Frederic Greenberg v. Ehrmann Value Fund, L.P. (2010)

MEMORANDUM OF DECISION RE OBJECTION TO TRIAL REFEREE REPORT

BACKGROUND

The plaintiff, Frederic Greenberg, filed this action on July 17, 2008 in one count seeking to enforce a judgment for $85,685.84 from the Supreme Court of New York. The matter was scheduled for a hearing before Attorney Trial Referee Anthony Savvaides on December 17, 2009.   The parties were given a period of time until January 19, 2010 to file trial briefs.   On January 22, 2010, Attorney Savvaides entered judgment in the amount of the New York judgment for $85,685.84 in favor of the plaintiff.   He also entered an award for statutory interest of 10% or $44,251.70 at a rate of $23.48 per day calculated from the date of the New York judgment of November 23, 2004.

The defendant filed an objection to the Attorney Trial Referee Report on February 10, 2010.   The defendant's objection addresses the issue of whether the attorney trial referee improperly awarded interest on the New York judgment.   Other than a general objection, the defendant does not provide a transcript or memorandum directed to the objection.   The plaintiff submitted a reply and memorandum of law regarding the objection.   This court heard argument on March 18, 2010.   Counsel have agreed to a waiver of the time for a decision until July 30, 2010.

DISCUSSION

The court has reviewed the decision of the ATR, which includes the New York judgment as an exhibit, as well as six separate paragraphs that outline the findings of fact by the ATR. The objection that has been filed by the defendant does not take issue with the award of $85,685.76 that represents the New York judgment.   Therefore, any claim as to this award is deemed abandoned.   The defendant simply claims that the award of interest at the rate of 10% per annum on the New York judgment was incorrect and could not properly be reached.

P.B. § 19-14 provides that “A party may file objections to the acceptances of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of subordinate facts found, or that the ․ attorney trial referee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.”  P.B. § 19-17(a) outlines the function of this court in reviewing reports of attorney trial referees and provides;  “The court shall render such judgment as the law requires upon the facts in the report.   If the court finds that the ․ attorney trial referee, has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another ․ attorney trial referee, ․ for a new trial or revoke the reference and leave the case to be disposed of in court.”

“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.”  Killion v. Davis, 257 Conn. 98, 102 (2001).   Second, the court must ensure that the report does not contain “legal conclusions for which there are no subordinate facts.”  Id., 102.   Third, the report must be reviewed to determine if it is “legally and logically correct.”  Id., 103.

Other principles governing attorney trial referee's report provide that:  “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.”  Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423 (1989), cert. denied, 214 Conn.

In the present case, the attorney trial referee made specific findings, none of which are challenged by the defendant in their objection.   Therefore, the court determines that the findings of fact are accurate and supported by the testimony before the attorney trial referee.   The findings include the following:  that there was a judgment of $85,685.84 entered in the New York court on November 23, 2004 and that this judgment remains unsatisfied with no payments being made thus constituting a wrongful detention of money by the defendant.

The defendant has not provided a specific argument as to the objection to the attorney trial referee report and leaves the court with an unsupported objection both factually and legally other than the issues argued in the post-trial memorandum submitted by the defendant.   In particular, the defendant argues in their post-trial memorandum that the judgment in this matter is not a domesticated foreign judgment and thus interest, in accordance with General Statute § 37-3a is improper because there is no enforceable judgment.   The defendant contends that the New York judgment was based upon a default appearance that they could attack collaterally.   When this judgment was brought in the Connecticut court, and thus it is not a final judgment.   This argument is contrary to the evidence of the New York judgment, as well as, the argument of counsel in which the parties agreed that the defendant appeared in the New York proceedings, although they were uncertain at which stage of the proceedings the defendant was no longer active.   The parties do agree that for purposes of this action, the defendant did have involvement in the New York legal action.

The question before this court is whether the findings of fact support the interest as calculated based upon the entering of the judgment in New York on November 23, 2004.   In particular, the court has reviewed the findings and argument of counsel to determine if the New York judgment created damages that are “payable” as of November 23, 2004, pursuant to General Statutes § 37-3a as recommended by the Attorney Trial Referee in his final decision.   There are no findings of fact, no specific exhibits, nor, any transcript testimony that would support the defendant's argument that this was not a judgment that was wrongfully detained by the defendant from November 23, 2004.¹  There was no testimony or evidence referred to by any party which would lead to a finding that interest cannot be awarded because the amounts were not payable.   The attorney trial referee made a finding that the defendant admitted in its answer the existence of the New York judgment.   Although there were five special defenses included in the answer to the complaint, none addressed the issue of a default.   Based upon the findings of fact, which are not challenged and the lack of any support to find that the New York judgment was not a domesticated foreign judgment, this court finds that the decision of the trial referee was “legally and logically” correct.

Lastly, having determined that the findings of fact are correct along with the legal conclusions based upon the findings, there is no basis for this court to find that the attorney trial referee improperly calculated the interest.   The Connecticut courts have long recognized that, “the determination of whether interest is a proper element of damages is to be made in view of the demands of justice, not through the application of any arbitrary rules ․ and ․ the allowance of interest is primarily an equitable determination to be made within the discretion of the trial court.”  H.B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 348, 446 A.2d 1 (1982), quoting Scribner v. O'Brien, Inc., 169 Conn. 389, 405-06, 363 A.2d 160 (1975).   Where detention of sums due and payable is adjudged to be wrongful, the courts have concluded that interest is a proper element of recovery.   See Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978).

Based upon the findings of the attorney trial referee and the legal authority to award interest for wrongful detention of moneys due and owing, the objection to the attorney trial referee report is overruled.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The defendants in their post-trial brief argued that it was undisputed that the judgment “was based on a default judgment and was not fully litigated in the New York court,” but the defendant has not submitted a transcript of the trial before the trial referee indicating such a finding nor are there any trial exhibits that support this position..  FN1. The defendants in their post-trial brief argued that it was undisputed that the judgment “was based on a default judgment and was not fully litigated in the New York court,” but the defendant has not submitted a transcript of the trial before the trial referee indicating such a finding nor are there any trial exhibits that support this position.

Brazzel-Massaro, Barbara, J.