Florence Haas v. Arthur Haas (2010)

MEMORANDUM OF DECISION RE MOTION FOR MISTRIAL AND/OR NEW TRIAL # 167 AND OBJECTION # 168

This case comes to this court as a motion for mistrial and/or new trial, and the objection thereto.   In the matter presently before the court, the plaintiff, Florence Haas, has brought suit against the defendant and her son, Arthur Haas. In the operative complaint, the plaintiff alleges claims against the defendant for fraud, fraudulent conversion and punitive damages.   The plaintiff also requests that the court order an accounting.   This case arises out of an intra-family dispute where the plaintiff alleges that the defendant, who was at one time a certified personal accountant, wrongfully converted the plaintiff's funds and mismanaged her finances so badly that she incurred large tax penalties from the Internal Revenue Service.

On August 19, 20 and 21, 2008, this case was tried before the court, Downey, J., without a jury.   Judge Downey issued an “interim decision” on November 17, 2008, which ordered that the parties submit to a forensic accounting by an independent third party.   The parties were ordered to file the forensic accounting report within 120 days of the court's ruling.   Judge Downey's interim decision also made seventy-one findings of fact and contained some citations to relevant case law, including a discussion regarding the defendant's statute of limitations special defense.   Nevertheless, Judge Downey's interim decision did not decide the ultimate issues in the case.   Indeed, Judge Downey's decision stated that “[t]he court will defer its decision regarding the applicability of the theories of recovery and the special defenses until it receives the accounting and until the parties further brief the issues.”   In April 2009, Judge Downey's eight-year term as a Superior Court judge ended.   After the plaintiff had filed multiple motions for contempt, and well after the 120-day deadline ordered by Judge Downey, a forensic accounting report was filed with the court on November 25, 2009.¹

On May 4, 2010, the defendant filed a motion for mistrial and/or new trial.   The defendant argues that the court should grant its motion because it will be “difficult for another judge to analyze the facts of the case and apply the law to them without having heard the evidence and judge the parties' credibility.”   In its motion, the defendant contends that in cases where there is no jury, the general rule is that the judge who heard the evidence must decide the case.   Otherwise, the defendant argues that he may be denied his due process rights.   Finally, the defendant contends that case law is silent as to what occurs when the term of the judge who heard the case has expired and that judge has not been reappointed to the bench.

The plaintiff filed a memorandum of law in opposition to the defendant's motion on May 10, 2010.   In her motion, the plaintiff argues that the defendant has failed to articulate any legal grounds for requesting a mistrial or a new trial.   The plaintiff contends that the proper course of action is for a new judge to review the trial record and post-trial legal memoranda, and for a successor judge to issue a decision based on these documents.   Furthermore, the plaintiff states that the defendant never objected to how Judge Downey conducted the trial, and it would be unfair for the defendant to receive a new trial when the cause of the delay was the defendant's failure to provide appropriate documentation to the firm conducting the forensic accounting.   According to the plaintiff, Judge Downey would have had more than sufficient time to render a final decision if the defendant had complied with the judge's orders in a timely manner.

General Statutes § 51-183f governs how the court should proceed in the event that the original trial judge is unable to continue.   This statute provides:  “If the term of office of any judge of the Superior Court expires during the pendency of any proceeding before him, or if any judge of the Superior Court is retired because of a disability, dies or resigns during the pendency of any proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought before him.”

The leading case interpreting the requirements of § 51-183f is Stevens v. Hartford Accident & Indemnity Co., 29 Conn.App. 378, 615 A.2d 507 (1992).   In Stevens, the parties had a trial before a judge who died prior to issuing an opinion.   A successor judge then rendered a decision in the case based on factual determinations from “an unsigned, handwritten document” that was found in the deceased judge's papers.  Id., 379.   Following the successor judge's decision, the plaintiff filed a motion to set aside the judgment and for a new trial.   This motion was denied by the successor judge from the bench.   The plaintiff then appealed to the Appellate Court.  Id., 380-81.

In discussing the proper scope of § 51-183f, the Appellate Court stated that “[t]o order a new trial here because of the death of [the trial judge] would be tantamount to declaring a mistrial due to his death because he had not completed the trial of this case.   This result, we believe, would be contrary to the provisions of General Statutes § 51-183f, which authorizes any other judge, in the event a judge dies during the pendency of a proceeding, to continue with the case as if the matter had been originally brought before the successor judge.   The plain language of § 51-183f, therefore, authorizes further proceedings before another judge where the original trial judge is unable to complete proceedings ․” Id., 384.  “In conducting these further proceedings, however, the trial court must be extremely cautious in deciding issues in a case in which it has not heard the evidence.   In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process.”  (Internal quotation marks omitted.)  Id. “Accordingly ․ upon the death, disability or resignation of a judge of the Superior Court during the pendency of a trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by § 51-183f:  (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted;  (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties;  (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then;  (4) upon request of any party, or upon the court's own request, recall any witness whose testimony is material and disputed and who is available to testify' without due burden;  (5) take any other steps reasonably necessary to complete the proceedings;  and (6) render a decision based on the successor judge's own findings of fact and conclusions of law.”  Id., 385-86.

Although the Appellate Court in Stevens only explicitly stated that this six-prong procedure would apply in instances where the trial judge was unable to continue due to “death, disability or resignation,” the Stevens court was interpreting § 51-183f, which, by its plain language, also applies when “the term of office of any judge of the Superior Court expires during the pendency of any proceeding before him ․” As Judge Downey's term as a Superior Court judge expired before he rendered a final decision in this case, § 51-183f applies and the court will follow the procedure outlined in Stevens in determining whether there should be a new trial.   In its motion, the defendant fails to articulate any actual prejudice that it would suffer if this case were assigned to a new judge other than the inherent difficulty that a successor judge would face in applying the facts and law.   As stated by the Stevens court, it would be contrary to the intent of § 51-183f for the court simply to order a new trial because Judge Downey is unable to continue hearing the case due to the expiration of his term as a Superior Court judge.   The successor judge then must decide the case based on his or her own findings of fact and law.

In her memorandum of law in opposition, the plaintiff seems to suggest that the court can utilize the findings of fact that were included in Judge Downey's interim decision.   In Stevens, the Appellate Court determined that it was error for the successor judge to use the trial judge's handwritten document that made factual determinations, and the Appellate Court reversed the judgment on those grounds.   Although Stevens is factually distinguishable from the present case because the original judge had only left handwritten notes, whereas Judge Downey officially filed an interim decision, language from Stevens strongly suggests that it would be error for the new judge to rely solely on Judge Downey's interim decision.   As stated by the Appellate Court:  “Because § 51-183f authorizes the successor judge to proceed in the matter as if it had been originally brought before the successor judge, it is incumbent on the successor judge to exercise independent judgment in completing the proceedings ․ Just as a successor judge, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed ․ may apply his own judgment ․ a successor judge must apply his own judgment to the evidence in order to determine the facts where his predecessor leaves that task incomplete ․” (Citation omitted;  internal quotation marks omitted.)  Id., 383-84.

Since there is no actual prejudice to the parties, this court denies the motion for a mistrial, and/or for a new trial and sustains the objection.   The matter should be assigned by the Presiding Civil Judge to a successor judge to act consistent with the law as determined by that successor judge.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The defendant also appealed Judge Downey's decision to the Appellate Court on March 6, 2009.   This appeal was dismissed by the Appellate Court on April 29, 2009..  FN1. The defendant also appealed Judge Downey's decision to the Appellate Court on March 6, 2009.   This appeal was dismissed by the Appellate Court on April 29, 2009.

Karazin, Edward R., J.