The Perils of Statutory Construction
This time each year, I review cases from the past year for possible inclusion in the West Annotation of the Superior Court Civil Rules.* There are often splits of authority amongst trial courts in the application or interpretation of the Practice Book rules. As I researched Chapter 14 (Dockets, Trial Lists, Pretrials and Assignment Lists), generally not the most exciting of my chapters, I found an excellent example of such a split, and the difficulty they pose to litigation.
I found two cases for P.B. §14-13, though they were not applying the rule but using it for analogy. In St. Germain v. Rockingham, LLC, 2018 WL 5733615 (Ct. Super. Ct. 2018), the plaintiff did not attend the non-binding arbitration of the matter,** but counsel did and fully participated in the arbitration. After the arbitrator ruled for the defendant, the plaintiff moved for trial de novo and the defendant objected on the basis that the plaintiff’s failure to attend the arbitration in person had waived any right to appeal. The trial court, Budzik, J., found that there were two reasonable interpretations of the relevant language and so the statute was ambiguous.*** After engaging in statutory construction and looking at the intent of C.G.S.§ 52- 549z, the court held that § 52-549z required the personal presence of the parties. As the plaintiff was not present at the arbitration, the plaintiff could not demand a trial de novo.
In Aponte v. City of Hartford, 2019 WL 2513829 (Ct. Super. Ct. 2019), the same situation arose – the plaintiff did not attend the non-binding arbitration but was represented by counsel who presented evidence. The defendant did not object to the plaintiff’s absence during the arbitration. The trial court, Cobb, J., also compared the language of C.G.S.§ 52- 549z and P.B. §14-13 as to the use of language requiring the presence of the party at the matter. The court then overruled the defendant’s objection to the demand for trial de novo because 1) the defendant had not objected at the arbitration, and 2) the statutes do not require the parties to attend arbitration provided their counsel does. The trial court specifically noted its disagreement with the decision in St. Germain, stating that it disagreed with that court’s holding that C.G.S.§ 52- 549z is ambiguous. The Aponte court also disagreed with the St. Germain court as to the purpose of the statute, finding that settlement was not the intent of the statute.
Each trial court analysis makes good points, demonstrating why it can be so difficult to predict how a statute may be interpreted by a court. Here, the disagreement as to C.G.S.§ 52- 549z offers a seemingly simple solution – have your client attend the non-binding arbitration. But what if the client is unable to attend – does the statute allow for trial court discretion in excusing the client’s presence or is it mandatory regardless of circumstances? It is these trial court disputes that demonstrate the broad need for appellate review, not just to resolve an individual case, but to settle the law for all litigants to come. Until a higher court rules, neither decision binds any other courts and divergent interpretations may continue.
* Connecticut Practice Series: Connecticut Civil Rules (West 2018-2019 ed.) are annotated by the members of Horton, Dowd, Bartschi & Levesque, P.C., as well as by Judge Alexandra DiPentima, Chief Judge of the Connecticut Appellate Court, and Judge Kimberly Knox of the Superior Court, both former members of the Firm.
** Pursuant to C.G.S.§52-549n.
*** Practice Book § 52-549z(c) allows for a trial de novo provided that “the appeal is taken by a party who did not fail to appear at the hearing ...” (Emphasis added). Practice Book § 23-66 provides in relevant part that “[o]nly a party who appeared at the arbitration hearing may file a claim for a trial de novo.” (Emphasis added). The courts in both St. Germain and Aponte addressed the meanings of party and appear when interpreting the statutes.