Bowman v. 1477 Cent. Ave. Apartments, Inc.
| Decision Date | 21 April 1987 |
| Docket Number | No. 12992,12992 |
| Citation | 203 Conn. 246,524 A.2d 610 |
| Court | Connecticut Supreme Court |
| Parties | Andrew B. BOWMAN v. 1477 CENTRAL AVENUE APARTMENTS, INC., et al. |
Francis T. Mandanici, New Haven, for appellants (defendants).
George J. Markley, Bridgeport, for appellee (plaintiff).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and SCHALLER, JJ.
The principal issue on this appeal is whether the defendants implicitly consented to the reference of their case to an attorney referee by failing to object to the reference until after the referee had rendered his decision. The plaintiff, Andrew B. Bowman, brought an action in three counts against the defendants, 1477 Central Apartments, Inc. (1477 Central) and John C. Mandanici, Jr., president of 1477 Central. The action sought damages for the defendants' refusal to pay legal fees that they allegedly owed the plaintiff. The case was referred to attorney Phillip Baroff, an attorney referee appointed pursuant to General Statutes § 52-434(a)(4). 1 Following a hearing and the submission of briefs by the parties, the referee issued a report finding for the plaintiff on all three counts of his complaint. The trial court, Jacobson, J., rendered judgment in accordance with the referee's report. The defendants appealed to the Appellate Court. This court subsequently transferred the appeal to itself. We find no error.
The record discloses the following facts. From 1982 to 1984, the plaintiff, an attorney in private practice, rendered various legal services to the defendants. The plaintiff represented the defendant 1477 Central in connection with certain business matters. He also represented the defendant Mandanici in a criminal trial before the United States District Court for the District of Connecticut, and in the appeal of the judgment in that case to the Second Circuit Court of Appeals.
The plaintiff's complaint, dated April 9, 1985, alleged in the first count that the defendant 1477 Central had failed to pay $2112.50 in legal fees that it owed the plaintiff. In the second and third counts, the complaint alleged that the defendant Mandanici had failed to pay approximately $17,000 in legal fees that he owed for the plaintiff's services in connection with the criminal trial and the appeal, respectively. The defendants' answer admitted that the plaintiff had rendered legal services pursuant to the defendants' request, but denied that it owed the plaintiff any legal fees.
Following its assignment to the trial list, the case was referred to an attorney referee. 2 Neither party raised any objection to the referral, either before or during the hearing before the designated referee. Following the hearing, which took place on December 12 and 13, 1985, and the submission of post trial memoranda of law, the defendants obtained, over the plaintiff's objection, permission to file an amended answer. The amended answer included a special defense to the third count of the complaint on behalf of the defendant Mandanici. The special defense alleged that the plaintiff had failed substantially to perform his agreement to represent the defendant Mandanici on the criminal appeal because he had failed to allow the defendant and his brother, Attorney Francis T. Mandanici, an opportunity to review and contribute to the appellate brief.
Thereafter, on April 1, 1986, the referee issued a report finding for the plaintiff on all counts and ordering the defendants to pay the plaintiff approximately $19,000, plus costs and interest. The defendants filed a motion to correct the report, which the referee denied.
On May 12, 1986, for the first time, the defendants objected to the referral of the case to an attorney referee. The defendants claimed that our decision in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), released on April 29, 1986, had "[made] it clear" that referral to the referee was improper without the consent of the parties. The defendants requested "that the matter be assigned to a judge for a full evidentiary trial ab initio." (Emphasis added.) The trial court, Jacobson, J., overruled the objection. On June 10, 1986, the trial court rendered judgment for the plaintiff in accordance with the referee's report. This appeal followed.
On appeal, the defendants claim that the trial court erred in: (1) failing to obtain their consent before referring the case to an attorney referee, and overruling their post-report objection to the reference; (2) rendering judgment without ruling on the defendants' objections and exceptions to the referee's report; and (3) rendering judgment in accordance with the referee's finding that the defendant Mandanici had failed to prove his special defense. We will consider each of these claims in turn.
The defendants' first claim is that the trial court violated their state and federal constitutional rights by failing to obtain their consent to the referral of the case to an attorney referee. 3 See Seal Audio, Inc v. Bozak, Inc., supra. In Seal Audio, Inc., we held that General Statutes § 52-434(a)(4), governing the appointment of attorney referees, requires that the parties consent to the referral of their case to a referee. Id. at 513-15, 508 A.2d 415. Our decision was based on the legislative history of the statute and the juxtaposition of § 52-434(a)(4) with other portions of § 52-434 that specifically require such consent. Id. at 512-14, 508 A.2d 415. 4 Because § 52-434(a)(4) requires the parties' consent before a case may be referred to an attorney referee, we held, such referrals do not violate the parties' rights to due process of law. Id., at 515, 508 A.2d 415. 5
The defendants argue that because they never expressly consented to the referral of their case to an attorney referee, the referral deprived them of due process of law and other state and federal constitutional rights. We disagree. The defendants "utterly neglected" to raise the issue of their lack of consent until after the hearing had ended and the referee had filed his report. Id. at 516, 508 A.2d 415. "[T]he failure to raise the issue of a referee's disqualification either before or during the trial 'can be construed as the functional equivalent of "consent in open court." ' " Id., at 517, 508 A.2d 415, quoting Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). The defendants, therefore, are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion. Seal Audio, Inc. v. Bozak, Inc., supra; see also Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986); Timm v. Timm, supra. The fact that the defendant did not expressly consent to the referral did not deprive the referee of authority to hear and decide the case. Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. at 516, 508 A.2d 415.
The defendants argue that their objection to the referral was timely because they raised it before the trial court rendered judgment. In Seal Audio, Inc., by contrast, the defendant did not raise the issue of lack of consent until after final judgment had been rendered and an appeal filed. Id. at 517, 508 A.2d 415. This is a distinction without a difference. If the defendants had objections to the referral, they were obliged to raise them "with reasonable promptness after learning the ground" for their objection. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987); see Postemski v. Landon, 9 Conn.App. 320, 323, 518 A.2d 674 (1986); Christ-Janer v. A.F. Conte & Co., 8 Conn.App. 83, 90-91, 511 A.2d 1017 (1986). The appropriate time to object in this case would have been at the time of the referral, or at least prior to the commencement of the hearing before the referee. "We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Seal Audio, Inc. v. Bozak, Inc., supra. We conclude, in these circumstances, that the referral to an attorney referee did not deprive the defendants of their constitutional rights. 6
The defendants' second claim is that the trial court erroneously rendered judgment in accordance with the attorney referee's report without first ruling on their objections and exceptions to the report. The facts underlying this claim are as follows. After the referee had issued his report and denied the defendants' motion to correct the report, the defendants, within the time limits imposed by Practice Book §§ 439 and 441, 7 filed exceptions and objections to the report with the trial court. Before these papers had been filed, at a June 2, 1986 hearing on the defendants' objection to the referral, the trial court, after overruling the objection, was about to render judgment "as per the report [of the referee]." Defense counsel informed the court, however, that the defendants intended to file their exceptions and objections to the report later that day. The trial court said that it would rule on the exceptions and objections once they were filed and once the defendants had provided him with a transcript of the hearing before the referee. On June 10, 1986, the trial court formally rendered judgment in accordance with the referee's report.
On July 17, 1986, the defendants filed a motion with the trial court requesting it to articulate whether it had reviewed and ruled on the defendants' objections and exceptions, and reviewed the transcript of the hearing before the referee, before rendering judgment. The trial court denied the motion. Upon the plaintiff's motion, however, it agreed to reconsider its denial. At an August 21, 1986 hearing on the defendants' motion for articulation, the plaintiff's attorney pointed out that there was no...
To continue reading
Request your trial
-
Southern New England Telephone Co. v. Dept. of Public Utility Control
...501 (1992) (plaintiff's claim raised in brief but abandoned at oral argument considered waived); Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 255 n.8, 524 A.2d 610 (1987) (same). This waiver eliminates, therefore, our need to determine whether the department is required un......
-
Lapointe v. Comm'r of Corr.
...disinterested witnesses and their testimony was fully consistent with prior statements); see also Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987) ("[when] the evidence is in conflict, its probative force is for the trier of fact to determine"); Steinm......
-
Gurliacci v. Mayer
...benefits. Although contract interpretation is generally a question of fact for the trial court; Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987); the trial court's interpretation of this contract properly should have been informed by reference to the W......
-
Gaudio v. Gaudio
...A.2d 316 (1983). Where the evidence is in conflict, its probative force is determined by the trier. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). In the present case there was sufficient evidence to support the conclusion that Masterson did not pur......