Llc v. Doody Iii., No. 30977.

• Decision Date: 21 September 2010
• Docket Number: No. 30977.
• Citation: 3 A.3d 969,124 Conn.App. 1
• Court: Connecticut Court of Appeals
• Parties: O'CONNELL, FLAHERTY AND ATTMORE, LLC v. James J. DOODY III.

124 Conn.App. 1

3 A.3d 969

O'CONNELL, FLAHERTY AND ATTMORE, LLC

v.James J. DOODY III.

No. 30977.

Appellate Court of Connecticut.

Argued March 11, 2010.

Decided Sept. 21, 2010.

Appeal from Superior Court, judicial district of Hartford, Hon. John J. Langenbach, judge trial referee [objection to fact finder's report]; Domnarski, J. [motion for judgment, judgment].

James J. Doody III, pro se, for the appellant (defendant).

Pamela M. Magnano, with whom was Sandi Beth Girolamo, for the appellee (plaintiff).

HARPER, ROBINSON and DUPONT, Js.

DUPONT, J.

The defendant, attorney James J. Doody III, appeals from the judgment of the trial court rendered in accordance with findings of fact made by a fact finder, attorney Kerry R. Callahan, in favor of the plaintiff, O'Connell, Flaherty & Attmore, LLC, and seeks a new trial. On appeal, the defendant claims that the court (1) failed to render a timely decision in violation of General Statutes § 51-183b and (2) erred in numerous findings of fact. ¹ We affirm the judgment of the trial court.

The record reveals the following facts and procedural history relevant to our resolution of the defendant's appeal. The defendant retained the plaintiff to represent him in postjudgment proceedings relating to his marriage dissolution action. ² The plaintiff and the defendant entered into a representation agreement dated January 20, 2005. The plaintiff's complaint, filed October 23, 2006, sought payment for legal representation of the defendant. The defendant filed his answer, special defense and counterclaim on November 16, 2006. The case was referred to Callahan in accordance with General Statutes § 52-549n and Practice Book § 23-53. ³ On January 7 and March 24, 2008, the matter was tried before Callahan. On September 24, 2008, Callahan filed his memorandum of decision with the court. On October 14, 2008, the defendant filed a motion to reargue, claiming that Callahan's memorandum of decision was materially flawed and a gross miscarriage of justice. The motion sought a de novo hearing to readdress the matter. Oral argument was held on the defendant's motion to reargue, at which time the defendant admitted that a motion to reargue is not the proper method to challenge a fact finder's memorandum of decision. On November 19, 2008, the court treated the motion as an objection to the acceptance of the finding of the facts pursuant to Practice Book § 23-57 and denied the motion. ⁴

On October 22, 2008, the plaintiff then filed a motion for judgment, which the court granted on April 1, 2009. This appeal by the defendant followed.

I

The defendant's first claim is that the trial court failed to render its decision “within 120 days after the completion date of trial, in violation of ... § 51-183b.” We disagree.

To resolve the defendant's claim, we begin by setting forth the relevant legal principles and the standard of review. Section 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have the power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” (Emphasis added.)

In this case, the matter was referred to and tried before an attorney fact finder pursuant to Practice Book § 23-52 et seq. A judge of the Superior Court did not commence or try the case; the attorney fact finder commenced and tried the case. The plaintiff filed a motion for judgment, and the court rendered judgment pursuant to Practice Book § 23-58(a)(1) ⁵ after a hearing had been held on the defendant's objections to the fact finder's memorandum of decision. The provisions of § 51-183b do not apply to the trial court under the circumstances of this case. See Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 718-21, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006).

The defendant's argument juxtaposes the actions of the court with those of the fact finder. Specifically, the defendant in his brief is actually challenging the fact finder's filing of his memorandum of decision more than 120 days after the completion date of the fact finder's hearing and is not challenging the timeliness of the court's judgment. ⁶ General Statutes § 52-549r ⁷ and Practice Book § 23-56(c) ⁸ require that within 120 days of the completion of the fact finder's hearing, the fact finder shall file findings of facts with the clerk of the court. The defendant made no objections at trial to the late filing of the fact finder's report. Even if the defendant were arguing a violation of the correct statutory provisions or rules of practice, he raises this unpreserved claim for the first time on appeal. ⁹ “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn.App. 423, 443, 988 A.2d 351(2010). Additionally, not only did the defendant fail to cite the correct statutory provision and rule of practice, he failed to provide any relevant legal authority to support his claim. See Statewide Grievance Committee v. Rapoport, 119 Conn.App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.] ), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010). We therefore decline to address any potential or implied claim of the defendant relating to any late filing of the fact finder.

II

The defendant's second claim is that the court erred in numerous findings of fact. ¹⁰ We decline to address this claim. The defendant was required to make his objections to the acceptance of the findings of fact within fourteen days after the fact finder's memorandum of decision was filed with the court. See General Statutes § 52-549s and Practice Book § 23-57. ¹¹ The defendant's motion to reargue, which was construed by the court as an objection to the acceptance of findings of fact pursuant to Practice Book § 23-57, was filed late and therefore properly denied by the court for that reason alone. The defendant's failure to object timely to the fact finder's findings precludes him from now challenging those findings of fact on appeal. The defendant's lack of compliance with Practice Book § 23-57 precludes our review of his motion to reargue, even when treated as an objection to the fact finder's findings. See Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 134-35, 958 A.2d 195 (2008), citing Humiston v. Intervest Management Co., 17 Conn.App. 828, 829, 554 A.2d 296 (1989); see also Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986); Dorsen v. Kay, 13 Conn.App. 645, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn.App. 527, 532 A.2d 593 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also claims, as the third argument in his brief, that “the trial court ignored or failed to apply contract obligations between the parties, the direct result of which materially and adversely affected [the] defendant's right to a fair and impartial trial based upon the merits.” To the extent that the defendant's claim relates to the fact finder's report, the plaintiff asserts that we should decline to review this claim because the defendant did not properly and timely raise any objections to the fact finder's report. It is uncertain from his brief whether the defendant is claiming that the fact finder, whose facts were adopted by the court and incorporated into the court's judgment, has improperly, as a matter of law, interpreted a provision of the parties' representation agreement or whether the defendant is claiming that the facts found by the fact finder were clearly erroneous and should not have been adopted by the court. Any legal conclusions reached by the fact finder have no conclusive effect on a court because the reviewing court is the arbiter of the law, and any legal opinions of the fact finder have no weight when reviewed by the court that did render judgment. See TradeSource, Inc. v. Kemper Construction, Inc., 96 Conn.App. 806, 810-11, 904 A.2d 210 (2006).

We decline to review this third issue because the defendant's brief is inadequate and devoid of any analysis as to the claim as stated by him. Furthermore, the defendant's brief does not make it clear whether his claim relates to an impropriety or improprieties of the fact finder or of the trial court. See Statewide Grievance Committee v. Rapoport, 119 Conn.App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.] ), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010).

2 Prior to the present action, the defendant appealed to this court from the judgment of dissolution, of the Superior Court, denying his motion for modification of alimony and child support, which was affirmed. See Doody v. Doody, 99 Conn.App. 512, 914 A.2d 1058 (2007). The defendant was not represented by the plaintiff in that case.

3 General Statutes § 52-549n provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion,...