DocketNumber: No. CV 93 0132103
Citation Numbers: 1995 Conn. Super. Ct. 5236
Judges: LEWIS, JUDGE.
Filed Date: 5/31/1995
Status: Non-Precedential
Modified Date: 4/18/2021
The defendants filed an answer and a special defense asserting that the major consideration for signing the note was the execution by the plaintiff of a covenant not to compete against the defendants by engaging in the operation of a Chrysler/Plymouth agency within ten miles of Stamford for a period of two years. The defendants further allege that the plaintiff breached this covenant not to compete. The defendants also filed a two count counterclaim, in which they repeat the allegations of the special defense, and added a second count claiming that such conduct on the part of the plaintiff constituted a violation of CUTPA.
This case was referred to Attorney George W. Scott, Jr., an attorney trial referee, in accordance with General Statutes §
The attorney trial referee reached the following conclusions as a result of his findings of fact: (1) that the plaintiff retained the right in the purchase agreement to service and repair vehicles, including Chryslers and Plymouths; (2) that the plaintiff had not violated the covenant not to compete because the covenant applied only to operating a Chrysler/Plymouth agency, not to a Dodge agency, nor to maintaining a service and repair facility; (3) that one of the conditions of sale was that the plaintiff would obtain a Dodge dealership, and the defendants fully realized that the plaintiff would be operating another auto agency at his former address; (4) that the defendants' claim, introduced for the first time at trial, that the plaintiff had failed to provide them with a customer list, was unproven;2 (5) that neither party had proved a violation of CUTPA; and (6) that judgment should enter in favor of the plaintiff on the two breach of contract counts for $80,000, plus interest at 6% per annum from March 29, 1993, plus late charges of $4,000, plus attorney's fees in the amount of $25,807, which were found to be fair and reasonable, that judgment should enter in favor of the defendant on the third count of the complaint alleging a CUTPA violation, and in favor of the plaintiff with regard to the defendants' counterclaim.
The defendants, pursuant to Practice Book § 438, moved to correct the report to reflect that: (1) the plaintiff held himself out to the general public as an authorized Chrysler/Plymouth dealer by advertising in the yellow pages of the telephone book and in local newspapers, which constituted a violation of his covenant not to compete; (2) such advertising was not a mistake by the telephone company, but constituted deliberate and intentional conduct on the part of the plaintiff to compete with the defendants; (3) although the plaintiff was CT Page 5239 entitled by the sales agreement to service existing customers, he went beyond this and held himself out as a Chrysler/Plymouth dealership; (4) the covenant not to compete included the plaintiff's prior Chrysler/Plymouth customers and his sales and service business; (5) the parties intended that the plaintiff would not service Chrysler/Plymouth vehicles, and was limited to acting as a Dodge dealer only; (6) the plaintiffs actions in holding himself out as an authorized Chrysler/Plymouth dealer was intentional, wanton and malicious in violation of CUTPA; and (7) judgment should enter in favor of the defendants with respect to the promissory note because the plaintiff breached his covenant not to compete, and the defendants should be awarded $20,000 in punitive damages pursuant to CUTPA.
In response to the motion to correct filed by the defendants, the attorney trial referee declined to make any corrections to his report or to his recommendation that judgment enter in favor of the plaintiff.
The defendants filed exceptions to the referee's report pursuant to Practice Book § 439, and properly included the required transcript of the evidence that was introduced at the trial. The exceptions contend that the referee was in error in failing to find those facts referred to in the defendants' motion to correct, and in failing to conclude that the plaintiff should not collect on the promissory note in question because he breached his covenant not to compete against the defendants. The essence of the defendants' position was clearly stated by Callari when he testified on cross examination: "Q. So are you now saying then that Mr. Fossum was not entitled to service Chrysler and Plymouth vehicles under the non-competition covenant? A. That's correct."
As to this court's scope of review of an attorney trial referee's recommendations regarding the facts of a given case, the Supreme Court has stated that: (1) the trial court may not "retry the case"; and (2) a court may not find additional facts or reject facts found by the referee unless, in the words of Practice Book § 439, "a material fact has been found without evidence or the [referee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear." Dills v. Enfield,
Therefore, the first issue is whether the referee's factual findings are supported by the record. A review of the transcript indicates that there was sufficient credible support in the record for the factual findings made by the referee.3
Although evidence to the contrary was presented at trial, it is axiomatic that "[where] evidence is in conflict, its probative value is for the trier of fact to determine." Bernard v.Gershman, supra, 656. It appears from reviewing the defendants' motion to correct and their exceptions to the report, that the defendants are attempting to substitute their own version of the facts for those found by the referee, a practice discountenanced in Argentinis v. Gould,
In addition to determining whether "there was . . . evidence to support the attorney trial referee's factual findings," the second task of the reviewing court is to decide whether "the conclusions reached were in accordance with the applicable law."Thermoglaze, Inc. v. Morningside Gardens, Co.,
Since the referee's findings of fact have been accepted because they find support in the record, the remaining task as CT Page 5241 noted previously is limited to determining whether his legal conclusions "are legally and logically correct and whether they find support in the facts found by the referee." Bernard v.Gershman,
"To give meaning to contracts, courts interpret the intent of the parties by construing the whole contract and all relevant provisions together. . . . In construing contract terms, the court seeks to effectuate the intent of the parties. . . . To ascertain the parties' intent, the courts consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish. . . . The intent of the parties is normally a question of fact for the trier . . . which we will not disturb unless it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Colby v. Burnham,
The referee concluded that under all the circumstances the parties did not intend to preclude the plaintiff from operating a service and repair facility for, among other vehicles, Chrysler Corporation products such as Chryslers and Plymouths. In this regard, it is noted that General Statutes §
After hearing the evidence, including testimony from the defendant Callari, the referee concluded that the plaintiff had not violated the covenant regarding competition with the defendants, and therefore that the note has to be repaid. Based on the standard of review in Dills v. Enfield, supra,
Accordingly, judgment is entered in favor of the plaintiff to recover from the defendants the sum of $80,000, together with interest at the rate of 6% per year, commencing March 29, 1993, to the date of this judgment, which amounts to $10,420.66, plus late charges of $4,000, and attorneys fees of $25,807.50, plus disbursements of $37.43, for a total judgment of $120,265.59.
Statutory costs are to be taxed by the clerk
So Ordered.
Dated at Stamford, Connecticut, this 31st day of May, 1995.
William B. Lewis, Judge