Opinion
No. FSTCV11-5013562S
May 24, 2011
Memorandum of Decision on Motion to Dismiss (No. 102)
Background
At issue in this case is a dispute over legal fees charged by the plaintiff, a Connecticut attorney, to the defendant, his former client in a family relations proceeding. Unpaid additional fees are claimed to be due in violation of the parties' retainer agreement as alleged in the unsigned, writ, summons and complaint (No. 100.32) attached to the plaintiff's application for prejudgment remedy. In his affidavit in support of prejudgment remedy (No. 100.35) the plaintiff claims he is owed additional fees of $121,086.71, which the defendant disputes.
The application for prejudgment remedy (No. 100.31) came up before the undersigned on the Miscellaneous and Special Proceedings calendar of March 21, 2011. On that date the defendant filed the instant motion to dismiss without supporting memorandum of law, asking for dismissal of the plaintiff's application for prejudgment remedy on the basis of an arbitration provision in the retainer agreement between the parties. The court took that motion to dismiss as a challenge to the court's subject matter jurisdiction and declined to hear the PJR application pending resolution of the jurisdictional challenge. A briefing schedule was established and the matter was continued to the short calendar of April 18, 2011. All briefs (Nos. 104, 105, 106) were filed by April 11, 2011, but the matter could not go forward on April 18 due to unavailability of counsel. The hearing on the motion to dismiss was continued to the calendar of May 23, 2011 when both parties requested that the court take the motion to dismiss "on the papers."
Discussion
The basis of the motion to dismiss is the following provision from the written, signed retainer agreement of February 6, 2006 between the parties, a copy of which is attached to the proposed unsigned complaint as Exhibit "A:"
If any disagreement or dispute arises between us regarding legal fees, we agree to submit that dispute to binding arbitration with the Resolution of Legal Fees Disputes Program of the Connecticut Bar Association, which is specifically designed to resolve such agreements and disputes without the necessity of resorting to the courts, and we agree that neither of us will bring any suit with respect to these issues, except a suit to confirm the award of the Program if necessary.
Citing Conn. Gen. Stat. § 52-408, providing generally that such arbitration provisions of written agreements executed by the parties thereto shall be "valid, irrevocable, and enforceable, except when there exists sufficient cause at law or inequity for the avoidance of written contracts generally," the defendant argues that the arbitration provision is unambiguous and must be enforced. She points out particularly the parties agreed "that neither of us will bring any suit with respect to these issues, except a suit to confirm the award of the program if necessary." She further argues from the broad dictionary definition of the word "suit" that an application for prejudgment remedy would be barred by that agreement. The court agrees that the arbitration provision, drafted by the plaintiff as part of a letter to the defendant which was then countersigned by her, is valid and enforceable and binding on the parties, and applies to these proceedings, but disagrees that dismissal is the proper remedy.
Plaintiff suggested at oral argument on March 21 that these proceedings would not be a "suit" but an application for an "Order Pendente Lite" in aid of arbitration pursuant to Conn. Gen. Stat. § 52-444. There is no need to decide if such a proceeding would be construed as a "suit" under the parties' agreement because this is clearly not an "Order Pendente Lite" proceeding under that statute, which applies "at any time before an award is entered pursuant to an arbitration under this chapter." There has not been at any time an arbitration proceeding commenced by either party to this dispute. Other than attaching a copy of the retainer agreement to his proposed unsigned complaint the plaintiff in that document makes no mention or allegation of the arbitration clause, or any intent to arbitrate or any reference to § 52-422. The ad damnum clause of the complaint seeks money damages, interest, costs and a wage or property execution. This would be, upon the filing of that complaint, a full fledged breach of contract/quantum meruit lawsuit to collect unpaid legal fees.
Conn. Gen. Stat. § 52-409 provides:
If any action for legal or equitable relief or other proceeding is brought by a party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.
In Catrini v. Erickson, 113 Conn.App. 195 (2009), in a case very much in the same posture as this case, the Appellate Court held that the fact that § 52-409 allows a court to enter a stay involving an arbitration agreement must negate any concept that the arbitration remedy deprives the court of juridiction. "In short, because the power to order a stay implies that the court has jurisdiction over a matter, the legislature could not have empowered the court to enter a stay in such a matter unless the court has jurisdiction over it." Id., 197. This court, under the rule of Catrini, then, has continuing subject matter jurisdiction over this case despite the existence of the arbitration clause of the retainer agreement, and the defendant's motion to dismiss is therefore denied.
Although neither party has formally moved for a stay pending arbitration, both parties have indicated to the court their desire to arbitrate this dispute with the Resolution of Legal Fees Disputes Program of the Connecticut Bar Association, under its binding arbitration procedures, and the defendant, in her Reply Brief of April 11, 2011 asks that if this court concludes, as it has, that the plaintiff's action is not subject to dismissal, it must then stay these proceedings pending arbitration under § 52-409. Likewise, the plaintiff in its memorandum in opposition to motion to dismiss dated April 8, 2009 urged this court to deny the motion to dismiss and then upon filing of the underlying action to "act on an application, presumably to be filed by the defendant pursuant to Connecticut General Statutes § 52-409, to stay the civil suit pending the outcome of the arbitration." Id., 5
Section 52-409 contemplates a stay of "any action for legal or equitable relief or other proceeding" brought by a party to an arbitration agreement. The pending application for prejudgment remedy would be an "other proceeding" subject to being stayed, and the court does hereby stay all proceedings on this application for prejudgment remedy until a binding arbitration with the Resolution of Legal Fees Disputes Program of the Connecticut Bar Association has been had in compliance with the retainer agreement between the parties. The actual civil action will not be commenced unless and until the plaintiff signs and serves and returns to court the writ summons and complaint pursuant to Conn. Gen. Stat. § 52-278j. The plaintiff is not stayed from taking those actions to commence the civil action, if he so desires for any reason. The defendant in that event shall have the opportunity to move for a stay of the underlying civil action as well.
SO ORDERED: