Paulus v. LaSala

• Decision Date: 21 December 1999
• Docket Number: (AC 18162)
• Citation: 742 A.2d 379,56 Conn. App. 139
• Parties: JOHN D. PAULUS ET AL. v. ANDREW LASALA, JR., ET AL.
• Court: Connecticut Court of Appeals

56 Conn. App. 139

742 A.2d 379

JOHN D. PAULUS ET AL. v. ANDREW LASALA, JR., ET AL.

(AC 18162)

Appellate Court of Connecticut.

Argued September 13, 1999.

Officially released December 21, 1999.

O'Connell, C. J., and Spear and Dupont, Js. James R. Fogarty, with whom was Carolyn Alexander Collins, for the appellants-appellees (defendants).

Alan R. Spirer, for the appellees-appellants (plaintiffs).

Opinion

DUPONT, J.

This case concerns a contractual dispute between the plaintiff homeowners, John D. Paulus and Carol A. Paulus, and the defendant builders, Andrew LaSala, Jr., and Cannondale Development Associates.¹ The plaintiffs sought damages for the defendants' alleged failure to construct their home in a timely and proper manner. The plaintiffs brought a three count complaint alleging a breach of contract, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and a breach of the New Home Warranties Act, General Statutes § 47-116 et seq. An attorney trial referee tried the case and issued a report, setting forth findings of fact and recommending that judgment be rendered on counts one and three of the plaintiffs' complaint in favor of the plaintiffs in the amount of $73,119.² The referee also recommended that prejudgment interest in the amount of $40,494.40 be awarded on a portion of the damages. The trial court accepted the report but disagreed with the referee's conclusion as to the termination date for the calculation of the prejudgment interest, concluding instead that, as a matter of law, prejudgment interest runs until the date of the judgment.

The defendants appeal from the judgment of the trial court rendered in the amount of $232,907.47. The judgment includes $73,119, the compensatory damages found to be due the plaintiffs; prejudgment interest on $38,424, which was that portion of the compensatory damages found to be due pursuant to General Statutes § 37-3a,³ at the rate of 10 percent per year from July 6, 1987, through January 20, 1998, in the total amount of $40,494.40; and offer of judgment interest in the amount of $119,294.07. The plaintiffs cross appeal from the denial of their claim for a refund from the defendants and from the denial of their claim for damages for the defendants' alleged unfair trade practice in violation of General Statutes § 42-110b. We affirm the judgment of the trial court.

I THE DEFENDANTS' APPEAL

The defendants claim (1) that the trial court should not have reviewed the conclusion of the attorney trial referee that prejudgment interest on a portion of the award terminated as of the date the trial began because the plaintiffs failed to object to the acceptance of the referee's report and (2) that, if the referee's conclusion was reviewable, the trial court improperly rejected the referee's termination date and instead improperly extended the termination date of the running of interest to the date of the judgment. Subsumed in the latter issue is the defendants' claim that the court should have remanded to the referee the issue of when interest should terminate, given the fact that the court had concluded that the termination date selected by the referee was improper. The defendants also claim that they were improperly denied oral argument on their exceptions and objections to the acceptance of the referee's report.

As the defendants correctly note in their brief, the issues raised in their appeal are "for the most part procedural and legal in nature. Thus, most of the facts developed in trial are not relevant to the appeal."

The undisputed relevant procedural facts are not numerous. The initial report of the attorney trial referee recommended denial of prejudgment interest. The plaintiffs and the defendants filed motions to correct the report, and, in response to the plaintiffs' motion, the referee reconsidered his initial recommendation that prejudgment interest not be awarded and recommended an award of such interest on a portion of the plaintiffs' compensatory damages, namely $38,424.50. The referee recommended that the interest on that sum run from July 6, 1987, to April 28, 1993, the date the trial began. The trial court rejected the referee's termination date for the running of interest, concluding that interest must run to the date of judgment, namely, January 20, 1998. The plaintiffs filed an offer of judgment in the amount of $105,000 on April 11, 1989.⁴ If the termination of the period of time for the calculation of interest as stated by the referee is correct, the amount of prejudgment interest and compensatory damages due the plaintiffs would total less than the offer of judgment. If the prejudgment interest, however, is calculated to the date of the judgment, as the court concluded, and is added to the compensatory damages of $73,119, the total, $113,613.40, exceeds the offer of judgment.⁵ The plaintiffs and the defendants agree that any prejudgment interest award would begin on July 6, 1987, as found by the referee. That date was found by the referee to be the date on which the defendants indicated that all further work on the house would cease. The parties also agree that § 37-3a interest may be awarded at the discretion of the fact finder.

The defendants first claim that the plaintiffs waived their right to challenge the referee's conclusion as to the date of termination for the calculation of interest because of their failure to file an objection to the acceptance of the report. We are not persuaded.

The plaintiffs filed a motion to correct the referee's report by seeking an award of prejudgment interest to be added to their damages. In the motion, they argued that although an award of prejudgment interest is discretionary, equity called for interest in this case because the money had been withheld by the defendants for nine years.

In response to the plaintiffs' motion to correct, the attorney trial referee corrected the report by recommending an award of prejudgment interest from July 6, 1987, to April 28, 1993, the date of the commencement of trial, on the damages that he had previously found due for incomplete contractual items and for poor workmanship items. The plaintiffs' motion to correct was filed on February 22, 1996. On February 12, 1996, the plaintiffs filed exceptions to the referee's report, pursuant to Practice Book § 439, now § 19-13. The exceptions related to claims (1) for a refund of $18,600 paid to the defendants at the closing, which relates to the plaintiffs' cross appeal, and (2) that prejudgment interest should run to the date of judgment, rather than to the date on which the trial began. The defendants argue that the plaintiffs should have filed an objection to the referee's report, and that the plaintiffs' motion to correct and their exceptions cannot cure the failure to file an objection. The defendants filed objections to the acceptance of the report, one of which was the claim that the plaintiffs were not entitled to prejudgment interest.

To assess the defendants' claim, we must examine the relevant rules of practice. The plaintiffs did not challenge any of the referee's factual conclusions or evidentiary rulings, which challenges should be made by way of objection. See Practice Book § 19-14, formerly § 440. Objections and exceptions to the acceptance of a referee's report are addressed to the trial court, whereas motions to correct are addressed to the referee. Practice Book § 19-12, formerly § 438, provides that a party may seek to correct a report by setting forth the changes and additions desired in the report. The changes may relate to the "striking out [of] any of the facts found, or by adding further facts...." Practice Book § 19-12. When a plaintiff does not file an objection to the acceptance of a referee's report but properly files "both a motion to correct pursuant to Practice Book § 438 [now § 19-12], and a subsequent exception to the report and findings of the referee pursuant to Practice Book § 439 [now § 19-13] ... [h]e is, therefore, entitled to full appellate review of the trial court's disposition of his exceptions to the report." (Citations omitted.) Gargano v. Heyman, 203 Conn. 616, 619 n.3, 525 A.2d 1343 (1987).

We conclude that there was no reason for the plaintiffs to object to the acceptance of the referee's report because, as stated in the plaintiffs' exceptions to the report, they "accept all of the facts found" and their exceptions "relate only to two of the [referee's] proposed conclusions of law."

The defendants next claim that the trial court should have held oral argument prior to rendering judgment on the referee's report. Practice Book § 19-16, formerly § 442, provides in relevant part that "[i]f exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon...." Practice Book § 11-18 (a), formerly § 211, provides in relevant part: "Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, and motions for judgment of foreclosure. For those motions, oral argument shall be a matter of right, provided (1) the motion has been marked ready for adjudication... and (2) the movant indicates at the bottom of the first page of the motion or on a reclaim slip that oral argument or testimony is desired...." The defendants did not request oral argument on the first page of their exceptions or objections to the report.

The defendants argue that Practice Book § 442, now § 19-16, obviates the necessity that they claim their objections and exceptions for a hearing on the short calendar. The plaintiffs argue that even if § 442 grants the defendants oral argument as of right, it is not automatic but must be claimed for argument as provided in § 211. We agree with the plaintiffs. Aside from the plain meaning of the words of those sections, which do not grant oral argument as of right to the...