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TROY W. WINDHAM v. DOCTOR’S ASSOCIATES, INC.
(AC 36414)
Lavine, Alvord and Mullins, Js.
Argued September 15—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Markle, J.)
Jonathan M. Starble, for the appellant (plaintiff).
Frank J. Mottola III, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Troy W. Windham, appeals
from the trial court’s judgment confirming an arbitra-
tion award in favor of the defendant, Doctor’s Associ-
ates, Inc. (Subway).1 On appeal, Windham claims (1)
the court erred by ‘‘confirming the arbitration award
because no valid application to confirm was pending
before the court’’ and (2) ‘‘[t]he trial court’s judgment
[enforcing the award] is erroneous to the extent that
it purports to impose a $250 per day penalty for any
period of time prior to the entry of a final judgment.’’
We affirm the judgment of the court as to the first claim,
but we do not reach Windham’s second claim as to the
court’s enforcement of the award because the trial court
failed in its responsibility to decide Subway’s motion
for an order in damages and calculate a judgment upon
the award. Accordingly, we remand this case to the trial
court for a judgment upon the award.2
The following facts and procedural history are rele-
vant to Windham’s appeal. On January 25, 2005, Wind-
ham signed a franchise agreement with Subway, giving
him the right to operate a Subway sandwich store in
Dover, Delaware. In May, 2009, Subway sought to termi-
nate Windham’s franchise, as to this store, for cleanli-
ness issues and a failure to follow franchise procedures.
The franchise agreement established that all disputes
concerning the agreement would be settled by arbitra-
tion. Subway initiated arbitration in accordance with
the terms of the franchise agreement. On October 15,
2010, the arbitrator issued an interim order reflecting
that Windham admitted to breaching the franchise
agreement, but Subway agreed to reinstate the fran-
chise agreement if Windham cured his store’s defects
and complied with the franchise agreement during a
six month review period. Further, if the order was
breached, Subway was ‘‘entitled to an expedited arbitra-
tion hearing to obtain a final award.’’
On December 9, 2010, Subway claimed that Windham
had violated the terms of the interim arbitration order.
The parties returned to arbitration, and, on July 5, 2011,
the arbitrator ordered the termination of Windham’s
Dover store franchise. In the arbitrator’s award, section
five stated: ‘‘[Windham] shall pay to [Subway] $250 per
day for each day, after the issuance of this award, for his
continued use of the Subway trade names, trademarks,
service marks, signs, logos, colors, structures, printed
goods and forms of advertising indicative of the com-
pany’s sandwich business and/or use the operations
manuals for store number 24443; as required by para-
graph 8 (e) of the franchise agreement.’’3 The arbitration
award concluded by stating: ‘‘This Award is the FINAL
AWARD. It is effective immediately, without the neces-
sity of further hearing and can be confirmed in any court
having jurisdiction.’’ Windham continued to operate his
store while he sought judicial review.
On August 5, 2011, Windham filed an application to
vacate the arbitration award in the Superior Court. Sub-
way responded in one filing, which was an objection
to the application to vacate and an application to con-
firm the award. On July 31, 2013, the court denied the
application to vacate and confirmed the arbitration
award in favor of Subway. On August 23, 2013, Subway
filed a motion for a postconfirmation hearing and order
in damages. Subway requested $115,452.36 in damages
and an additional assessment of $250 per day as dam-
ages for every day that Windham continued to operate
his store after August 23, 2013. The $115,452.36 in total
damages sought included the penalty sum, credits for
royalty fees Windham paid to Subway after the arbitra-
tion award, other charges associated with operating a
Subway franchise, and attorney’s fees.
On December 2, 2013, the court issued a judgment
purporting to cover all pending motions including Sub-
way’s motion for a postconfirmation hearing and order
in damages. The judgment restated the court’s July 31,
2013 order, denying the application to vacate the arbi-
tration award and granting Subway’s application to con-
firm. The judgment then referenced and repeated
selected terms of the arbitration award, stating: ‘‘Where-
upon, in accordance with paragraph 5 [of the award],
it is adjudged that [Subway] shall continue to recover
the sum of $250 per day for each day after the issuance
of the award on July 5, 2011.’’ The court’s decision made
no findings of fact and did not reduce the per diem
penalty, found in paragraph five of the arbitration
award, to a monetary damages sum. This appeal
followed.
I
Windham’s first claim on appeal is that the court
improperly confirmed the arbitration award because a
proper application to confirm the award was not before
the court. Subway requested that the court confirm
the award, but it did not file a separate and distinct
application to confirm. We disagree that this procedural
variance was fatal to Subway’s request for confirmation
of the arbitration award.
The following additional facts are relevant to this
claim. After Windham had filed the application to vacate
the arbitration award, Subway filed an application for
confirmation of the award in a Delaware state court.
Subway claimed that initially it was unaware of Wind-
ham’s Connecticut filing. Subway claims that it filed in
Delaware because it was Windham’s state of residence
and the location of the disputed franchise. Subway did
not file a distinct application to confirm in Connecticut,
but requested the confirmation of the arbitration award
in its objection to Windham’s application to vacate that
was filed on September 16, 2011, in Connecticut. Sub-
way did not pay a filing fee when it filed its objection
and application to confirm. Subway’s Delaware applica-
tion to confirm was pending for more than a year before
the Delaware court stayed the proceedings in light of
the Connecticut action. On March 27, 2013, Subway
withdrew its Delaware application, without prejudice,
because Windham’s application to vacate was still pend-
ing in Connecticut.
Windham’s claim requires us to review General Stat-
utes §§ 52-417, 52-420, and 52-421. ‘‘Issues of statutory
construction raise questions of law, over which we exer-
cise plenary review. . . . The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . [W]e seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.)
Middlesex Mutual Assurance Co. v. Komondy, 120
Conn. App. 117, 125, 991 A.2d 587 (2010). ‘‘Because we
favor arbitration as a means of settling private disputes,
we undertake judicial review of arbitration awards in
a manner designed to minimize interference with an
efficient and economical system of alternative dispute
resolution.’’ (Internal quotation marks omitted.) White
v. Kampner, 229 Conn. 465, 471, 641 A.2d 1381 (1994).
Judicial enforcement of an arbitration award in Con-
necticut is governed by statute. Section 52-417 controls
applications for confirmation of an arbitration award
and states in relevant part: ‘‘At any time within one year
after an award has been rendered and the parties to the
arbitration notified thereof, any party to the arbitration
may make application to the superior court for the
judicial district in which one of the parties resides . . .
for an order confirming the award. . . .’’ The specific
steps for applying for confirmation of an arbitration
award are set out in § 52-421 (a), which provides: ‘‘Any
party applying for an order confirming, modifying or
correcting an award shall, at the time the order is filed
with the clerk for the entry of judgment thereon, file
the following papers with the clerk: (1) The agreement
to arbitrate, (2) the selection or appointment, if any, of
an additional or substitute arbitrator or an umpire, (3)
any written agreement requiring the reference of any
question as provided in section 52-415, (4) each written
extension of the time, if any, within which to make the
award, (5) the award, (6) each notice and other paper
used upon an application to confirm, modify or correct
the award, and (7) a copy of each order of the court
upon such an application.’’ Section 52-420 (a) directs
the trial court to handle arbitration issues in an efficient
manner, providing: ‘‘Any application under section 52-
417, 52-418 or 52-419 shall be heard in the manner pro-
vided by law for hearing written motions at a short
calendar session, or otherwise as the court or judge
may direct, in order to dispose of the case with the
least possible delay.’’ ‘‘The court or judge shall grant
such an order confirming the award unless the award is
vacated, modified or corrected as prescribed in sections
52-418 and 52-419.’’ General Statutes § 52-417.
In this case, Subway clearly moved to confirm the
arbitration award and Windham had sufficient notice
of the request. Subway’s September 16, 2011 objection
to Windham’s application to vacate also served as the
application to confirm. The motion was entitled:
‘‘Defendant’s Response in Opposition to Plaintiff’s
Motion to Vacate and [Defendant’s] Application to Con-
firm Arbitration Award.’’ In accordance with § 52-417,
it was filed within one year of the date of the arbitration
award. The franchise agreement, information about the
arbitrator, and the award itself were before the court.
When the parties’ dispute concerns one arbitration
award, reviewing an application to vacate and an appli-
cation to confirm simultaneously, in furtherance of judi-
cial economy, is a reasonable way to ‘‘dispose of the
case with the least possible delay.’’ See General Statutes
§ 52-420 (a).4 We therefore conclude that the trial court
did not err in confirming the award.
II
Windham also asks this court to find error with the
order that the trial court issued when rendering the
judgment, claiming ‘‘[t]he trial court’s judgment is erro-
neous to the extent that it purports to impose a $250
per day penalty for any period of time prior to the entry
of a final judgment.’’5 We do not reach Windham’s claim
because the court committed error by failing to effect
the terms of the judgment upon the award.
After receiving judicial confirmation of the arbitra-
tion award, Subway moved to have the award reduced
to a monetary sum6 to be paid by Windham, and sug-
gested specifically $145,405.29.7 The court, in entering
its purported judgment regarding damages, merely
restated selected terms of the arbitration award and
failed to effectuate the award with a calculation of
damages despite a properly pleaded request to do so.
We therefore conclude the case should be remanded
for further proceedings.
To reach this conclusion, we review the court’s
authority to construe and interpret an arbitration
award. ‘‘The standard of review applied to the construc-
tion of an arbitration award is the same as that applied
to the construction of a judgment. . . . The construc-
tion of an arbitration award, therefore, is a question of
law subject to plenary review.’’ (Citation omitted.) All
Seasons Services, Inc. v. Guildner, 94 Conn. App. 1,
12–13, 891 A.2d 97 (2006).
‘‘Confirmation of an arbitration award converts it into
an enforceable judgment of the Superior Court. . . .
The construction of a judgment is a question of law for
the court. . . . As a general rule, judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the judgment.
. . . The interpretation of a judgment may involve the
circumstances surrounding the making of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole.’’ (Citation omitted; internal quotation marks
omitted.) Daoud v. Cook, 137 Conn. App. 766, 776, 50
A.3d 340, cert. denied, 307 Conn. 928, 55 A.3d 569 (2012).
‘‘Although the court may not modify the terms of the
arbitration award after the expiration of the thirty day
period provided by § 52-420, once the award is con-
firmed, the court possesses inherent authority to
enforce the terms of the judgment by appropriate post-
judgment orders.’’ Aldin Associates Ltd. Partnership
v. Healey, 72 Conn. App. 334, 341, 804 A.2d 1049 (2002).
The court had the authority and the responsibility,
upon Subway’s postconfirmation request, to calculate
the dollar sum necessary to effect the arbitrator’s
award. The court did not do that calculation. The court
had ‘‘inherent authority’’ to calculate damages based
on the July 5, 2011 arbitration award it had confirmed.
Id. A court cannot substitute its own judgment for that
of the arbitrator. See Daoud v. Cook, supra, 137 Conn.
App. 779. Instead, the court’s responsibility is to con-
strue and interpret the arbitration award after examin-
ing the circumstances of the arbitration award itself.
Id., 776. The court, when faced with a motion for judg-
ment upon an award requesting damages, cannot simply
repeat the terms of the award without arriving at a
figure for monetary damages.8 ‘‘[A] money judgment
must specify with certainty the amount for which it is
rendered, or if the amount is not stated, it must be
ascertainable from the record or by mere mathematical
computation.’’ (Emphasis omitted; internal quotation
marks omitted.) Suffield Development Associates Ltd.
Partnership v. National Loan Investors, L.P., 97 Conn.
App. 541, 561–62 n.19, 905 A.2d 1214, cert. denied, 280
Conn. 942, 943, 912 A.2d 479 (2006). Here, the trial
court’s restatement of the terms of the award is an
incomplete computation of damages. In Daoud v. Cook,
supra, 779, this court affirmed a judgment that had
interpreted an arbitration award to effectuate the arbi-
trator’s intentions. In that case, the trial court interpre-
ted the arbitrator’s terminology ‘‘ ‘not being used by
her’ ’’ and then appropriately determined how much of
a shared office should have been used as rental prop-
erty. Id. The trial court in the present case failed to
effect the terms of the judgment upon the award.
The judgment confirming the arbitration award is
affirmed and the case is remanded for a hearing on
Subway’s request for a judgment in damages upon the
award. The court should determine a specific amount
of monetary damages, including the start and end date
of the per diem assessment, with offsets, if any, in
accordance with the evidence presented at the hearing
and the arguments of counsel.
In this opinion the other judges concurred.
1
Doctor’s Associates, Inc., is the corporate entity that owns the Subway
franchise system. Windham is the franchisee of several Subway stores in
Delaware.
2
General Statutes § 52-421 (b) addresses the enforcement of an arbitration
award in a civil action.
3
Paragraph 8 of the franchise agreement addresses termination of the
agreement. Subsection (e) establishes that, upon termination, Windham
must stop using the Subway brand and products. The franchise agreement
states: ‘‘If you breach this provision, you will pay us $250 per day for each
day you are in default, as being a reasonable pre-estimate of the damages
we will suffer.’’
4
We read the language of § 52-420 (a) to be plain and unambiguous.
5
In his brief, Windham’s counsel does not cite to any direct authority to
support this proposition.
6
General Statutes § 52-421 (b) provides in relevant part: ‘‘The judgment
or decree so entered shall have the same force and effect in all respects
as, and be subject to all the provisions of law relating to, a judgment or
decree in a civil action; and it may be enforced as if it had been rendered
in a civil action in the court in which it is entered. . . .’’
7
In its initial filing on August 23, 2013, Subway requested $115,452.36 in
damages and a continuing accumulation of $250 per day. This total included
a credit for franchise fees paid by Windham after the date of the arbitration
award. It also included Subway’s attorney’s fees. On November, 18, 2013,
Subway updated its total because the court requested a judgment file that
excluded attorney’s fees. In the proposed judgment file, Subway requested
$145,405.29 and a continuing accumulation of $250 per day for every day
that Windham continued to operate his Subway franchise.
8
The arbitration award stated: ‘‘[Windham] shall pay to [Subway] $250
per day for each day, after the issuance of this award, for his continued
use of the Subway [brand] . . . .’’ The trial court’s judgment simply reiter-
ates this language: ‘‘WHEREUPON, in accordance with paragraph 5 [of the
award], it is adjudged that the defendant shall continue to recover the sum
of $250 per day for each day after the issuance of the award on July 5, 2011.’’