LLC v. Gary Doyon (2010)

MEMORANDUM OF DECISION RE ATTORNEY FACT FINDER'S FINDINGS AND AWARD [# 114] & DEFENDANT'S OBJECTION THERETO [# 115]

On April 1, 2009, the plaintiff, RAB Performance Recoveries, LLC, filed the present action against the defendant, Gary Doyon, to collect charges incurred on a credit card account obtained by the defendant and now allegedly owned by the plaintiff.   Subsequent thereto, the case was referred to an attorney fact finder.   In its complaint, the plaintiff alleges that on or before February 9, 2009, the defendant became indebted in the sum of $6,949.95 for charges incurred on a credit card account issued to the defendant by First USA/Chase Bank USA N.A. The plaintiff further contends that it has purchased title to this debt and that it is currently the bona fide owner of the debt.   The plaintiff further argues that, despite demand, the balance of $6,949.95 remains wholly unpaid and the defendant has failed and continues to fail to make payment.

The case was heard by the fact finder, attorney James Brennan, on January 8, 2010.   Thereafter, on February 8, 2010, the fact finder filed a five-page decision articulating his findings and setting forth the basis for each.   On February 22, 2010, the defendant filed an objection to the fact finder's decision.   On February 25, 2010, the plaintiff filed a memorandum of law in support of acceptance of the fact finder's decision, to which the defendant filed a reply on March 5, 2010.   The matter was heard on the short calendar.

DISCUSSION

“In 1983, the legislature enacted General Statutes §§ 52-549n through 549t, creating the factfinder program for specified types of contract actions, and shortly thereafter Practice Book §§ 546B through 546K [now §§ 23-52 through 23-59] implemented that legislation ․ Subject to certain conditions, attorney fact finders are empowered to hear and to decide issues of fact in contract actions pending in the Superior Court when the amount in controversy is less than $50,000.  General Statutes § 52-549n;  Practice Book § 23-53.   The statutes and rules of practice both require the fact finder to file findings with the court, including a recommendation regarding an award of damages, if applicable.  General Statutes § 52-549r;  Practice Book § 23-56(a).

“Practice Book § 23-58(a) provides that [a]fter review of the finding of facts and hearing on any objections thereto, the judicial authority may take the following action:  (1) render judgment in accordance with the finding of facts;  (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing on all or part of the finding of facts;  (3) reject the finding of facts and remand the matter to another fact finder for rehearing;  (4) reject the finding of facts and revoke the reference;  (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts;  or (6) take any other action the judicial authority may deem appropriate ․

“The foregoing provision gives the reviewing court a number of discretionary options for disposition of a referred matter following the filing of a fact finder's report, including the rendering of judgment in accordance with the finding of facts.  Practice Book § 23-58(a)(1).   Nevertheless, the plain language of the rule indicates that if any objections to the report have been raised, the court, before deciding on one of the available courses of action, must take the mandatory prerequisite step of holding a hearing on the objections.”  (Citations omitted;  internal quotation marks omitted.)  Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 92 Conn.App. 394, 885 A.2d 204 (2005).   See also Dion v. Hossack, Superior Court, judicial district of Tolland, Docket No. CV 07 5001489 (November 3, 2008, Vacchelli, J.).

In his objection to the findings of fact and award issued by the attorney fact finder, the defendant specifically objects to:  (a) the finding that the plaintiff is the owner of the defendant's credit card account;  and (b) the fact finder's recommended judgment and monetary award.   The defendant specifically argues that the plaintiff failed to establish ownership of the account and the evidence provided at the fact finder hearing was inadequate to establish the monetary award.   The plaintiff counters that, at the fact finding hearing, due consideration was given to the defendant's objections and position regarding this matter, and that adequate testimonial and documentary evidence was provided to the fact finder to support his findings regarding the plaintiff's ownership of the credit card account and the defendant's monetary liability pursuant thereto.

“Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court.”  (Internal quotation marks omitted.)  Lewis v. Frazao Building Corp., 115 Conn.App. 324, 329, 972 A.2d 284 (2009).  “[T]he attorney [fact finder] does not have the powers of a court and is simply a fact finder, [therefore, any] legal conclusions reached by an attorney [fact finder] have no conclusive effect ․ The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney fact finder], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.”  (Internal quotation marks omitted.)  Id., 329-30.

“When a matter is referred to a fact finder, Practice Book § 23-56(a) mandates that findings of fact be set forth in writing and in accordance with Practice Book § 19-8.   The fact finder's report ‘shall state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn there from ․’ Practice Book § 19-8(a).   While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall re-determine the fact thus found ․ A reviewing authority may not substitute its findings for those of the trier of the facts.   This principle applies no matter whether the reviewing authority is the Supreme Court ․ the Appellate Court ․ or the Superior Court reviewing the findings of ․ attorney trial referees ․ This court has articulated that attorney trial referees and factfinders share the same function ․ whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court ․ Although it is true that when the trial court reviews the attorney trial referee's report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report.   It is also true that the trial court cannot accept an attorney trial referee's report containing legal conclusions for which there are no subordinate facts.”  (Internal quotation marks omitted.)  Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 127-28, 958 A.2d 195 (2008).   See also Tessier v. Kamins, Superior Court, judicial district of Hartford, Docket No. CV 06 4020475 (February 11, 2010, Domnarski, J.).

In the present matter, the court's review of the record reveals that there is sufficient evidence to support the fact finder's findings that the plaintiff is the current owner of the defendant's credit card account.   As the governing case law indicates, it is not the practice of the Superior Court to disturb attorney fact finder's findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall re-determine the facts found.   Simply, a reviewing authority may not substitute its findings for those of the trier of the facts, nor retry the case and pass on the credibility of the witnesses.   The trial court need only review the fact finder's report to determine whether the recommendations contained therein are supported by findings of fact in the report.   The fact finder in this matter, attorney James Brennan, duly heard the case on January 8, 2010 and thereafter issued findings and the basis for each.   Therein, although the fact finder noted that the plaintiff's documentary evidence alone was inadequate to establish the transfer of the defendant's account to the plaintiff, the fact finder did ultimately conclude that the additional testimonial evidence provided by Mary Lebental, an administrative director at RAB Performance Recoveries, LLC, established that the plaintiff is the current owner of the defendant's credit card account.   This court's review of the transcript from the January 8, 2010 hearing and the documentary evidence submitted leads it to conclude that there was ample evidence to support the findings of attorney Brennan with respect to ownership of the account, and the defendant's failure to make any payments on the account since October 9, 2006.

With regard to attorney Brennan's finding that the defendant is currently liable for $3,699.16 plus applicable statutory interest, the court is uncertain as to how attorney Brennan arrived at this amount.   The court presumes that attorney Brennan took the amount of $5,194.16, the balance owed as of April 10, 2005, and subtracted the amount of $1,495, the alleged sum of the defendant's payments on the account from April 10, 2005 through October 9, 2006, to arrive at the above amount.   However, it is not clear why the amount for which the defendant remains liable is not based off of the balance on the date it was “charged off” by Chase and the amount for which the debt was subsequent sold, which is $6,949.95.   Furthermore, the amount of $6,949.95 already takes into account the defendant's payments from April 10, 2005 through October 9, 2006, which total $1,638.

CONCLUSION

Accordingly, pursuant to Practice Book § 23-58(a)(2), the court remands this matter to attorney Brennan for a rehearing and/or articulation specifically on the finding of the amount that the defendant currently owes the plaintiff on the subject account.

RILEY, J.

Riley, Michael E., J.