Douglas-Mellers v. Windsor Insurance Co.

Decision Date26 March 2002
Docket Number22478
CourtConnecticut Court of Appeals
PartiesENIAET AL. v. WINDSOR INSURANCE COMPANY22478 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT Considered January 16

(Appeal from Superior Court, judicial district of Fairfield, Sheedy, J.)

Andrew H. Sharp, in support of the motion. James O. Gaston, in opposition.

Lavery, C. J., and Mihalakos and Dranginis, Js.

Dranginis, J.

Opinion

The plaintiffs appeal from the trial court's order sustaining the defendant's objection to the acceptance of the attorney trial referee's report and revoking the reference to the referee. The defendant has filed a motion to dismiss the appeal on the ground that the order is not an appealable final judgment. We agree that the appeal is premature and grant the defendant's motion to dismiss.

On April 6, 1998, the plaintiffs, Enia Douglas-Mellers, Cynthia Reynolds and Sasha Hart, were involved in an automobile accident while driving in a vehicle insured by the defendant, Windsor Insurance Company. The plaintiffs brought this action against the defendant seeking damages under the uninsured motorist provisions of the insurance policy. The court referred the matter to an attorney trial referee, Dominick J. Rutigliano, who tried the case on June 22 and July 23, 2001. On August 8, 2001, the attorney trial referee filed a report with the court, along with a recommendation of an award of damages for the plaintiffs. The defendant filed an objection to the acceptance of the report on August 24, 2001. 1 On September 5, 2001, the court sustained the defendant's objection, revoked the reference to the attorney trial referee and ordered the matter to be placed on the court trial list. The plaintiffs subsequently filed motions for articulation and for reargument, which the court granted. On October 22, 2001, after reargument, the court sustained its previous ruling on the defendant's objection to the report.

On November 9, 2001, the plaintiffs filed an appeal from the court's order rejecting the attorney trial referee's report and revoking the reference to the referee. The defendant subsequently filed a motion to dismiss the appeal for lack of a final judgment. The sole issue now before us is whether an order of the trial court revoking the reference to an attorney trial referee and leaving the case to be disposed of in the trial court can be immediately appealed.

As a preliminary matter, we must first examine the procedures that govern matters heard by attorney trial referees as set forth in chapter nineteen of our rules of practice. Upon the consent of the appearing parties, the court may refer a non-jury case to an attorney trial referee for a trial. 2 Practice Book § 19-2A. Within 120 days after the completion of the trial, the attorney trial referee must file a report with the court, stating ''the facts found and the conclusions drawn therefrom''; Practice Book § 19-8 (a); and the report may be supplemented with ''a memorandum of decision including such matters as [the attorney trial referee] may deem helpful in the decision of the case . . . .'' Practice Book § 19-8 (b); see Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 503, 508 A.2d 415 (1986). A party may then file an objection to the court's acceptance of the report. Practice Book § 19-14. Under Practice Book § 19-17, the court has the authority to render judgment on the report or, if the court finds error, it must 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 the trial court.

The plaintiffs in the present case cite In re Application of Clinton Oyster Ground Committee, 52 Conn. 5 (1884), for the proposition that the revocation of the reference to the attorney trial referee is an appealable final judgment. In that case, the oyster ground committee of the town of Clinton, pursuant to statute, filed an application in the court for the appointment of an independent committee to ascertain and describe the boundaries of the natural oyster, clam and mussel beds in the waters of the town. 3 The appointed committee provided a report to the court designating substantially the entire Clinton harbor as a natural bed. Several persons who previously had acquired oyster grounds and who claimed to be affected by the committee's report appeared and objected to the court's acceptance of the report. The court subsequently rejected the report and referred the case to another committee. The applicants, the Clinton oyster ground committee, immediately appealed from the court's decision. Our Supreme Court heard the appeal, stating that ''[i]n ordinary cases the rejection of the report of a committee is not a final judgment from which an appeal lies. This case however is exceptional. No judgment is to be rendered on the report. When accepted, the report itself becomes practically the final judgment. If rejected, there is no judgment, such as the proceedings contemplate, and the case goes to another committee. The judgment of the court on the remonstrance refusing to accept the report, is in the nature of a final judgment. It deprives the party of a report to which he may be entitled. If he is, it is better for all concerned that it should be determined before the expense is incurred of a trial before another committee. In that aspect of the case, and considering the peculiar character of the proceeding, it was deemed best to hear it on its merits ....''Id., 6±7.

The plaintiffs' reliance on In re Application of Clinton Oyster Ground Committee is misplaced. The decision of the court that it ''was deemed best to hear it on its merits''; id., 7; appears to have been driven by the exigent circumstances surrounding the economic and political considerations that underlie the court's scathing characterization of the committee's actions as ''irresponsible'' and influenced ''by local jealousies and prejudices'' in its impassioned discussion of the merits of the case. Id., 7±10. The determination that there was a final judgment in In re Application of Clinton Oyster Ground Committee should, therefore, be limited to its unique facts, which the court itself referred to as exceptional, and should not be precedent for a final judgment analysis in cases involving the modern attorney trial referee process. Rather than fitting into the exception created to reach the merits in In re Application of Clinton Oyster Ground Committee, this case is more analogous to Cothren v. Atwood, 63 Conn. 576, 29 A. 13 (1894). In Cothren, an appeal was taken from an order sustaining a remonstrance and rejecting the report of a committee in an action on a debt. Our Supreme Court removed the appeal from the docket after finding that the order was not an appealable judgment. Unlike In re Application of Clinton Oyster Ground Committee, which was not a case involving parties to an adversarial proceeding, the court in Cothren required the parties to await a final judgment before appealing. Cothren v. Atwood, supra, 576. Similarly, the plaintiffs in this case must await the entry of judgment, which is an inevitable part of the attorney trial referee process.

In OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 754, 712 A.2d 449 (1998), another appeal involving the attorney trial referee process, we also distinguished our Supreme Court's holding in In re Application of Clinton Oyster Ground Committee. InMarchese, the defendant property owners in a foreclosure action appealed from the court's order sustaining the plaintiff's objection to the acceptance of the attorney trial referee's report. Id., 750. The court, in sustaining the plaintiff's objection, remanded the case to the same attorney trial referee to '' 'proceed in a manner not inconsistent with' '' the trial court's decision. Id., 752. The plaintiff filed a motion to dismiss the appeal on the ground that the court's order was not a final judgment. Id., 751±52. In granting the motion to dismiss, we distinguished In re Application of Clinton Oyster Ground Committee, explaining that ''[a] party cannot appeal from a trial court's order sustaining an objection to an attorney trial referee's report, but rather must appeal from the judgment that is rendered thereon. . . . Here, the trial court has not yet rendered judgment. It has simply remanded the case to the attorney trial referee for further proceedings. Accordingly, there is no judgment from which the defendants may appeal.'' (Citations omitted; emphasis in original.) Id., 754. Similarly, in the present case, by revoking the reference to the attorney trial referee, the court has not yet rendered any judgment under Practice Book § 19-17. As the attorney trial referee...

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