2011 Ct. Sup. 22116
No. FST CV06-5001775SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
October 20, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Corrected[*] Memorandum of Decision on Defendants’ Challenge to Jurisdiction

[*] This Corrected Memorandum of Decision replaces the court’s Memorandum of Decision dated October 17, 2011 which was, accidentally, a print of an earlier draft before typographical errors had been corrected. In this corrected memorandum several typographical errors have been identified and corrected, and several missing words (which do not change the meaning) have been supplied.


Procedural/Factual Background
This is a lawsuit by a supplier/servicer of heavy construction equipment and machinery against a customer. The plaintiff claims breach of contract by nonpayment. The defendants include the limited liability company customer, Sono Stone Gravel (“Sono”) and its individual sole member, Donald MacIntyre, alleged to be a personal guarantor of Sono’s obligations to the plaintiff Abele Tractor Equipment, Inc. (“ATE”).

The case was referred on consent to trial before an Attorney Trial Referee (“ATR”), Kenneth B. Povodator, Esq., pursuant to Practice Book § 19-2A. The ATR heard evidence on February 23, February, 24, May 28, and June 17, 2010. Post-hearing briefs were filed by each party on October 8, 2010. There was a supplemental/corrective filing of a brief by the plaintiff on December 30, 2010. On April 28, 2011 the ATR filed his ten-page Report of Attorney Trial Referee (No. 142) incorporating forty-four specific findings of fact and six “ultimate facts/conclusions.” The ATR Report recommends judgment in favor of the plaintiff against both defendants in the amount of $26,624.48, plus interest at the rate of 1.33% per month accruing on outstanding charges from December 15, 2000 or 10 days after the date of subsequent invoices. He also recommends an award of attorneys fees to the plaintiff “in an amount to be determined.” On May 17, 2011 the Motion for Acceptance of Report and Judgment in Accordance with the Report (No. 143) was docketed CT Page 22117 by the Clerk. On May 17, 2011 the defendants filed a Motion for Extension of Time to File Objections to ATR’s Report (No. 144) asking for a continuance until 30 days from the date the trial transcripts (ordered by defendants’ counsel on 5/16/11) are delivered to and received by counsel for the defendants “to determine the extent and number of objections the defendants will file to the ATR Report.” That motion has not been ruled on. When the parties appeared at short calendar on September 26, 2011 the trial transcripts were still not available. On May 19, 2011 defendants filed Defendants’ Preliminary Objections to Acceptance of ATR Report Dated April 28, 2011 (No. 146) raising three preliminary claims of law in opposition to the acceptance of the ATR Report.

The Motion for Acceptance of Report and Judgment in Accordance with the Report as well as the Defendant’s Preliminary Objections to Acceptance of ATR Report Dated April 28, 2011 came up before the undersigned on the law arguable short calendar of September 26, 2011. Counsel for both parties agreed with the court that, before proceeding further with the case, the court must first address the preliminary legal objection No. 1 raised by defendants, which challenges this court’s jurisdiction to consider acceptance of the ATR Report. Objection No. 1 is stated by the defendants as follows:

Contrary to Practice Book § 19-4, the [ATR] Report was filed more than 120 days after the completion of the trial. The multi-day trial completed on June 17, 2010. The parties filed simultaneous post-trial briefs on October 8 [2010]. No reply briefs were filed. On December 30, 2010, the Plaintiff re-filed its October 8 brief, having attached a case cited in the brief, but raising no new arguments. The Report should have been filed by Monday, February 17, 2011, which is 121 days after October 8, 2010. As a result, the Court is without jurisdiction to accept the Report.

In this memorandum of decision the court will decide only the foregoing claim of lack of jurisdiction, all other issues relating to acceptance or rejection of the ATR report having been deferred.[1]

Practice Book § 19-4 provides: An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court, CT Page 22118 with sufficient copies for all counsel, within one hundred and twenty days of the completion of the trial before such referee.” Because § 19-4 (formerly Section 430A) of the Practice Book contains no waiver provision, the 120-day limit for filing an ATR Report cannot be waived by the parties. Ficara v. O’Connor, 45 Conn.App. 626, 630 (1997). The issue thus presented is whether or not the ATR in this case issued his report within 120 days “of the completion of the trial before such referee.” In order to decide that issue, a review of the post-trial factual record[2] is appropriate.

The ATR convened a post-trial hearing with counsel on October 27, 2010. The transcript of that hearing has been filed. (“TR ___.”) The purpose of the hearing was not the “thinly veiled attempt to circumvent the 120 day deadline” as found by Judge Lewis in Bemus v. Community Medical Transport, Inc., Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV97-0158161S (August 25, 2000, Lewis, J.) [28 Conn. L. Rptr. 1]. On October 27, 2010 only seventeen days had passed since the trial briefs had been filed. The very legitimate purpose of the hearing was for the ATR to put on the record a possible conflict of interest due to a federal lawsuit that had recently been filed by Atty. Sargent, counsel for the plaintiff in this case, on behalf of another client against an official of the City of Stamford. (The ATR, Kenneth Povodator is and was then an Assistant Corporation Counsel of the City of Stamford, who would have at least tangential involvement in the federal lawsuit.). There was a full disclosure of the federal lawsuit and the ATR’s potential involvement therein (TR1-6). Atty. Ross, who had been made aware of the details of the federal action by Atty. Sargent, waived on behalf of the defendants any actual or perceived conflict of interest and agreed that the ATR could proceed to decide the case. (TR 12.) Atty. Sargent expressed the opinion that he personally had no objection to the ATR staying on the case (TR 7) but asked for and was granted a brief period to consult with his client, the plaintiff herein, to make sure that the client had no objection. He thereafter wrote to the ATR on November 8, 2010 confirming that his client Abele Tractor Equipment, Inc. “does not see there being any conflict of interest at all” and that “he [Rod Abele as president of the plaintiff corporation] knowingly waives any right to challenge your continued service as the Attorney trial referee in this matter.” The letter is on file. (No. 137.)

After discussing the federal lawsuit and any possible conflict of interest the ATR raised the issue “as to when the clock starts running on my decision in this case.” He said “I am prepared to use CT Page 22119 the — filing date of the briefs [October 8, 2010] as the clock period, which is the normal presumptive period . . .” (TR 9.) Later in the dialogue the ATR explained his policy that “. . . I don’t start doing any decision work until I have everything in because I — the pieces aren’t all there and I could start off on the wrong track if I haven’t have everything in front of me . . . I wait until I have everything before I start doing anything . . . I thought I was going to be taking the file home today because I wasn’t — again, not seeing anything in the nature of reply briefs.” (TR 16, 17.) But, both counsel had advised the ATR that, they had “agreed to have reply briefs due a week late and in the interim when reply briefs were due this issue arose and I believe we reached some sort of an understanding that we weren’t going to file reply briefs until we had an opportunity to speak to you, so there may still be reply briefs due, which I think they — that would be the trigger date.” (TR 9, 10.) Although he stated that he had been “. . . up-in-the-air [about the] status of the reply briefs,” the ATR, after discussion with counsel, set a deadline of November 12, 2010 for the filing of reply briefs. (TR 15), with the understanding that if there was a problem with the November 12 date, the ATR would be receptive to approving an agreed extension. (TR 15, 16.) After the briefing schedule for reply briefs had been set, the following dialogue occurred:

ATTY ROSS: I was just going to add that I know that Atty. Sargent and I had some discussions about whether or not Connecticut law applies versus New York law in certain instances. I think we’re going to reserve and have that discussion amongst ourselves and if we reach a resolution on that — so I think it may make sense for the court not to waste its time struggling with that issue to the extent that it has to be struggled with.
ATTORNEY TRIAL REFEREE: Are you — well, are you referring to an issue that will be resolved prior to my rendering a decision?
ATTY ROSS: Yes, we’ll either agree which law controls or will disagree, and you’ll know that by the time the reply briefs-(TR 16.)

Thereafter, the deadline for submitting the reply briefs was extended by agreement of counsel due to scheduling conflicts involving medical issues in one attorney’s family. This agreement is referenced in an email of November 29, 2010 from Atty. Sargent to Atty. Ross attached to the plaintiff’s brief of September 20, 2011 (No. 148). The court has not CT Page 22120 been advised on the agreed extended deadline for filing reply briefs, nor is that date mentioned in the email. Nor has the court been advised whether or not the ATR was advised of the extended agreed deadline for reply briefs. But, in that same email of November 29, 2010, Atty. Sargent stated: “I will agree to forego the reply briefs [if] you will also agree. My only caveat is that I think I may have submitted my post-trial brief without attached the exhibit that contained the NY case law. May I resubmit the brief with the Exhibit A attached.” Atty. Ross responded by email of November 30, 2011 asking Atty. Sargent to “send me the caselaw/exhibit you want to submit.” Atty. Sargent responded on December 15, 2010: “These are the out of state cases that I meant to attach to the post trial brief for ease of reference. They are the exact same cases that were cited last February for the exact same arguments . . . Will you object to me asking that they be attached to my post trial brief?” Atty. Ross responded the same day, “No objection. Please copy me on whatever you send to the court.” The ATR was obviously made aware at some point that the parties had agreed to forgo reply briefs as he stated in his Report at page 1 “. . . and the parties subsequently waived reply briefs.” The court has not been advised when or how the ATR was made aware of that waiver. On December 30, 2010 the plaintiff filed another copy of his October 8 post-trial brief, but this time with attachments consisting of photocopies of three opinions of the New York Court of Appeals and four opinions of the New York Supreme Court (the trial level court of New York), all cited and referred to in the body of the brief as originally filed under the arguments that the New York parol evidence rule should be applied to bar statements made by defendant MacIntyre regarding certain claimed oral agreements between the parties. (Counsel agree that the written agreement between the parties contains a choice of law provision providing that New York law governs the written agreement between the parties.) The Judicial Branch form entitled “Docket Legend Codes Attorney Trial Referee Program” (No. 143) contains an entry “12/30/2010 TRI COMP Trial Completed-Decision Reserved JD44 141.” The JTR Report was filed on April 28, 2011, which was the 119th day after December 30, 2010.

The term “completion of the trial” as used in Practice Book § 19-4 is not limited just to the final date that evidence is taken. Conn. Gen Stat. § 51-183b which sets the 120-day limit for Superior Court Judges and Judge Trial Referees to decide cases uses virtually the same deadline: “The completion date of the trial.” It is well established under that statute that the completion date, when there are post-trial briefs, is not the conclusion of testimony, but is the date of the filing of the final brief. Frank v. Streeter, 192 Conn. 601 (1984). In Streeter the Supreme Court affirmed a ruling that “the completion date” includes the filing of briefs, saying: CT Page 22121

In determining that “the completion date” includes the filing of briefs, the trial court held that briefing of the legal issues was a component of the gathering of materials necessary to a well-reasoned decision. In related contexts, “completion” has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision. See Bankamerica Corporation v. Board of Governors, 596 F.2d 1368 (9th Cir. 1999); Lloyd v. Illinois Regional Transportation Authority, 548 F.Sup. 575, 590 (N.D. Ill. 1982). We agree that the trial in this case was not complete until February 2, 1982 [the date of filing of defendant’s trial brief] and that the decision rendered was therefore timely. 192 Conn. at 604.

The court noted that its decision was grounded on solid policy of judicial administration:

When litigation raises difficult questions of law, a trial court is well-advised to request briefs and to defer its written decision until such time as the court has had the opportunity to deliberate and to reach a thoughtful, reasoned conclusion. National Conference of State Judges, The State Trial Judge’s Book, 194 (1969). Delay in the trial courts is not remedied by affording disappointed litigants automatic access to new trials whenever the just resolution of their cases requires time for study and reflection. Id. 605.

See also, Northeast Savings v. Scherban, 47 Conn.App. 225, 231 (1997) (Trial not concluded until supplemental briefs had been filed following a reopening of the trial to allow additional evidence mistakenly not presented at trial by the plaintiff.)

The issue thus becomes whether or not the December 30, 2010 re-filing of plaintiff’s October 8, 2010 trial brief with the seven copies of New York judicial decisions on the parol evidence rule, which copies of decisions had been inadvertently omitted when the brief was initially filed, marked the “completion of the trial” for purposes of CT Page 22122 Practice Book § 19-4. Any earlier completion date would mean that the JTR Report was filed too late. The court concludes that the December 30, 2010 re-filing of the brief was the completion date of the trial. As originally filed on October 8, 2010, the plaintiff’s trial brief was incomplete. At the point in that brief where the parol evidence argument is made (Section 1a thereof — the pages are not numbered) and the seven New York cases are cited, the brief says in parentheses “The New York cases are attached as Exhibit A,” but they were not attached.[3] The December 30 filing completed the October 8 filing. Parol evidence was argued as a major issue in the case. The December 30 filing gave the court ready access, if it so desired, to a detailed review of the law of parol evidence in the jurisdiction stipulated in the choice of law provision of the parties’ agreement. Getting those copies of those cases was part of the gathering of materials necessary to a well-reasoned decision, as they were one of the elements directly or indirectly to be considered in rendering the decision.

Defendants cite Ficara v. O’Connor, supra, in arguing that the December 30 re-filing of plaintiff’s brief should be disregarded. Aside from the fact of the unfairness of this argument from counsel who had asked to see the materials to be attached to the brief before they were filed and then specifically stated he had no objection to their being attached to the refiled brief, Ficara can be distinguished. In Ficara the defendant had forwarded to the attorney trial referee, after briefs had been filed, copies of a Magistrate’s recommendation in a District Court case and a copy of a federal District Court opinion. The defendant then moved to vacate the opinion in that it had not been filed within 120 days of the filing of post trial briefs. The trial court held that, even though Practice Book § 430A [now § 19-4] had no waiver provision, waiver was appropriate in that case because it was the defendant himself who had submitte unsolicited materials for the consideration of the court and then moved to have the report vacated because it was unfavorable. On a strict statutory construction of the waiver point, the Appellate Court concluded that there can be no waiver of the attorney trial referee 120-day time limit, contrasting Practice Book § 430A to Conn. Gen. Stat. § 51-183b (applicable to decisions of judges and judge trial referees) which specifically provides that “The parties may waive the provisions of this section.” There was no argument that the materials sent to the ATR marked the “close of trial” and no “close of trial” analysis. On the record before the court, it was strictly a waiver case, and plaintiff in this case is not claiming waiver. Furthermore, the materials sent to ATR Povodator were not exactly “unsolicited.” At the October 27, 2010 it was attorney Ross who CT Page 22123 assured the ATR that there was an issue whether or not New York law applied in certain instances, and that the parties had that issue under discussion and the court should therefore “not waste its time on struggling with that issue . . . we’ll either agree which law controls or will disagree and you’ll know that by the time of the reply briefs.” (TR. 10/27/10 16). The court then agreed to allow reply briefs and set a deadline for filing them. The parties thereafter decided on their own not to file reply briefs but agreed that the plaintiff could file copies of seven New York opinions. When those New York opinions came in on December 30, 2010, the ATR had every reason to believe that they related to Atty. Ross’ assurance on October 27 that “you’ll know [about the New York law issue].” The Decision of the Appellate Court i Ippolito v. Ippolito, 28 Conn.App. 745 (1992), in a similar situation is instructive. The state trial referee who tried that dissolution of marriage case had ordered simultaneous post-trial briefs by a certain date. There was then a discussion of possible reply briefs. The referee expressed his general position of not allowing reply briefs in family matters, but then said: “I will say this, if you request and you notify counsel that you request, time to file a reply brief, I would grant both sides an opportunity to file reply briefs.”Id. 748, n. 1. After each side had filed its post-trial brief, the defendant filed a reply brief, and the plaintiff did not. There is nothing in the record about any request for permission to file a reply brief having been filed, or any permission having been given. The referee decided the case within 120 days of the filing of the defendant’s reply brief, but more than 120 days from the filing of the last post-trial brief. The plaintiff moved to vacate the ruling. The Appellate Court affirmed the trial court in holding that the “conclusion of trial” was the date the defendant’s reply brief was filed and therefore the decision of the case was timely. The reasons for that holding are particularly applicable to this case as well:

The state trial referee did give inconsistent statements as to his position on the filing of reply briefs. The fact that the state trial referee did not return the reply brief or notify the parties that he would not accept the reply brief indicates that he considered it part of the posttrial briefing process . . . the plaintiff also did not file an objection to or motion to strike the reply brief before the decision was rendered. These facts establish that the completion date was January 29 [the date defendant filed his reply brief] and that the decision rendered on May 29 did not CT Page 22124 violate § 51-183b. Id. at 750.

Likewise, in this case, the ATR did not reject the plaintiff’s re-filing of its trial brief with the copies of cases annexed. The defendant, who had consented to that re-filing, did not move to strike the December 30 filing before the ATR issued his Report. The “conclusion of trial” therefore occurred on December 30, 2010 and plaintiff’s objection No. 1 to the motion to accept the Attorney Trial Referee’s Report of April 28, 2011 on the ground that it was filed beyond the 120-day time limit of Practice Book § 19-4 is overruled.

[1] “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” Schaghicoke Tribal Nation v. Harrison, 264 Conn. 829, 839, n. 6 (2003). That rule is applicable to this case even though the defendants have not specifically challenged “subject matter” jurisdiction, because an ATR’s failure to file his or her report within 120 days from the completion of the trial deprives the court of jurisdiction to accept or reject the report. “Thus, we conclude that the trial court lacked the power to accept an attorney referee’s report that did not comply with § 430A [now § 19-4].” Ficara v. O’Connor, 45 Conn.App. 626, 630 (1997).
[2] The post-trial record includes the filing of simultaneous briefs by both parties on October 8, 2010 (Nos. 135 and 136); the transcript of a post-trial hearing before the ATR on October 27, 2010, filed on September 21, 2011 (No. 149); a letter of November 8, 2010 from plaintiff’s attorney Joseph Sargent to ATR Povotator, with a copy to Atty. Ross representing the defendants (No. 137); copies of a string or series of five emails between counsel between October 8, 2010 and December 15, 2010, attached as an exhibit to Plaintiff’s Reply to Defendant’s Preliminary Objections to Exceptions [Acceptance] of ATR Report, filed on September 20, 2011 (No. 148); and Plaintiff’s Post-Trial Brief with exhibits consisting of copies of seven reported decisions of the courts of New York, as filed on December 30, 2010 (No. 138). An Attorney Trial Referee Program Docket Legend filed by the Clerk of December 30, 2010 under the title “Trial Completed, Decision Reserved” (Nos. 139, 141); and a copy of the ATR Report filed on April 28, 2011 (No. 142).
[3] Practice Book § 5-9 requires that “An opinion which is not officially published may be cited before a judicial authority only if the person making reference to it provides the judicial authority and CT Page 22125 opposing parties with copies of the opinion.” In practice the providing of such copies is often expanded to include opinions — particularly trial level opinions — of other jurisdictions.

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