17 Conn. App. 71 | Conn. App. Ct. | 1988
Lead Opinion
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.
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.
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.
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,
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,
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,
On May 28,1987, the plaintiff filed an “objection to state trial referee reference” of the case without its consent, and requested that the matter be restored to the trial docket for hearing before a judge. The objection was not acted on until August 6,1987, when it was implicitly overruled on the rendering of judgment in accordance with the referee’s reports. The first question we must resolve is whether the plaintiff’s “objection” of May 28, 1987, was an objection to the acceptance of the referee’s report within the terms of Practice Book § 440. If it was, the objection was timely, having been made within two weeks of the filing of the referee’s supplemental report. The second objection of the plaintiff, dated June 15,1987, was clearly untimely because it was not filed within two weeks of the date of the referee’s report, as mandated by Practice Book § 441. The plaintiffs second objection included substantive objections to the report, and reiterated the sole ground of its May 28,1987 objection, namely, that the report should not be accepted because the plaintiff had not consented to the reference.
The basic purpose of objecting to the acceptance of a trial referee’s report is to demonstrate that the conclusions of fact stated within it are not supported by
The second question that justice compels us to discuss is the correctness of the referee’s assessment of damages. Although we find that the objection of May 28,1987, cannot serve as a valid objection to the acceptance of the referee’s report, we conclude, nevertheless, that the trial court erred substantially when it rendered judgment in the amount of $120,682.93. Practice Book §§ 443,
The measure of damages for breach of a contract is the actual loss sustained by reason of the breach, which is the monetary value of what the promisee would have made if the contract had been performed, less the proper deductions. 22 Am. Jur. 2d, Damages § 45. The award of damages in such a case is designed to place the injured party, so far as can be done by money, in the same position in which he would have been had there been no breach. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 319, 514 A.2d 734 (1986); Loda v. H.K. Sargeant & Associates, Inc., 188 Conn. 69, 81, 82, 448 A.2d 812 (1982). “ ‘The measure of damages for breach of contract of sale [of real estate] is the difference between the contract price and the value of the property at the time of the breach of the contract. These damages represent the loss of the bargain.’ ” (Emphasis in original.) (Citations omitted.) Loda v. H.K. Sargeant & Associates, Inc., supra, 82.
It was within the referee’s purview to find, as a fact, that the contract was breached. The determination of whether a deficiency for a breach of contract exists and the valuation of the components of that deficiency are also questions of fact for the trier. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983). Here, there is no dispute that the defendant suffered a loss or deficiency, nor is there a dispute that the defendant paid mortgage interest and property taxes in the amount of $55,682.93 from the date of the breach to the date of another sale, that the agreed contract price was $370,000, that the fair market value of the property on the date of the breach was $305,000, and that the property was later sold to another pur
The ultimate question is whether the defendant has been awarded damages that exceed the amount necessary to put him in the position in which he would have been had the plaintiff not breached the contract. The parties agree that the date of the breach was April 1, 1982, and that the fair market value of the property on that date was $305,000. If the measure of damages enunciated in Loda is used, the defendant is entitled to damages of $65,000.
The defendant cannot also receive the mortgage interest and tax payments he made after April 1,1982, because the date as of which he is to be made whole is that date, the time of the breach. If the law were otherwise, the repudiating purchaser could be held liable for mortgage interest and tax payments indefinitely, depending upon when, if ever, the seller sold the property. At the same time, the seller would not be required to give the breaching purchaser a credit should he sell the real estate at a price greater than the contract price, or a credit for use of the property in the intervening years. The court, therefore, erred when it further assessed the damages due the defendant as of a time other than the date of the breach.
There is error, the judgment on the defendant’s revised counterclaim is set aside and the case is remanded with direction to render judgment for the defendant on his counterclaim in the amount of $65,000, less a credit in favor of the plaintiff in the amount of the deposit held in the escrow account, with its accrued interest.
In this opinion, Dupont, C. J., concurred.
“[Practice Book] Sec. 441. time to file objections.
“Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report
“[Practice Book] Sec. 440. objections to acceptance of report.
“A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
“If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or steno
Judgment was opened on October 5,1987, on the plaintiff’s motion for failure to receive proper notice thereof, and reinstated at that time to allow a timely appeal by the plaintiff.
General Statutes § 51-lb (a) provides: “The chief justice of the supreme court shall be the head of the judicial department and shall be responsible for its administration.”
“[Practice Book] Sec. 438. motion to correct.
“If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stat
See footnote 1, supra.
“[Practice Book] Sec. 443. function of THE COURT.
“The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted 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 for a new trial or revoke the reference and leave the case to be disposed of in court.
“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 § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”
Dissenting Opinion
dissenting. I disagree with the majority’s reaching the issue of damages. Practice Book
Relying on Practice Book § 441, both the Supreme Court and this court have consistently held that failure to file a timely objection precludes appellate review of claims of error attacking the trial court’s acceptance of a referee’s report. “A litigant cannot wholly ignore established procedures for the protection of its rights, as this [plaintiff] has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Dorsen v. Kay, 13 Conn. App. 645, 650, 538 A.2d 1080 (1988); Ross v. Renzulli, 9 Conn. App. 87, 90, 516 A.2d 149 (1986); see also Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). I find no justification for departing from this established position. Accordingly, I dissent from the majority opinion that discusses damages. I would find no error.
