DocketNumber: No. CV 91 0117460
Citation Numbers: 1993 Conn. Super. Ct. 6199
Judges: LEWIS, JUDGE
Filed Date: 6/24/1993
Status: Non-Precedential
Modified Date: 7/5/2016
The case was referred to Attorney Kenneth B. Povodator, an attorney trial referee, in accordance with General Statutes
The attorney trial referee concluded that (1) the plaintiff performed its work in a generally reasonable and workmanlike manner; (2) plaintiff performed its installation phase of the project in a reasonably timely fashion; (3) to the extent that plaintiff did not complete all the work required, it was because defendant terminated plaintiff prematurely and before it had the opportunity to finish some punch list items; (4) defendant is entitled to a credit of $1,000 for the unworkmanlike installation of a countertop; and (5) defendant breached the contract when she failed to make the required second payment to plaintiff. In addition, the referee concluded that the defendant had failed to prove her counterclaim because there was no unreasonable interference with her business, nor was her business damaged in any way by the plaintiff's installation of the items in question.
Pursuant to Practice Book 438, the defendant Mandell moved to correct the report. She contended that the findings of fact should be amended so as to strike nine findings of fact, and all twelve conclusions of the referee, and to add seventeen new facts and eight new conclusions. The motion to correct contended that (1) the parties agreed orally that plaintiff's installation of the equipment was to commence on or about July 5, 1989, and was to be completed within a week or ten days thereafter; (2) the equipment installed by plaintiff was not functional or usable by the defendant; (3) the plaintiff failed to manufacture and install the equipment in question in a workmanlike manner, or in accordance with the drawings provided by defendant; (4) defendant failed to complete its work in a timely fashion, viz., within ten days of July 4, 1989, but rather was still working on the project on or about September 7, 1989, when its services were terminated; (5) plaintiff's failure to complete the project in a timely fashion substantially interfered with defendant's interior design business and caused her financial loss; (6) the defendant was excused from paying any further money to plaintiff because of the latter's breach of contract; and (7) defendant was entitled to damages of approximately $11,700, a figure based on estimates of the cost of repairing the faulty installation of the equipment at issue by the plaintiff.
In response to the defendant's motion to correct, the referee issued a very detailed, thoughtful and comprehensive supplemental report dated March 4, 1993, which reiterated the factual basis for his original findings and recommendations, and he declined to make any substantive changes to his report.
The usual review of an attorney trial referee's report by this court consists of two tasks, according to Thermoglaze, Inc. v. Morningside Gardens, Co.,
This court's authority in reviewing an attorney trial referee's recommendations is a limited one, in any event. As our Supreme Court held in Dills v. Enfield,
Since we must accept the referee's findings of fact in the absence of any exceptions to the report, this court's task, according to Bernard v. Gershman, supra, 656, is to determine whether the conclusions of fact and law "are legally and logically correct and whether they find support in the facts found by the referee." Practice Book 440. The Appellate Court added in Bernard that "[w]here evidence is in conflict, its probative force is for the trier of fact to determine." Id. In reviewing the motion to correct, one senses that the defendant is attempting to substitute her own version of the facts for those found by the referee, a practice which was discountenanced in Argentis v. Gould,
The referee found that the plaintiff complied substantially with its obligations under the contract and accordingly was entitled to the contract price, less a credit to the defendant for the faulty installation of one countertop. He also determined that the defendant had not proved CT Page 6202 her counterclaim which contended that her business had been damaged by plaintiff's alleged untimely and unworkmanlike installation of the equipment. These conclusions by the referee are supported by the underlying findings of fact.
The defendant Mandell also filed objections to the acceptance of the referee's report. Practice Book 440. She contends that (1) the manufacture and installation of the items or equipment were done in an unworkmanlike manner and not in accord with certain woodworking standards set forth in the Architectural Woodworking Institute's "Architectural Woodworking Quality Standards." Defendant argues that as I a result of plaintiff's breach of the contract, she was excused from her obligation to pay plaintiff in accord with that contract. These objections mirror defendant's motion to correct, and in essence claim that the referee should have credited testimony of the defendant's witnesses rather than those presented by the plaintiff. As the Appellate Court noted in Citytrust v. Page,
In conclusion, I agree with the referee that judgment should enter in favor of the plaintiff because no material error in his report has been found, or any other sufficient reason why the report is unacceptable. Practice Book 443. I believe that, in the words of Practice Book 440, his recommendations were "properly reached on the basis of the subordinate facts found."
Judgment is entered in accordance with the referee's report in favor of the plaintiff to recover $8,980.97, the unpaid portion of the contract price, which includes a sales tax of
So Ordered.
Dated at Stamford, Connecticut, this 24th day of June, 1993.
William B. Lewis, Judge