Opinion
No. CV 03 0198025 S
June 29, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Steven Mueller Architects (SMA), the sole proprietorship of Steven Mueller, licensed in the State of Connecticut with an office in Greenwich, Connecticut, filed a four-count complaint on November 20, 2003, in the judicial district of Stamford. The plaintiff alleges that the defendant, James Gagliardi, its client, failed to pay for the architectural services it had rendered to the defendant for his properties on 15 Point Beach (Point Beach) and 40 Tall Pine Road (Tall Pine), in Milford, Connecticut, in contravention of the two contracts for services, one for each property, signed by the parties in January of 2003. The plaintiff seeks damages under breach of contract, unjust enrichment and quantum meruit.
On December 15, 2003, the defendant filed a motion to dismiss the plaintiff's complaint on the ground of improper venue. The defendant contends that process should be returnable in the judicial district of Milford or New Haven because the defendant resides in Milford, the contract for services was to be performed in Milford, and the contract was signed by him in Milford. In opposition, the plaintiff maintains that the transaction occurred in Greenwich, Connecticut, where it had received the signed contracts and retainers for services from the defendant. Thus, it asserts, the action is returnable in the judicial district of Stamford, or in the alternative, requests that the court transfer the action to the judicial district of Milford.
"Our rules of practice provide that a motion to dismiss shall be used to assert . . . improper venue . . ." (Internal quotation marks omitted) Mercer v. Rodriguez, 83 Conn. App. 251, 267, n. 15 (2004) (referring to Practice Book § 10-31). "Venue is not a jurisdictional question but a procedural one." (Internal quotation marks omitted.) Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696 (1990). "Venue . . . concerns only the place where the case may be tried and venue requirements are for the convenience of the parties." Haigh v. Haigh, 50 Conn. App. 456, 465, 717 A.2d 837 (1998).
The inquiry here is whether venue is proper in Stamford, the judicial district where the process is returnable. General Statutes § 51-345(d) provides: "[i]n all actions involving consumer transactions, civil process shall be made returnable to the judicial district where the consumer resides or where the transaction occurred. For the purposes of this subsection, consumer transaction means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes."
The plaintiff contests the characterization of its work, preparation of site plans in exchange for monthly payment by the defendant as a consumer transaction and, thus, argues that General Statutes § 51-345(d) is inapplicable to the circumstances. In the contracts between the parties, the defendant promised to render monthly payments for work performed by the plaintiff as it was incrementally completed. Such interaction between the parties fits squarely within the statutory definition of "consumer transaction."
Additionally, in Romaniello v. Elliot, Superior Court, judicial district of Waterbury, Docket No. 127813 (September 13, 1995, McDonald, J.) ( 15 Conn. L. Rptr. 38), in an analogous situation where the defendant provided design services and prepared the site plans for the construction of the plaintiff's home, the court determined that the rendering of such services for money was a "consumer transaction" for purposes of General Statutes § 51-345(d). The court directed that venue was proper "where the defendant resides or where the transaction occurred." Id.
The defendant resides in Milford, thus venue is proper in Milford. The court's inquiry, however, does not end here. General Statutes § 51-345(d) also allows for venue "where the [consumer] transaction occurred." Thus, venue is also proper where the defendant obligated himself to pay for the plaintiff's services. In this case venue is proper where the contract for services was formed.
"To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." Senco, Inc. v. Fox-Rich Textiles, Inc., 75 Conn. App. 442, 445, 816 A.2d 654 (2003). "It is axiomatic that acceptance of an offer creates a valid contract." Alston Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 612 (2004). "Acceptance is operative . . . as soon as its transmission begins and it is put out of the offeree's possession . . . irrespective of whether or when it is received by the offeror." (Internal quotation marks omitted.) Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 255, 520 A.2d 398, cert. denied, 208 Conn. 808, 545 A.2d 1103 (1988).
In an affidavit submitted with its memorandum in opposition to the motion to dismiss, the plaintiff asserts, and the defendant has not refuted, that it had mailed from its office in Greenwich the proposed contracts to the defendant in Milford. On the last line of the contract, the plaintiff specified that the defendant manifest his acceptance by signing and returning a copy of the contract at "his earliest possible convenience." The defendant signed the contracts and return mailed them to the plaintiff at his office in Greenwich.
The plaintiff maintains that the contracts were formed in Greenwich, Connecticut where it had received the signed contracts from the defendant and where it had performed a majority of the work. The defendant counters that the transaction took place in Milford because that is where the contract had been executed. Neither are adequate explanations as to when and where the contracts were formed.
"Where the parties are negotiating at a distance from each other, the most common method of making an offer is by sending it by mail, and more often than not the offeror has specified no particular mode of acceptance. In such a case, or in any case where a mailed acceptance is reasonable, it is the prevailing rule that the offeree has the power to accept and close the contract by mailing a letter of acceptance within a time specified in the offer or, if none, within a reasonable time. The contract is regarded as made at the time and place that the letter of acceptance is put into the possession of the postal service." A. Corbin, Contracts (Rev. Ed. 1993) § 3.23, p. 437.
In this case, the contracts were formed when and where the defendant deposited the signed contracts in the mail. The record is unclear as to where the defendant actually mailed the contracts; however, there is no support in the parties' memoranda or exhibits submitted to the court that the defendant had mailed the contracts from Greenwich or any other town encompassed by the judicial district of Stamford. Since the plaintiff had mailed the contracts to the defendant in Milford, it is reasonably inferred that the defendant had, after signing the contracts, return mailed them from Milford.
Given that the defendant resides in Milford and the consumer transaction occurred in Milford, venue is proper in the judicial district of Milford. At this juncture, this court has the discretion to dismiss the action for improper venue or may by order on its own motion transfer the action to the judicial district of Milford, in accordance with General Statutes § 51-347b(a). In the interest of the prompt and proper administration of justice, the court transfers this case to the judicial district of Milford.
General Statutes § 51-347b(a) provides in pertinent part: "Any action . . . may be transferred, by order of the court on its own motion or on the granting of a motion of any of the parties, or by agreement of the parties, from the superior court for one judicial district . . . to a superior court location for any other judicial district, upon notice by the clerk to the parties after the order of the court, or upon the filing by the parties of a stipulation signed by them or their attorneys to that effect . . ."
D'Andrea, J.T.R.