning the arbitral process. Accordingly, the state's motion for a permanent injunction is denied.
The state was instrumental in refining the alternative dispute process of § 4-61(b). See, e.g., 34 S. Proc., Pt. 6, 1991 Sess., p. 2161-62; Conn. Joint Standing Committee Hearings, Government Administration and Elections, Pt. 2, 1991 Sess., p. 555-56.