*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
A BETTER WAY WHOLESALE AUTOS, INC. v. SAINT PAUL—DISSENT

LAVERY, J., with whom SHELDON, J., joins, dissenting. I respectfully dissent from the majority’s conclusion that the thirty day limitation period set forth

in General Statutes § 52-420,1

rather than the parties’

contractual agreement to follow the three month period

contained in the Federal Arbitration Act (FAA), 9 U.S.C.

§ 12 (2012),2 controls the time frame within which the

plaintiff, A Better Way Wholesale Autos, Inc., may file

its application to vacate the arbitration award issued

in favor of the defendants, James Saint Paul and Julie

J. Saint Paul. Such a conclusion is contrary to the terms

set forth in the parties’ privately agreed upon arbitration

clause in the parties’ automobile financing agreement.

Because I would hold that the terms of the parties’

arbitration agreement govern, I respectfully dissent. See

Doctor’s Associates, Inc. v. Searl, 179 Conn. App. 577,

585–86, 180 A.3d 996 (2018) (in accordance with parties’

contractually agreed upon terms, FAA governed time

period for filing motion to vacate arbitration award).

The facts are undisputed and aptly stated by the

majority. I emphasize, however, that the parties’ financing agreement contains a choice of law provision specifying that ‘‘[a]ny arbitration . . . shall be governed by

the [FAA] (9 U.S.C. § 1 et seq. [2012]) and not . . .

any state law concerning arbitration.’’ Despite the clear

language of the parties’ contract, the trial court applied,

and the majority affirms, the thirty day limit to file a

motion to vacate, pursuant to state law.3

Moreover, the parties agreed to be bound by the FAA

in its entirety. Namely, the parties’ agreement includes

§ 2 of the FAA, which binds state courts to render agreements to arbitrate ‘‘valid, irrevocable, and enforceable.’’4 9 U.S.C. § 2 (2012); see also Vaden v. Discover

Bank, 556 U.S. 49, 71, 129 S. Ct. 1262, 173 L. Ed. 2d 206

(2009) (in accordance with § 2 of FAA, both state and

federal courts are obligated to honor and enforce agreements to arbitrate), superseded by statute in part on

other grounds as stated in Vermont v. MPHJ Technology

Investments, LLC, 803 F.3d 635, 643–44 (Fed. Cir. 2015),

cert. denied, U.S. , 136 S. Ct. 1658, 194 L. Ed.

2d 766 (2016), and cert. denied, MPHJ Technology

Investments, LLC v. Vermont, U.S. , 136 S. Ct.

1660, 194 L. Ed. 2d 766 (2016). The majority’s decision

undercuts the arbitration terms as agreed upon by

the parties.

The United States Supreme Court has recognized that

it is incumbent upon states to honor the terms that the

parties set forth in their arbitration agreement. See, e.g.,

Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22 n.27, 103 S. Ct. 927, 74

L. Ed. 2d 765 (1983). In Volt Information Sciences,

Inc. v. Board of Trustees of Leland Stanford Junior
University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d

488 (1989), the United States Supreme court concluded

that the FAA preempts application of state laws that

render arbitration agreements unenforceable. The court

determined that arbitration is strictly a matter of contract and, therefore, parties should be ‘‘at liberty to

choose the terms under which they will arbitrate.’’

(Internal quotation marks omitted.) Id., 472. ‘‘Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their

arbitration agreements as they see fit. Just as they may

limit by contract the issues which they will arbitrate

. . . so too may they specify by contract the rules under

which that arbitration will be conducted.’’ (Citation

omitted.) Id., 479. The court, in essence, emphasized

that the overarching national policy goal behind the

FAA was not just to enforce the parties’ contractual

right to arbitrate, but, moreover, was to uphold the

enforcement of stipulated obligations in the parties’

arbitration agreement itself.

Following Volt Information Sciences, Inc., the United

States Supreme Court continually has recognized contractual freedom as the FAA’s bedrock principle. See

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,

84–85, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002) (parties’

arbitration agreement contractual provisions govern

which entity, court or arbitrator, shall decide whether

condition precedent to arbitration has been fulfilled);

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,

943, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995) (question

of whether court or arbitrator has primary ability to

decide arbitrability is determined by contractual agreement); Mastrobuono v. Shearson Lehman Hutton, Inc.,

514 U.S. 52, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995)

(contract between securities brokerage firm and customers permitted arbitration panel to award punitive

damages to customers when arbitration clause was governed by rules of National Association of Securities

Dealers, which permitted such award, despite agreement that New York law, prohibiting award of punitive

damages, otherwise governed contract). Parties, therefore, generally are free to tailor their arbitration contract as they see fit. This court’s decision in Doctor’s

Associates, Inc. v. Searl, supra, 179 Conn. App. 577,

was consistent with that principle.5

Accordingly, I would not hold that state law governs

the arbitration agreement unless the parties express ‘‘a

clear intent to incorporate state law rules for arbitration.’’ (Internal quotation marks omitted.) Fidelity Federal Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1311

(9th Cir. 2004); see also Martis v. Dish Network Service,

L.L.C., 597 Fed. Appx. 301, 304 (6th Cir. 2015) (whether

FAA or Michigan law applied resolved in favor of federal

standard even though Michigan law governed arbitrator’s substantive decision); Johnson v. Gruma Corp.,

614 F.3d 1062, 1067 (9th Cir. 2010) (‘‘where the FAA’s
rules control arbitration proceedings, a reviewing court

must also apply the FAA standard for vacatur’’); see

Kim-C1, LLC v. Valent Biosciences Corp., 756 F. Supp.

2d 1258, 1261–62 (E.D. Cal. 2010); New England Utilities v. Hydro-Quebec, 10 F. Supp. 2d 53, 60–61 (D.

Mass. 1998).

I do not mean to say that the FAA preempts the

General Statutes regarding arbitration. That would be

contrary to clear United States Supreme Court precedent. See Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford Junior University, supra,

489 U.S. 477. The parties, however, chose the FAA as

the governing law. Because an ‘‘arbitration provision

in an agreement is effectively an agreement that is separate and distinct from the broader contract’’; MBNA

America Bank, N.A. v. Boata, 283 Conn. 381, 386, 926

A.2d 1035 (2007); and we must give effect to the parties’

intent; Levine v. Advest, Inc., 244 Conn. 732, 745–46,

714 A.2d 649 (1998); I cannot see how we would not

enforce the parties’ agreement that § 12 of the FAA

governs the time limit to file a motion to vacate.

The majority, however, declines to enforce § 12 of

the FAA, reasoning that our state courts must follow

state procedural rules. Although acknowledging that

the substantive law of the FAA applies in both state

and federal court; see Vaden v. Discover Bank, supra,

556 U.S. 59; the majority maintains that the FAA does

not preempt state procedural rules. Reasoning that our

courts have considered § 52-420 (b) to be procedural

and subject matter jurisdictional, the majority concludes that the thirty day limitation period set forth

therein is not preempted by the FAA.

In support of its conclusion that § 52-420 (b) is procedural, the majority cites to a string of cases in which

our courts have understood § 52-420 in the context of

subject matter jurisdictional claims, but none of which

involved a choice of law claim or a dispute as to which

law governed the given arbitration agreement. See Wu

v. Chang, 264 Conn. 307, 308, 823 A.2d 1197 (2003)

(‘‘sole issue raised by this appeal is whether a claim of

fraud tolls the thirty day period within which a motion

to vacate an arbitration award must be filed pursuant

to General Statutes § 52-420 [b]’’); Vail v. American

Way Homes, Inc., 181 Conn. 449, 450, 435 A.2d 993

(1980) (sole issue was enforceability of arbitration

award ordering specific performance of construction

contract for private dwelling); Rosenthal Law Firm,

LLC v. Cohen, 165 Conn. App. 467, 470, 139 A.3d 774

(rejecting claims that court incorrectly concluded that

application to vacate was untimely under § 52-420 [b]

on basis of due process deprivation; allegation that arbitration panel failed to consider defendant’s testimony

and evidence; erroneous factual findings; and award

was contrary to public policy), cert. denied, 322 Conn.

904, 138 A.3d 933 (2016); Petrucelli v. Travelers Prop-
erty Casualty Ins. Co., 146 Conn. App. 631, 633, 79

A.3d 895 (2013) (rejecting claim that court erred in

concluding that it lacked subject matter jurisdiction

under § 52-410), cert. denied, 311 Conn. 909, 83 A.3d

1164 (2014). Operating under the assumption that § 52-

420 is procedural, the majority then reasons that parties

cannot waive or otherwise contract around this statute.

I do not agree with the majority’s distinction between

procedure and substance.

The mere fact that § 52-420 sets a time limitation does

not compel the conclusion that it is procedural and,

therefore, subject matter jurisdictional. The United

States Supreme Court has characterized such provisions differently. Namely, in Scarborough v. Principi,

541 U.S. 401, 413–14, 124 S. Ct. 1856, 158 L. Ed. 2d 674

(2004), the United States Supreme Court concluded that

the time bar for filing a fee application set forth under

the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) (1)

(B) (2012), did not concern the federal courts’ subject

matter jurisdiction. The court reasoned that the time

limitation pertained to postjudgment proceedings auxiliary to a matter already within the court’s adjudicatory

authority. Scarborough v. Principi, supra, 414.

Following this rationale, at least one court has set

forth a compelling argument that the time limitation set

forth in § 12 of the FAA is substantive, not procedural

or jurisdictional. In Equitas Disability Advocates, LLC

v. Daley, Debofsky & Bryant, P.C., 177 F. Supp. 3d 197,

218 (D.D.C.), aff’d, 672 Fed. Appx. 13 (D.C. Cir. 2016),

the court considered, in relevant part, whether an application to vacate was timely served under § 12 of the

FAA. In light of United States Supreme Court precedent

indicating that ‘‘time prescriptions, however emphatic,

are not properly typed jurisdictional in the sense of

restricting courts’ subject-matter jurisdiction,’’ the

court concluded that a question as to the timeliness for

filing the motion to vacate the arbitral award did not

concern the court’s jurisdiction. (Internal quotation

marks omitted.) Id., quoting Arbaugh v. Y & H Corp.,

546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed. 2d 1097

(2006); see also Craig v. Southwest Securities, Inc.,

Docket No. 05-16-01378-CV (BLG), 2017 WL 6503213,

*2 (Tex. App. December 18, 2017) (‘‘[s]ection 12 [of the

FAA] provides a substantive three-month limitations

period’’).

Additionally, Equitas Disability Advocates, LLC,

noted that Congress has not specifically qualified the

FAA as jurisdictional and, therefore, courts should treat

any restrictions as to timeliness set forth therein as

nonjurisdictional. Equitas Disability Advocates, LLC

v. Daley, Debofsky & Bryant, P.C., supra, 177 F. Supp.

3d 218; see also Arbaugh v. Y & H Corp., supra, 546

U.S. 516 (threshold number of employees set forth in

statute not jurisdictional in nature).

Applying these principles to § 52-420, I am not con-
vinced that this statute necessarily is procedural and,

therefore, subject matter jurisdictional. The majority

acknowledges that ‘‘[a]rbitration proceedings, including court proceedings to compel arbitration are creatures of statute in Connecticut and are not common law

actions’’; (internal quotation marks omitted) Bennett v.

Meader, 208 Conn. 352, 357, 545 A.2d 553 (1988); and

that ‘‘[t]he right to review an arbitration award is wholly

encompassed within the parameters of [General Statutes] § 52-418 . . . [which] goes beyond the common

law and provides additional grounds upon which to

vacate an award.’’ Id., 356–57. If we accept those premises, then the thirty day limitation could be considered

an element necessary to establish a right, and, therefore,

substantive in nature. See Baxter v. Sturm, Ruger &

Co., 230 Conn. 335, 340–41, 644 A.2d 1297 (1994); id.,

340 (‘‘[a] limitation period is considered ‘one of the

congeries of elements necessary to establish the right,’

and therefore characterized as substantive, only when

it applies to a new right created by statute’’); but see

Karp v. Urban Redevelopment Commission, 162 Conn.

525, 529, 294 A.2d 633 (1972) (‘‘the general rule [is] that

a time limitation on the enforcement of a right, created

by statute and not existing at common law, is a part of

the right and must be met in order to provide a court

with jurisdiction to hear the cause of action’’); see also

Ecker v. West Hartford, 205 Conn. 219, 233, 530 A.2d

1056 (1987) (deeming wrongful death action jurisdictional under this general rule). Further, in Ekstrom v.

Value Health, Inc., 68 F.3d 1391, 1395 (D.C. Cir. 1995),

the court, citing to our state precedent, held that § 52-

420 is substantive because ‘‘[u]nder Connecticut law

. . . jurisdictional time limits are not subject to waiver

. . . .’’ It remains uncertain, therefore, that § 52-420 (b)

is procedural.

The majority, nonetheless, posits that the principle

of legislative acquiescence compels the conclusion that

§ 52-420 properly may be considered procedural. As

support, the majority cites Angersola v. Radiologic

Associates of Middletown, P.C., 330 Conn. 251, 193 A.3d

520 (2018). In Angersola, our Supreme Court directed

the parties to file supplemental briefs to address the

question, inter alia, of whether strong evidence existed

as to legislative intent to overcome the presumption

that the statutorily created rights under General Statutes § 52-555 were jurisdictional in nature. Id., 266. The

court, in reaching its decision on this question, acknowledged that tension exists ‘‘between a trial court’s jurisdiction and its authority to act under a particular statute.’’ (Internal quotation marks omitted.) Id., 267. In

accordance with the principle of legislative acquiescence, the court reasoned that ‘‘[o]nce an appropriate

interval to permit legislative reconsideration has passed

without corrective legislative action, the inference of

legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the
merits of our earlier decision . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id., 267–68. Noting

that the legislature had never, in thirty years, seen fit

to overrule the court’s conclusion that compliance with

the repose period is a jurisdictional requirement, the

court concluded that the legislature had acquiesced to

such characterization, and, therefore, the court concluded that it was appropriate to consider § 52-555 as

a jurisdictional requirement. Id., 268.

The majority’s analysis, and that provided in

Angersola, presume that the legislature’s inactivity is

sufficient to establish legislative acquiescence. That

analysis, however, is incomplete. ‘‘[T]he legislative

acquiescence doctrine requires actual acquiescence on

the part of the legislature. [Thus] [i]n most of our prior

cases, we have employed the doctrine not simply

because of legislative inaction, but because the legislature affirmatively amended the statute subsequent to a

judicial or administrative interpretation, but chose not

to amend the specific provision of the statute at issue.

. . . In other words, [l]egislative concurrence is particularly strong [when] the legislature makes unrelated

amendments in the same statute.’’ (Citation omitted;

quotation marks omitted.) State v. Salamon, 287 Conn.

509, 525, 949 A.2d 1092 (2008); see alsoBerkley v. Gavin,

253 Conn. 761, 777 n.11, 756 A.2d 248 (2000) (legislative

acquiescence requires actual acquiescence by legislature), superseded by statute in part on other grounds as

stated in Estate of Brooks v. Commissioner of Revenue

Services, 325 Conn. 705, 716, 159 A.3d 1149 (2017).

Here, there is no evidence in the record that the

legislature affirmatively has amended § 52-420 without

choosing to address whether it is jurisdictional or substantive in nature. Moreover, it is not clear that any

characterization of this statute as procedural and subject matter jurisdictional is accurate. I, therefore, would

not conclude that the legislature has acquiesced to any

language from the precedent the majority cites for the

proposition that the time limitation in § 52-420 is procedural and subject matter jurisdictional.

In honoring the contractual freedom afforded to parties under the FAA, I would enforce the terms set forth

in the parties’ arbitration agreement. I, therefore, would

hold that § 12 of the FAA, rather than § 52-420 of the

General Statutes, governs the parties’ motion to vacate

and that our precedent in Doctor’s Associates, Inc. v.

Searl, supra, 179 Conn. App. 577, be upheld.

Accordingly, I respectfully dissent.

1 General Statutes § 52-420 (b) provides: ‘‘No motion to vacate, modify or

correct an award may be made after thirty days from the notice of the award

to the party to the arbitration who makes the motion.’’

2 Section 12 of title 9 of the 2012 edition of the United States Code provides

in relevant part: ‘‘Notice of a motion to vacate, modify, or correct an award

must be served upon the adverse party or his attorney within three months

after the award is filed or delivered. . . .’’

3

In its memorandum of decision, the court incorrectly stated that § 12 of

the FAA did not apply because the plaintiff, pursuant to § 9 of the FAA,
‘‘was free to bring this application in the Connecticut federal district court

where the longer, three month limitation applies.’’ Section 9 of the FAA

provides in relevant part that ‘‘[i]f no court is specified in the agreement of

the parties, then such application may be made to the United States court

in and for the district within which such award was made. . . .’’ Section 9

of the FAA, however, does not confer subject matter jurisdiction in federal

courts but, instead, ‘‘provide[s] an additional procedure and remedy . . .

where jurisdiction already exists.’’ (Internal quotation marks omitted.) Metal

Products Workers Union, Local 1645, UAW-AFL-CIO v. Torrington Co., 242

F. Supp. 813, 819 (D. Conn. 1965), aff’d, 358 F.2d 103 (2d Cir. 1966).

On this point, the United States Supreme Court has characterized the

FAA as an ‘‘anomaly’’ in the area of federal jurisdiction, as ‘‘[the FAA] creates

a body of federal substantive law establishing and regulating the duty to

honor an agreement to arbitrate, yet it does not create any independent

federal-question jurisdiction . . . .’’ Moses H. Cone Memorial Hospital v.

Mercury Construction Corp., 460 U.S. 1, 25 n.32, 103 S. Ct. 927, 74 L. Ed.

2d 765 (1983). Accordingly, the court mistakenly referred to § 9 of the FAA

as the source of federal jurisdiction in the present case.

Instead, the parties had federal question jurisdiction by virtue of their

claim under the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. (2012).

The parties otherwise did not have federal question or diversity jurisdiction.

Accordingly, if the parties did not have their Federal Truth in Lending Act

claim, then the court’s decision not to enforce their agreement to follow

§ 12 of the FAA would have left them without the option to bring a motion

to vacate after thirty days, despite their clearly agreed upon three month

time frame.

4 Section 2 of title 9 of the 2012 edition of the United States Code provides:

‘‘A written provision in any maritime transaction or a contract evidencing

a transaction involving commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction, or the refusal to

perform the whole or any part thereof, or an agreement in writing to submit

to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any contract.’’

5

In Doctor’s Associates, Inc., the parties, in their contract, agreed that

the FAA governed disputes concerning the enforceability of the arbitration

clause therein. Doctor’s Associates, Inc. v. Searl, supra, 179 Conn. App. 585.

This court upheld the parties’ agreement to apply the FAA. Id., 585–86.