Opinion
FSTCV126015733S
02-27-2017
Frank Bongiorno v. Joseph Capone
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR ACCEPTANCE OF ATR REPORT DATED DECEMBER 6, 2016 (#157.00)
Hon. Kevin Tierney, Judge Trial Referee.
The court has reviewed the nine-page Second Revised Attorney Trial Referee (ATR) Report dated December 6, 2016 signed by Anthony J. Medico, Esq., as ATR (#157.00).
(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 fact finder." 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).
This court did not accept the first eight-page Report filed by ATR Anthony J. Medico, Esq. dated November 5, 2015 titled Memorandum of Decision (#133.00). This court's four-page February 22, 2016 Memorandum of Decision (#134.02) addressed that first ATR Report (#133.00).
Anthony J. Medico, Esq. as ATR filed an eight-page Revised Attorney Trial Referee (ATR) Report dated May 26, 2016 (#149.00). This court issued a Memorandum of Decision on Motion for Acceptance of ATR Report dated May 26, 2016 (#149.00) by an August 3, 2016 six-page Memorandum of Decision (#149.02). In that August 3, 2016 Memorandum of Decision this court stated: " The court finds that the ATR has adequately addressed the issues set forth in this court's February 22, 2016 Memorandum of Decision (#134.02)" (#149.02, page 4). This court rejected the Second ATR Report of May 26, 2016 as to the issue of interest and standard of proof for the statutory theft count. As to that Second ATR Report, the court entered the following orders: " Pursuant to P.B. § 19-17 and Gen. Stat. § 52-434(a)(4) the court hereby declines to accept the Revised ATR Report dated May 26, 2016 (#149.00). This court remands this case to the present ATR, Anthony J. Medico, Esq., with instructions to consider the evidence, hold additional hearings, if necessary, make findings of fact on the interest issues presented, and make recommendations thereto in regards only as to issues of interest and the standard of proof for statutory theft." (#149.02, pages 5-6.) In that August 3, 2016 Memorandum of Decision the court ordered that " ATR, Anthony J. Medico, Esq., hold whatever hearings he deems necessary." The court specifically found as to the subject of interest as follows: " The parties are entitled to a hearing on the subject of interest. Moore v. Moore, 173 Conn. 120, 122-23, 376 A.2d 1085 (1977); State v. Marshall, 11 Conn.App. 632, 634, 528 A.2d 1163 (1987); Izard v. Izard, 88 Conn.App. 506, 510, 869 A.2d 1278 (2005). The defendant thus was not offered an opportunity to present evidence on the propriety of that award. Sears Roebuck and Company v. Board of Tax Review, supra, 241 Conn. 766" (#149.02, page 5).
On October 20, 2016 the ATR, Anthony J. Medico, Esq., conducted a conference in which the ATR, plaintiff's counsel and defendant's counsel participated. At that conference the ATR offered the defendant the opportunity to schedule a further hearing limited to the issue of the propriety of the award of interest. The December 6, 2016 ATR report states: " Both parties conferred on the issue and affirmed that the defendant would NOT request a further hearing on the issue. Further, both parties agreed that although being afforded the opportunity to have a further hearing, including the submission of further evidence on the issue, no further evidence or facts were required to be submitted and they agreed that the ATR should prepare a decision based solely upon all the evidence previously submitted at the hearing. Therefore, the defendant was afforded the opportunity to present further evidence on this issue and same was declined by the defendant." (#157.00, page 9.)
The defendant has objected to this court's acceptance of the December 6, 2016 Second Revised ATR Report (#157.00) on the basis that the ATR failed to issue the report within the required 120-day period (#156.00, #159.00). " An attorney trial referee or special assignment probate judge to whom a case has been referred shall file a report with the clerk of the court, with sufficient copies for all counsel, within one hundred and twenty days of the completion of the trial before such referee or special assignment probate judge." P.B. § 19-4. Court cases have established that there is no right of a waiver or an extension of this one hundred and twenty-day period for ATR Reports as is customarily granted to Superior Court Judges, Senior Judges, and Judge Trial Referees. Schiappa v. Ferrero, 61 Conn.App. 876, 881, 767 A.2d 785 (2001) Furthermore, the trial court lacks the power to grant and approve a report of an Attorney Trial Referee that does not comply with the 120-day provision. Gen. Stat. § 51-183b does not apply to ATR reports. Id., 881.
The one hundred and twenty-day period of time for rendering a decision by a Superior Court Judge, Senior Judge, or Judge Trial Referee is one hundred twenty days from the completion of the last evidence, the last hearing date, the last oral argument, or the last brief filed whichever period is latest. Bramwell v. Department of Correction, 82 Conn.App. 483, 488, 844 A.2d 957 (2004). Case law has permitted the ATR's report in accordance with P.B. § 19-4, one hundred and twenty days after the last of the above referenced events. " From the completion of trial" is the commencement date of the 120 days. P.B. § 19-4. Gen. Stat. § 51-183b uses similar commencement language: " From the completion date of the trial." Both phrases in P.B. § 19-4 and Gen. Stat. § 51-183b are to be interpreted in the same consistent manner. Abele Tractor and Equipment Company, Inc. v. Sono Stone and Gravel, Inc., 151 Conn.App. 486, 499, 95 A.3d 1184 (2014). The completion date of trial for purposes of the 120-day time limit of Gen. Stat. § 51-183b begins to run from the date that the parties file post-trial briefs or other material that the court finds necessary for a well-reasoned decision. Frank v. Streeter, 192 Conn. 601, 604-05, 472 A.2d 1281 (1984) On August 3, 2016 this court submitted the matter back to the ATR. The defendant claims that one hundred and twenty days from August 3, 2016 elapsed on December 6, 2016. This court agrees that the one hundred and twentieth day counting from the filing of the Memorandum of Decision on August 3, 2016 is Thursday, December 1, 2016. This court further agrees that the ATR did not file his report until December 6, 2016.
The plaintiff argues that the one hundred and twenty days should run from the October 20, 2016 conference because until that conference concluded the ATR did not know whether the defendant was going to claim further hearings and submit further evidence on the subject of interestas ordered by this court.
This court finds that the ATR did not know that all the evidence had been submitted to the ATR until the conclusion of the October 20, 2016 conference. The court therefore, concludes that the ATR's one hundred and twenty days began on October 20, 2016 in accordance with P.B. § 19-4. The court therefore finds that the December 6, 2016 Second Revised ATR Report (#157.00) was timely filed by the ATR. This court rejects the defendant's December 2, 2016 Objection and the defendant's December 23, 2016 Objection on those grounds (#156.00, #159.00).
In the defendant's December 23, 2016 Objection to Acceptance of Referee's Report (#159.00), the defendant further argues that the objections that he made on December 2, 2016, June 14, 2016, and November 23, 2015 with respect to the various ATR Reports are claimed by the defendant as being applicable to this December 6, 2016 ATR Report (#157.00). Except for the failure to comply with the 120-day limit, the defendant's December 23, 2016 Objection is silent as to the underlying reasons. The defendant concludes his December 23, 2016 Objection by stating: " Defendant respectfully prays that this Court will deny the December 6, 2016 Report and order a new trial be commenced hereafter." (#159.00, page 2.) The court finds that some of the defendant's Objections are repetitive.
The defendant filed two pleadings in opposition to the ATR's first Report dated November 5, 2015 (#133.00). The first was a Motion to Dismiss dated November 25, 2015 (#140.00) alleging lack of subject matter jurisdiction that claimed two reasons why the court should dismiss the ATR's Report and the plaintiff, Frank Bongiorno's, claims. A Memorandum of Law in support of the Motion to Dismiss (#141.00) and an Objection to Motion to Dismiss were filed (#145.00). At oral argument on the Motion to Dismiss the defendant abandoned all the claims in his Motion to Dismiss except the claim that the court lacked subject matter jurisdiction as to the award on the $17,000 checking account withdrawal. This court found that the plaintiff, Frank Bongiorno, had a colorable claim of direct injury caused by the defendant's withdrawal of $17,000 from the AAA Advantage Carting and Demolition, LLC (AAA) checking account. The court denied the defendant's November 25, 2015 Motion to Dismiss (#140.00) in a five-page February 22, 2016 Memorandum of Decision (#140.02). This court will not revisit the issues raised in that Motion to Dismiss.
The second pleading filed by the defendant was a November 23, 2015 Objection to Acceptance of the First ATR Report (#136.00), a four-page pleading supported by a fourteen-page Memorandum of Law (#137.00) and two Exhibits totaling 110 pages (#s 138.00 and 139.00). The defendant's November 23, 2015 Objection to Acceptance of Attorney Trial Referee Report (the first ATR Report) (#136.00) sets forth three reasons: (1) the form of the ATR Report fails to comply with P.B. § 19-8; (2) the conclusion of facts regarding the withdrawal of $17,000 from the AAA checking account were not properly reached by the ATR; and (3) two legal conclusions of the ATR were improperly reached.; the finding of a breach of contract and the findings on the counts of conversion and civil theft as to $17,000 withdrawal.
This court in its February 22, 2016 Memorandum of Decision (#134.02) on the First ATR Report found that the ATR's Report did not meet the format of P.B. § 19-8. The court found that the Second ATR Report met the form requirements of P.B. § 19-8. The court finds that the December 6, 2016 ATR Report (#151.00) now before this court meets the requirements of P.B. § 19-8. The court overrules the defendant's first objection dated November 23, 2015 (#136.00), the defendant's format objection in his June 14, 2016 Objection (#151.00) and the same objection contained in the defendant's Objection dated December 23, 2016 (#159.00). The court notes that the repetitive claim of the same Objection in three separate pleadings.
The court has carefully read the nine-page ATR Report dated December 6, 2016 now before this court (#157.00). The Report is thorough, complete and well-reasoned. The ATR's conclusions are supported by the facts found and the law. The ATR found that the defendant personally went to the bank and withdrew the $17,000 from the AAA checking account on August 29, 2012, the day after the Binding Term Sheet was executed on August 28, 2012. The Binding Term Sheet and Settlement Agreement were entered into by the plaintiff and defendant and they passed title to the AAA business assets from the defendant to the plaintiff. The ATR found that the defendant presented no evidence he had ever made any personal withdrawals from the AAA checking account prior to August 29, 2012. Defendant offered no credible testimony that the withdrawal or any portion thereof of the $17,000 was at the written instructions of the accountant for AAA. The defendant testified that $8,000 of the $17,000 was for taxes and $9,000 was for back wages due the defendant. The defendant testified that those two withdrawals were based upon the advice of the accountant. The ATR found that testimony not credible. The ATR further found that the fair market value of AAA was set forth within the Settlement Agreement and Binding Term Sheet. That fair market value number included the balance that was currently then in the AAA checking account. The $17,000 was in the AAA checking account when the Binding Term Sheet was executed. The ATR further found that the defendant never advised the plaintiff that he intended to make the $17,000 withdrawal at any time during the party's negotiations. The defendant's testimony was inconsistent with the QuickBooks distribution list offered in evidence. The defendant offered no evidence that the $17,000 withdrawal, either broken down into the $9,000 or $8,000, was ever reflected in the AAA's accounting records. The ATR found that the plaintiff had established that there was no legitimate basis that existed for the defendant's withdrawal of $17,000 one day after the Binding Term Sheet was executed. This court finds that there was sufficient credible evidence before the ATR to reach those factual and legal conclusions and for the ATR to make a finding that the withdrawal of the $17,000 was intentional by the defendant. The ATR reasonably found that the $17,000 withdrawal was intended by the defendant to deprive the plaintiff of the $17,000. The ATR had sufficient facts before him to reach his conclusions and the ATR finding for the plaintiff on the Count of civil theft. The court overrules the defendant's second reason in the November 23, 2015 Objection (#136.00).
The third reason in the November 23, 2015 Defendant's Objection was that there was insufficient evidence to support the findings in favor of the plaintiff on the counts of conversion and civil theft as set forth in the third and fourth cause of action. The above findings in the previous paragraphs support the ATR's legal and factual conclusions in that regard.
The last portion of the third reason in the defendant's Objection is that there were insufficient facts to justify the finding of issues on the First Count of Breach of Contract. The ATR had before it both the Settlement Agreement and the Binding Term Sheet. Both were found to be contracts that bound the parties. The ATR set forth in its ATR Report sufficient facts to support the ATR's legal conclusion that a breach of contract had been proven by the defendant's evidence for the August 29, 2012 withdrawal by the defendant from the AAA business checking account.
The court overrules all the Objections set forth in the defendant's November 23, 2015 Objection (#136.00).
To the Second ATR's Report the defendant filed an Objection dated June 14, 2016 (#151.00). This court has compared this Objection with the previous Objection (#136.00) and finds that the reasons set forth in both Objections are identical. There is no need for this court to restate the conclusions as to why it overruled the previous Objections dated November 23, 2015. The court hereby rejects all three defendant's Objections dated June 14, 2016 (#151.00).
The third Objection is dated by the defendant December 2, 2016 (#156.00). The sole objection contained within that pleading is that the ATR's Report violated the one hundred and twenty-day rule. This court has already found that the one hundred and twenty days did not run as of December 6, 2016 because the October 20, 2016 conference on the subject on interest was the commencing day for the running of the one hundred and twenty-day period of time under P.B. § 19-4. The reasons stated in the defendant's fourth objection dated December 23, 2016 (#159.00) have already been ruled on by this court in this Memorandum of Decision.
The court hereby approves and accepts the Second Revised Findings of Fact and ATR Report Pursuant to the Decision of the Hon. Kevin Tierney (JTR) dated August 3, 2016, which ATR Report is dated December 6, 2016 (#157.00). The December 8, 2012 Revised Complaint (#102.00) that was before the ATR contained five counts. Counts Two and Five were withdrawn. Counts One, Three and Four were considered by the ATR; breach of contract, conversion and civil theft. The court finds that the plaintiff's allegations of paragraph 7 of the First Count sounding in Breach of Contract have been properly found by the ATR as to the $17,000 withdrawal. The plaintiff is awarded the sum of $17,000 together with 10.0% interest therein pursuant to Gen. Stat. § 37-3a(a) from August 29, 2012 to the date hereof. The total interest from August 29, 2012 to the date hereof is $7,659.04 (rounded off to $7,659.00). Per diem interest on the $17,000 principal will run at the rate of 10.0% per annum postjudgment at $4.72 per diem after February 27, 2017.
The court finds that the plaintiff's allegation as to paragraph 8.a., the two cellular phone numbers, have been properly found by the ATR in the defendant's favor. Therefore, the court orders that the defendant is entitled to keep cellular phone numbers 203-223-2030 and 203-223-2134 for the defendant's own uses and purposes.
The court finds that the ATR rightly found that the issues on civil theft in the Fourth Count have been proven in accordance with Gen. Stat. § 52-564. " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." The court further finds that the amount of the monies subject to this statutory theft claim is $17,000. Pursuant to the provisions of Gen. Stat. § 52-564 that sum is trebled. The plaintiff is awarded damages as against the defendant in the amount of $51,000 in the Fourth Count. The court finds that of the $51,000, $17,000 is duplicative of the damage award in the First Count sounding in Breach of Contract and therefore the net damages sustained by the plaintiff is $34,000 in the Fourth Count.
The monetary damage award to the plaintiff, Frank Bongiorno, as against the defendant, Joseph Capone, is as follows: $17,000 on the First Count, $34,000 on the Fourth Count and 10.0% interest from August 29, 2012 to February 27, 2017 on the $17,000 First Count damage award. The interest on said $17,000 at 10.0% per annum through August 29, 2012 to and including February 27, 2017 is $7,659.00. The total damages are $58,659.00, exclusive of postjudgment interest and exclusive of attorney fees, if any.
The Third Count sounding in conversion is found to be moot since damages for conversion and civil theft cannot be separately awarded as to the same sum of money. The issues on the Third Count are found for the defendant.
This court has found that the defendant has violated the Binding Term Sheet as to the August 28, 2012 $17,000 withdrawal. The court and the ATR found for the defendant on the two cell phone numbers. In its Memorandum of Decision on the Second ATR Report dated August 3, 2016 (#149.02), this court stated: " In his November 5, 2015 Report, the ATR stated: " Plaintiff has requested that the issue of attorneys fees be reserved for a hearing by a judge of a Superior Court after judgment on the substantive issues. This is so ordered, along with the determination of costs. (#133.00, page 7) This finding is contained in the May 26, 2016 ATR's Revised Report (#149.00, page 7)." This court further stated that: " The issue of attorney fees, if any, will be heard by this court at a later date after the new ATR Report is filed." (#149.02, page 6). The court reconfirms both orders as to attorney fees. The party claiming the attorneys fees must be aware of the requirements of P.B. § 11-21 and the possibility of timely filing a separate motion for attorneys fees under certain circumstances. Traystman, Coric and Keramidas P.C. v. Daigle, 282 Conn. 418, 430-31, 922 A.2d 1056 (2007). See also Ajluni v. Chainan, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 14-6021501 S (November 25, 2016, Povodator, J.) [63 Conn.L.Rptr. 442, ].