Abele Tractor & Equipment Co. v. Sono Stone & Gravel, LLC ( 2014 )

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ABELE TRACTOR AND EQUIPMENT COMPANY, INC.
v. SONO STONE AND GRAVEL, LLC, ET AL.
(AC 35118)
DiPentima, C. J., and Beach and Keller, Js.
Argued February 6—officially released July 8, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Alfred J. Jennings, Jr., judge
trial referee.)
David Eric Ross, for the appellants (defendants).
Joseph P. Sargent, for the appellee (plaintiff).
Opinion
KELLER, J. The plaintiff, Abele Tractor & Equipment
Co., Inc., brought the underlying action sounding in
breach of contract against the defendants, Sono Stone &
Gravel, LLC (Sono), and Donald R. MacIntyre. The
defendants appeal from the judgment of the trial court,
in favor of the plaintiff, rendered following the court’s
acceptance of a report filed by an attorney trial referee.1
The defendants claim that the court (1) lacked jurisdic-
tion to accept or render judgment on the report because,
in derogation of Practice Book § 19-4, the attorney trial
referee filed the report more than 120 days following
the completion of the trial; and (2) accepted the report
in error because the agreements on which the attorney
trial referee based his report were not enforceable. We
affirm the judgment of the trial court.
By way of its revised complaint, the plaintiff alleged
that, at times relevant, it was ‘‘in the business of renting
construction equipment and providing related materials
and services for construction projects.’’ The plaintiff
alleged that on or about November 28, 1998, Sono
entered into a written agreement with it whereby ‘‘Sono
agreed to purchase parts, services and equipment . . .
from [the plaintiff in] exchange for the payment of
funds,’’ and that ‘‘Sono also rented equipment from [the
plaintiff] pursuant to written rental agreements . . . .’’
The plaintiff alleged that Sono failed to pay principal
and interest owed to it pursuant to these agreements.
As of December 21, 2005, the plaintiff calculated this
amount to be $59,120.21. The plaintiff alleged that MacI-
ntyre is a principal of Sono, and that he agreed in writing
to ‘‘be personally, absolutely and unconditionally bound
for all obligations owed by Sono to [the plaintiff].’’ The
plaintiff sought damages from MacIntyre for the unpaid
obligations owed to it by Sono.
In their answer, the defendants admitted that Sono
entered into ‘‘an agreement’’ with the plaintiff, but
denied liability ‘‘to the extent claimed by the plaintiff.’’
The defendants denied that MacIntyre was liable for
moneys owed by Sono. By way of special defenses, the
defendants claimed that (1) insofar as the plaintiff sold
defective equipment to Sono, it materially breached the
agreement on which it relied; (2) because of representa-
tions made to the defendants, the plaintiff was equitably
or promissorily estopped from seeking to recover the
extent of damages that it sought; and (3) due to the
defective equipment provided by the plaintiff, the defen-
dants suffered damages and, therefore, claimed ‘‘set-
off/recoupment against any amounts claimed by the
plaintiff.’’ The plaintiff denied the allegations contained
in the special defenses.
The matter proceeded to trial before an attorney trial
referee, who filed a report in the Superior Court for
the judicial district of Stamford-Norwalk on April 28,
2011. In the report, the attorney trial referee made a
number of detailed findings of fact and concluded: (1)
that Sono had failed to pay the plaintiff $26,624.26 in
invoice charges for equipment rentals and repairs; (2)
that beginning on December 15, 2000, the plaintiff equi-
tably was entitled to interest at the rate of 1.33 percent
per month on charges outstanding as of November 3,
2000; (3) that ten days after the dates of the invoices,
the plaintiff was entitled to interest at the rate of 1.33
percent per month on unpaid invoices that were submit-
ted to Sono after November 3, 2000; (4) that the plaintiff
was entitled to attorney’s fees in an amount to be deter-
mined;2 (5) that pursuant to a guarantee MacIntyre had
executed, he was liable for all amounts that Sono owed
the plaintiff; and (6) that the defendants failed to prove
any of their special defenses.
Thereafter, the court considered a motion to accept
the report and to render judgment in accordance with
it. By written objection, the defendants claimed (1) that
the court lacked jurisdiction because, in derogation of
Practice Book § 19-4, the attorney trial referee filed the
report more than 120 days after the completion of the
trial; and (2) the attorney trial referee relied on a credit
account agreement as well as ‘‘rental lease’’ and ‘‘deliv-
ery ticket’’ agreements that were not enforceable
against the defendants.
The court considered the objection related to the
timeliness of the decision of the attorney trial referee
before taking any action with regard to the objection
related to the enforceability of the agreements on which
the attorney trial referee had relied. On September 26,
2011, the court heard argument with regard to the
alleged violation of Practice Book § 19-4. On October
20, 2011, the court issued a thorough memorandum of
decision in which it overruled that objection.
Thereafter, on April 24, 2012, the court heard argu-
ment concerning the defendants’ objection related to
the enforceability of the agreements on which the attor-
ney trial referee had relied, as well as a supplemental
objection raised by the defendants related to the attor-
ney trial referee’s award of interest. On August 30, 2012,
the court issued a memorandum of decision in which
it overruled those objections and granted the motion
to accept the report of the attorney trial referee. The
court rendered judgment in favor of the plaintiff as
against both defendants in the amount of $26,624.26,
and awarded interest as set forth in the report. The
court awarded the plaintiff reasonable attorney’s fees
and costs of collection, but noted that it would hold a
hearing to determine both the amount of interest and
attorney’s fees to award. The court denied the defen-
dants’ motion to reargue or to reconsider its decision.
This appeal followed.3 Additional facts will be set forth
as necessary.
I
First, the defendants claim that the court lacked juris-
diction to accept or render judgment on the report
because, in derogation of Practice Book § 19-4, the
attorney trial referee filed the report more than 120
days following the completion of the trial. We disagree.
At the outset, we observe that Practice Book § 19-4
provides in relevant part: ‘‘An attorney trial referee . . .
to whom a case has been referred shall file a report
with the clerk of the court . . . within one hundred
and twenty days of the completion of the trial before
such referee . . . .’’4 A trial court lacks the power to
accept a report of an attorney trial referee that does
not comply with Practice Book § 19-4. See Ficara v.
O’Connor, 45 Conn. App. 626, 630, 697 A.2d 696 (1997)
(reversing judgment of trial court after it accepted
report of attorney trial referee that did not comply with
earlier version of Practice Book § 19-4); Gumpert v.
Ore-Ida Foods, Inc., 39 Conn. App. 635, 636, 666 A.2d
437 (1995) (same). Before both the trial court and this
court, the parties have addressed this issue, in part, as
involving the jurisdiction of the trial court, and the
trial court couched this issue as implicating its ‘‘subject
matter’’ jurisdiction. The issue, however, is not jurisdic-
tional. Rather, it concerns the court’s power to accept
and to render judgment on the report. Practice Book
§ 19-4 is not a legislative enactment; it is a rule of proce-
dure promulgated by the judges of the Superior Court.
It is fundamental that, generally, the legislature estab-
lishes the jurisdiction of the Superior Court. See Piquet
v. Chester, 306 Conn. 173, 188 n.14, 49 A.3d 977 (2012).
Article fifth, § 1, of the constitution of Connecticut, as
amended by article twenty, § 1, of the amendments,
provides: ‘‘The judicial power of the state shall be vested
in a supreme court, an appellate court, a superior court,
and such lower courts as the general assembly shall,
from time to time, ordain and establish. The powers
and jurisdiction of these courts shall be defined by law.’’
Practice Book § 19-4 is seemingly analogous to General
Statutes § 51-183b, which, in civil causes, establishes a
120 day limit for judges and state trial referees to render
judgment following the completion date of trials. Yet,
§ 51-183b, which has been held to implicate personal
jurisdiction; Waterman v. United Caribbean, Inc., 215
Conn. 688, 691–92, 577 A.2d 1047 (1990); does not apply
to attorney trial referees, who lack the power to render
judgments. See, e.g., Gumpert v. Ore-Ida Foods, Inc.,
supra, 640.
Having framed the issue before us as one involving
the court’s power to accept and render judgment on
the report, we turn to the merits of the issue. In overrul-
ing the defendants’ objection, the court found in rele-
vant part as follows: ‘‘The [attorney trial referee] heard
evidence on February 23, February 24, May 28, and June
17, 2010. Posthearing 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 [attorney trial referee] filed his
ten page report of attorney trial referee . . . incorpo-
rating forty-four specific findings of fact and six ‘ulti-
mate facts/conclusions.’ ’’ (Citation omitted.)
Discussing the posttrial factual record, the court
made the following findings: ‘‘The [attorney trial ref-
eree] convened a posttrial hearing with counsel on
October 27, 2010. The transcript of that hearing has
been filed. . . . The very legitimate purpose of the
hearing was for the [attorney trial referee] to put on
the record a possible conflict of interest due to a federal
lawsuit that had recently been filed by . . . counsel
for the plaintiff in this case, on behalf of another client
against an official of the city of Stamford. (The [attorney
trial referee], Kenneth B. 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 fed-
eral lawsuit and the [attorney trial referee’s] potential
involvement therein . . . . [The defendants’ attorney],
who had been made aware of the details of the federal
action by [the plaintiff’s attorney], waived on behalf
of the defendants any actual or perceived conflict of
interest and agreed that the [attorney trial referee] could
proceed to decide the case. . . . [The plaintiff’s attor-
ney] expressed the opinion that he personally had no
objection to the [attorney trial referee] staying on the
case . . . 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 [attorney trial referee] on November 8,
2010, confirming that his client, [the plaintiff], ‘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.’ This
letter is on file. . . .
‘‘After discussing the federal lawsuit and any possible
conflict of interest, the [attorney trial referee] raised
the issue ‘as to when the clock starts running on my
decision in this case.’ He said, ‘I am prepared to use
the—filing date of the briefs [October 8, 2010] as the
clock period, which is the normal presumptive period.
. . .’ Later in the dialogue, the [attorney trial referee]
explained his policy that . . . ‘I don’t start doing any
decision work until I have everything in because . . .
the pieces aren’t all there, and I could start off on the
wrong track if I [don’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.’ . . . But, both
counsel had advised the [attorney trial referee] 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.’ . . . Although he stated that
he had been . . . ‘up in the air [about the] status of the
reply briefs,’ the [attorney trial referee], after discussion
with counsel, set a deadline of November 12, 2010, for
the filing of reply briefs . . . with the understanding
that if there was a problem with the November 12 date,
the [attorney trial referee] would be receptive to approv-
ing an agreed extension. . . . After the briefing sched-
ule for reply briefs had been set, the following
dialogue occurred:
‘‘ ‘[The Defendants’ Counsel]: I was just going to add
that I know that [the plaintiff’s attorney] 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 [attorney
trial referee] not to waste [his] time at this point on
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?
‘‘ ‘[The Defendants’ Counsel]: Yes, we’ll either agree
which law controls or will disagree, and you’ll know
that by the time the reply briefs—’ . . .
‘‘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
e-mail of November 29, 2010, from [the plaintiff’s attor-
ney] to [the defendants’ attorney] . . . . The court has
not been advised on the agreed extended deadline for
filing reply briefs, nor is that date mentioned in the
e-mail. Nor has the court been advised whether or not
the [attorney trial referee] was advised of the extended
agreed deadline for reply briefs. But, in that same e-mail
of November 29, 2010, [the plaintiff’s attorney] stated:
‘I will agree to [forgo] the reply briefs [if] you will
also agree. My only caveat is that I think I may have
submitted my posttrial brief without [attaching] the
exhibit that contained the [New York] case law. May I
resubmit the brief with the exhibit A attached.’ [The
defendants’ attorney] responded by e-mail of November
30, 2011, asking [the plaintiff’s attorney] to ‘send me
the case law/exhibit you want to submit.’ [The plaintiff’s
attorney] 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 [posttrial] brief?’ [The defendants’
attorney] responded the same day, ‘No objection. Please
copy me on whatever you send to the [attorney trial
referee].’ The [attorney trial referee] 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 [attor-
ney trial referee] was made aware of that waiver. On
December 30, 2010, the plaintiff filed another copy of his
October 8 posttrial 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 . . . all cited and referred to in
the body of the brief as originally filed under the argu-
ments that the New York parol evidence rule should
be applied to bar statements made by . . . 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 Ref-
eree Program’ . . . contains an entry, ‘12/30/2010 TRI
COMP Trial Completed—Decision Reserved JD44 141.’
The [attorney trial referee] report was filed on April 28,
2011, which was the 119th day after December 30, 2010.’’
(Citations omitted.)
In its analysis, the court aptly observed that the dis-
positive issue was ‘‘whether or not the December 30,
2010 refiling of the plaintiff’s October, 2010 trial brief
with the seven copies of New York judicial decisions
on the parol evidence rule, which copies had been inad-
vertently omitted when the brief was initially filed,
marked the ‘completion of the trial’ for purposes of
Practice Book § 19-4. Any earlier completion date would
mean that the [attorney trial referee] report was filed
too late.’’ The court concluded that the completion date
of the trial was December 30, 2010. It reasoned in rele-
vant part: ‘‘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 . . .
and the seven New York cases are cited, the brief
[states] in parenthesis: ‘The New York cases are
attached as exhibit A,’ but they were not attached. The
December 30 filing completed the October 8 filing. Parol
evidence was a major issue in the case. The December
30 filing gave the [attorney trial referee] ready access,
if he 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 mate-
rials necessary to a well reasoned decision, as they
were one of the elements directly or indirectly to be
considered in rendering the decision.’’ (Footnote omit-
ted.) On the basis of this procedural background and
its interpretation of relevant legal authority, the court
concluded that the report was properly filed in accor-
dance with Practice Book § 19-4, and it rejected the
defendants’ objection on the basis of that rule of
practice.
In appealing from the court’s ruling, the defendants
echo the arguments that they raised before the trial
court. The defendants do not appear to dispute the
procedural findings made by the court, that is, the
court’s recitation of the posttrial factual record. Instead,
they assert that this record reflects that the trial comple-
tion date for purposes of Practice Book § 19-4 was Octo-
ber 8, 2010, the date on which the parties filed briefs
following the hearing related to the parties’ contractual
dispute. The defendants assert that the hearing that
took place on October 27, 2010, related to a possible
conflict of interest involving the attorney trial referee,
‘‘was held by the [attorney trial referee] to address an
issue unrelated to the issues raised at trial or briefed
by the parties.’’ Additionally, the defendants assert that
the court did not request, nor did the parties file, reply
briefs, and that the plaintiff, acting unilaterally, refiled
its own October 8, 2010 brief on December 30, 2011,
for the purpose of attaching copies of cases cited in its
earlier trial brief. The defendants emphasize that this
filing did not occur at the request of the attorney trial
referee. The plaintiff asserts that the court properly
considered the filing of the brief on December 30, 2011,
where the brief and New York authority were necessary
to the court’s decision, to be the completion of the trial
for purposes of Practice Book § 19-4.
Because the issue requires examination of the court’s
interpretation and application of Practice Book § 19-4,
a task that is not discretionary, but legal in nature, we
engage in plenary review. ‘‘The interpretive construc-
tion of the rules of practice . . . involves a question
of law and our review . . . is plenary.’’ (Citations omit-
ted; internal quotation marks omitted.) Commissioner
of Social Services v. Smith, 265 Conn. 723, 733–34, 830
A.2d 228 (2003).
Although Practice Book § 19-4 does not define the
term ‘‘completion of the trial,’’ we agree with the trial
court that in light of the similarities in language and
purpose shared by Practice Book § 19-4 and General
Statutes § 51-183b, it is entirely reasonable to interpret
that term in a manner consistent with prior judicial
interpretations of the term ‘‘completion date of the
trial,’’ which appears in § 51-183b. ‘‘That portion of [§ 51-
183b] has been the subject of interpretation and has
been applied in several appellate decisions. In accor-
dance with Frank v. Streeter, 192 Conn. 601, 604–605,
472 A.2d 1281 (1984), this court consistently has inter-
preted the statute such that ‘[t]he one hundred twenty
day period begins to run from the date that the parties
file posttrial briefs or other material that the court finds
necessary for a well reasoned decision.’ Cowles v.
Cowles, 71 Conn. App. 24, 26, 799 A.2d 1119 (2002); see
also Jordan v. Jordan, 125 Conn. App. 207, 209 n.4, 6
A.3d 1206 (2010) (same), cert. denied, 300 Conn. 919,
14 A.3d 333 (2011); O.J. Mann Electric Services, Inc.
v. Village at Kensington Place Ltd. Partnership, 99
Conn. App. 367, 374 n.5, 913 A.2d 1107 (2007) (same);
Bramwell v. Dept. of Correction, 82 Conn. App. 483,
488, 844 A.2d 957 (2004) (same); Northeast Savings,
F.A. v. Scherban, 47 Conn. App. 225, 231, 702 A.2d 659(1997) (same), cert. denied, 244 Conn. 907, 714 A.2d 2(1998).’’ Bonito v. Bonito, 140 Conn. App. 697, 702–703,
59 A.3d 882 (2013). In Frank, our Supreme Court held
that the completion date of the trial, for purposes of
§ 51-183b, includes the filing of briefs, and it reasoned
that ‘‘[w]hen 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.’’ Frank v. Streeter,
supra, 605.
In the present case, the parties’ posthearing briefs
were filed on October 8, 2010. Thereafter, the attorney
trial referee held a hearing related to a potential conflict
of interest, and set a deadline, November 12, 2010, for
reply briefs to be filed. Sometime later, the parties
agreed to forgo the filing of such briefs. By November
8, 2010, the plaintiff, through its president, Abele, com-
municated to the attorney trial referee that it would
not challenge his continued participation in the case.
The record reflects, and the court found, that the
plaintiff’s brief of October 8, 2010, cited certain New
York opinions as relevant and material legal authority
related to the dispute submitted to the attorney trial
referee. Although the plaintiff’s brief stated that the
New York opinions were attached as an exhibit to the
brief, they were not so attached. By an e-mail exchange,
the plaintiff’s attorney notified the defendants’ attorney
of this deficiency in its filing and inquired about resub-
mitting the brief with the opinions at issue. The defen-
dants’ attorney, having been provided with the materials
at issue, stated that there was ‘‘[n]o objection’’ to the
proposed filing, which occurred on December 30, 2010.
Before the attorney trial referee, the parties consis-
tently disputed whether Connecticut or New York law
applied. The New York opinions that were included in
the revised filing of December 30, 2010, were material
to the issues that were raised before the attorney trial
referee and were analyzed, consistent with New York
law, in the plaintiff’s posttrial brief. The choice of law
issue was discussed during the hearing that took place
on October 27, 2010, at which time the defendants’
attorney stated before the attorney trial referee that the
choice of law issue would be addressed by the parties.
The defendants’ attorney stated that the parties would
discuss the issue and advise the attorney trial referee
accordingly so that the attorney trial referee would not
have ‘‘to waste [his] time at this point on struggling
with that issue . . . .’’ In reply, the attorney trial referee
indicated that he would not start doing ‘‘any real deci-
sion work’’ until he ‘‘[had] everything’’ from the parties.
The plaintiff’s attorney indicated that the choice of law
issue would be addressed by the parties ‘‘[o]ne way or
another.’’ The tenor of the conversation involving the
attorneys and the attorney trial referee strongly indi-
cates that the attorney trial referee would refrain from
working on the case until he had received additional
information from the parties concerning the choice of
law issue. The attorney trial referee asked whether the
parties would address the issue by way of reply briefs,
to which the defendants’ attorney stated, ‘‘Yes.’’
Although the parties thereafter agreed not to file reply
briefs concerning the choice of law issue, the plaintiff
certainly had the right to do so. After the parties had
determined not to submit reply briefs, the plaintiff sub-
mitted the brief with the opinions, related to the choice
of law issue, which it had omitted from its previously
filed trial brief.
By its own terms, the plaintiff’s initial brief was
incomplete without the opinions that were referred to
as an exhibit but were not attached. Contrary to the
defendants’ suggestion, the record does not reflect that
the plaintiff’s attorney acted in a purely unilateral man-
ner with regard to the filing of the brief on December
30, 2010. Although the attorney trial referee did not ask
the plaintiff to submit a revised filing, it is clear from
the statements of the attorney trial referee at the hearing
on October 27, 2010, that the parties were welcome
to submit briefs related to the choice of law issue.
Additionally, the defendants’ assertion is somewhat dis-
ingenuous, for the plaintiff’s attorney notified the defen-
dants’ attorney of his desire to submit the revised brief,
provided the defendants’ attorney with its substance,
and, absent objection, filed the brief only after the
defendants’ attorney indicated that the defendants did
not object to it. The attorney trial referee did not in
any manner reject the filing, which supports a determi-
nation that he considered it to be an appropriate part
of the posttrial briefing process in this case. See Ippolito
v. Ippolito, 28 Conn. App. 745, 750, 612 A.2d 131 (1992)
(fact that state trial referee did not return or refuse to
accept reply brief supports finding that referee consid-
ered it part of posttrial briefing process), cert. denied,
224 Conn. 905, 615 A.2d 1047 (1992). On this record,
we consider the submission of the plaintiff’s brief on
December 30, 2010, with the opinions attached, to be
the perfected submission of its posttrial brief. Accord-
ingly, we agree with the court that the subsequent filing
of the report of the attorney trial referee on April 28,
2011, did not run afoul of Practice Book § 19-4.
II
Next, on three grounds, the defendants claim that
the court accepted the report in error because the
agreements on which the attorney trial referee based
his report were not enforceable. We disagree, and will
address each ground raised in support of this claim
in turn.
Among his findings, the attorney trial referee found
that, through MacIntyre, Sono, which was in the busi-
ness of selling stone and gravel, applied for and was
granted a line of credit from the plaintiff, which was
in the business of selling, leasing, and repairing heavy
equipment. MacIntyre signed the credit application on
behalf of Sono and signed a personal guarantee with
respect to the credit line. Additionally, Sono, through
MacIntyre, ‘‘authorized other Sono employees to sign
documents upon delivery of equipment to Sono—their
authority was limited to committing Sono to the essen-
tial terms of the contract documents but not any fine
print details not previously agreed to by MacIntyre.’’
The attorney trial referee found that, thereafter, the
parties entered into several contracts concerning vari-
ous items (wheel loaders, excavators), parts, and ser-
vices provided to the defendants by the plaintiff. The
plaintiff sent Sono invoices for moneys due under these
contracts, but Sono failed to make payment.
The court rejected the defendants’ challenges to the
report of the attorney trial referee. ‘‘The standard of
review in cases referred to attorney trial referees is
well settled. [B]ecause the attorney trial referee does
not have the powers of a court and is simply a fact
finder, [a]ny legal [determinations] reached by an attor-
ney trial referee have no conclusive effect. . . . The
reviewing court is the effective arbiter of the law and
the legal opinions of [an attorney trial referee], like
those of the parties, though they may be helpful, carry
no weight not justified by their soundness as viewed
by the court that renders judgment. . . . [When] legal
[determinations] are challenged, [the reviewing court]
must determine whether they are legally and logically
correct and whether they find support in the facts found
by the . . . referee. . . .
‘‘The trial court’s findings of fact were based entirely
on the record of the proceedings before the attorney
trial referee. Under these circumstances, application of
the clearly erroneous test must reflect the special rules
that govern judicial review of a report of an attorney
referee. While the reports of [attorney trial referees] in
such cases are essentially of an advisory nature, it has
not been the practice to disturb their findings when
they are properly based upon evidence, in the absence
of errors of law, and the parties have no right to demand
that the court shall redetermine the fact thus found.
. . . A reviewing authority may not substitute its find-
ings for those of the trier of the 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 . . . attor-
ney trial referees. . . . 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 proce-
dures prior to the rendition of judgment by the court.
. . . [T]he trial court may not retry the case and pass
on the credibility of the witnesses . . . .’’ (Citation
omitted; internal quotation marks omitted.) Generation
Partners, L.P. v. Mandell, 148 Conn. App. 294, 299–300,
85 A.3d 49 (2014).
A
First, as they did before the trial court, the defendants
claim that the attorney trial referee erroneously relied
on the credit account agreement because portions of
it are unreadable or are illegible and, consequently,
‘‘essential,’’ and ‘‘material terms of the agreement are
effectively missing or unintelligible.’’ The defendants
argue that because portions of the agreement ‘‘were
effectively missing,’’ there was no meeting of the minds
and an enforceable contract does not exist.
The court observed that the defendants’ claim was
abstract in that they did not claim that any particular
provisions of the agreement were illegible and, thus,
reflected that a meeting of the minds did not occur.
The court stated: ‘‘The copy of the credit account
agreement/guarantee marked in evidence as plaintiff’s
exhibit 2 is no doubt difficult to read because it is blurry.
. . . [T]his same argument of illegibility and unenforce-
ability was made to the [attorney trial referee], who
made no finding of illegibility or of any particular word-
ing that was integral to the agreement being misunder-
stood because of the printing and said: ‘Defendant
MacIntyre claims that the illegibility of the document
he signed makes it . . . unenforceable. [Edart Truck
Rental Corp. v. B. Swirsky & Co., 23 Conn. App. 137,
140, 579 A.2d 133 (1990)] is instructive here—[MacInt-
yre] knew that he was signing a legal document, and if
he [had] been at all concerned about the details of his
personal commitment (guarantee) he could easily have
asked for a more legible copy. . . . ‘‘[MacIntyre] knew
of its existence and location, and did not attempt to
read it or discover its contents by another means.’’
‘‘The principle of law relied on by the [attorney trial
referee] is legally correct. His conclusion to enforce
the agreement is consistent with his finding . . . that
. . . MacIntyre signed a personal guarantee in addition
to signing the credit application on behalf of Sono, and
with his failure to find that the agreement was illegible
or that the blurry printing caused a misunderstanding
as to any integral part of the agreement. It is not within
the authority of this court to make additional findings
of fact absent a stipulation of the parties or other indica-
tion that the fact is uncontested. There is nothing of
that nature before me. Without such findings, however,
the [attorney trial referee’s] conclusion of enforceability
must stand.’’
The record of proceedings before the attorney trial
referee reflects that there was no factual dispute that
MacIntyre signed the credit account agreement, which
included his personal guarantee. When he was pre-
sented with the agreement during his examination
before the attorney trial referee, he identified it and
testified that, although he had trouble reading the docu-
ment, he nonetheless signed it and returned it to the
plaintiff.
On the record before us, we do not conclude, with
regard to the facts or the law, that the attorney trial
referee erroneously determined that the parties had
entered into a binding, enforceable contract. Although
MacIntyre testified that he conveyed to Warren Abele,
the corporate secretary of the plaintiff corporation, that
he had trouble reading the document, he stated that
Warren Abele reassured him that he was ‘‘in good
hands’’ and that it was a credit application. The attorney
trial referee did not make a finding that a meeting of
the minds did not occur due to any issues of illegibility
related to the agreement. ‘‘The general rule is that where
a person [who is] of mature years and who can read
and write, signs or accepts a formal written contract
affecting his pecuniary interests, it is [that person’s]
duty to read it and notice of its contents will be imputed
to [that person] if [that person] negligently fails to do
so. . . . This rule is qualified by the intervention of
fraud, artifice or mistake not due to negligence.’’ (Cita-
tion omitted; internal quotation marks omitted.) Phoe-
nix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 654,
707 A.2d 314 (1998). The rule applies ‘‘only if nothing
has been said or done to mislead the person sought to
be charged or to put a [person] of reasonable business
prudence off . . . guard in the matter.’’ Ursini v. Gold-
man, 118 Conn. 554, 562, 173 A. 789 (1934). The undis-
puted evidence was that the agreement and guarantee
provisions were presented to MacIntyre, an established
business person. There was no evidence of coercion,
fraud, or mistake. There was no evidence that the plain-
tiff, through its agents, misled MacIntyre with regard
to the agreement at issue. ‘‘[T]he defendant had a duty
to read the [agreement and guaranty] and cannot now
plead his self-induced ignorance of its contents.’’ Phoe-
nix Leasing, Inc. v. Kosinski, supra, 654–55.
B
Next, as they did before the trial court, the defendants
argue that the four rental agreements on which the
plaintiff relied were not enforceable contracts because
they consisted of two separate documents, namely,
rental lease agreements and delivery tickets, which
were ‘‘devoid of any cross-referencing or incorporation
of the respective separate paragraph provisions on the
reverse/rear page(s) [of the forms] by reference.’’ We
disagree.
In rejecting this argument, the court stated: ‘‘[The
defendants argue] that the evidentiary documentation
supporting each equipment rental transaction between
the parties failed to demonstrate a meeting of the minds
between the parties because the two form agreements
or documents used by [the plaintiff] for equipment rent-
als, the rental lease agreement, and the delivery ticket,
are devoid of any cross-referencing or incorporation by
reference. [In their objections to the report, the defen-
dants argue:] As a result, the court should not accept
the finding in the report that said agreements are
enforceable, and enter judgment in favor of the defen-
dants. . . . This argument was made to the [attorney
trial referee] who, nonetheless, found that the defen-
dants had enter[ed] into the rental contracts and were
responsible for unpaid balances on the four rental trans-
actions claimed by the plaintiff, thereby concluding that
the rental transactions were effectuated pursuant to
enforceable agreements.
‘‘The integration issue came up in the context of [the]
defendants’ attempt to introduce parol evidence that
some of the so-called rentals were actually free loaners.
The plaintiff opposed that offer of testimony on the
ground of the parol evidence rule and the integration
clause of the rental agreements. The plaintiff’s position
is stated in its reply to [the] defendants’ objection to
[the attorney trial referee] report [in which it stated
that] [t]he president of [the plaintiff], [Rod] Abele, testi-
fied that when a customer rents a piece of equipment,
a standard rental agreement is printed out, which is
comprised of two, double sided, carbon copy pages.
The front of the first page, entitled rental lease
agreement, sets forth the specific terms of this lease
agreement, including [the] customer’s name, the date
of the agreement, [a] description of the equipment, and
the price. . . . The bottom of the first page states that
this rental is subject to the Standard Rental Terms
attached hereto and incorporated herein. DO NOT SIGN
THIS AGREEMENT BEFORE YOU READ ALL OF IT
. . . . On the reverse side of the first page of the rental
agreement there are standard rental terms in num-
ber[ed] paragraphs 1 through 13. The front side of the
second page of the rental agreement states at the top,
delivery ticket, and also identifies the customer, the
equipment leased, and in a column on the left hand side
of the page describes the condition of the equipment
going out; on the right hand side is a column headed
condition of the equipment coming in. . . . On the
reverse side of the second page of the rental agreement
the standard rental terms continue where the back of
the first page left off, in number[ed] paragraphs 13
through 23. Of particular interest is paragraph 23, cap-
tioned MERGER AND ORAL REPRESENTATIONS
. . . which provides: This agreement is the entire
agreement of the parties hereto. There are no prior
oral or written . . . [representations] . . . promises
or warranties except as set forth herein. Any modifica-
tion to this agreement by the customer are ineffective
specifically except in writing by an authorized repre-
sentative of the Lessor. . . . At trial, the defendants
tried to claim that the documents were not part of a
single agreement so as to avoid the consequences of
the MERGER AND ORAL REPRESENTATIONS clause.
‘‘The [attorney trial referee] held that [Sono’s] equip-
ment operators who signed the rental agreements and
the delivery tickets for each piece of equipment as it
was delivered could not be reasonably believed by [the]
plaintiff to consent to an integration clause or otherwise
waive [Sono’s] right to challenge any variance between
an agreement actually reached between the parties and
the documentation being signed. But the [attorney trial
referee] found it unnecessary to rule on the issues of
integrated contracts or the parol evidence rule: Ulti-
mately, the issues relating to integrated contracts and
the parol evidence rule need not be resolved. There
was no credible evidence (if any at all) that the claimed
loaners explicitly were represented as being provided
at no cost, and there was no credible evidence (if any
at all) that . . . MacIntyre ever sought a definitive reso-
lution such that his precise position was known to [the]
plaintiff, e.g., confronting Warren Abele about the exis-
tence of any charges for equipment that was being pro-
vided at no cost. . . .
‘‘The integration issue and any lack of a meeting of
the minds on the applicability of the merger and oral
representations clause to both the rental agreement and
the delivery ticket therefore became irrelevant, and this
claim of error cannot afford any relief to the defendants.
The [attorney trial referee’s] handling of the issue, being
based on a lack of evidence before him, is not clearly
erroneous. The defendants have not cited to the court
any evidence that the claimed loaner equipment was
represented as being provided at no cost.
‘‘As an additional ground of overruling the lack of
integration argument, the court will offer [its] legal con-
clusion based solely on a review of the rental
agreement/delivery ticket exhibits that the two docu-
ments are one integrated contract. Their separateness
is largely a function of [the] plaintiff’s counsel’s tactical
decision to offer them in evidence under separate
exhibit numbers, but that does not determine substan-
tive issues and fails to reflect the reality of the documen-
tation. The rental agreement and the delivery ticket,
although they do not explicitly cross-reference each
other, both expressly list the names of both parties,
the identical contract number, the date of the rental, a
description of the rented equipment, including its serial
number and the identity of the customer representative
who ordered the equipment. Furthermore, the standard
rental terms, incorporated by reference at the bottom of
the rental agreement, consist of numbered paragraphs
printed on the reverse side. Paragraphs 1 through 13
appear on the rental agreement; paragraphs 14 through
23 plus the guarantee clause appear on the delivery
ticket, further confirming that the two documents are
each part of one continuous transaction and constitute
but one agreement.’’ (Citations omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.)
On appeal, the defendants assert that the rental
agreements on which the attorney trial referee relied
were not enforceable because each such agreement
consisted of two separate documents, namely, rental
lease agreements and delivery tickets, which did not
incorporate one another by reference. This argument
is not persuasive. As a preliminary matter, the attorney
trial referee correctly observed that this issue was
unavailing to the defendants, as there was no credible
evidence that the rental agreements at issue were not
binding on the defendants because, extrinsic to any
agreement, the plaintiff had agreed to loan equipment
to the defendants at no cost. Furthermore, we agree
with the court that there is no basis on which to con-
clude that, with regard to the four rental agreements
at issue, the two documents that comprised the
agreements at issue and for which the plaintiff sought
damages, namely, the rental agreements and the deliv-
ery tickets, were not, in each instance, separate compo-
nents of one continuous transaction that resulted in a
contract. The evidence demonstrated that the plaintiff
used these two documents when entering into rental
agreements with Sono. The fact that the two documents
do not cross-reference each other or that the front of
the documents does not explicitly refer to the twenty-
three provisions that appear on the back side of both
documents is of no consequence because, with regard
to each of the rental contracts at issue, the evidence
does not demonstrate that these writings were not com-
ponents assented to during one continuous transaction
between the parties. ‘‘Where writings relating to the
same subject matter are assented to as parts of one
transaction, both form part of the integrated
agreement.’’ (Internal quotation marks omitted.) Nash
v. Stevens, 144 Conn. App. 1, 36, 71 A.3d 635, cert.
denied, 310 Conn. 915, 76 A.3d 628 (2013).
C
Finally, as they did before the trial court, the defen-
dants claim that the evidence does not demonstrate
that the Sono employees who signed the rental lease
agreements and the delivery tickets had the authority
to bind Sono contractually under a theory of apparent
authority. We disagree with the defendants’ claim.
As stated earlier in this opinion, the attorney trial
referee found that ‘‘Sono, through MacIntyre, author-
ized other Sono employees to sign documents upon
delivery of equipment to Sono—their authority was lim-
ited to committing Sono to the essential terms of the
contract documents but not any fine print details not
previously agreed to by MacIntyre.’’ The attorney trial
referee further observed, and the evidence reflects, that
employees of Sono signed ‘‘contract documents,’’
namely, rental lease agreements and delivery tickets,
in connection with the delivery of equipment by the
plaintiff, from upstate New York, to Sono, at Sono’s
place of business in Norwalk. The payment for these
deliveries is at issue in this dispute between the parties.
From the uncontroverted evidence that these rental
deliveries occurred after orders were placed by Sono,
the attorney trial referee inferred that they had been
‘‘actually negotiated/arranged prior to delivery . . . .
[W]hile fine print details may not have been the subject
of any agreement, it seems a reasonable inference that
the plaintiff would not send a truck, in turn carrying a
backloader or other heavy piece of equipment, from
the Albany area of New York to Norwalk, without some
prior understanding, if not firm agreement, as to the
nature of the transaction (sale, lease/rental, free loaner,
etc.).’’ Further, the attorney trial referee found: ‘‘[The]
defendant was experienced in purchase and rental of
this type of heavy equipment and so must have known
that there were likely to be some conditions associated
with the delivery of any such equipment—barring the
expectation that the delivery was intended as a gift.’’
The attorney trial referee, however, found that there
was no credible evidence that the plaintiff had made
deliveries at no cost to Sono.
The attorney trial referee, however, rejected the
plaintiff’s argument that the employees of Sono who
signed the contractual documents at issue upon the
delivery of the equipment bound Sono to fine print
provisions therein, including a provision that the par-
ties’ agreement was integrated. The attorney trial ref-
eree stated: ‘‘Whatever authority [the] plaintiff might
reasonably expect a worker to have with respect to
signing paperwork upon delivery, it does not appear to
be reasonable to ‘assume’ that someone like an equip-
ment operator had authority to negotiate previously
unknown or legal technicalities in the fine print terms
of the agreement before signing and/or authority [to]
waive any objections to such terms. Neither an office
worker nor equipment operator could have been rea-
sonably believed by [the] plaintiff to have authority to
consent to an integration clause or otherwise waive
[the right of Sono] to challenge any variance between
an agreement actually reached between the parties and
the documentation being signed.’’ (Emphasis in
original.)
The court concluded that the attorney trial referee
reasonably found that the employees’ signatures on the
rental agreement documents bound Sono with regard
to the basic contract provisions, including the obliga-
tion to pay, which would have been agreed to prior to
the time of delivery. The court relied on case law that
stands for the proposition ‘‘that signatures of employees
on contract type documents are binding on an employer
under the doctrine of apparent authority.’’ The court
agreed with the attorney trial referee’s analysis, includ-
ing his findings that MacIntyre had agreed to the basic
contract provision concerning cost, the contract docu-
ments at issue included a description of cost, and that
MacIntyre was experienced in business such that he
should expect that the delivery of heavy equipment
would require the signature of a Sono employee. ‘‘The
court finds that to be a reasonable inference, especially
since all four of the rental agreements . . . list [Sono’s]
sole member . . . MacIntyre . . . as the customer
representative who had placed the order for the rental
equipment. The [attorney trial referee’s] legal analysis
is correct and his inference of apparent authority finds
support in the evidence and is not clearly erroneous.’’
(Citation omitted.)
In the present case, the evidence was uncontroverted
that Sono, through, MacIntyre, ordered the equipment
at issue. The attorney trial referee reasonably found
that the equipment at issue was delivered at the behest
of MacIntyre after he had reached an agreement as to
the basic details concerning the cost to be incurred by
Sono. From the evidence before him, including MacInt-
yre’s testimony, the attorney trial referee reasonably
found that MacIntyre knew or should have known that
Sono employees would be expected to sign the contract
documents upon completed delivery of the equipment
at issue and that they did so. The evidence did not yield
a finding that Sono’s employees had acted outside of
their prescribed duties for Sono, but that they had acted
predictably in signing the contract materials. The evi-
dence, including MacIntyre’s testimony, supported a
finding that Sono’s employees were authorized to act
in the manner that they did in terms of signing the
contractual materials at issue at the time of delivery,
thus binding Sono to the basic contractual terms
therein.
‘‘[I]t is a general rule of agency law that the principal
in an agency relationship is bound by, and liable for,
the acts in which his agent engages with authority from
the principal . . . . Agents who lack authority to bind
their principals to contracts nevertheless often have
authority to negotiate or to transmit or receive informa-
tion on their behalf. . . . It is well settled that [t]he
nature and extent of an agent’s authority is a question
of fact for the trier where the evidence is conflicting
or where there are several reasonable inferences which
can be drawn [therefrom].’’ (Citations omitted; internal
quotation marks omitted.) Landmark Investment
Group, LLC v. Chung Family Realty Partnership, LLC,
125 Conn. App. 678, 692, 10 A.3d 61 (2010), cert. denied,
300 Conn. 914, 13 A.3d 1100 (2011).
Although the trial court couched its analysis in terms
of apparent authority, the attorney trial referee found
that the parties orally had agreed to the essential terms
underlying the rental agreements prior to the time of
delivery and that, at least as it concerned the terms that
were agreed upon at the time that MacIntyre ordered
the equipment at issue, that such agreements became
binding on Sono when employees who were actually
authorized by Sono to sign the relevant contract docu-
ments did so at the time of delivery. Despite the court’s
fleeting reference to apparent authority, the attorney
trial referee found that the Sono employees at issue
were authorized to act in the manner that they did. Thus,
the defendants’ attempt to undermine the attorney trial
referee’s decision, by asserting that apparent authority
was lacking, is not persuasive.
Further undermining the defendants’ arguments is
the fact that the attorney trial referee reasonably found
that the defendants’ arguments were unpersuasive in
light of the fact that there was no credible evidence
that the contracts at issue were for equipment that was
being provided at no cost to Sono. Also, the attorney
trial referee found that MacIntyre attempted to distance
himself from these signed rental documents when they
made their way to him. The attorney trial referee stated:
‘‘Also troubling is . . . MacIntyre’s general disregard
for documents signed by his employees and even the
documents he signed. The testimony was that he did not
attempt to read the paperwork signed by his employees,
and he seemed to adopt an ‘it was blurry and hard to
read’ approach to the details of the document he initially
signed, as if that somehow negated his consent to the
terms of a document he actually signed.’’ Accordingly,
on the record before us, there is no basis to upset the
findings of the attorney trial referee that the rental
agreements signed by Sono employees were
enforceable.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also, the defendants appeal from the judgment of the trial court denying
their motion to reargue and, or, to reconsider its decision to accept the
report. They do not, however, raise any claims related thereto.
2
The attorney trial referee noted that the parties had agreed that any
determination of the amount of attorney’s fees should be deferred to a
subsequent hearing.
3
After the defendants filed the appeal, the court calculated the amount
of interest due the plaintiff as well as the amount of attorney’s fees awarded
the plaintiff. The fact that the trial court had not yet calculated the amount
of interest due the plaintiff at the time that the appeal was filed does not
affect the finality of the court’s judgment because, at that time, the court
had set the rate of interest and the date from which interest should be
calculated. See, e.g., Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230
Conn. 641, 650 n.9, 646 A.2d 133 (1994) (contempt order final despite fact
that court had yet to complete ministerial act of calculating amount of fine
at time appeal filed). Additionally, the parties do not raise any claims in the
appeal concerning the court’s interest award. Likewise, the fact that the
trial court had not yet determined the amount of the attorney’s fees awarded
to the plaintiff at the time that the defendants filed the appeal does not
affect the finality of the court’s judgment because the parties do not appeal
from the attorney’s fees award. Compare Benvenuto v. Mahajan, 245 Conn.
495, 715 A.2d 743 (1998) (judgment on merits final despite lack of ruling
on attorney’s fees) with Stuart v. Stuart, 112 Conn. App. 160, 188–89, 962
A.2d 842 (2009) (appeal from attorney’s fees award not final where court
had not determined amount of fees at time appeal filed), rev’d in part on
other grounds, 297 Conn. 26, 996 A.2d 259 (2010); Burns v. General Motors
Corp., 80 Conn. App. 146, 150 n.6, 833 A.2d 934 (2003).
4
We note that minor changes not relevant to this appeal were made to
Practice Book § 19-4 by a 2011 amendment that became effective subsequent
to the filing of the attorney trial referee’s report in this case. Because
the relevant language remains unchanged, for convenience we refer to the
current revision of Practice Book § 19-4.