Patrick Wood v. LLC (2010)

MEMORANDUM OF DECISION RE OBJECTION TO TRIAL DE NOVO

BACKGROUND

The plaintiff, Patrick Wood, commenced this action alleging negligence, recklessness and spoliation against Club, LLC and Post Road Entertainment d/b/a The Thirsty Turtle (defendants).   The parties engaged in extensive pleading and discovery during an approximate two-year period of time.   On February 5, 2010 the court, Judge Mintz, referred the parties to arbitration pursuant to General Statute § 52-549n.   The parties appeared for Arbitration on March 12, 2010.   A hearing was conducted by Michael Clear as the Arbitrator on this date.   A decision was entered on June 24, 2010 in which the arbitrator found liability and recommended an award of $50,849.00.

On July 6, 2010, the defendant filed a demand for trial de novo pursuant to General Statute § 52-549.   The plaintiff filed an objection to the demand on July 8, 2010.   On July 19, 2010 the parties appeared and argued the objection at the short calendar.

DISCUSSION

The plaintiff has raised two objections to the demand for a trial de novo that is the defendant did not appear at the arbitration and that the defendant indicated at the beginning of the hearing that they intended to demand a trial de novo regardless of the outcome of the hearing thus making a sham out of the arbitration proceeding.

The first issue raised in the objection is whether the failure of the defendant to personally appear is a failure to appear which precludes the defendant from seeking a trial de novo.   This issue has not been addressed by our Appellate courts but several trial courts have held that the defendant can appear through counsel to satisfy the requirements for purposes of a trial de novo.   In particular, the court in Tartaris v. Laffin, Superior Court, judicial district of New Haven at New Haven, Docket No. 041327, 26 Conn. L. Rptr. (February 2, 2000, Alander, J.), stated that the purpose of satisfying the arbitration proceeding is fulfilled when only counsel for the defendant attends and takes part in the hearing.   Tartaris clearly recognizes the fact that the defendant is under no obligation to present any evidence and does not have the burden of proof.   Therefore, this court follows the decision in Tartaris that the defendant may seek a trial de novo if only counsel appears for the arbitration hearing.

Of a more serious concern to the court is the plaintiff's claim that the defendants made a sham out of the hearing because they announced through counsel an intention to seek a trial de novo before the hearing commenced.   Unfortunately, there is no transcript to support or negate the claim of statements by counsel that the defendant had no intention of accepting a decision by the arbitrator and was merely present so the defendant could file a demand for a trial de novo.   Counsel for the defendant submitted a memorandum and argued that the plaintiff was mistaken and that he had not made such representations.   However, during the course of argument and questioning from the court, the responses by counsel for the defendant appeared couched in terms that could leave some doubt as to the actual statement.   The responses lead the court to believe that the representation at the hearing was nothing more than a pro forma appearance by an associate with only eight months of experience holding down the fort until the partner could appear for the jury trial of this matter.   Counsel's response to inquiries as to what was done to prepare as well as what was presented at the arbitration included only a short cross examination of the plaintiff in a hearing that took no more than 90 minutes.   This participation does not leave this court with a belief that the defendant took the active part envisioned in the Tartaris case.   The court in Tartaris discussed the fact that the arbitrator would be presented with “the claims of each party.”   There is no evidence of the defendant doing more than a cursory cross-examination.   Counsel's response of “because you can file further de novo if you don't like the result,” when questioned about why counsel with minimal legal experience attended the arbitration does raise an eyebrow about the intention but does not satisfy the burden necessary for the court to find a pre-conceived intent to make the arbitration proceeding a sham.   Having noted the lack of participation in the arbitration by the defendant, it is interesting that defendants are now preparing with a partner of the law firm to proceed to trial.   Although these observations and argument of counsel create some doubt as to whether there was complete participation, there is not sufficient evidence at this time to determine that the defendant made a sham out of the arbitration proceeding such that the trial de novo should be denied.

For the reason stated above, the court overrules the objection to the trial de novo.   The trial is scheduled to begin on July 27, 2010.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.