Mark v. Neundorf

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EWAN MARK v. ROBERT NEUNDORF ET AL.
(AC 33762)
DiPentima, C. J., and Beach and Alvord, Js.
Argued September 26, 2013—officially released January 14, 2014

(Appeal from Superior Court, judicial district of
Windham at Putnam, Vacchelli, J.)
John K. Harris, Jr., for the appellant (plaintiff).
Kathleen M. Cerrone filed a brief for the appellees
(defendants).
Opinion

BEACH, J. The plaintiff, Ewan Mark, appeals from
the trial court’s judgment dismissing his complaint
against the defendants, Robert Neundorf, doing busi-
ness as Go2Guys, and Go2Dump, LLC (Go2Dump).1 On
appeal, the plaintiff claims the court erred in: (1) dis-
missing his complaint against Go2Dump because it was
not a party to the contract between the plaintiff and
Neundorf, which contained an alternative dispute reso-
lution clause; and (2) dismissing the plaintiff’s com-
plaint against Neundorf, a party to the contract
containing the alternative dispute resolution clause,
because the imposition of a stay, a less drastic alterna-
tive, was available. We reverse the judgment of the
trial court.
The following facts, as alleged in the complaint, and
procedural history are relevant to this appeal. The plain-
tiff is the owner of a mobile home situated at 17 Hillside
Terrace, Danielson, and resided in the mobile home
until February, 2011. At that time, the plaintiff’s resi-
dence suffered damage due to ice and snow accumula-
tion on its roof.
On February 26, 2011, the plaintiff entered into a
contract for repairs to his mobile home. The contract
was prepared and signed by Neundorf on behalf of
Go2Guys. Section 12 of the contract provides: ‘‘If any
dispute arises under the terms of this agreement, the
parties agree to select a mutually agreeable neutral third
party to help them mediate it. If the mediation is deemed
unsuccessful, the parties agree that the dispute shall
be decided by the applicable small claims court if the
amount in dispute is within the court’s jurisdiction, and
otherwise by binding arbitration under the rules issued
by the American Arbitration Association. The decision
of the arbitrator shall be final. Each party shall pay his
or her own attorney fees.’’ (Emphasis added.)
On April 26, 2011, the plaintiff filed a two count com-
plaint against the defendants. Count one, as to Neun-
dorf, alleged breach of contract and violations of the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq.2 Count two, as to
Go2Dump, alleged violations of CUTPA.3 The plaintiff
sought monetary damages, costs and fees associated
with bringing this action against the defendants, and
punitive damages.
On May 26, 2011, the defendants sent to the plaintiff
a demand for mediation.4 The defendants never
received a response from the plaintiff.
On June 8, 2011, the defendants filed a motion to
dismiss the entire complaint for lack of subject matter
jurisdiction.5 The plaintiff did not file a written objection
to the defendants’ motion to dismiss, but his counsel
was present at oral argument on the motion. The plain-
tiff’s counsel orally objected to the defendants’ motion
to dismiss. The court granted the defendants’ motion
to dismiss for lack of subject matter jurisdiction, con-
cluding that the subject contract required mediation or
arbitration.6 This appeal followed.
The plaintiff argues that the trial court erred in: (1)
dismissing the plaintiff’s complaint against Go2Dump
because it was not a party to the contract between
the plaintiff and Neundorf that included the alternative
dispute resolution clause; and (2) dismissing the plain-
tiff’s complaint against Neundorf, who was a party to
the contract that included the alternative dispute resolu-
tion clause, because the imposition of a stay, a less
drastic alternative, was available. The defendants, in
their brief, argue that the trial court properly granted
their motion to dismiss for lack of subject matter juris-
diction because section 12 of the contract makes media-
tion and/or arbitration conditions precedent to
litigation, and the plaintiff did not exhaust or even pur-
sue these alternate forms of dispute resolution prior to
commencing the action.
‘‘Pursuant to the rules of practice, a motion to dismiss
is the appropriate motion for raising a lack of subject
matter jurisdiction.’’ St. George v. Gordon, 264 Conn.
538, 545, 825 A.2d 90 (2003). ‘‘A motion to dismiss . . .
essentially asserts 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 omit-
ted.) Beecher v. Mohegan Tribe of Indians of Connecti-
cut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v.
Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). ‘‘Subject
matter jurisdiction involves the authority of the court
to adjudicate the type of controversy presented by the
action before it.’’ (Internal quotation marks omitted.)
Bloomfield v. United Electrical, Radio & Machine
Workers of America, Connecticut Independent Police
Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561
(2008). Our Supreme Court has ‘‘long held that because
[a] determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.’’
(Internal quotation marks omitted.) Id.
Generally, ‘‘[w]here 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 suffi-
cient reason given for not pursuing it, no action can be
brought on the contract. . . . Whether an agreement
makes arbitration a condition precedent to an action
in court depends on the language of the arbitration
clause. While it is true that in the absence of express
language a provision for arbitration may be construed,
by implication, to be a condition precedent to suit that
implication must be so plain that a contrary intention
cannot be supposed. It must be a necessary implication.
The mere agreement to arbitrate, standing alone, does
not give rise to the necessary implication that arbitra-
tion is a condition precedent to an action in court. For
arbitration to be a condition precedent, the agreement
to arbitrate must expressly so stipulate, or it must nec-
essarily be implied from the language used.’’ (Citation
omitted; footnote omitted.) Multi-Service Contractors,
Inc. v. Vernon, 181 Conn. 445, 447–48, 435 A.2d 983
(1980).
This court, however, in Catrini v. Erickson, 113
Conn. App. 195, 197, 966 A.2d 275 (2009), recently clari-
fied that even where pursuing arbitration is a condition
precedent to litigation, whether by express provision or
necessary implication, the court is not without subject
matter jurisdiction by virtue of a plaintiff’s failure to
pursue arbitration. In Catrini, the defendants moved
to dismiss the plaintiff’s complaint on the ground that
the trial court lacked subject matter jurisdiction. The
parties had signed a contract providing that the parties
would submit any dispute arising from the contract to
final and binding arbitration. Id., 196. The trial court
granted the defendants’ motion to dismiss, and the
plaintiff appealed. Id. On appeal, this court reversed
the trial court’s judgment; id.; explaining that ‘‘[t]he fact
that General Statutes § 52-4097 allows a court to enter
a stay in a matter involving an arbitration agreement
belies the defendants’ claim, and the trial court’s
implicit ruling, that an agreement to arbitrate ousts the
court of its subject matter jurisdiction. If the existence
of an arbitration agreement in a contract implicated
the court’s jurisdiction to hear an action, then a court
would, accordingly, not have jurisdiction to stay such
a matter because, in the absence of jurisdiction, the
court may only dismiss a matter. In short, because the
power to order a stay implies that the court has jurisdic-
tion 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.’’ (Footnotes
omitted.) Id.,197.
The contract in the present case does not contain a
standard arbitration clause. Section 12 of the contract
contemplates a two step alternative dispute resolution
process that provides for: (1) submission of the dispute
to a neutral third-party mediator; and (2) if mediation is
unsuccessful, submission of the dispute to small claims
court, provided the amount of the claim is within the
subject matter jurisdiction of small claims court, or
otherwise, submission of the dispute to arbitration. No
Connecticut statute expressly authorizes a court to stay
judicial proceedings and to compel mediation in accor-
dance with the terms of a mediation or hybrid provision.
We conclude, however, that the plaintiff’s failure to
pursue mediation before commencing the underlying
action against the defendants by no means deprived
the trial court of subject matter jurisdiction.
First, if agreements to arbitrate do not implicate sub-
ject matter jurisdiction, it is difficult to see how
agreements to mediate would have such effect. See,
e.g., Catrini v. Erickson, supra, 113 Conn. App. 197
(agreements to arbitrate do not defeat court’s subject
matter jurisdiction). Second, several Superior Court
decisions8 state the proposition that even where a con-
tract expressly makes mediation a condition precedent
to litigation, a party’s failure to pursue mediation before
litigation does not deprive the court of subject matter
jurisdiction. See, e.g., Leclair v. Scholastic Mortgage,
LLC, Superior Court, judicial district of Ansonia-Mil-
ford, Docket No. CV-09-5009989-S (January 13, 2010)
(49 Conn. L. Rptr. 202, 205) (denying defendant’s motion
to dismiss for lack of subject matter jurisdiction);
Cafarelli v. Colon-Collazo, Superior Court, judicial dis-
trict of Danbury, Docket No. CV-05-5000279-S (June 20,
2006) (41 Conn. L. Rptr. 539, 541) (‘‘Mediation is non-
binding, does not involve a contested hearing, and, in
general, does not duplicate proceedings in court. . . .
[A]lthough mediation is a condition precedent to court
action, the failure of the parties to take advantage of
this opportunity does not deprive the court of subject
matter jurisdiction.’’).
Third, although no Connecticut statute expressly
grants the court the authority to stay proceedings and
to compel mediation where the parties contractually
have agreed to mediate their disputes, the courts never-
theless possess the discretionary authority to do so.
See generally, Park City Hospital v. Commission on
Hospitals & Health Care, 210 Conn. 697, 701, 556 A.2d
602 (1989) (‘‘[t]he Superior Court’s exercise of its equita-
ble powers in [deciding whether to grant a stay] is in
fact much broader’’ than that expressly conveyed by
statute); EJV Development, LLC v. CRC Real Estate
Development, LLC, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-08-5009105-S
(March 12, 2009) (47 Conn. L. Rptr. 365, 365) (‘‘[t]he
court has inherent power to stay proceedings before it
in the interest of the just resolution of controversies’’
[internal quotation marks omitted]); 1 Am. Jur. 2d 848,
Actions § 68 (2005) (‘‘[e]very court has the authority to
stay proceedings before it to insure that justice is done
or as an incident of its right to provide for the efficient
and economic use of judicial resources’’ [footnotes
omitted]). Section 12 does not destroy the court’s juris-
diction. Accordingly, we conclude the court improperly
granted the defendants’ motion to dismiss for lack of
subject matter jurisdiction.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
Go2Dump is a Connecticut limited liability company. Hereafter, refer-
ences to Neundorf include his role in doing business as Go2Guys.
2
The plaintiff’s complaint alleges that Neundorf breached the contract
for repairs to the plaintiff’s home by: (1) failing to complete the work; (2)
failing to perform the work in a workmanlike manner; (3) failing to perform
the work in compliance with applicable building codes; and (4) failing to
maintain insurance.
The plaintiff’s complaint further alleges that Neundorf violated CUTPA
by: (1) using the fictitious trade name ‘‘Go2Guys’’ and/or ‘‘Go2Guys, LLC’’
without registering that fictitious trade name as required by General Statutes
§ 35-1; (2) using the home improvement contractor registration number for
Go2Dump in violation of the requirements of General Statutes § 20-427; and
(3) advertising home improvement and/or repair services without including
a valid contractor’s registration number in violation of § 20-427.
3
The plaintiff’s complaint alleges that Go2Dump violated CUTPA by
allowing Neundorf to use the home improvement contractor registration
number issued to Go2Dump.
The defendants, in their brief, argued that the plaintiff waived his right
to argue that the trial court improperly dismissed the complaint with respect
to Go2Dump because the language in count two that incorporates by refer-
ence paragraphs one through three of count one can be read only as making
a breach of contract claim against Go2Dump, thereby alleging that Go2Dump
signed the contract and is thus subject to the alternative dispute resolution
clause contained in the contract. We do not agree that this is the only
plausible reading of the language in the plaintiff’s complaint; however, we
decline to decide the issue because it is extraneous to the resolution of
this appeal.
4
The submission to mediation states: ‘‘The insurance company has pro-
vided approximately $35,000.00 in funds to Mr. Mark which [he] has refused
to provide to the contractor [Neundorf]. [Neundorf] also claims an additional
approximate amount of $12,000.00 due from Mr. Mark.’’
5
Although the defendant’s motion to dismiss is titled ‘‘motion to dismiss’’
and not ‘‘motion to dismiss for lack of subject matter jurisdiction’’ the only
reason for dismissal cited by the defendants in their motion, memorandum
of law in support of their motion to dismiss, and at oral argument on their
motion, is the trial court’s claimed lack of subject matter jurisdiction. This
court has repeatedly stated the proposition that ‘‘[i]t is the substance of a
motion . . . that governs its outcome, rather than how it is characterized
in the title given to it by the movant.’’ State v. Taylor, 91 Conn. App. 788,
792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005); see
Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (proposi-
tion that motion is to be decided on basis of substance rather than on form
or label affixed to motion), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
6
The trial court did not expressly state that its reason for dismissal was
lack of subject matter jurisdiction; rather, the court stated only: ‘‘GRANTED.
The subject contract requires mediation/binding arbitration.’’ The court thus
seems to have adopted the defendants’ argument, and neither the court nor
any of the parties have suggested any other ground for dismissal.
7
Section 52-409 provides that: ‘‘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 arbitra-
tion agreement, stay the action or proceeding until an arbitration has been
had in compliance with the agreement, provided the person making applica-
tion for the stay shall be ready and willing to proceed with the arbitration.’’
8
Although we are not bound by these decisions, we do find the reason-
ing helpful.