Kupstis v. Michaud

• Decision Date: 26 December 1989
• Docket Number: No. 7895,7895
• Court: Connecticut Court of Appeals
• Parties: Robert B. KUPSTIS v. Andre L. MICHAUD, Jr., et al.

Page 1253

567 A.2d 1253

20 Conn.App. 425

Robert B. KUPSTIS v. Andre L. MICHAUD, Jr., et al.

No. 7895.

Appellate Court of Connecticut.

Argued Nov. 7, 1989.

Decided Dec. 26, 1989.

Michael A. D'Amico, for appellant (plaintiff).

Robert J. Crean, for appellees (defendants).

NORCOTT, Judge.

The plaintiff appeals from the judgment rendered against him by the trial court on the report of an attorney trial referee. The plaintiff raises two closely related claims on appeal. He first claims that the trial court erred in accepting the attorney referee's report over his objection after failing to find the 120 day time limitation of General Statutes § 51-183b applicable to attorney referees. The plaintiff's second claim, necessarily dependent upon the outcome of the first, is that the unreasonable delay between the time of the hearing and the time of the filing of the referee's report resulted in a denial of the plaintiff's right to due process of law. We find no error.

On June 23, 1986, the plaintiff, Robert B. Kupstis, instituted an action for specific performance of a contract for the sale of certain real property against the defendants, Andre and Gilberte Michaud. Upon consent by the parties, the trial court referred the case to an attorney trial referee and a hearing was held on October 7 and October 16, 1987. After waiting four months, the plaintiff received no word of any report from the referee. The plaintiff thereafter made several informal attempts to prompt the referee to render a report. ¹ Almost a year elapsed and the plaintiff had no success in prompting the referee to render his report. On September 22, 1988, the plaintiff filed a motion to compel the report. The court, O'Brien, J., granted the motion, and, on November 1, 1988, after ordering transcripts of the hearing, the referee rendered a report unfavorable to the plaintiff. The plaintiff objected to the court, McDonald, J., with respect to the entry of judgment against him, claiming that the report of the attorney referee, which he had moved to compel, was issued after an unreasonably long delay that far exceeded the claimed 120 day time limit. The court held that under the rule enunciated in Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn.App. 136, 508 A.2d 43 (1986), attorney referee are not bound by the 120 day time limitation and rendered judgment on the report.

The plaintiff argues that the 120 day time limit prescribed by General Statutes § 51-183b is applicable to attorney referee as well as to judges and state trial referees and that the referee in this case far exceeded that time limit. This court addressed this issue in Kowalsky Properties, Inc. v. Sherwin-Williams Co., supra. There, we explictly held that "[t]he time limitations of General Statutes § 51-183b only apply to judges and 'any trial referee who has the power to render judgments.' We have ruled ... that attorney trial referees do not have the power to render judgments. Consequently, they are exempt from the 120 day time restraint." Id., 140, 508 A.2d 43. The plaintiff argues, nonetheless, that attorney referees should not be exempt, and that we should, as a matter of judicial policy, apply the 120 day time limit to them.

Here, however, the plaintiff consented to the reference of his case to an attorney referee. He then moved to compel the very report that he now claims was untimely filed, and he did so after the 120 day limitation period that he claims is controlling. Had the plaintiff instead moved to revoke the reference to the attorney referee; see Practice Book § 432 (applicable to attorney referees pursuant to Practice Book § 428); or waited for the report to be rendered and objected to its acceptance; see Practice Book § 440; he would have acted in accordance with the relief that he now seeks. Under these circumstances, therefore, we conclude that it would be inappropriate to sustain the plaintiff's claim to apply the 120 day time limit to attorney referees by judicial decision, because he obtained the very relief he now seeks to disavow.

We recognize that, notwithstanding Kowalsky, an inconsistency does exist between attorney referees and other analogous persons to whom the court refers cases for findings of fact. While the court in Kowalsky properly exempted attorney referees from the statutory time limit of § 51-183b, it did not consider the 120 day limit prescribed by our rules of practice to factfinders and arbitrators requiring them to abide by the 120 day time limitation even though they are unable to render judgment. ² Attorney referees fall into a gray area that exists between our rules of practice and our statutes. Of these three, each performing analogous functions, only attorney referees are not specifically bound by any rule to the 120 day time limit, and we perceive no reason for this distinction. ³ We do not condone such extended delays by attorney referees in rendering their reports as that which occurred in this case. Moreover, we strongly suggest that this gray area be eliminated and that a rule that binds attorney referees to the 120 day time limit be established. Under the circumstances of this case, we conclude that the trial court did not err in holding that under the current status of Connecticut law, the attorney referee was not bound by the 120 day time limit and in accepting his report.

The plaintiff next claims that he was denied his right to due process because of the undue delay by the attorney referee in rendering his report. ⁴ He argues that the attorney referee could not have clearly judged the credibility of the witnesses after...