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*********************************************** 
REGINA PICKARD v. DEPARTMENT OF MENTAL

HEALTH AND ADDICTION SERVICES

(AC 44415)

Bright, C. J., and Alexander and Bishop, Js.

Syllabus

The plaintiff, whose employment with the defendant had been terminated,

appealed to this court from the trial court’s judgment dismissing her

application to vacate an arbitration award following the cancellation of

an arbitration of a grievance relating to her termination. The Office of

Labor Relations had denied a grievance by the plaintiff’s union seeking

her reinstatement. The plaintiff thereafter waived her right to union

representation and sought independent counsel to represent her during

the arbitration of that grievance. The plaintiff failed to deposit the

required funds for her share of the arbitration costs in escrow, and the

office cancelled the arbitration. The plaintiff filed an application to

vacate an arbitration award pursuant to statute (§ 52-418 or § 52-420),

and requested that the court issue a pendente lite order pursuant to

statute (§ 52-422) to, inter alia, open the arbitration proceedings. The

court granted the defendant’s motion to dismiss for lack of subject

matter jurisdiction. On the plaintiff’s appeal to this court, held that

the trial court lacked subject matter jurisdiction over the plaintiff’s

application to vacate an arbitration award and, thus, properly dismissed

it: no arbitration award was issued, thus, an essential condition of §§ 52-

418 and 52-420 was not met; moreover, because no arbitration was

pending, the trial court lacked jurisdiction to consider the plaintiff’s

petition for an order pendente lite.

Submitted on briefs December 2, 2021—officially released February 22, 2022

Procedural History

Application to vacate an arbitration award, brought

to the Superior Court in the judicial district of Hartford,

where the court, Lynch, J., granted the defendant’s

motion to dismiss and rendered judgment thereon, from

which the plaintiff appealed to this court. Affirmed.

Norman A. Pattis and Kevin Smith filed a brief for

the appellant (plaintiff).

Maria C. Rodriguez, assistant attorney general, William Tong, attorney general, and Philip M. Schulz, deputy associate attorney general, filed a brief for the appellee (defendant).
Opinion

BISHOP, J. In this special statutory proceeding, the

plaintiff, Regina Pickard, appeals from the judgment of

the Superior Court granting the motion to dismiss filed

by the defendant, the Department of Mental Health and

Addiction Services, claiming that the court lacked subject matter jurisdiction over the plaintiff’s application

to vacate an arbitration award pursuant to General Statutes §§ 52-418, 52-420, and 52-422. On appeal, the plaintiff claims that the court erred in concluding that it

lacked subject matter jurisdiction over her application

to vacate an arbitration award.1 We disagree and,

accordingly, affirm the judgment of the court.

The following undisputed facts and procedural history are relevant to our disposition of the plaintiff’s

claim on appeal. The plaintiff was an employee of the

defendant and a member of the New England Health

Care Employees Union District 1199 (union). On October 2, 2017, the defendant notified her that she was the

subject of an investigation for allegedly assaulting her

supervisor. During the investigation into the allegations,

the plaintiff was represented by her union. On March

5, 2018, the plaintiff’s employment with the defendant

was terminated. In response to the plaintiff’s termination, the union filed a grievance on the plaintiff’s behalf

with the Office of Labor Relations (office), pursuant to

a collective bargaining agreement between the union

and the state.2 Multiple hearings on the grievance were

held in which the plaintiff and her union representative

presented evidence, seeking her reinstatement. However, on June 1, 2018, the office denied the plaintiff’s

grievance. The union then informed the office of its

intent to arbitrate the plaintiff’s grievance.

Subsequently, the plaintiff waived her right to union

representation, instead opting to hire independent

counsel to represent her during the arbitration. On May

8, 2019, the office advised the plaintiff that the costs

associated with the arbitration would be split evenly

between her and the state in accordance with the collective bargaining agreement,3 and that the arbitrator

required a deposit, in escrow, of $4000 for her share of

the projected cost of the arbitration, a minimum of sixty

days prior to the first day of arbitration. The office

informed the plaintiff that ‘‘[i]f the funds are not confirmed to be in escrow by the deposit deadline date,

the [a]rbitration will be cancelled.’’ On May 9, 2019,

counsel for the plaintiff confirmed with the office that

the plaintiff understood that a deposit was required.

The arbitration was scheduled to begin on October

16, 2019, and, accordingly, the deposit was due on

August 16, 2019. The plaintiff, however, failed to meet

the deposit deadline. On August 21, 2019, the office,

not the arbitrator, notified the plaintiff that, because

the arbitrator had not received his deposit by the due
date, the arbitration had been cancelled and the office

considered the case closed. In response, on August 23,

2019, counsel for the plaintiff requested that the deposit

deadline be extended to October 30, 2019, and that the

arbitration be rescheduled for January, 2020. The office

denied the plaintiff’s request and dismissed the plaintiff’s request for arbitration.

On October 31, 2019, the plaintiff filed an application

with the Superior Court to vacate an arbitration award

pursuant to either § 52-418 or § 52-420, and requested

that the court issue a pendente lite order pursuant to

§ 52-422 (1) to require the office and the defendant to

appear and show cause for why the plaintiff’s application to vacate should not be granted, (2) to open the

arbitration proceedings, and (3) to afford her a reasonable opportunity to comply with the deposit requirement. The plaintiff essentially argued that the office

deprived her of her right to due process when it, as

opposed to the arbitrator, terminated the arbitration

proceedings.

The defendant filed a motion to dismiss for lack of

subject matter jurisdiction pursuant to Practice Book

§ 10-30 (a),4 along with a supporting affidavit. The defendant argued that the court lacked subject matter jurisdiction over the plaintiff’s application ‘‘because no arbitration award has been issued, no arbitration is pending

and as a result, the conditions prescribed by the statutes

are not [met].’’ The plaintiff opposed the defendant’s

motion to dismiss arguing that, ‘‘while an arbitrator

has not rendered an award in this case, the [office]

prevented an arbitrator from even having the opportunity to make an award by arbitrarily elevating itself to

the position of arbitrator and summarily dismissing [the

plaintiff’s] case. . . . In short, the state has made itself

the arbitrator in this proceeding and has awarded itself

a dismissal, thus allowing the court to vacate the dismissal.’’ The court granted the defendant’s motion to

dismiss, concluding that it lacked jurisdiction because

the office’s dismissal of the plaintiff’s request for arbitration did not constitute an award under §§ 52-418 and

52-420, and there was no pending arbitration as required

by § 52-422. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to dismiss for lack

of subject matter jurisdiction over her application to

vacate an arbitration award. Specifically, the plaintiff

contends that the dismissal of the arbitration was the

functional equivalent of an arbitration award, asserting

that ‘‘the state has made itself the arbitrator in this

proceeding and has awarded itself a dismissal, thus

allowing the court to vacate the dismissal.’’ We are not

persuaded.

We begin by setting forth our standard of review.

‘‘The standard of review for a court’s decision on a

motion to dismiss [under Practice Book § 10-30 (a) (1)]
is well settled. A motion to dismiss tests, inter alia,

whether, on the face of the record, the court is without

jurisdiction. . . . [O]ur review of the court’s ultimate

legal conclusion and resulting [determination] of the

motion to dismiss will be de novo. . . . When a . . .

court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations

of the complaint in their most favorable light. . . . In

this regard, a court must take the facts to be those

alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a

manner most favorable to the pleader. . . . The motion

to dismiss . . . admits all facts which are well pleaded,

invokes the existing record and must be decided upon

that alone. . . . In undertaking this review, we are

mindful of the well established notion that, in determining whether a court has subject matter jurisdiction,

every presumption favoring jurisdiction should be

indulged.’’ (Internal quotation marks omitted.) Dorry

v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014).

‘‘Trial courts addressing motions to dismiss for lack

of subject matter jurisdiction pursuant to § [10-30 (a)

(1)] may encounter different situations, depending on

the status of the record in the case. . . . [L]ack of

subject matter jurisdiction may be found in any one of

three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in

the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.

. . . Different rules and procedures will apply,

depending on the state of the record at the time the

motion is filed. . . .

‘‘[I]f the complaint is supplemented by undisputed

facts established by affidavits submitted in support of

the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively

presume the validity of the allegations of the complaint.

. . . Rather, those allegations are tempered by the light

shed on them by the [supplementary undisputed facts].

. . . If affidavits and/or other evidence submitted in

support of a defendant’s motion to dismiss conclusively

establish that jurisdiction is lacking, and the plaintiff

fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss

the action without further proceedings.’’ (Citations

omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292

Conn. 642, 650–52, 974 A.2d 669 (2009).

Here, the plaintiff’s application to vacate was supplemented by undisputed facts established by the affidavit

submitted by the defendant in support of its motion to

dismiss.5 Therefore, in ruling on the defendant’s motion

to dismiss, we consider the supplementary, undisputed

facts in the affidavit along with the well pleaded facts
in the complaint. See id.

‘‘[S]ubject matter jurisdiction involves the authority

of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is

without jurisdiction . . . .’’ (Internal quotation marks

omitted.) A Better Way Wholesale Autos, Inc. v. Saint

Paul, 338 Conn. 651, 658, 258 A.3d 1244 (2021). ‘‘It is a

familiar principle that a court which exercises a limited

and statutory jurisdiction is without jurisdiction to act

unless it does so under the precise circumstances and

in the manner particularly prescribed by the enabling

legislation.’’ (Internal quotation marks omitted.) Mehdi

v. Commission on Human Rights & Opportunities,

144 Conn. App. 861, 865, 74 A.3d 493 (2013); see also

Goodson v. State, 232 Conn. 175, 180, 653 A.2d 177

(1995) (Where a ‘‘statute confers a definite jurisdiction

upon a judge and it defines the conditions under which

such relief may be given . . . jurisdiction is only

acquired if the essential conditions prescribed by statute are met. If they are not met, the lack of jurisdiction

is over the subject-matter . . . .’’ (Internal quotation

marks omitted.)).

We begin by clarifying a point we find has significant

bearing on this appeal. The plaintiff claims that ‘‘[t]his

is an appeal from the trial court’s ruling dismissing an

administrative appeal.’’ This characterization is incorrect. In this matter, the plaintiff did not file an administrative appeal but, instead, chose to seek relief through a

special statutory proceeding brought pursuant to §§ 52-

418, 52-420, and 52-422. See Goodson v. State, supra,

232 Conn. 180 (‘‘[a]n application for an order pendente

lite pursuant to § 52-422 is a special statutory proceeding’’); see also Middlesex Ins. Co. v. Castellano, 225

Conn. 339, 344, 623 A.2d 55 (1993) (explaining that

application to vacate arbitration award brought pursuant to § 52-420 ‘‘is not a civil action, but is rather a

special statutory proceeding’’); Middletown v. Police

Local, No. 1361, 187 Conn. 228, 231, 445 A.2d 322 (1982)

(explaining that application to vacate arbitration award

brought pursuant to § 52-418 ‘‘triggers special statutory

proceedings that are not civil actions’’). As the court

aptly explained, §§ 52-418, 52-420, and 52-422 ‘‘[confer]

a definite jurisdiction upon a judge and [define] the

conditions under which such relief may be given . . . .

[J]urisdiction is only acquired if the essential conditions

prescribed by [the] statute are met.’’ (Internal quotation

marks omitted.) Goodson v. State, supra, 180.

As to the special statutory procedure, the defendant

contends that the essential conditions prescribed by

§§ 52-418, 52-420, and 52-422 were not met, and, therefore, the court lacked jurisdiction to hear the plaintiff’s

claim. Specifically, the defendant asserts that (1) §§ 52-

418 and 52-420 require the existence of an arbitration

award, and here, no award was issued, and (2) § 52-
422 requires a pending arbitration proceeding before

an arbitrator, and here, there is no pending arbitration

proceeding. We agree with the defendant.

We first review § 52-418. It provides in relevant part:

‘‘(a) Upon the application of any party to an arbitration,

the superior court . . . 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.

. . .’’ (Emphasis added.) General Statutes § 52-418 (a).

One of the essential conditions of § 52-418 is the existence of an award.

Section 52-420 likewise mandates the existence of an

arbitration award. It provides in relevant part: ‘‘(b) 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. (c)

For the purpose of a motion to vacate, modify or correct

an award, such an order staying any proceedings of

the adverse party to enforce the award shall be made

as may be deemed necessary. Upon the granting of an

order confirming, modifying or correcting an award,

a judgment or decree shall be entered in conformity

therewith by the court or judge granting the order.’’6

(Emphasis added.) General Statutes § 52-420 (b) and

(c).

Our Supreme Court has held that a dismissal of a

request for arbitration does not constitute an arbitration

award. See Coldwell Banker Manning Realty, Inc. v.

Cushman & Wakefield of Connecticut, Inc., 293 Conn.

582, 603, 980 A.2d 819 (2009) (Coldwell). In Coldwell,

the plaintiff claimed that the trial court ‘‘improperly

concluded that the . . . dismissal of its request for

arbitration for untimeliness constituted an arbitration

award for purposes of [General Statutes] § 52-417.’’7

Id.,

592. The court agreed and held that the ‘‘dismissal of

[the plaintiff’s] request for arbitration did not constitute

an award . . . and that the trial court improperly

granted [the plaintiff’s] application to confirm the award

[pursuant to § 52-417] because there was no award to

confirm.’’ Id., 604. The court explained that ‘‘[a]rbitration is [a] process of dispute resolution in which a

neutral third party (arbitrator) renders a decision after

. . . both parties have an opportunity to be heard. . . .

The decision rendered by the arbitrator upon the controversy submitted for arbitration constitutes the arbi-
tration award. The principal characteristic of an arbitration award is its finality as to the matters submitted so

that the rights and obligations of the parties may be

definitely fixed. . . . In other words, [a] final award is

[o]ne [that] conclusively determines the matter submitted and leaves nothing to be done except to execute

and carry out [its] terms . . . . The requirement that

an award be mutual, final and definite as between the

parties to the arbitration has been codified at . . . § 52-

418 (a) (4).’’ (Citations omitted; internal quotation

marks omitted.) Id., 594. The court concluded that the

dismissal of the arbitration ‘‘did not satisfy the requirement of finality as to the matters submitted so that the

rights and obligations of the parties [were] definitely

fixed . . . and, therefore, was not a decision on the

merits.’’ (Citation omitted; internal quotation marks

omitted.) Id., 600.

Our Supreme Court also has held that a determination

on the issue of arbitrability does not constitute an award

under § 52-418 because it is not a final resolution of

the underlying claim on the merits. In Naugatuck v.

AFSCME, Council No. 4, Local 1303, 190 Conn. 323,

460 A.2d 1285 (1983), the court explained that ‘‘[§] 52-

418 only authorizes a court to vacate an arbitrator’s

award and then only under narrow circumstances.

Unless an arbitration decision is an award, therefore,

there is no right of appeal. This court has held that a

finding on arbitrability is not an award until it becomes

part of an award on the merits. . . . Therefore, a party

must demonstrate that an award on the merits has been

rendered before any right to appeal attaches.’’ (Citation

omitted; internal quotation marks omitted.) Id., 326. In

Coldwell, our Supreme Court stated that its conclusion

in Naugatuck ’’is consistent with the governing law on

arbitration, which provides that an arbitration award

settles the rights and obligations of the parties.’’ Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., supra, 293 Conn. 603.

In the present case, the plaintiff concedes that ‘‘it is

true that an independent arbitrator never heard the

instant case or had the opportunity to render an award

in it . . . .’’ The plaintiff nevertheless contends that

the dismissal of the arbitration is the functional equivalent of an award. We are unpersuaded by this novel

claim. The dismissal of the arbitration in the present

case is not a final resolution of the underlying claim

on the merits; see Naugatuck v. AFSCME, Council No.

4, Local 1303, supra, 190 Conn. 326; nor does it conclusively resolve the rights and obligations of the parties as

to the matter submitted. See Coldwell Banker Manning

Realty, Inc. v. Cushman & Wakefield of Connecticut,

Inc., supra, 293 Conn. 594. Because we conclude that

an essential condition of §§ 52-418 and 52-420 has not

been met, we conclude that the court lacked subject

matter jurisdiction over the plaintiff’s application to

vacate.
We next turn to § 52-422, which provides in relevant

part: ‘‘At any time before an award is rendered pursuant

to an arbitration under this chapter, the superior court

. . . 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.’’ (Emphasis

added.)

Section 52-422 permits a judge to make orders pendente lite. To do so, however, our Supreme Court has

made clear that ‘‘a pending arbitration is an essential

condition that must exist before § 52-422 may be

invoked.’’ Goodson v. State, supra, 232 Conn. 180. In

Goodson, the plaintiff filed a petition pursuant to § 52-

422 requesting an order pendente lite. Id., 178. At the

time the plaintiff filed his petition, the arbitration process had not yet been invoked, but was the next step

in the grievance procedure. Id. The trial court held a

hearing on the plaintiff’s petition pursuant to § 52-422

and issued an order. Id. On appeal to our Supreme

Court, the defendant claimed that the trial court lacked

subject matter jurisdiction over the plaintiff’s petition

because § 52-422 applies only to parties to an arbitration and, at the time the plaintiff filed the petition,

there was no pending arbitration. Id., 178–79. The court

agreed, explaining that, ‘‘[b]y 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. It is undisputed

that on the date the trial court conducted its hearing

and entered its order, there was no pending arbitration.

The essential condition prescribed by the statute was

not met, therefore, and the trial court lacked jurisdiction

to have considered the plaintiffs’ petition pursuant to

§ 52-422.’’ Id., 180.

The plaintiff concedes that Goodson mandates that

a pending arbitration exist before § 52-422 may be

invoked but endeavors to distinguish Goodson from the

facts in the present case. The plaintiff argues that, ‘‘[a]t

the time that the Goodson plaintiffs brought their petition seeking an order pendente lite, they had not yet

begun the arbitration process and were still proceeding

through their union grievance process. . . . Unlike

Goodson, [the plaintiff here] had begun the arbitration

process . . . . Consequently, the court does have the

necessary jurisdictional prerequisite because arbitration had begun . . . .’’ (Citations omitted.) The plaintiff’s effort to distinguish Goodson from the procedural

facts at hand fails. Like in Goodson, here, there is no

pending arbitration. Regardless of whether the arbitration had not yet begun or had already concluded, no

pending arbitration existed at the time the petition pur-
suant to § 52-422 was filed. Goodson makes clear that

an essential condition of § 52-422 is a pending arbitration—a condition that is not met in the present case.

We therefore conclude that the court lacked jurisdiction

to have considered the plaintiff’s petition for an order

pendente lite pursuant to § 52-422.8

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also argues that sovereign immunity bars the plaintiff’s

claim. Because we conclude that the court lacked subject matter jurisdiction

over the plaintiff’s claim, we need not address the defendant’s sovereign

immunity argument.

2 Exhibit D, which was attached to the affidavit submitted by the defendant

in support of its motion to dismiss, includes article 32 of the collective

bargaining agreement between the union and the state, which sets forth the

grievance and arbitration procedure.

3 Article 32, § 7, of the collective bargaining agreement provides in relevant

part: ‘‘The expenses for the arbitrator’s service and for the hearing shall be

shared equally by the [s]tate and the [u]nion. However, in dismissal or

suspension cases where the [u]nion is not a party, one-half the cost shall be

borne by the [s]tate and the half by the [e]mployee submitting to arbitration.’’

4 Practice Book § 10-30 (a) provides in relevant part: ‘‘A motion to dismiss

shall be used to assert: (1) lack of jurisdiction over the subject matter . . . .’’

5 Attached to the affidavit is (1) a termination letter from the defendant

to the plaintiff, (2) a dismissal notice of the plaintiff’s grievance, (3) the

plaintiff’s notice of her intent to pursue arbitration, (4) a portion of the

collective bargaining agreement between the state and the union, and (5)

various correspondence between the plaintiff’s attorney and the office.

6 Although the plaintiff filed her application pursuant to §§ 52-418, 52-420,

and 52-422, she states that she ‘‘does not cite [§ 52-420] for its substantive

authority, but rather to show that her claim is not time barred.’’

7 General Statutes § 52-417 provides: ‘‘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 or, in a

controversy concerning land, for the judicial district in which the land is

situated or, when the court is not in session, to any judge thereof, for an

order confirming the award. 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.’’

8 We note that, to the extent the plaintiff was aggrieved by the office’s

dismissal of the arbitration proceedings, her proper recourse, if any, is under

the Uniform Administrative Procedure Act. See General Statutes § 4-166

et seq.