Opinion
No. CV 09 5006181
September 17, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS BASED UPON FORUM SELECTION CLAUSE IN CONTRACT
Factual Background
On February 6, 2009, the plaintiff, Melinda Powell, commenced this action against the defendant, Spruce Peak Realty, LLC. The plaintiff filed her original five-count complaint on February 10, 2009 in which she alleges the facts hereinafter articulated.
Plaintiff Melinda Powell entered into a purchase and sale agreement to purchase a fractional interest in a three-bedroom residence near Stowe, Vermont, a popular skiing destination. In conjunction with the agreement she tendered approximately $39,000 to the defendant as a deposit on the property. Pursuant to the requirements of the agreement, the plaintiff made several good faith attempts to obtain financing but, she was unable to secure financing. The plaintiff, on several occasions, advised the defendant that she was unable to close on the property because of her inability to obtain financing. The plaintiff also advised the defendant that as an alternative to canceling the contract, the plaintiff would be willing to proceed with the purchase transaction if the defendant would be willing to provide financing. Despite the plaintiff's attempts, the purchase contract never came to fruition and as a result the defendant has not returned the deposit.
In count one of her complaint, the plaintiff alleges that in failing to return her deposit the defendant breached its contract with the plaintiff. In count two, the plaintiff alleges that defendant in drafting the contract and incorporating misleading information, it negligently misrepresented that the plaintiff's deposit would be returned for failure to obtain financing. In count three, the plaintiff further avers that the defendant breached the implied covenant of good faith and fair dealing by not returning her deposit after she was unable to obtain financing. In count four, the plaintiff alleges that the defendant was unjustly enriched by wrongfully retaining the plaintiff's deposit. Finally, in count five, the plaintiff alleges that defendant violated CUTPA because it drafted a deceitful contract in which the language indicates that the buyer's initial deposit would be returned should the buyer be unable to obtain financing, when in fact the defendant had no intention of doing so. As a result of the defendant's acts, the plaintiff avers that she is entitled to a refund of the deposit and attorneys fees.
In response to the plaintiff's complaint, the defendant filed the present motion to dismiss on the ground that this court is the improper venue in which to bring the action as delineated by the forum selection clause. The matter was heard on the short calendar on May 26, 2009.
On April 27, 2009, the plaintiff filed a request to amend her complaint to name Mt. Mansfield Company, Inc., American International Group, Inc. (AIG), and AIG Real Estate Investment Group, Corp., as defendants in the action and the defendant objected to that request on May 12, 2009. On June 10, 2009, this court, Holzberg, J., sustained the defendant's objection to amend the complaint. The plaintiff filed a motion to reargue on June 16, 2009 and the defendant filed its objection to the plaintiff's motion to reargue on June 22, 2009. The motion to reargue has not been heard as it has not yet been claimed to the short calendar.
A Motion To Dismiss Standard
Challenging improper venue is one of the features of a Motion to Dismiss. Connecticut Prac. Bk. § 10-31. "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. (Emphasis added.) "Venue does not involve a jurisdictional question but rather a procedural one, and thus is a matter that goes to process rather than substantive rights." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 814, 925 A.2d 292 (2007). Thus, "[t]he existence of such a clause does not deprive the trial court of personal jurisdiction over the parties, but presents the question whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case." Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 103, 897 A.2d 58 (2006).
Additionally, "[t]he motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). However, "if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [and/or] other types of undisputed evidence . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; emphasis in original; internal quotation marks omitted). Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
B Reasonableness of Forum Selection Clause
In support of its motion to dismiss for improper venue, the defendant argues that the forum selection clause found in the purchase agreement between the plaintiff and the defendant mandates that the action be brought in Vermont. The defendant contends that the forum selection clause is both reasonable and valid and as such is enforceable. The plaintiff argues that the forum selection clause is unreasonable.
The forum selection clause, at issue in this case is found in paragraph thirty-six of the contract, entitled "Governing Law, Venue, and Jurisdiction, Place of Execution" and provides that: "This [a]greement and all information distributed in connection with this [a]greement shall together be considered an offer of purchase and sale made and accepted in the State of Vermont. Purchaser and Seller agree that venue and jurisdiction for enforcement of this Agreement shall be in Lamoille County Superior Court. Unless otherwise stated herein, the parties hereto agree that this Agreement has been executed and entered into Lamoille County, Vermont."
The court notes that defendant did not attach a copy of the contract to its motion to dismiss. The plaintiff, however, did attach a copy and therefore the court can consider the contract and the clauses contained therein.
"Historically, courts viewed forum selection clauses as improper attempts by the parties to oust jurisdiction from a court that otherwise had the authority to hear an action . . . Courts refused to enforce, as contrary to public policy, forum selection clauses that attempted to vest exclusive jurisdiction in a specific forum over controversies that would arise in the future. (Citation omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., [ supra, 278 Conn. 100-01]." Biocapital, LLC v. Biosystem Solutions, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5009331 (June 1, 2009, Pavia, J.). "In more recent years, however, our courts have concluded that forum selection clauses are enforceable absent a showing of unreasonableness under the totality of the circumstances of the agreement. [ Reiner, Reiner Bendett, P.C. v. Cadle Co., supra, 278 Conn. 1001]. `The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause. (Internal quotation marks omitted.) Id., 101-02.'" Biocapital, LLC v. Biosystem Solutions, Inc., supra, Superior Court, Docket No. CV 08 5009331.
There is no choice of law provision mandating that Vermont law be applied. While, the defendant initially applied Vermont law to the question of whether the forum selection clause was enforceable, it did not object to the plaintiff's assertion that Connecticut law should be applied and after the plaintiff's assertion it applied Connecticut law itself in addressing the question. Barring, choice of law provisions, courts apply Connecticut law to address the issue of whether a forum selection clause is unenforceable, not the law of the state of the selected forum. See Total Telecommunications, Inc. v. Target Telecommunications, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 053516 (March 11, 1997, Corradino, J.); Post Road Furniture Group, Inc. v. Landmark Merchant Solutions, LLC, Superior Court, judicial district of Ansonia Milford, Docket No. CV 04 0085820 (November 18, 2004, Moran, J.) Thus, the court will apply Connecticut law to determine whether the forum selection clause is enforceable.
Superior Courts have adopted a two-step analysis for determining whether a forum selection clause should be enforced. Initially, the court must look to contract formation itself to ascertain whether the clause was the "product of fraud or deception or whether the bargaining power of the parties was so out of balance that the clause should not be enforced." Alliance Food Management Corp. v. Rensselaer Hartford Graduate Center, Superior Court, judicial district of Waterbury, CV 05 5002441 (April 10, 2007, Gallagher, J.) [ 43 Conn. L. Rptr. 146]. This step allows, inter alia, "consideration [of] whether the provision is contained in an adhesion or take or leave it contract which the party was compelled to accept without argument or discussion. Clarkson v. Classic Motor Carriages, Inc., Superior Court, judicial district of Danbury, Docket No. 310929 (December 28, 1992, Fuller, J.) ( 8 C.S.C.R. 95, 96) [ 8 Conn. L. Rptr. 160], 1997 WL 133404. Secondly, the court must determine whether the inconvenience resulting to the moving party would be so great that enforcement of the forum selection clause would create undo hardship. Total Telecommunications, Inc. v. Target Telecommunications, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 053516, 1997 WL 133404 (March 11, 1997, Corradino, J.); see also IDV North America, Inc. v. Saronno, Superior Court, judicial district of Hartford, Docket No. CV 99058059 (September 9, 1999, Teller, J.).
In regard to the first step of the analysis, the plaintiff argues that the venue clause was contained in an adhesion contract and is therefore inequitable and unenforceable. The plaintiff avers that the contract was presented as a take or leave it contract and that individual terms were not negotiated. The plaintiff further alleges that she was pressured into signing the contract as soon as possible because she was informed that if she waited the pricing would go up. Additionally, the plaintiff argues that although courts might enforce these types of contracts between businesses, they have refused to do so where the party subject to the forum selection clause is an individual. The plaintiff further alleges that although she is an attorney, she is not experienced in real estate investment law and thus it was easy for the defendant to take advantage of her in negotiating the contract. Finally, the plaintiff argues that the defendant did not warn the plaintiff that her deposit would not be returned and used its unequal, advantageous position to interpret the ambiguous provision in the contract in its favor.
Although, the appellate courts have not addressed the issue of enforcing venue clauses in the context of adhesion contracts, Superior Courts have addressed the issue on several occasions. In Clarkson v. Classic Motor Carriages, Inc., supra, 8 C.S.C.R. 95, the court concluded that a forum selection clause was unreasonable as a result of it being the product of an adhesion contract. In that case, the plaintiff accepted an offer to purchase automobile parts from the defendant, a Florida company. The plaintiff paid in full for the delivery of automobile parts in which the defendant never delivered. The contract between the two required the plaintiff to bring an action to recover her money in Florida. The court concluded that it was unreasonable to enforce the venue clause because there were no negotiations between the parties, the provision was buried in small print among sixteen other clauses with the obscure heading entitled "Limited Warranty" and that the plaintiff was pressured into an immediate purchase by representations that the deal was good for one day only. Id., 96. In declining to uphold the forum selection clause the court noted that plaintiff had paid in full for goods it never received and then was required to litigate in Florida. The court found that this type of behavior "[smacked] of fraud" and as such the forum selection clause was unreasonable. Id.
On the other hand, in Arute v. Carnival Corp., Superior Court, judicial district of New Haven, Docket No. CV 05 5001407 (September 10, 2008, Corradino, J.), the court upheld a forum selection clause despite the plaintiff's argument that the clause was unreasonable because it was the result of an adhesion contract. In that case, the plaintiff bought a ticket for a cruise in which she received a ticket contract prior to sailing. The court concluded that the forum selection clause contained in the contract mandating that the case be brought in Florida was reasonable because the ticket was contained in a ticket jacket with bold type admonishing the plaintiff to read certain clauses including the forum selection clause and then to sign upon reading the contract. The court reasoned that the plaintiff had fair notice of clause in question and that there was no indication that the plaintiff had been coerced or forced to enter the contract. Id. Additionally, in Total Telecommunications, Inc. v. Target Telecommunications, Inc., supra, Docket No. CV 96 053516, the court upheld a forum selection clause despite the fact that the contract was presented as a take it or leave it contract in which the plaintiff was unable to negotiate the specific terms of the contract. In upholding the clause the court noted that the "forum selection clause [was] not hidden or buried within the agreement" rather it was in regular type and appeared one paragraph before the signature line. Id. The court also reasoned that while the plaintiff was presented with a take or leave it contract, there was no other evidence of overreaching. The court noted that the plaintiff was not an unsophisticated individual in dire financial circumstances without access to counsel. The plaintiff, in fact, did have access to a lawyer and "although he was told that [the defendant] would not change any contract provisions, he was not told that unless he signed immediately [the defendant's] offer would be withdrawn." Id. The court concluded that it "was against this . . . factual background that the claim must be analyzed that the forum selection clause was not specifically bargained over or discussed," and that these facts did not support a finding that "the forum selection clause . . . was . . . of such disparity of bargaining power that the process of contract formation was tainted so as to preclude enforcement of this clause." Id.
Other judges of the Superior Courts presented with a similar fact pattern in which there is a visible forum selection clause not buried in fine print, found in a take it or leave it contract between two sophisticated parties have reached the same conclusion. See Gator Wash, LLC v. Lighthouse Carwash Systems, Inc., Superior Court, judicial district New Britain, Docket No. CV 07 5003323 (June 12, 2007, Shapiro, J.) (enforcing a forum selection clause between two businesses where forum selection clause appeared on back of contract form in normal plain type with language in contract indicating that provisions on back were incorporated and plaintiff signed agreement and noting that plaintiffs were sophisticated enough to form a limited liability company and therefore sophisticated enough to understand contract); Eaton Financial v. Grant Brothers Fuel Oil, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0347890 (January 13, 1994, Hodgson, J.) ( 9 C.S.R.C. 131) [ 10 Conn. L. Rptr. 637] (enforcing a forum selection clause clearly appearing on back of contract and where plaintiff signed agreement attesting that provisions on back were incorporated into contract); Alliance Food Management, Corp. v. Rensselear Hartford Graduate Center, Superior Court, supra, Docket No. CV 05 5002441 (finding forum selection clause not to be product of adhesion contract despite fact that print on contract is small, there are no signatures on the document because agreement was made between two equal sophisticated parties). These courts base their reasoning on "[t]he general rule . . . that where a person [who is] of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so . . ." (Internal quotation marks omitted.) Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654, 707 A.2d 314 (1998).
For example, in Post Road Furniture Group, Inc. v. Landmark Merchant Solutions, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085820 (November 18, 2004, Moran, J.), the court rejected the plaintiff's argument that the venue clause was enforceable because it was the result of a take it or leave it contract in which the terms were not freely negotiated. It found that although the lack of freedom to bargain with and negotiate terms of the contract with the opposing party is a salient feature of the contract, the plaintiff had been in the business for fifteen years and had the ability to select and contract with another service provider. The court also rejected the plaintiff's claim that the defendant acted unconscionable inasmuch as it mistakenly failed to fax all the pages of the contract including, inter alia, the page in which the forum selection clause appeared. The court reasoned that the plaintiff was negligent in signing an incomplete document, in that the plaintiff failed to check that all the clearly numbered pages were there before signing the contract.
In the present case, the plaintiff asserts that she was presented with a take it or leave it contract. It is unclear from the complaint and the record before the court whether the plaintiff was free to negotiate the terms of the contract with the defendant or whether the agreement was presented to the plaintiff as a take it or leave it contract. However, even if the court were to assume, arguendo, that the plaintiff was unable to negotiate the provisions of the contract and that it was presented in a take it or leave it fashion, as stated above, courts have concluded that this alone will not transform a forum selection clause into an unenforceable adhesion contract. See Arute v. Carnival Corp., supra, Superior Court, Docket No. CV 05 5001407; Post Road Furniture Group, Inc. v. Landmark Merchant Solutions, LLC, supra, Superior Court, Docket No. CV 04 0085820; Total Telecommunications, Inc. v. Target Telecommunications, Inc., supra, Docket No. CV 96 053516.
Indeed, in the present case, the forum selection clause appears in regular type starting on the bottom of page 13 of the contract. Set out as Paragraph 36, and entitled in bold type Governing Law, Venue and Jurisdiction, Place of Execution, the clause is quite prominent. It is accompanied by a proper heading denoting that this clause covers venue and jurisdiction and much like the clause in Total Telecommunications, Inc. v. Target Telecommunications, Inc., supra, Docket No. CV 96 053516. Similar to the forum selection clauses that have been enforced in the cases above, the forum selection clause, in the present case, is not buried in the contract and was part of an agreement entered into by two sophisticated parties.
Moreover, the fact that the contract in the present case was entered into by an individual and a business does not impact the enforcement of the clause. The Superior Court has enforced adhesion contracts where the party claiming that the contract was a result of an adhesion contract was an individual. See Arute v. Carnival Corp., supra, Superior Court, Docket No. CV 05 5001407. Although many of the cases in which the courts have enforced forum selection clauses involved contracts between businesses; see Eaton Financial v. Grant Brothers Fuel Oil, Inc., supra, 9 C.S.C.R. 131); Alliance Food Management, Corp. v. Rensselear Hartford Graduate Center, supra, Superior Court, Docket No. CV 05 5002441; courts in those cases upheld the forum selection clause because the plaintiff was sophisticated enough to understand the contract not merely because they were businesses. While, the plaintiff may not be versed in real estate investment law, as an attorney, she most likely has at least seen if not even drafted a contract before and has developed some level of understanding of basic contractual language that most business owners possess.
The plaintiff also contends that she was pressured into signing the contract. In support of this assertion she attaches an email from the defendant's sales agent to the plaintiff's husband. However, there is nothing in the email between the plaintiff's husband and the defendant's sales agent indicating that plaintiff was pressured into signing the contract. Although, the sales agent indicates that the plaintiff could miss out on the pricings and incentives if she did not get into the contract soon, her husband was not told "unless [the plaintiff] signed immediately [the defendant's] offer would be withdrawn." Total Telecommunications, Inc. v. Target Telecommunications, Inc., supra, Docket No. CV 96 053516. Indeed, unlike the defendant in Clarkson v. Classic Motor Carriages, Inc., supra, 8 C.S.C.R. 96, who told the plaintiff that the deal was good for one day only, the sales agent indicated that "[the defendants were] willing to be flexible" and that they might not keep the offer open if more than a week's time has past.
Finally, the court recognizes that presumably the defendant is withholding the plaintiff's deposit based on its own interpretation that the contract does not require it. Nonetheless, the issue of whether or not such action was a result of the defendant using its unequal, advantageous position to interpret the ambiguous provision has no bearing on whether the forum selection clause was the result of an adhesion contract, as it is not appropriate to try to defeat the operation of the forum selection clause by alleging a general defect in the contract as a whole. "[T]he party must show that the inclusion of that [specific] clause in the contract was the product of fraud or coercion." (Emphasis in original; internal quotation marks omitted.) Telecommunications, Inc. v. Target Telecommunications, Inc., supra, Docket No. CV 96 053516.
The Court finds that the plaintiff has not shown that the forum selection clause is the product of fraud or coercion.
In regard to the second portion of the test, the plaintiff next appears to argue that the venue clause is unreasonable because forcing the plaintiff to litigate in Vermont would impair her ability to pursue her cause of action. The plaintiff, an attorney, avers that she could effectively litigate this case on her own if the court were to allow the case to proceed in Connecticut. However, the plaintiff argues that if forced to litigate in Vermont she would have to seek outside counsel forcing her to incur a vast expense that would effectively abrogate any money she might obtain if she were to prevail and receive her deposit. She argues that the present motion to dismiss is a tactic by the defendant to force her to forgo her action. Thus, it appears that she is arguing that being forced to litigate in Vermont, would cause her to forgo her action because she would be spending in attorneys fees any money she hoped to recover from her deposit.
The plaintiff also argues that she intends to include two additional parties; namely, American International Group (AIG) and American Global Real Estate Investment Corporation, who are based out of New York State. She argues that the addition of these two defendants makes Connecticut a more convenient forum because New York is closer in proximity than Connecticut and that many of the witnesses may be located in New York. As stated above, in footnote one, the plaintiff filed her amended complaint adding these two entities to her complaint. The defendant filed an objection to the amended complaint asserting that there was no cause of action against the two entities and this court, Holzberg, J., sustained the defendant's objection. The plaintiff has filed a motion to reargue her request to amend the complaint. The matter has not been claimed on the short calendar and consequently had not been ruled on by this court. Presently, the argument is without merit because the plaintiff at this point is unable to include those parties in her cause of action. To the extent that the court must consider this argument, the court does not find that this factor alone makes Connecticut the better forum for the dispute. Regardless of the location of the cause of action, the two anticipated defendants would be required to trek out of state and witnesses would be located out of state. Moreover, it would seem to the court, that Vermont would be a more convenient forum for the anticipated defendants because they have participated in a venture in that state and presumably would expect to be subjected to the court in that state. Because the cause of action stems from their dealings with the other defendants in Vermont it is likely that much of pertinent information remains in Vermont.
In determining whether the inconvenience resulting to the moving party would be so great as to make a forum selection clause unreasonable, our Supreme Court has adopted the rule articulated by the United States Supreme Court that "[w]hatever inconvenience [the plaintiff] would suffer by being forced to litigate in the contractual forum as it was agreed to do was clearly foreseeable at the time of contracting." Biremen v. Zapata Off-Shore Co., 407 U.S. 1, 17-18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see also Gator Wash, LLC v. Lighthouse Carwash, Systems, Inc., supra, Superior Court, Docket No. CV 07 5003323. "In such circumstances it should be incumbent on the party seeking to escape [its] contract to show that trial in the contractual form will be so gravely difficult and inconvenient that [it] will for all practical purposes be deprived of [its] day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to [its] bargain." Bremen v. Zapata Off-Shore Co., supra, 18.
Thus, "[c]ourts have been clear . . . that the `[m]ere inconvenience and expense of travel are not, standing alone, adequate reasons to disturb the operation of a forum selection clause.'" Biocapital, LLC v. Biosystem Solutions, Inc., supra, Superior Court, Docket No. CV 08 5009331. "It has been repeatedly held that the `inconvenience' necessary to persuade a court to decline to enforce a forum selection clause that has been found to be valid must be serious inconvenience, such inconvenience as would effectively deprive a plaintiff . . . of a forum in which to pursue its claim . . . The added expense and time of litigating in the selected forum falls short of meeting that standard." Total Telecommunications, Inc. v. Target Telecom, Inc., supra, Superior Court, Docket No. CV 96 053516.
In Post Road Furniture Group, Inc. v. Landmark Solutions, LLC, supra, Superior Court, Docket No. CV 04 0085820, the court rejected the plaintiff's argument that the forum selection clause found in the contract was unreasonable because "the cost of litigating the present matter in Illinois [was] financially prohibitive." In that case, the plaintiff brought an action against the defendant seeking a temporary injunction to enjoin the defendant from withholding funds belonging the plaintiff. Id. The defendant sought to enforce the forum selection clause mandating that the case be brought in Illinois. Id. The plaintiff argued that because the defendant was withholding payment of approximately $30,000, the plaintiff was unable to incur the additional cost of litigating the matter in the far off state of Illinois. Id. In rejecting the plaintiff's argument the court concluded that "[a]ny claim of inconvenience and expense [was] minimal" and that "such claims of inconvenience and/or expense [would] not deprive [the plaintiff] of its day in court." Id.
In the present case, the plaintiff points to both the traveling expenses she would incur and the added expense of hiring counsel in Vermont as opposed to being able to use counsel at no cost from her firm if she were able to litigate in Connecticut. In support of this argument she provides estimates of attorneys fees in which she obtained from a Vermont attorney. This argument is unavailing. First, the plaintiff has failed to attach any evidence supporting her statement of estimated costs and consequently, because the court is limited, on a motion to dismiss, to the plaintiff's complaint and undisputed facts supported by evidence, the court cannot consider the plaintiff's mere assertion of estimated costs. See Conboy v. State, supra, 292 Conn. 651. Second, the plaintiff's fortuitous status as an attorney and her subsequent ability to litigate at a minimum cost in Connecticut does not somehow make litigating in a different state more burdensome or inconvenient than it might be for the average litigant. The average litigant would be faced with the same type of expense and that expense, the expense of litigation alone for the average litigant, as outlined by the court in Post Road, is not a serious inconvenience that would effectively deprive the plaintiff of her day in court. While it might be more convenient and less costly for the plaintiff to maintain her action in Connecticut, "[t]his court, cannot, however, use one party's present convenience to rewrite its contract with the other party." Eaton Financial Corp. v. Grant Brothers Fuel Oil, Inc., supra, 9 C.S.C.R. 131 (enforcing forum selection clause even though it would be more efficient and less costly for the third-party plaintiff, who brought the action against defendant because plaintiff was implicated in lawsuit in Connecticut as result of defendant's actions, to maintain action in Connecticut). Thus, the plaintiff has failed to show that forum selection clause is unreasonable.
The court is sympathetic to the plaintiff's argument that the cost of litigation could potentially cancel out the money she may recover if she is successful in this action. However, the court notes that part of the relief she seeks in this case is an award of attorneys fees to her.
C Scope of Forum Selection Clause
The plaintiff next argues that even if the venue clause is enforceable, that claims in which she seeks to bring, fall outside the scope of the venue clause. She argues that the venue provision in the contract pertains only to actions to enforce the contract and that the claims she alleges, specifically her claims for negligent misrepresentation, unjust enrichment and violations of CUTPA are not actions to enforce the contract falling within the ambit of the venue clause. In response, the defendant contends that in the present case the plaintiff is effectively seeking a refund of her deposit and that in doing so her action is an action to put into effect what the agreement requires or in other words to enforce the terms of the agreement.
Counts one and three, claims of breach of contract and the implied covenant of good faith and fair dealing both directly concern the enforcement of the contract as the basis for these is claims is that the defendant misinterpreted a provision that required the defendant return the plaintiff's deposit. The plaintiff is correct, however, that some of her claims do not specifically concern the enforcement of the contract, such as her claims for negligent misrepresentation, unjust enrichment and violations of CUTPA. All of her claims, however, arise out of the agreement and arguably to some degree concern enforcement of contract. For example, claims for negligent misrepresentation concern whether the contract should be or should not be enforced based on representations made at the time of contracting.
One Superior Court has addressed this type of argument in a similar case. In Total Telecommunications, Inc. v. Target Telecom, Inc., supra, Superior Court, Docket No. CV 96 053516, the plaintiff argued that a forum selection clause was unenforceable because the clause was only applicable to those claims pertaining to the enforcement and performance of the contract and not the negligence claims also alleged in the complaint. The plaintiff argued that it would be seriously inconvenient for it to litigate the claims pertaining to negligence in one forum and then the other claims pertaining to the contractual dispute in another. Id. The court concluded that the inclusion of the negligence claim in the complaint would not make the forum selection clause unenforceable and it did not deprive the plaintiff of remedy in our courts if it were to proceed in an out of state forum. Id. Similarly, in the present case, the fact that some of the plaintiff's claims might not fall within the forum selection clause will not make the forum selection clause unenforceable.
D Condition Precedent
Finally, the plaintiff argues that because she failed to meet a condition precedent stipulated by the defendant, to the formation of the contract, in that she inadvertently failed to provide the full amount of the deposit required under the contract, the contract is void and therefore the forum selection clause is inapplicable.
The plaintiff's argument is misplaced. Assuming that the payment of the deposit was a condition precedent to the contract, the plaintiff cannot benefit from not satisfying the condition. "Where a promisor prevents, hinders or renders impossible the occurrence of a condition precedent to his or her promise to perform, or to the performance of a return promise, the promisor is not relieved of the obligation to perform, and may not legally terminate the contract for non-performance. Furthermore, in such a case, the promisor may not invoke the other party's nonperformance as a defense if sued upon by the contract. In short, under the doctrine of prevention, where a party to the contract is the cause of the failure of the performance of the obligation due him or her, that party cannot in any way take advantage of that failure . . . 13 S. Williston, Contracts (4th Ed. 2000) § 39:3, pp. 516-22. " Dow Condon, Inc. v. Garden Main Street, LLC, Superior Court, judicial district of Hartford, Docket No. CV 08 5020258 (July 15, 2009, Bentivegna, J.); S. Williston, Contracts (4th Ed. 2000) § 39:4, pp. 523-24. Put simply, it is argued that the defendant stipulated that the plaintiff pay a certain sum by a certain date, or the defendant could terminate the contract and is no longer under a duty to sell to the plaintiff, and that the plaintiff cannot rely on her not satisfying a condition precedent to the contract to cancel her own responsibilities under it. It is further argued that the contract does not become void simply because the plaintiff did not satisfy a condition precedent which she may have been obligated to perform. The resolution of these issues requires a later adjudication by the court on the merits.
Conclusion
For the foregoing reasons, and upon the foregoing authorities, the court finds that the forum selection clause is enforceable. Accordingly, the defendant's Motion to Dismiss ought to be and hereby is granted.