Lynes v. Calcagni Associates, No. HHBCV 05500025 S (CT 3/6/2006)

• Decision Date: 06 March 2006
• Docket Number: No. HHBCV 05500025 S,HHBCV 05500025 S
• Citation: Lynes v. Calcagni Associates, No. HHBCV 05500025 S (CT 3/6/2006), No. HHBCV 05500025 S (Conn. Mar 06, 2006)
• Court: Connecticut Supreme Court
• Parties: James Lynes et ux. v. Calcagni Associates et al. Opinion No.: 92762

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Unpublished Opinion

James Lynes et ux. v. Calcagni Associates et al. Opinion No.: 92762

No. HHBCV 05500025 S

Superior Court of Connecticut

Judicial District of New Britain at New Britain

March 6, 2006

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 104

DAN SHABAN, JUDGE.

The Defendant Tiger Group, Inc. has filed a Motion to Dismiss (# 104), arguing that the Court has no subject matter jurisdiction over the plaintiffs' complaint in that any dispute between the plaintiff James Lynes and the defendant corporation must be submitted to arbitration pursuant to the written contract executed between the parties. The plaintiffs have filed a timely objection to the motion (#106), arguing that the contract containing the arbitration clause is a contract by adhesion and therefore unenforceable. Oral argument was held before the court on February 27, 2006. For the reasons stated below, the court grants the Motion to Dismiss.

I. OVERVIEW

In their seven-count Amended Complaint dated December 19, 2005, the plaintiffs, James and Joy Lynes, allege that on or about March 10, 2004, they entered into a contract to purchase a home at 148 Tanglewood Dr., Southington, Connecticut, from the defendant seller, Richard M. O'Neil, based in part on the seller's representation that the property was connected to the town's sewer system. On March 12, 2004, the plaintiff James Lynes entered into a contract with the defendant Tiger Group, Inc., to perform a home and building inspection of the premises.¹ The inspection was done but the plaintiffs claim it did not report the fact that the home was connected to a septic system rather than the town sewer system. They allege that following the completion of the purchase they independently discovered the home was not connected to the town sewer system and commenced the present action against the listing agency Calcagni Associates Real Estate, the seller Richard M. O'Neil, and the home inspector Tiger Group, Inc. As to the defendant home inspector, the plaintiffs filed claims of negligence in Count Four, violation of the Connecticut Unfair Trade Practices Act in Count Five, fraud in Count Six, and "contract by adhesion" in Count Seven.

II. DISCUSSION

"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).

"It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotations marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). A claim that the court lacks subject matter jurisdiction may be raised at any time. Practice Book §10-33, Dowling v. Slotnick, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). In considering the motion, the court must review the allegations in the complaint and construe them in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

Defendant Tiger Group, Inc. argues that the court lacks subject matter jurisdiction because any dispute arising from the March 12, 2004 home inspection is governed by the arbitration provision of the parties' written contract, which specifically provides that "arbitration is a condition precedent to the filing of an action in court."² The plaintiffs have objected, arguing that the arbitration clause is a contract by adhesion resulting from the unequal bargaining power of the parties and as such is void and unenforceable. Specifically, the plaintiffs argue that the clause violates public policy because it (1) only provides attorneys fees for Tiger Group if they should prevail, without any reciprocal provision for the plaintiffs, (2) designates arbitrators (architects, home inspectors, ASHI members, engineers or professional contractors) who would be inherently biased toward the home inspector, and (3) is a preprinted contract which was presented on a "take it or leave it" basis, giving the plaintiffs no choice but to agree to its terms.

"Connecticut has adopted a clear public policy in favor of arbitrating disputes." Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 354 (2004); see also, Alexson v. Foss, 276 Conn. 599, 607, 887 A.2d 872 (2006). "Where a contract contains a stipulation that the decision of arbitrators on certain questions shall be a condition precedent to the right of action on the contract itself, such a stipulation will be enforced and, until arbitration has been pursued or some sufficient reason given for not pursuing it, no action can be brought on the contract." (Citations...