Opinion
DBDCV185013020S
01-15-2019
Earl THOMPSON v. Theodore KESSIS, PhD
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Theodore Kessis, defendant pro se, has moved to dismiss this action on the ground that the court lacks jurisdiction over him because he is not a resident of this state and the contract between the parties provides that "any litigation under this agreement shall be resolved in the trial courts of Franklin County, Ohio." For the reasons stated below, the motion to dismiss is granted.
The Standards for Deciding a Motion to Dismiss.
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ..." Weiner v. Clinton, 100 Conn.App. 753, 756-57 (2007), quoting Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court ‘must consider the allegations of the complaint in their most favorable light ... including those facts necessarily implied from the allegations ...’ ... A trial court considering a motion to dismiss may, however, ‘encounter different situations, depending on the status of the record in the case’ ... ‘[I]f the complaint is supplemented by undisputed facts ... 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].’ ... Conversely, ‘where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.’ ... The trial court ‘may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’" Giannoni v. Commissioner of Transportation, 322 Conn. 344, 349-50 (2016) (citations omitted).
The Forum Selection Clause in the Retainer Agreement is Enforceable
In this action plaintiff pro se Earl Thompson alleges he paid defendant a retainer of $ 1, 500.00 for DNA testing and review of materials in his criminal case, that defendant failed to respond to plaintiff’s letters to him after he received the retainer, did not perform the agreed services and refused to refund the retainer. The legal theories pled are fraud under C.G.S. § 53-354, larceny under C.G.S. § 53a-127 and (by implication) breach of contract.
For purposes of this motion, the Court assumed that plaintiff could proceed under the civil counterparts of claims for fraud and theft for the conduct alleged to violate the criminal statutes cited by plaintiff.
Defendant submitted an affidavit and exhibits which established the following facts that are largely undisputed. Defendant, a non-resident of Connecticut, is an owner of a DNA testing consulting firm located in Columbus, Ohio. Plaintiff is an inmate incarcerated in this state. Plaintiff paid the retainer and engaged defendant to review the results and underlying data associated with DNA samples collected during the investigation of the crime for which defendant was convicted. Plaintiff signed a service agreement that retained defendant "for the purposes of providing consultation and review services in connection with DNA testing performed" in plaintiff’s criminal case. The agreement provides "[a]ny litigation under this agreement shall be resolved in the trial courts of Franklin County, Ohio." Materials relating to multiple DNA tests were sent to defendant for his review in Ohio. Defendant communicated with plaintiff, plaintiff’s attorney and sister, including correspondence by letters and e-mails sent to defendant in Ohio. After review of the submitted DNA materials, Defendant contacted plaintiff’s attorney and sister and stated his conclusion that the original DNA test was accurate and reliable and that the retesting done by a laboratory in California was "accurate and reliable and that no case could be made that the Connecticut State Police CSP had tampered with the evidence in the case." There is no evidence defendant ever came to Connecticut in connection with his rendering of consulting services under the agreement.
Plaintiff submitted an affidavit in support of his objection to dismissal. He does not dispute that he engaged defendant as a DNA consultant, paid the retainer and signed the retainer agreement with the choice of forum provision. He also does not dispute that defendant is a nonresident engaged to perform services outside this state. Plaintiff does dispute the scope of the engagement, whether defendant performed the consulting services he contracted to perform and whether he responded to plaintiff’s letters, but plaintiff does not refute the written evidence that defendant communicated his opinions to plaintiff’s lawyer and sister that were unfavorable to plaintiff’s defense. Plaintiff asserts that he did not authorize defendant to communicate with his attorney or sister, that the attorney was removed from his case at some point, and that he never received the reports sent by defendant, which goes to the merits of his claim not whether he is bound by the agreement he signed. Whether or not defendant properly performed the services plaintiff engaged him to perform is not material to the enforceability of the forum selection clause in the retainer agreement.
There may not be a dispute as to the scope of the engagement. In the complaint plaintiff alleged that he had engaged defendant’s "services in testing and review of materials," but in his affidavit he states defendant was to review DNA reports and in his objection plaintiff states defendant was paid "to review DNA test reports and to see if additional DNA testing can be done on evidence in the custody of the Connecticut State Police." This latter description is consistent with defendant’s description of the services he was engaged to perform. If there is a dispute as to scope of services, it goes to the merits of the claim rather than the choice of forum.
This is contradicted by plaintiff’s handwritten, signed letter to defendant that transmitted the retainer, which states: "[m]y attorney Michael O. Sheehan and ... my sister LawRose will keep in touch with you." For purposes of this motion, it is not necessary to resolve the issue of whether defendant was authorized to communicate through plaintiff’s attorney and sister.
On January 19, 2019, a hearing was held at which both parties appeared electronically from remote locations. At the hearing plaintiff affirmed that he had paid the retainer and signed the agreement which contained the forum selection clause and returned it to defendant in Ohio with the retainer check. Defendant stated his business is located in Ohio, which is where he performed the services. Both parties essentially affirmed facts in their affidavits and the motion to dismiss may be decided based upon the undisputed facts in the record.
At the hearing both parties referred to the underlying dispute, and plaintiff cited RAB Associates, LLC v. Bertch Cabinet Mfg., Inc., 2012 WL 1434963 *3 (Conn.Super. 2012), as authority for his assertion that defendant acted in bad faith and committed fraud in connection with the agreement. The Court explained the narrow scope of the hearing concerned enforcement of the forum selection clause, not the merits of the underlying claims and defenses, which may be litigated later in the appropriate forum.
The provision that any litigation under the agreement would be in Ohio was a forum selection clause that is enforceable under Connecticut law. See Western Dermatology Consultants, P.C. v. Vital Works, Inc., 146 Conn.App. 169, 202 (2013), aff’d 322 Conn. 541 (2016). See generally 18 Conn. Prac. § 4:13 (2018 ed.)." ‘[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court ... Absent a showing of fraud or overreaching, such forum clauses will be enforced by the courts.’ ... The existence of [a forum selection] clause does not deprive the trial court of personal jurisdiction over the parties, but presents the question [of] whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case." General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 423-24 (citations omitted).
In General Electric Capital Corp., 141 Conn.App. at 426-27, the Appellate Court reversed the denial of a motion to dismiss and concluded in the face of an enforceable forum selection clause that "it would be unreasonable for a Connecticut court to exercise its jurisdiction over the parties in the particular circumstances of this case."
Here, the crux of the plaintiff’s complaint is that defendant failed to render the services required under the retainer agreement and to refund the retainer. These claims are made "under the agreement" and therefore fall within the forum selection clause in the retainer agreement signed by plaintiff. The only dispute between the parties concerns whether defendant performed the services called for in the contract and adequately communicated with plaintiff. Given that the nonresident defendant never came to Connecticut and would not need to come to this state to perform the consulting services under the retainer agreement about which plaintiff has complained it would be unreasonable to disregard the forum selection clause and exercise jurisdiction over a dispute the parties agreed to litigate in Ohio.
By failing to move to dismiss within the thirty-day time period set forth in Practice Book § 10-30(b), defendant waived any argument he was not subject to longarm jurisdiction. See General Electric Corp., 141 Conn.App. at 420.
In Bosco v. Eyelet Tech Nucap Corp., 2014 WL 6428395 *4 (Conn.Super. 2014) (Roraback, J.) Judge Roraback discussed the two-part test for enforcement of forum selection clauses:
Judges of the Superior Court have adopted a two-part analysis to determine whether a forum selection clause should be enforced. First, the court must look to contract formation itself to ascertain whether the clause was the product of fraud or deception or whether the bargaining power of the parties was so out of balance that the clause should not be enforced ... This step allows, inter alia, consideration [of] whether the provision is contained in an adhesion or take or leave it contract which the party was compelled to accept without argument, or discussion ... Second, the court considers whether, even if there existed no fraud, deception, or significantly uneven bargaining power, enforcement of the clause would cause such inconvenience to the party bringing suit that the otherwise valid contractual provision should not be enforced. Id., quoting BKJRT, Inc. v. Sovereign Bank, Superior Court, 2011 WL 7715889 *2 (Conn.Super. 2011) (Martin, J.).
There is no evidence of deception, fraud or overreaching by defendant in proposing the forum selection clause that selected Ohio, the state where defendant resides and the services were to be performed, as the forum for resolution of disputes under the contract between the parties. The contract has not been shown to be a contract of adhesion between parties with uneven bargaining power. See BKJRT, 2011 WL 7715889 *3 ("the fact that a forum selection clause is contained within a ‘take it or leave it contract’ does not, in and of itself, make the clause the product of fraud or deception"). Plaintiff could have chosen not to retain defendant for DNA consultation if he objected to the forum selection clause but there is no evidence he ever objected to the provision and there is evidence of his retention of other DNA experts.
Although more convenient to defendant, Ohio has not been shown to be an unreasonably inconvenient forum for plaintiff. See BKJRT, 2011 WL 7715889 *4-5 ("[i]t has been repeatedly held that the ‘inconvenience’ necessary to persuade a court to decline to enforce a forum selection clause that has been found to be valid must be serious inconvenience, such inconvenience as would effectively deprive a plaintiff ... of a forum in which to pursue its claim ...") (citation omitted).
As a sentenced prisoner plaintiff would likely have to participate in most proceedings in either state telephonically or by video link, although it would be simpler for him to appear in person in Connecticut. The disadvantage of signing an agreement with an Ohio choice of forum provision should have been apparent when he signed the agreement; assuming that plaintiff could not travel to Ohio, that plaintiff would have to appear in proceedings remotely by video or telephone does not preclude its enforcement.
The forum selection clause is enforceable and this action is dismissed for improper venue. See Bosco, 2014 WL 6428395 *3, 6; BKJRT, 2011 WL 7715889 *5.