Opinion
No. CV 04 0092958S
July 25, 2006
MEMORANDUM OF DECISION
This case was tried to the court on June 27, 2006. The plaintiff represented himself, the defendant was represented by counsel.
The plaintiff proved by a fair preponderance of the evidence that the defendant owed him the sum of $12,170 as a result of work done by the plaintiff in constructing a chimney in a house being built by the defendant. The defendant claimed that it was required to pay another contractor $4,155.09 to re-do some of the plaintiff's work. The defendant objected to the flashing technique employed by the plaintiff but was unable to prove that it was not in accordance with the specifications supplied to the plaintiff or was sub-standard in any way. In fact, the plaintiff's technique appears to be in accordance with diagrams in the State Building Code.
The only real issue is whether the plaintiff can recover in this case in light of the arbitration clause in the written agreement between the parties. The agreement provides that all claims or disputes arising out of the agreement shall be arbitrated through the American Arbitration Association. Although the agreement also provides that the arbitration clause shall not limit the plaintiff's rights under lien laws, it states that arbitration is a condition precedent to the plaintiff's right to institute an action in any court against the defendant. The defendant filed a special defense that the plaintiff cannot "institute an action in court until any dispute has been submitted to arbitration. Since submission to arbitration is a condition precedent to instituting any action in court, the Plaintiff cannot recover upon its complaint."
The defendant is correct that the plaintiff's claim is covered by the arbitration clause. However, the court finds that the defendant has waived its right to insist upon compliance with the arbitration clause. This suit was commenced by service of process on April 7, 2004. The defendant filed its answer and special defenses on June 18, 2004. The defendant never sought to stay the proceedings pursuant to C.G.S. § 52-409. It never sought summary judgment on its special defense. It never brought an action to compel arbitration. It filed a setoff/counterclaim along with the answer and special defense. It complied with the plaintiff's interrogatories and request for production on March 15, 2005. It appeared at and participated in a status conference on October 14, 2005, and a pretrial on January 26, 2006. It prepared an extensive trial management report and appeared at and participated in a trial management conference on May 9, 2006. All of these proceedings required the participation of court personnel including a judge. In conjunction with the plaintiff, the defendant selected a trial date. It pre-marked exhibits and appeared for trial. At the commencement of the trial the counsel for the defendant raised the issue of the arbitration clause orally as a preliminary matter. The court deferred decision and proceeded with the evidence.
C.G.S. Section 52-409 provides: "If any action for legal or equitable relief or other proceeding is brought by any 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."
An arbitration clause may be waived by the parties or by one entitled to its benefits by an unjustifiable delay in seeking arbitration. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11 (1954); Gilmartin v. Liberty Mutual Insurance Company, 23 Conn.Sup. 70 (1961). "Waiver is the intentional relinquishment or abandonment of a known right or privilege. Various statutory and contract rights may be waived. Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel will be enforced. Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed. Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 704 v. Dept of Public Health, 272 Conn. 617, 623 (2005). Here, waiver may be inferred from the defendant's failing to press this issue in a timely manner. This matter has been pending for over two years and has consumed substantial court time, all of which may have been avoided if the defendant had asserted its claim for arbitration in a timely fashion. The only other issue is the defendant's claim that suit was brought in the wrong name. This claim must be rejected because the plaintiff is the rightful owner of the cause of action which was originally owned by a limited liability company of which he was one of the two members. The statute relied upon by the defendant, C.G.S. § 34-208, does not require that suit be brought in the name of the limited liability company; it is permissive only.
Judgment shall enter in favor of the plaintiff in the amount of $12,170 together with taxable costs. No interest or attorney fees are awarded. Judgment shall enter for the plaintiff on the setoff/counterclaim.