Opinion
No. CV 04-0199370
August 18, 2004
MEMORANDUM OF DECISION
On the Miscellaneous or Special Proceedings calendar of May 17, 2004 were two motions filed by the defendants, Bu Bu Bear, LLC and its principal member and officer, Robert J. Levine, to compel arbitration (#103) and to stay further court proceedings pending arbitration (#104). These motions are opposed by the plaintiffs, Steven A. Smith and Maura A. Smith.
The plaintiffs and the defendant corporation entered into a written contract dated on or about March 25, 2003, in which the defendant agreed to construct a new home for the plaintiffs on South Brook Drive in Stamford. According to the plaintiffs, the defendant corporation breached the contract because of delays in construction and that they were forced to purchase another home. The plaintiffs brought this action to recover money previously paid to the defendants.
The contract contained an arbitration clause reading: "[a]ny dispute or controversy arising out of this Purchase Agreement, or out of the failure or refusal to perform the whole or any part hereof shall be settled by arbitration in accordance with the provisions of this paragraph." The defendants want to proceed with arbitration but the plaintiffs resist on the theory that the contract is void under the provisions of General Statutes § 20-417a et seq., pertaining to new home construction contractors. The plaintiffs contend that neither the defendant corporation nor its principal, Mr. Levine, were registered as new home construction contractors (§ 20-417b) and also because the language in the contract in question does not conform with the act in several respects (§ 20-417d).
The issue is whether the arbitrators decide whether the contract is void or whether that decision should be made by the court. In other words, who determines the issue of arbitrability? The plaintiffs rely on Scinto v. Sosin, 51 Conn.App. 222, 227-28, 721 A.2d 552, cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). In that case, the arbitration clause referred to "[a]ny controversy or Claim arising out of or related to the Contract, or the breach thereof, was to be submitted to arbitration. The court held that this clause "does not provide for arbitration of arbitrability." Id., 230. Rather, according to the court, "the broad arbitration clause does not, by itself, deny the trial court jurisdiction to decide the matter of arbitrability because the parties did not manifest an intention to arbitrate the issue of arbitrability." Id.
"It is a long-standing principle of consensual arbitration that the nature and scope of an arbitration panel's authority is determined by the language of the arbitration clause. In that regard, we have specifically determined that whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also. Whether the parties intended to submit the issue of arbitrability to an arbitrator clearly depends on the parties' intent. Whether the parties intended to arbitrate the issue of arbitrability may be determined from an express provision to that effect or from the use of broad terms. Unless the agreement shows such intent, the determination of the question of arbitrability remains a function of the court." (Citations omitted; internal quotation marks omitted.) Lupone v. Lupone, 83 Conn.App. 72, 75, 848 A.2d 539, cert. denied, 270 Conn. 910 (2004).
The parties to this contract did not agree to arbitrate the issue of arbitrability and hence the defendants' two motions to compel arbitration and to stay proceedings in this court pending such arbitration are both denied.
So Ordered
Dated at Stamford, Connecticut, this 18th day of August 2004.
William B. Lewis, Judge (TR).