Opinion
No. CV07 501 08 91 S
January 23, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On September 26, 2007, the plaintiffs, Kathleen and William Verespy, commenced this action by service of process on the defendant, Placelift Renovations, LLC. In their complaint the plaintiffs claim that the defendant was contacted to perform home renovations and failed to do so in a timely manner, charged extra fees and overcharged for time, materials and subcontractors. The plaintiffs also allege that the defendant charged materials to the plaintiff's personal credit card without approval and that they failed to protect portions of the renovation from the weather, thus causing damage to the existing structure. In the three-count complaint the plaintiffs claim that there was a breach of contract, a breach of the implied covenant of good faith and fair dealing and a breach of the Home Improvement Act.
On December 14, 2007, the defendant filed a motion to dismiss and a memorandum of law arguing that the court lacked jurisdiction. The plaintiffs did not file a written objection or memorandum, but disputed the claim at a short calendar hearing on January 7, 2008.
"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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The defendant moves to dismiss the action on the ground that an arbitration agreement between the parties prevents the court from having jurisdiction over the claims. The defendant further argues that the arbitration agreement covers this type of dispute, that the arbitration agreement is enforceable and was not implicitly or explicitly waived. The plaintiff counters by arguing that the arbitration agreement is not enforceable, or in the alternative, that if it was enforceable, it was waived.
General Statutes § 52-408 provides in relevant part that: "[a]n agreement in any written contract to settle by arbitration any controversy thereafter arising out of such contract . . . or out of the failure or refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally." General Statutes § 52-409 provides in relevant part that: "[i]f any action 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."
The contract between the parties provides that "[a]ll disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association." The arbitration agreement is enforceable pursuant to § 52-408. The defendant has not caused an undue delay which would constitute a waiver of his right to arbitration. See Rosinski v. Frontier Group, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 04 0092958 (July 25, 2006, Pickard, J.) ( 41 Conn. L. Rptr. 705) (the right to enforce the arbitration clause was waived where a defendant did not assert a claim to arbitration in a timely manner after the expense of significant judicial resources); Gilmartin v. Liberty Mutual Ins. Co., 23 Conn.Sup. 70, 176 A.2d 883 (1961) (motion to stay denied where defendant's actions made the plaintiff believe that the defendant had waived his right to arbitration). On November 7, 2007, the plaintiffs filed the original complaint and consequently, on December 19, 2007, the defendant moved to dismiss on the ground that the matter should be submitted to binding arbitration. This time line does not prejudice the plaintiffs nor has it been a waste of judicial resources. The defendant has not done anything that would lead the plaintiffs to believe that the defendant had waived its right to arbitration. The claims by the plaintiffs are based on the contract between the parties and, therefore, the matter should be resolved pursuant to the arbitration clause contained within the contract.
The motion to dismiss is granted.