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 KATHERINE CONNORS ET AL. v. ROLLS-ROYCE
          NORTH AMERICA, INC.
               (AC 36980)
                Beach, Alvord and Mihalakos, Js.
    Argued September 22—officially released November 17, 2015

  (Appeal from Superior Court, judicial district of
            Middlesex, Aurigemma, J.)
  Kenneth A. Votre, with whom was Lauren McDonald,
for the appellants (plaintiffs).
  Elizabeth R. McKenna, with whom, on the brief, was
Lori B. Alexander, for the appellee (defendant).
                          Opinion

   ALVORD, J. The plaintiffs, Katherine Connors and
Erik Connors, appeal from the judgment of the trial
court granting the motion to dismiss filed by the defen-
dant, Rolls-Royce North America, Inc. The court
declined to exercise jurisdiction over the parties on the
basis that the plaintiffs were seeking to recover under a
contract containing a forum selection clause that vested
exclusive jurisdiction in Florida courts. On appeal, the
plaintiffs claim that the court improperly (1) enforced
a forum selection clause in a purported contract
between the plaintiffs and a third party, Lexicon Reloca-
tion, LLC (Lexicon), to which the defendant was not a
signatory, and (2) found the existence of an agency
relationship between the defendant and Lexicon.1 We
agree that the court improperly granted the defendant’s
motion to dismiss and, accordingly, reverse the judg-
ment of the trial court.
   The following facts, as alleged in or necessarily
implied from the complaint, are relevant to our resolu-
tion of the plaintiffs’ appeal. See May v. Coffey, 291
Conn. 106, 108, 967 A.2d 495 (2009) (in reviewing ‘‘the
trial court’s decision to grant a motion to dismiss, we
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader’’ [internal quotation marks omitted]). We
also recognize that a motion to dismiss ‘‘invokes any
record that accompanies the motion, including support-
ing affidavits that contain undisputed facts.’’ (Emphasis
added; internal quotation marks omitted.) Tellar v.
Abbott Laboratories, Inc., 114 Conn. App. 244, 246, 969
A.2d 210 (2009).
   The first count of the plaintiffs’ two count complaint
alleged that Erik Connors was hired by the defendant
to work at the defendant’s facility in Indiana. As part
of the employment agreement, the defendant ‘‘promised
. . . specific assistance in the sale of his home in Con-
necticut and [the] purchase of a new home in Indiana
. . . .’’ Further, the defendant ‘‘agreed to relocate him
and his family to Indiana and to cover the cost of the
sale, including carrying the costs of his Connecticut
home while the family relocated to Indiana . . . .’’ The
defendant ‘‘represented and promised’’ that it ‘‘would
assist in the sale of the plaintiffs’ home in Connecticut,
as well as provide the purchase of a home in Indiana,
regardless of whether their home in Connecticut was
sold.’’ The defendant ‘‘breached their contract,’’ how-
ever, by failing ‘‘to relocate’’ them, by failing ‘‘to take
title to their home and carry the Connecticut home,’’
and by failing to ‘‘assist in the purchase of a home in
Indiana.’’ Although ‘‘[t]he defendant offered the services
of an outside company2 to provide services to the plain-
tiffs,’’ the company ‘‘failed to provide services and
refused to enter into a contract with the plaintiffs.’’
   The second count of the complaint incorporated the
allegations of the first count and further alleged that
Katherine Connors was a third party beneficiary ‘‘of the
contract between Erik Connors and [the defendant].’’
The plaintiffs’ complaint does not specify whether the
referenced contract was oral or in writing, or, if in
writing, the title of the contract or the date that it was
executed. In their prayer for relief, the plaintiffs sought
monetary damages, the costs of the action, and attor-
ney’s fees.
   On June 28, 2012, the defendant filed a motion to
dismiss the plaintiffs’ complaint ‘‘based on improper
venue and the plaintiffs’ prior abandonment of these
claims.’’3 The defendant claimed that dismissal was
appropriate ‘‘because the document the plaintiffs char-
acterize as a contract contains a mandatory and exclu-
sive forum selection clause requiring that the instant
litigation take place in Florida . . . .’’ The plaintiffs
filed an objection to the defendant’s motion to dismiss
on July 11, 2012. In their objection, the plaintiffs claimed
that (1) ‘‘[t]he forum selection clause that [the defen-
dant] seeks to enforce is within a document purporting
to be a contract that [the defendant] did not execute,
nor was it, in fact, ever executed by [Lexicon],’’ and
(2) ‘‘[t]here is no forum selection clause to enforce in
any contract involving any of the parties.’’ In the plain-
tiffs’ memorandum of law filed with their objection,
they stated that ‘‘the purported Lexicon contract has
no significance to any of the claims against [the defen-
dant] . . . .’’ Although the plaintiffs did not identify the
employment agreement upon which their claims were
based, they did emphasize that ‘‘no contract was exe-
cuted between Lexicon and the [plaintiffs]’’ and that
the defendant was not a party to the purported Lexicon
contract. The plaintiffs expressly stated that ‘‘there is
no Lexicon contract.’’ Because the forum selection
clause is contained in the purported contract between
the plaintiffs and Lexicon, the plaintiffs argued that the
defendant could not rely on that clause to support its
motion to dismiss the complaint.
   A hearing on the defendant’s motion to dismiss was
held on April 7, 2014. At that time, counsel for the
defendant stated that the present action was the third
action by the plaintiffs against the defendant for the
same claims. The first action, filed in 2010, was brought
against the defendant and Lexicon. It was dismissed by
the court under its dormancy program for failure to
prosecute with reasonable diligence. The second action,
filed in 2011, was commenced against the defendant
only. That action was withdrawn by the plaintiffs in
October, 2011. The present third action was com-
menced against the defendant in December, 2011.
According to the defendant’s counsel, all of the claims
in all three actions were based upon the terms and
conditions contained in the Lexicon contract, even
though the plaintiffs never identified the contract that
allegedly was breached in the present action.
  The court asked the plaintiffs’ counsel: ‘‘What do you
claim obligates [the defendant] to buy [the plaintiffs’]
house?’’ Counsel responded: ‘‘They promised it. They
hired him on the representation that they would pur-
chase the house in order to effectuate his move. When
he got there, they terminated him. He was left holding
the house in Indiana and a house in Connecticut and
that’s what—on his hiring terms. Those are the terms
upon which he was hired.’’ The court then asked if there
was something in writing to that effect, and counsel
represented that ‘‘[t]here was not a written contract
of employment.’’
   The court issued its memorandum of decision on May
27, 2014. In that decision, the court made the following
determinations: (1) the substance of the present com-
plaint is the same as the plaintiffs’ two prior complaints
and arises out of the same set of circumstances; (2)
the ‘‘outside company’’ referenced in the present com-
plaint is Lexicon; (3) although the plaintiffs argue that
the defendant did not sign the Lexicon contract, that
contract was signed by the plaintiffs;4 (4) to the extent
that the plaintiffs claim that the defendant promised
them relocation services under some unspecified con-
tract other than the Lexicon contract, they failed to
attach any such contract to their memorandum of law
in opposition to the motion to dismiss; (5) ‘‘[i]t appears
that the [Lexicon contract] is the only contract under
which [the plaintiffs] could seek damages against [the
defendant]’’; (6) the plaintiffs’ complaint relies on the
Lexicon contract and the defendant’s offer letter as the
basis for the plaintiffs’ breach of contract claims; (7)
although there are issues as to whether Lexicon or the
defendant are bound by the Lexicon contract, there is
no other contract between the parties that deals with
any relocation services to be provided to the plaintiffs;
(8) the defendant can enforce the provisions of the
Lexicon contract because of its status as a third party
beneficiary to that agreement; and (9) based on the
allegations in the present complaint that Lexicon acted
as the defendant’s agent, the defendant could enforce
the provisions of the Lexicon contract through normal
agency principles even though it was not a signatory
to that agreement. The court granted the defendant’s
motion to dismiss the plaintiffs’ action on the basis of
the forum selection clause in the Lexicon contract and
rendered a judgment of dismissal. This appeal
followed.5
  ‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting grant of the
motion to dismiss will be de novo. . . . Factual find-
ings underlying the court’s decision, however, will not
be disturbed unless they are clearly erroneous.’’ (Cita-
tion omitted; internal quotation marks omitted.) Manka
v. Walt Disney Co., 149 Conn. App. 1, 6, 87 A.3d 1165
(2014).
   Connecticut courts have long recognized the viability
of forum selection clauses. In United States Trust Co.
v. Bohart, 197 Conn. 34, 41–42, 495 A.2d 1034 (1985),
our Supreme Court acknowledged that ‘‘parties to a
contract may agree in advance to submit to the jurisdic-
tion of a given court . . . . Absent a showing of fraud
or overreaching, such forum clauses will be enforced
by the courts.’’ (Citation omitted; internal quotation
marks omitted.) In Reiner, Reiner & Bendett, P.C. v.
Cadle Co., 278 Conn. 92, 103, 897 A.2d 58 (2006), our
Supreme Court expressly stated that the existence of
a forum selection clause does not divest a trial court
of personal jurisdiction over the parties, but it does
present the question of whether it is reasonable for
the court to exercise its jurisdiction in the particular
circumstances of the case.
  In the present case, the trial court cited the relevant
case law pertaining to forum selection clauses and con-
cluded that ‘‘[t]he plaintiffs’ claims are clearly within
the scope’’ of the forum selection clause in the Lexicon
contract. The court stated that the plaintiffs were pre-
sumed to have read and understood that clause, and
the court granted the defendant’s motion to dismiss on
that basis.
   The fatal flaw in the court’s determination is the fact
that the enforceability of the Lexicon contract was very
much at issue; it was not undisputed that the plaintiffs
were relying on that contract for its claims against the
defendant in this action or that the Lexicon contract
was a validly executed contract.6 In fact, the plaintiffs
have consistently maintained in this third action that
the Lexicon contract never became a contract because
Lexicon never executed it.7 The plaintiffs alleged that
Erik Connors had an employment agreement with the
defendant and that, as part of the agreement or ‘‘con-
tract,’’ the defendant ‘‘promised’’ and ‘‘represented’’ that
it would assist with the plaintiffs’ relocation efforts and
expenses. It is true that the plaintiffs did not identify
the source of the ‘‘promises’’ and ‘‘representations,’’ and
they did not indicate whether the contract was oral or
written, but that is not a basis for dismissal of their
action.8 Rather, the defendant could obtain additional
information by way of a request to revise. See Practice
Book § 10-35.
  ‘‘Under well established contract law, a contract must
be definite and certain as to its terms and requirements.
. . . In addition, there must be a manifestation of
mutual assent to those terms and requirements. . . .
[T]he existence of a contract is a question of fact . . . .’’
(Emphasis added; internal quotation marks omitted.)
Dreambuilders Construction, Inc. v. Diamond, 121
Conn. App. 554, 559, 997 A.2d 553 (2010). The plaintiffs
have not alleged in their complaint, nor have they pre-
sented any documentation to suggest, that the Lexicon
contract, which contains the forum selection clause at
issue, is a valid and enforceable contract. The defendant
has not provided an affidavit or any other documenta-
tion to demonstrate that the Lexicon contract is a valid
and enforceable contract. There is nothing in the record
to contradict the plaintiffs’ position that the Lexicon
contract was never executed by all parties and, there-
fore, that it never became a valid and enforceable con-
tract. The court, in its memorandum of decision, even
questioned whether the defendant or Lexicon could be
bound by that contract. Nevertheless, the court
expressly relied on the forum selection clause in the
Lexicon contract to grant the defendant’s motion to
dismiss. The court’s determination was clearly
erroneous.
  The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion to dismiss
and for further proceedings according to law.
      In this opinion the other judges concurred.
  1
     Because the resolution of the first claim is dispositive of this appeal,
we do not reach the plaintiffs’ second claim.
   2
     It is undisputed that Lexicon is the ‘‘outside company’’ referred to in
the plaintiffs’ complaint.
   3
     The trial court stated that it did not address the abandonment of claims
issue ‘‘because the case is subject to dismissal based on the forum selec-
tion clause.’’
   4
     It also is undisputed that the purported Lexicon contract was signed by
the plaintiffs but was not signed by Lexicon.
   5
     The plaintiffs filed a motion to reargue and for reconsideration on June
16, 2014, which was denied by the court on June 17, 2014.
   6
     Although the court emphasized that the plaintiffs signed the Lexicon
contract, it also acknowledged that ‘‘there are issues as to whether Lexicon
or [the defendant] are bound by the [Lexicon contract]’’ because neither
Lexicon nor the defendant signed it. The defendant argued that the plaintiffs
were bound by their allegations in their prior actions as to their reliance
on the provisions of the Lexicon contract. We have read the prior complaints,
and we note that the plaintiffs never directly alleged that their claims against
the defendant were based on the Lexicon contract. ‘‘[T]he interpretation of
pleadings is always a question of law for the court . . . .’’ (Internal quotation
marks omitted.) Novak v. Goodrich, 132 Conn. App. 452, 456, 33 A.3d 757
(2011). Moreover, the court in the present action asked the plaintiffs’ counsel
at the April 7, 2014 hearing on the motion to dismiss the following question:
‘‘So, in your prior two actions, you allege the [Lexicon contract] as being
the written contract. How do you get around that?’’ Counsel responded:
‘‘Because when we obtained a copy of it from them, it was discovered that
the agreement never became an agreement. It wasn’t accepted by Lexicon.
So, I don’t think we can be bound to the forum selection clause that Lexicon
never accepted. . . . [The defendant] wasn’t a party to that agreement.’’
   7
     The defendant does not argue that the Lexicon contract was a binding
contract. In its appellate brief, the defendant states: ‘‘[The defendant] has
never taken the position that the [Lexicon contract] is a valid and enforceable
agreement imposing the contractual allegations alleged in any of the actions
brought by the plaintiffs.’’ At oral argument before this court, defendant’s
counsel stated that the defendant never argued that the Lexicon contract
was a valid and enforceable contract before the trial court and that it takes
no position at this time as to its validity and enforceability.
   8
     The defendant argues that any alleged oral contract between the plaintiffs
and the defendant would be time barred by the applicable three year statute
of limitations. See General Statutes § 52-581. The failure to comply with the
statute of limitations for an oral contract, however, cannot properly be the
basis for the granting of a motion to dismiss. ‘‘Generally, statutes of limitation
are considered to be procedural and do not implicate subject matter jurisdic-
tion. . . . Ordinarily, a defendant must plead the failure to meet the applica-
ble statute of limitations as an affirmative defense, and the defendant bears
the burden of proving the elements of the defense by a preponderance of
the evidence.’’ (Citation omitted.) St. Paul Travelers Cos. v. Kuehl, 299 Conn.
800, 815, 12 A.3d 852 (2011).
