Opinion
FSTCV126015733S
02-22-2016
Frank Bongiorno v. Joseph Capone
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR ACCEPTANCE OF ATR REPORT DATED NOVEMBER 5, 2015 (#134.00)
Hon. Kevin Tierney, Judge Trial Referee.
The court has reviewed the Attorney Trial Referee (ATR) Report dated November 5, 2015, on file in this court signed by Anthony J. Medicio as ATR (#133.00).
(a) The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the committee, attorney trial referee or special assignment probate judge has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee, attorney trial referee or special assignment probate judge, as the case may be, for a new trial or revoke the reference and leave the case to be disposed of in court.
(b) The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.
Practice Book § 19-17.
" It is axiomatic that [a] reviewing authority may not substitute its findings for those of the trier of 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] . . . This court has articulated that attorney trial referees and factfinders 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 . . . 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 . . . 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 definite and firm conviction that a mistake has been committed." (Brackets in original citations omitted; internal quotations omitted.) Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999); see also Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996).
As evidenced by the above, the function of an ATR is to find the facts. While an ATR is free to draw conclusions from the facts found; Practice Book § 19-8; the Connecticut Supreme Court has made it abundantly clear it is the function and responsibility of the Superior Court to draw the proper legal conclusion from the facts found. In Seal Audio v. Bozak, 199 Conn. 496, 508 A.2d 415 (1986), the Connecticut Supreme Court rejected a challenge that the ATR program was unconstitutional, and in so doing, stated that " [h]aving no power to render a judgment, an attorney referee is simply a factfinder." Id., at 502, 508 A.2d 415. Their function is confined to the role of factfinder, i.e. to report the facts to the court for judicial action, rather than act judicially themselves; they are not judges. Id. at 507-8, 501, 508 A.2d 415; see also Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (a referee's determinations of law are not binding on the court); Meadows v. Higgins, supra, 249 Conn. at 172, 733 A.2d 172 (referee's opinion on a question of law entitled to no deference).
The format of the ATR Report fails to conform with P.B. § 19-8 in that it contains no listed facts found in " separate and consecutively numbered paragraphs . . ." " Any such state referee shall report on such evidence to the court with any finding of facts." Gen. Stat. § 52-434(a)(4).
The ATR Report is also framed in the manner of a judicial memorandum of decision, which does not comport with the provisions and requirements of ATR Reports. " Our conclusion was that attorney referees do not perform a judicial role because their function is limited to fact finding." Seal Audio Inc. v. Bozak, Inc., 199 Conn. 496, 515, 508 A.2d 415 (1986). The general format of this ATR's Report is in the nature of a Memorandum of Decision issued by the judicial authority. Although stated formally as a " recommendation" by the ATR, the overall format is structured as if it is a judgment. The ATR's format must change.
On the first page of the ATR Report the ATR mentions that the Second Count and the Fourth Count were withdrawn. The court can only locate a withdrawal of the Second Count on January 18, 2013. (#106.00.)
In the ATR Report the ATR awarded treble damages for statutory theft, which is the Fourth Count. Yet the ATR found that the plaintiff withdrew the Fourth Count. This finding and legal conclusion needs further clarification by the ATR.
In addition the ATR's Report states: " . . . that item 8(b)(c)(d) & (e) of the Revised Complaint were not being pursued for relief." (#133.00, page 1.) The court cannot locate a Claim for Relief that is numbered 8. The court cannot locate a pleading described as " item 8." If that reference is to paragraph 8 of the First Count, the subparagraphs are referenced as follows: " a., " " b., " " c., " " d." and " e." (#102.00.) This court needs clarification as to the meaning of " item 8(b)(c)(d) & (e)."
The ATR's Report did not address the Fifth Count. It may be that the ATR considered that the plaintiff no longer was proceeding on the Fifth Count and the reference that " Counts Two and Four were withdrawn" is a combination of an oral withdrawal by the plaintiff at trial not supported by a written withdrawal and a typographical error in the ATR's Report. The court requests clarification from the ATR.
Pursuant to P.B. § 19-17 and Gen. Stat. § 52-434(a)(4) the court hereby declines to accept the ATR Report dated November 5, 2015 (#133.00). This court remands this case to the present ATR, Anthony J. Medicio, Esq., with instructions to consider the evidence, make findings of facts on the issues presented and make recommendations thereto. The court orders that ATR, Anthony J. Medicio, Esq., redraft his ATR report to conform to P.B. § 19-8 and Gen. Stat. § 52-434(a)(4) no later than 120 days from today's date. Practice Book § 19-4. Amica Mutual Insurance Company v. Muldowney, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 11-6008823 S (October 8, 2014, Adams, J.T.R.) .
The issue of attorney fees, if any, will be heard by this court at a later date after the new ATR Report is filed.