Roger Arnow and Sons, Inc. v. Anthony Loglisci et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO ACCEPT ATTORNEY TRIAL REFEREE'S REPORT (120.00)

I. Background

This matter came before the court on a motion to accept, and enter judgment upon, a report of an Attorney Trial Referee (ATR).   The case was referred to the ATR pursuant to General Statutes § 52–434(a)(4) and chapter 19 of the Practice Book to hear the evidence, find facts and make a report.   The plaintiff's complaint alleged that the defendant hired it to do excavating services on their property at 301 Haviland Road in Stamford, Connecticut.   The plaintiff alleges it billed the defendants who paid some, but not all, of what is allegedly due, leaving a balance due of $32,020.   The defendants, representing themselves, denied the first two paragraphs of the complaint, including the allegation that they owned 301 Haviland Road, and did not answer the remaining allegations.   They also offered several special defenses:  that they had paid the amount in the original estimate, that plaintiff did not credit them for $6,000 paid by Anthony Loglisci's parents, that they were billed for days when plaintiff did not work;  that they were harassed by the plaintiff who kept a backhoe on their property for over eighteen months which prevented defendants from completing a subdivision.

The case was referred to Attorney Robert Skovgaard as ATR to hear and to find facts.   A hearing took place on October 25, 2012, and he issued his report on April 9, 2013, noting that the defendants had not filed any post-hearing briefs which were due January 4, 2013.  (Dkt. Entry 111.00.)   On September 11, 2013 the Honorable Kevin Tierney referred the matter back to ATR Skovgaard with direction to read and consider the post-trial brief of the defendants dated November 26, 2012, and to conduct such further proceedings as the ATR, in his discretion, felt necessary.  (Dkt. Entry 112.86.)   This court notes that the court file contains a brief dated November 26, 2012 by the defendants but it has a court file stamp of September 11, 2013.   Dkt. Entry 117.00.   Subsequently, Judge Tierney denied defendant's request for a jury trial.  (Dkt. Entry 118.00.)   The defendants also moved to amend their answers on December 27, 2013, after the submission of the ATR's Supplemental Report.   These motions were unopposed and the amended answers conceded that the defendants owned the Haviland Road property, repeated the essence of their special defenses, and admitted that the plaintiff was hired to remove dirt, but not ledge.

ATR Skovgaard, following the direction of Judge Tierney, issued a “Supplemental Report of Attorney Trial Referee, Findings of Fact and Recommendation for Judgment” on December 12, 2013.   Dkt. Entry 119.00.   In that report the ATR noted that he allowed the parties to file requests for further proceedings but no such requests were filed.   The ATR then stated that based on the evidence at trial and the parties' briefs (including defendants' post-hearing brief) he made 26 Findings of Fact and three recommendations for judgment.   These findings and recommendations were identical to those included in his earlier report.   In essence, the ATR report found facts supporting most of the plaintiff's monetary claims and recommended judgment be entered in the amount of $28,278 on both counts of the complaint against the defendants with costs to be taxed against the defendants.   The motion to confirm the report and the plaintiff's objection were heard by this court on January 27, 2014.

II. Scope of Review

Practice Book § 19–17 requires this court to “render such judgment as the law requires upon the facts in the [ATR] report.”   The Connecticut Supreme Court has stated:

“It is axiomatic that [a] reviewing authority may not substitute its findings for those of the trier of 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.   See Practice Book § 442 [now § 19–17] ․ 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 ․ The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous ․ [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses ․ A finding of a fact is clearly erroneous when there is no evidence to support it, the reviewing court on the entire evidence is left with definite and firm conviction that a mistake has been committed.”  (Brackets in original citations omitted;  internal quotations omitted.)

Meadows v. Higgins, 249 Conn. 155, 162 (1999);  see also Elgar v. Elgar, 238 Conn. 839, 848–49 (1996).   The trial court cannot accept an ATR's conclusions for which there is no factual foundation.  LPP Mortgage Ltd. v. Lynch, 122 Conn.App. 686, 692 (2010).   Because the ATR is simply a fact finder his legal conclusions have no conclusive effect;  where legal conclusions are challenged, the court must determine whether they are legally and logically correct and supported by the facts found by the ATR. Hees v. Burke Construction, Inc., 290 Conn. 1, 7 (2009);  see Gianetti v. Gerardi, 52 Conn.Sup. 207 (2010), aff'd on opinion below, 133 Conn.App. 858 (2012).

The defendants have objected to the ATR Report.   Dkt. Entry 123.00.   Practice Book § 19–14 requires an objecting party to file “a transcript of the evidence” taken before the ATR “except such portions as the parties may stipulate to omit.”   The only portions of the transcript before this court were submitted by the plaintiff in connection with the submission of a duplicate set of exhibits to replace trial exhibits purportedly lost.   Dkt. Entry 115.00.   This consists of eleven pages of transcript along with the exhibits themselves.   The absence of the full transcript limits this court's review of the ATR's findings of fact.   See Meadows v. Higgins, supra, 249 Conn. 170 n.10.

III. Discussion

The ATR made the following findings.   The plaintiff was hired by the defendants to do site work at 301 Haviland Road including cutting trees, removing stumps, rough grading, removal of fill and paving of road.   The price quoted was $20,520 for such work with extra work to be billed over and above that amount.   ATR Findings ¶¶ 8–13.   The plaintiff discussed the extra work which the defendants agreed should be done.  Id., ¶¶ 14–16.   Regular invoices were sent for the extra work and amounted to $32,020 shown on an invoice dated January 22, 2010 which may have been misdated;  the defendants never objected to that invoice.  Id., ¶¶ 17–21.

The total billed for the initial work and the extra work was $50,489;  the total paid for the initial and extra work was $17,869.  Id., ¶¶ 22–23.   The reasonable value of all the work done by the plaintiff was $46,147 arrived at by deducting the amount of $4,342 which defendants paid to others for work which plaintiff had agreed to perform, leaving a balance due $28,278.  Id., ¶¶ 24–26.

The defendants' objections to the ATR Report are five in number.   First, they object to the finding that defendants hired the plaintiff to do site work pursuant to a proposal prepared by the plaintiff.   This objection is based on citations to the transcript not available to the court and an argument that the ATR did not admit Exhibit B into evidence and that Exhibit B has been lost.   The court is not persuaded.   Although it does not know what happened to Exhibit B there is Exhibit 1 which is a proposal estimating a cost of $20,520 based on engineering drawings prepared for the defendants.   As to the issue of hiring there is no factual basis to contest the plaintiff's hiring, and in fact, the plaintiff was partially paid.   In addition, the defendants' amended answer concedes the plaintiff's hiring.   The findings of the ATR that extra work was agreed upon may not be overturned on this record.

The remaining four objections are based on the defendants' contention that Susan Loglisci was never defaulted and that there was no finding that plaintiff has a home improvement contractor's license, again citing transcript pages not before the court.   The court rejects these arguments as irrelevant (default is not an issue as a trial has been held) or not proven by the available evidence.

The court accepts the findings of fact based on its review of the exhibits and transcripts excerpts before the court, and further finds that the recommended judgment is consistent with and a logical conclusion emanating from the facts found.

IV. Conclusion

Judgment may enter against the defendants, jointly and severally, in the amount of $28,278.   The ATR made no findings or recommendation with respect to prejudgment interest, and the court will not assess such interest.   Costs shall be assessed against the defendants by the clerk of the court.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.