Post Road Iron Works, Inc. v. Lexington Development Group, Inc.

• Decision Date: 17 August 1999
• Docket Number: (AC 18209)
• Citation: 54 Conn. App. 534,736 A.2d 923
• Court: Connecticut Court of Appeals
• Parties: POST ROAD IRON WORKS, INC. v. LEXINGTON DEVELOPMENT GROUP, INC., ET AL.

54 Conn. App. 534

736 A.2d 923

POST ROAD IRON WORKS, INC. v. LEXINGTON DEVELOPMENT GROUP, INC., ET AL.

(AC 18209)

Appellate Court of Connecticut.

Argued March 24, 1999.

Officially released August 17, 1999.

Foti, Landau and Hennessy, Js.

Scott R. Lucas, for the appellants (defendants).

Christopher Lagano, for the appellee (plaintiff).

Opinion

LANDAU, J.

The defendants, Lexington Development Group, Inc. (Lexington), and Robin Hill Farm, Inc. (Robin Hill), appeal from the judgment of the trial court accepting the report of the attorney trial referee and awarding the plaintiff damages. Although the defendants have raised numerous issues on appeal,¹ one is dispositive; that is, whether the trial court improperly accepted the attorney trial referee's report because it is devoid of necessary findings of fact. We reverse the judgment of the trial court.

The following facts provide a background for the dispositive issue. The plaintiff, Post Road Iron Works, Inc., engages in the fabrication of structural and ornamental metal work and general blacksmithing. Robin Hill is a closely held corporation that owns residential property at 7 John Street in Greenwich (John Street property). A material issue in dispute is whether Lexington, also a closely held corporation, is an agent or general contractor for Robin Hill. Magnus Lindholm is the principal of both defendants and resides at the John Street property. Prior to the events that are the subject of this action, the defendants had engaged the plaintiff on numerous occasions to provide materials and services at the John Street property. On or about September, 1993, the parties entered into an oral agreement that the plaintiff would fabricate and install cabinets and doors for a barbecue grill and remove and reinstall the front railings at the John Street property. A dispute arose between the parties concerning the quality of the goods and services provided by the plaintiff, and the defendants refused to pay the plaintiff's invoice. The plaintiff, therefore, commenced an action against the defendants on or about August, 1995.

The amended complaint alleges four counts respectively, sounding in breach of contract, account stated, quantum meruit and unjust enrichment. The defendants asserted three special defenses to the amended complaint, including that the work was defective, that an oral contract precludes equitable relief and that the plaintiff failed to comply with the Home Improvement Act, General Statutes § 20-418 et seq. The defendants also alleged a two count counterclaim for breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff asserted three special defenses to the defendants' counterclaim: one, that the plaintiff was a subcontractor, and, therefore, the Home Improvement Act does not apply; two, that some or all of the work performed did not constitute a home improvement; and three, that the plaintiff is a properly registered home improvement contractor. The matter was claimed to the trial list and assigned to an attorney trial referee pursuant to General Statutes § 52-434 (a)² and Practice Book § 19-1 et seq.

The case was tried to an attorney trial referee who issued a five page report dated March 18, 1997 (report). Following an introductory paragraph setting forth the nature of the trial, the report is divided into three sections: seven findings of fact, discussion and recommendations. Subsequently, both the plaintiff and the defendants filed motions to correct the report, pursuant to Practice Book § 19-12.³ The plaintiff asked the attorney trial referee to make four additions to the findings and to strike or reword certain portions of the discussion section because they are ambiguous. The defendants requested twenty-eight corrections to the attorney trial referee's findings of fact and eleven findings of law. The attorney trial referee issued a "restated referee's report" dated April 10, 1997 (restated report), in which he denied one of the plaintiffs requests and otherwise stated, "The Attorney Trial Referee's Report dated March 18, 1997 stands uncorrected." On or about April 21, 1997, the defendants filed, pursuant to Practice Book § 19-13,⁴ an exception to the attorney trial referee's restated report because the attorney trial referee failed to adopt the defendants' proposed corrections and, pursuant to Practice Book § 19-14,⁵ objections to acceptance of the restated report of the attorney trial referee. The plaintiff filed a written opposition to the defendants' objection and exception to the attorney trial referee's restated report. In a memorandum of decision dated August 4, 1997, the trial court ruled on the exception, objections to acceptance and opposition. The trial court concluded that it was "unable, at this time, to rule on the exceptions and objections filed by the defendants because of the absence of a detailed response by the referee to the defendants' motion to correct. In order to carry out a meaningful review of the referee's report and recommendations, a specific response to the thirty-nine requests by the defendants to correct the report is needed, and thus the case is remanded to the referee for that purpose."

The attorney trial referee issued a ruling on the defendants' motion to correct dated October 7, 1997. The attorney trial referee denied twenty-seven of the defendants' twenty-eight requests for corrections of fact⁶ and declined to rule on the defendants' requested corrections of law. The attorney trial referee commented that he reviewed the transcripts of the trial and that his recommendation would stand. The defendants renewed their exception to the restated report and objections to acceptance of the restated report, and the plaintiff renewed its opposition to the defendants' objections and exception. The trial court heard the objections and exceptions and filed a supplemental memorandum of decision dated February 24, 1998.

The trial court cited Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996), for the standard of review to be applied to the review of an attorney trial referee's report. The trial court determined that Lexington's status was the key issue in the case and that the attorney trial referee found, as a fact, that Lexington served as a general contractor for Robin Hill and that the transcript supported that finding. The second issue concerned the attorney trial referee's finding that the plaintiff's work was performed in a satisfactory manner. The trial court determined that that issue was quintessentially a factual determination that should not be disturbed by the court. The trial court noted that the parties provided contradictory testimony on this question and ultimately the trial court decided the issue on credibility, which is a factual determination. The trial court concluded that § 19-14 cannot be used to attack an attorney trial referee's factual findings. The trial court accepted the attorney trial referee's recommendation and rendered judgment in favor of the plaintiff. The defendants appealed.

"A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court ... the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443 [now § 19-17]; Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 299, 552 A.2d 827 (1989). This court has articulated that attorney trial referees and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.... Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423-24, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).

"The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous.... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses.... Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994)." (Internal quotation marks omitted.) Elgar v. Elgar, supra, 238 Conn. 848-49. Although it is true that when the trial court reviews the attorney trial referee's report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee's report containing legal conclusions for which there are no subordinate facts. In the case before us, the attorney trial referee made just seven findings of fact, one of which merely describes photographic evidence. In the discussion portion of his report, the attorney trial referee summarizes the testimony of the witnesses without making findings of fact.

"This...