Rostenberg-Doern Co., Inc. v. Weiner

• Decision Date: 10 January 1989
• Docket Number: No. 6082,ROSTENBERG-DOERN,6082
• Citation: 552 A.2d 827,17 Conn.App. 294
• Court: Connecticut Court of Appeals
• Parties: COMPANY, INC. v. Alan G. WEINER, et al.

Page 827

552 A.2d 827

17 Conn.App. 294

ROSTENBERG-DOERN COMPANY, INC. v. Alan G. WEINER, et al.

No. 6082.

Appellate Court of Connecticut.

Argued October 4, 1988.

Decided Jan. 10, 1989.

Edward J. Gallagher, Danbury, for appellant (plaintiff).

Jack D. Garamella, Danbury, for appellees (defendants).

Before DUPONT, C.J., and SPALLONE and FOTI, JJ.

FOTI, Judge.

The plaintiff, Rostenberg-Doern Company, Inc., initiated this action to recover a real estate commission in connection with the rental of commercial property owned by the defendants, Alan and Keith Weiner. After the pleadings were closed, the case was referred to an attorney trial referee pursuant to General Statutes § 52-434(a)(4). ¹ Following a hearing, the trial referee issued a report that included his recommendation that judgment be rendered in favor of the plaintiff. The trial court accepted the trial referee's findings of fact, but rejected his conclusions of law and rendered judgment for the defendants. The plaintiff appeals from the judgment and claims that the trial court erred (1) in rendering its decision in accordance with Practice Book § 546J, rather than Practice Book § 443, (2) in accepting a particular fact found by the trial referee, and (3) in rejecting the trial referee's legal conclusions. We find no error.

The following facts were found by the attorney trial referee and accepted by the court. The plaintiff is a licensed real estate brokerage company. The defendants, Alan and Keith Weiner, are business partners, and Keith Weiner owned a parcel of commercial real estate in Brookfield. The plaintiff, through its agent, Jerome Kovacs, approached the defendants to lease this property for a client. On or about November 18, 1983, Alan Weiner signed a real estate listing agreement prepared by the plaintiff, which left blank the designated space for entry of the dollar amount of the plaintiff's commission. The contract was then forwarded to the plaintiff who signed it and filled in some of the missing information, including its address and commission rate which was stated as "five dollars per square foot with escalation." A photocopy of the agreement, containing the additions and an attached rate schedule, was returned to the defendants. Among the attachments were provisions for the payment of interest on over-due accounts and attorney fees for the collection of a commission. After two months of negotiations between the defendants and the plaintiff's client, the parties executed a lease agreement. Kovacs was an active participant in those negotiations, and the lease named the plaintiff as broker for the property. In February, the plaintiff sent the defendants a bill for its commission in the amount of $27,400. The defendants refused to pay that amount, and the plaintiff brought this action to recover its commission.

The plaintiff's first claim is that the trial court erroneously referred to Practice Book § 546J ² as the authority for its decision and, as a result, treated the attorney trial referee as a "fact-finder." ³ While we agree that the trial court's reference to Practice Book § 546J was improper, we conclude that it nevertheless acted properly.

It is undisputed that the attorney trial referee in this case was appointed pursuant to General Statutes § 52-434(a)(4) ⁴ and not General Statutes § 52-549n. ⁵ These two statutes authorize the appointment of qualified members of the bar to sit as adjuncts to the trial bench in nonjury cases for the purpose of accelerating the disposition of cases. While attorney referees appointed pursuant to General Statutes § 52-434(a)(4) are authorized to hear a broader assortment of disputes involving greater monetary value, those appointed pursuant to General Statutes § 52-549n are referred to as "fact-finders" and possess less authority. ⁶ General Statutes § 52-549n; Practice Book § 546D. Proceedings before attorney trial referees appointed in accordance with General Statutes § 52-434(a)(4) are governed by the procedures set forth in Practice Book § 434 through § 444. Ruhl v. Fairfield, 5 Conn.App. 104, 105, 496 A.2d 994 (1985). "In like manner, Practice Book §§ 546B-546K control the referral of cases to the newly created factfinders under General Statutes § 52-549n...." E.I. Constructors, Inc. v. Scinto, 12 Conn.App. 348, 352, 530 A.2d 1081 (1987). Therefore, the plaintiff is correct that because the attorney trial referee in this case was appointed pursuant to General Statutes § 52-434(a)(4), the trial court should have cited Practice Book § 443 ⁷ as the authority for its decision.

The plaintiff argues that Practice Book § 443 provides no authority for the action taken by the trial court in this case. Instead, it claims that Practice Book § 443 required the trial court to remand the matter to the same or a different trial referee when it determined that the attorney referee made a "material error." The question for us to decide, therefore, is whether the trial court had the authority, pursuant to Practice Book § 443, to reject the attorney trial referee's legal conclusions and render judgment for the defendant contrary to the trial referee's recommendation. We conclude that the trial court was authorized to do so.

While the two referral programs differ in name, source of appointment and scope of authority, under both programs the referees "share the same function of factfinders 'whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.' " E.I. Constructors, Inc. v. Scinto, supra, quoting Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986). Under either program, there is no authority to render judgments. Health Planning Associates, Inc. v. Whitlock, 12 Conn.App. 190, 193, 529 A.2d 1352 (1987). Thus, "having no power to render a judgment, an attorney referee is simply a factfinder...." (Emphasis added.) Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. at 502, 508 A.2d 415.

Our rules of practice outline the functions and duties of attorney referees and fact-finders and place an affirmative obligation on them to report to the court the "facts found and the conclusions drawn therefrom." Practice Book § 434; see also Practice Book § 546G. Although the rules make no reference to any additional duties, they permit attorney referees to express their views on questions of law. Practice Book § 434; Practice Book § 546G; Seal Audio, Inc. v. Bozak, Inc., supra, at 509-10, 508 A.2d 415. Our Supreme Court has concluded that "[t]he fact that the attorney referee went beyond the bare statutory requirement of reporting the facts found by including his opinion upon the legal issues involved in the case did not transform his role into a judicial one. The views of a committee upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment. See Lyon v. Wilcox, 98 Conn. 393, 396, 119 A. 361 (1923); Stehlin-Miller-Henes Co. v. Bridgeport, 97 Conn. 657, 665, 117 A. 811 (1922)." Seal Audio Inc. v. Bozak, Inc., supra, at 510, 508 A.2d 415. ⁸ Practice Book § 443 specifically provides that "[t]he court shall render such judgment as the law requires upon the facts in the report as it may be corrected." "The reviewing court is the effective arbiter of the law and the legal opinions of a committee, like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment." Seal Audio, Inc. v. Bozak, Inc., supra; see also Rowan Construction Corporation v. Hassane, 17 Conn.App. 71, 549 A.2d 1085 (1988).

Our case law is clear that under either referral program the attorney referee is simply a fact-finder whose legal conclusions are merely advisory, and the trial court therefore has the inherent authority to reject legal recommendations. We conclude that the language in Practice Book § 443 that requires the trial court to remand a case to the original referee or a different one where it finds the referee "materially erred in its rulings," refers to the attorney referee's findings of fact and not to his or her conclusions of law. Therefore, since attorney trial referees appointed under General Statutes § 52-434(a)(4) are fact-finders whose conclusions of law are not binding on the trial court, it was not error for the trial court to reject the trial referee's conclusions of law. Although the trial court referred to the incorrect rule of practice in rendering its decision, we will not reverse that decision because we find the trial court reached the correct result. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

The plaintiff's second claim of error asserts that the trial court erred in refusing to consider its objection to a particular fact as found by the attorney trial referee. ⁹ The plaintiff did not file a motion to correct the findings of the attorney trial referee ¹⁰ or object to the trial court's acceptance of the report ¹¹ as required by our rules of practice. Instead of filing its own objection, the plaintiff now relies upon its memorandum in opposition to the defendants' objections to the attorney trial referee's report in which it merely stated its disagreement with the trial referee's finding.

The plaintiff's notation in its memorandum opposing the defendants' objections is not a substitute for filing a proper motion in accordance with our rules of procedure. Since the plaintiff has failed to follow the appropriate procedural guidelines as required by the rules, we are precluded from reviewing its claim. Dorsen v. Kay, 13 Conn.App. 645, 650, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn.App. 527, 528, 532 A.2d 593 (1987). " 'A litigant cannot wholly ignore established procedures for the protection of [its] rights, as [the plaintiff] has done, and hope to receive on appeal the same...