Rowan Const. Corp. v. Hassane

• Decision Date: 21 October 1988
• Docket Number: No. 6487,6487
• Citation: 549 A.2d 1085,17 Conn.App. 71
• Court: Connecticut Court of Appeals
• Parties: ROWAN CONSTRUCTION CORPORATION v. Zef HASSANE.

Page 1085

549 A.2d 1085

17 Conn.App. 71

ROWAN CONSTRUCTION CORPORATION v. Zef HASSANE.

No. 6487.

Appellate Court of Connecticut.

Submitted on briefs September 7, 1988.

Decided Oct. 21, 1988.

Mark F. Katz filed Stamford, a brief, for appellant (plaintiff).

Lawrence D. Church, Norwalk, filed a brief, for appellee (defendant).

Before DUPONT, C.J., and BIELUCH and EDWARD Y. O'CONNELL, JJ.

BIELUCH, Judge.

This is an appeal by the plaintiff from the judgment rendered for the defendant on the plaintiff's amended complaint and on the defendant's revised counterclaim. The plaintiff claims that the trial court erred (1) in denying its motion for a mistrial, (2) in accepting the report of the attorney trial referee, and (3) in assessing the amount of damages sustained by the defendant. We find error.

On or about July 10, 1981, the parties entered into a written contract under which the plaintiff agreed to purchase property of the defendant on or before April 1, 1982, for the price of $370,000. A deposit of $25,000 was given to the defendant's counsel to be held in escrow in an interest bearing account for the benefit of the plaintiff until the scheduled closing. The transfer was contingent on the plaintiff's obtaining zoning approval for the construction of a minimum of twelve dwelling units on the premises. The plaintiff unsuccessfully applied for zoning approval of fifteen units. When the defendant refused to return the deposit, the plaintiff commenced this action. The defendant counterclaimed for unspecified damages. After the pleadings were closed and the case was claimed for trial, the court, without obtaining the consent of the parties, assigned the action to an attorney trial referee for hearing. The trial was completed on October 25, 1985.

The trial referee filed his first report on January 8, 1986. He found that the plaintiff had breached its contract by seeking zoning approval for a development in excess of the number of dwelling units specified in the contract and refusing to reduce its size to meet that contract condition. As to the defendant's counterclaim, although the referee expressly rejected the defendant's evidence regarding the difference in value of the real estate between its contract price and fair market value, he found that the defendant was damaged otherwise in the amount of $55,682.93. This damage consisted of payments by the defendant, between the contract closing date of April 1, 1982, and the subsequent transfer to another party on October 1, 1984, for interest on two mortgages and property taxes.

Both parties moved to correct these findings pursuant to Practice Book § 441. ¹ At the same time, the plaintiff filed a motion for mistrial on the ground that the "state trial referee represented a party in an adversarial position to that of the plaintiff on an occasion prior to the commencement of trial.... Specifically, the trial referee represented a party ... on a purchase of real estate from the plaintiff on or about 1976." After a hearing, the motion for mistrial was denied by the court. A hearing was held by the referee on the two motions to correct the referee's findings on April 8, 1987, at which time the parties "stipulated and agreed that the fair market value of the premises on April 1, 1982, was $305,000 and the contract price was $370,000." On the basis of this stipulation, the trial referee filed a corrected finding on May 21, 1987, amending his prior decision "to add to the damages suffered by the defendant on the counterclaim the amount of $65,000, being the difference between the contract price and the fair market value of the property." By this correction, the attorney trial referee increased his award of damages on the defendant's counterclaim to $120,682.93.

On May 28, 1987, the plaintiff filed an "objection to state trial referee reference" on the sole ground that the matter had been referred without its express consent. When the defendant moved for judgment in accordance with the corrected finding of the trial referee, the plaintiff, on June 15, 1987, objected to the acceptance of the report for this same reason, as well as for grounds specified in Practice Book § 440. ² This objection to the report was overruled on August 6, 1987, when the court accepted the referee's report and rendered judgment for the defendant on the plaintiff's amended complaint and for the defendant to recover damages of $120,682.93 on his revised counterclaim. ³ The plaintiff has appealed to this court.

There is no merit to the plaintiff's claim that the trial court erred by denying its motion for a mistrial filed on the ground that the attorney referee should have disqualified himself from the proceedings because he had had a professional position adversarial to that of the plaintiff in a real estate transaction ten years earlier. For the first time in a reported decision, we review the standard of conduct applicable to attorney state trial referees in the exercise of their duties under the statewide program supplementing our limited judicial resources.

This program was officially inaugurated on February 1, 1984, by the Honorable John A. Speziale, formerly Chief Justice of the Supreme Court. Conn.L.J., Jan. 31, 1984, p. 12C. In the official announcement of this auxiliary judicial resource, the Chief Justice, under the powers of his office, ⁴ "designated the Chief Court Administrator to implement and administer this experimental project." On January 31, 1984, guidelines for attorney state trial referees were promulgated by the Chief Court Administrator. These provided, inter alia, that the following oath of office be taken by each referee upon appointment: "You do solemnly swear (or affirm, as the case may be) that you will support the Constitution of the United States, and the Constitution of the State of Connecticut, so long as you continue a citizen thereof; that you will faithfully discharge, according to law, the duties of the office of state trial referee to the best of your ability; and that you will, in addition to complying with the provisions of the Code of Professional Responsibility, comply with the provisions of Canons 1, 2 and 3 of the Code of Judicial Conduct concerning the matters in which you serve as a state trial referee. So help you God." (Emphasis added.) Canon 3 C of the Code of Judicial Conduct, as relevant here, provides: "C. Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party...."

The plaintiff is correct in his assertion that this court should apply to an attorney state trial referee the same code of conduct that it uses to determine whether a judge should have been disqualified from hearing a matter. The standard applied to determine whether the trier should be disqualified goes beyond a finding of actual bias. "The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge's impartiality." LaBow v. LaBow, 13 Conn.App. 330, 334, 537 A.2d 157 (1988). We find that the present circumstances do not raise such a question.

At the court hearing on the motion for mistrial, the referee testified that he had no recollection, after the lapse of ten years, of the real estate closing involving the plaintiff. Furthermore, he was unfamiliar with the plaintiff or its name at the time of the trial, except for the evidence presented to him. The plaintiff did not show any business or other relationship between the referee and the plaintiff that would give cause for the referee's disqualification. We agree with the trial court's finding that the real estate closing related by the plaintiff was, in any event, too remote to create, or even to suggest, a real or apparent conflict of interest by the referee, or color of personal bias or prejudice against the plaintiff. The trial court did not err in denying the plaintiff's motion for mistrial.

The plaintiff also claims that the trial court erred in accepting the referee's original and corrected reports because the plaintiff never expressly consented to a trial before an attorney state trial referee. This claim is a correct expression of the law: a case may not be referred to an attorney state trial referee without the consent of the parties. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 514-15, 508 A.2d 415 (1986). "The [parties, however,] are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion." Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 251, 524 A.2d 610 (1987). "The fact that the [plaintiff] did not expressly consent to the referral did not deprive the referee of authority to hear and decide the case." (Emphasis in original.) Id. In the case before us, the plaintiff failed to object to the referral of the case until the trial was completed and the report of the referee's findings and decision was filed in court. "The appropriate time to object in this case would have been at the time of the referral, or at least prior to the commencement of the hearing before the referee." Id. We find that the trial court did not err in accepting the referee's report.

The plaintiff's remaining claim of error attacks the referee's findings and the judgment thereon assessing the amount of damages sustained by the defendant on his revised counterclaim. The referee filed his original findings on January 8, 1986. Pursuant to Practice Book § 438, ⁵ both parties moved to correct the findings. The referee granted the motions and filed additional findings on May 21, 1987. Each party then had the right to object to the acceptance of the referee's report within two weeks of its filing. Practice Book § 441. ⁶

On May 28, 1987, the plaintiff filed an "objection to state trial referee...