3 A.3d 969
(AC 30977)Appellate Court of Connecticut
Harper, Robinson and Dupont, Js.
Syllabus
The plaintiff law firm sought to recover damages from the defendant for breach of contract in connection with the defendant’s alleged failure to pay for legal representation provided by the plaintiff in postjudgment proceedings relating to the dissolution of the defendant’s marriage. The matter was referred to an attorney fact finder, who filed a report recommending judgment for the plaintiff. Thereafter, the trial court rendered judgment in accordance with the report of the attorney fact finder, from which the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court improperly failed to render its decision within 120 days after the completion date of trial as required by statute (§ 51-183b): the provisions of § 51-183b did not apply to the trial court under the circumstances here because the case was referred to an attorney fact finder and a judge of the Superior Court did not commence trial of the case, and § 51-183b requires that a judgment be rendered within 120 days from the completion date of trial when any judge of the Superior Court or any judge trial referee who has the power to render judgment has commenced the trial of any civil cause; moreover, because the defendant was actually challenging the fact finder’s filing of his memorandum of decision more than 120 days after the completion date of the fact finder’s hearing, which was governed by a different statutory provision (§ 52-549r) and rule of practice (§ 23-56 [c]), and because he made no objections at trial to the late filing of the fact finder’s report, did not cite the correct statutory provision or rule of practice, and failed to provide any relevant legal authority
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to support his claim, his unpreserved claim, which was raised for the first time on appeal, was not reviewable to the extent that it related to any late filing of the fact finder.
2. The defendant’s claim that the fact finder made numerous improper findings of fact was not reviewable; the defendant was required to make his objections to the acceptance of the findings of fact within fourteen days after the fact finder’s memorandum of decision was filed with the court, a motion to reargue filed by the defendant, which was construed by the court as an objection to the acceptance of the findings of fact, was filed late and properly denied by the court, and the defendant’s failure to object timely to the fact finder’s findings precluded him from challenging those findings of fact on appeal.
Argued March 11, 2010
Officially released September 21, 2010
Procedural History
Action to recover damages for breach of contract for legal services, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the defendant filed a counterclaim; thereafter, the matter was referred to Kerry R. Callahan, attorney fact finder, who filed a report recommending judgment for the plaintiff; subsequently, the court, Hon. John J. Langenbach, denied the defendant’s objection to the fact finder’s report; thereafter, the court, Domnarski, J., granted the plaintiff’s motion for judgment and rendered judgment in accordance with the fact finder’s report, from which the defendant appealed to this court. Affirmed.
James J. Doody III, pro se, for the appellant (defendant).
Pamela M. Magnano, with whom was Sandi Beth Girolamo, for the appellee (plaintiff).
Opinion
DUPONT, J.
The defendant, attorney James J. Doody III, appeals from the judgment of the trial court rendered in accordance with findings of fact made by a fact finder, attorney Kerry R. Callahan, in favor of the plaintiff, O’Connell, Flaherty Attmore, LLC, and seeks
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a new trial. On appeal, the defendant claims that the court (1) failed to render a timely decision in violation of General Statutes § 51-183b and (2) erred in numerous findings of fact.[1] We affirm the judgment of the trial court.
The record reveals the following facts and procedural history relevant to our resolution of the defendant’s appeal. The defendant retained the plaintiff to represent him in postjudgment proceedings relating to his marriage dissolution action.[2] The plaintiff and the defendant
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entered into a representation agreement dated January 20, 2005. The plaintiff’s complaint, filed October 23, 2006, sought payment for legal representation of the defendant. The defendant filed his answer, special defense and counterclaim on November 16, 2006. The case was referred to Callahan in accordance with General Statutes § 52-549n and Practice Book § 23-53.[3] On January 7 and March 24, 2008, the matter was tried before Callahan. On September 24, 2008, Callahan filed his memorandum of decision with the court. On October 14, 2008, the defendant filed a motion to reargue, claiming that Callahan’s memorandum of decision was materially flawed and a gross miscarriage of justice. The motion sought a de novo hearing to readdress the
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matter. Oral argument was held on the defendant’s motion to reargue, at which time the defendant admitted that a motion to reargue is not the proper method to challenge a fact finder’s memorandum of decision. On November 19, 2008, the court treated the motion as an objection to the acceptance of the finding of the facts pursuant to Practice Book § 23-57
and denied the motion.[4] On October 22, 2008, the plaintiff then filed a motion for judgment, which the court granted on April 1, 2009. This appeal by the defendant followed.
I
The defendant’s first claim is that the trial court failed to render its decision “within 120 days after the completion date of trial, in violation of . . . § 51-183b.” We disagree.
To resolve the defendant’s claim, we begin by setting forth the relevant legal principles and the standard of review. Section 51-183b
provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have the power to continue such trial and shall render judgment not later than one
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hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” (Emphasis added.)
In this case, the matter was referred to and tried before an attorney fact finder pursuant to Practice Book § 23-52 et seq. A judge of the Superior Court did not commence or try the case; the attorney fact finder commenced and tried the case. The plaintiff filed a motion for judgment, and the court rendered judgment pursuant to Practice Book § 23-58 (a) (1)[5] after a hearing had been held on the defendant’s objections to the fact finder’s memorandum of decision. The provisions of § 51-183b do not apply to the trial court under the circumstances of this case. Se Irving v. Firehouse Associates, LLC, 95 Conn. App. 713, 718-21, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006).
The defendant’s argument juxtaposes the actions of the court with those of the fact finder. Specifically, the defendant in his brief is actually challenging the fact finder’s filing of his memorandum of decision more than 120 days after the completion date of the fact finder’s hearing and is not challenging the timeliness of the court’s judgment.[6] General Statutes § 52-549r[7] and Practice Book § 23-56 (c)[8] require that within 120 days of the completion of the fact finder’s hearing, the fact finder shall file findings of facts with the clerk of the court. The defendant made no objections at trial to the late filing of the fact finder’s report. Even if the defendant were arguing a violation of the correct statutory provisions or rules of practice, he raises this unpreserved claim for the first time on appeal.[9] “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v Montagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351
(2010). Additionally, not only did the defendant fail to cite the correct statutory provision and rule of practice, he failed to provide any relevant legal authority to support his claim. See Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010). We therefore decline to address any potential or implied claim of the defendant relating to any late filing of the fact finder.
II
The defendant’s second claim is that the court erred in numerous findings of fact.[10] We decline to address this claim. The defendant was required to make his objections to the acceptance of the findings of fact within fourteen days after the fact finder’s memorandum of decision was filed with the court. See General Statutes § 52-549s and Practice Book § 23-57.[11] The defendant’s motion to reargue, which was construed by the court as an objection to the acceptance of findings of fact pursuant to Practice Book § 23-57, was filed late and therefore properly denied by the court for that reason alone. The defendant’s failure to object timely to the fact finder’s findings precludes him from now challenging those findings of fact on appeal. The defendant’s lack of compliance with Practice Book § 23-57 precludes our review of his motion to reargue, even when treated as an objection to the fact finder’s findings. See Data-flow Technologies, LLC v. Harte Nissan, Inc., Ill Conn. App. 118, 134-35, 958 A.2d 195 (2008), citing Humiston v. Intervest Management Co., 17 Conn. App. 828, 829, 554 A.2d 296 (1989); see als Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986) Dorsen v. Kay, 13 Conn. App. 645, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 532 A.2d 593 (1987).
The judgment is affirmed.
In this opinion the other judges concurred.
We decline to review this third issue because the defendant’s brief is inadequate and devoid of any analysis as to the claim as stated by him. Furthermore, the defendant’s brief does not make it clear whether his claim relates to an impropriety or improprieties of the fact finder or of the trial court. See Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 639
(2010).
Practice Book § 23-53 provides: “The court, on its own motion, may refer to a fact finder any contract action pending in the superior court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs. Such cases may be referred to a fact finder only after the pleadings have been closed, a certificate of closed pleadings has been filed, and the time prescribed for filing a jury trial claim has expired.”
Neither party disputes that the case properly was referred to a fact finder or claims that there was no compliance with § 52-549n and Practice Book § 23-53 as to the amount in controversy or the filing of a certificate of closed pleadings or in any other respect.
The court did not consider any matters of substance raised in the defendant’s motion. In essence, the court overruled what the defendant agreed was an objection to the fact finder’s report. See Tradesource, Inc. v. Kemper Construction, Inc., 96 Conn. App. 806, 809, 904 A.2d 210
(2006). Thus, the fact finder’s report could properly be considered by the judicial authority in accordance with Practice Book § 23-58.
makes clear that a fact finder does not render judgment following his or her findings, which is the sole prerogative of the courts but allows the “judicial authority” to render judgment in accordance with the “finding of facts,” among other options pursuant to Practice Book § 23-58.
provides in relevant part that “[w]ithin one hundred twenty days of the completion of the fact-finder’s hearing the fact-finder shall file the finding of fact with the clerk of the court. . . .” (Emphasis added.) This language operates as a constraint not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it. See Tele Tech of Connecticut Corp. v Dept. of Public Utility Control, 270 Conn. 778, 790, 855 A.2d 174 (2004) (“[W]e often have recognized a distinction between subject matter jurisdiction and the proper exercise of authority to act under a particular statute. . . . Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. . . . Whereas [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . the authority to act refers to the way in which that power [to hear and to determine the controversy] must be exercised in order to comply with the terms of the statute. . . . We have maintained that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . and, [o]nce it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” [Citations omitted; internal quotation marks omitted.]).
The fact finder’s late filing did not deprive the fact finder or the court of subject matter jurisdiction. Even though subject matter jurisdiction existed, the defendant’s failure to challenge the court’s substantive authority to adjudicate the merits of the case before it because of the court’s acceptance of the fact finder’s late filing is unpreserved, and we, therefore, decline to address this claim on appeal. See Auerbach v. Auerbach, 113 Conn. App. 318, 325, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).
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