Opinion
No. CV 00 0177506
December 29, 2003
MEMORANDUM OF DECISION
This case, which was tried by an attorney trial referee, involves a dispute between a manufacturer and a subcontractor concerning the delivery of precast concrete. The plaintiff, Durastone Corp., of Lincoln, Rhode Island, alleged that pursuant to a written contract with the defendant, Darien Asphalt Paving, Inc., of South Norwalk, as orally modified, it was owed $17,409.57. The complaint is in three counts and alleges goods sold and delivered, unjust enrichment and breach of contract.
The defendant denied the material allegations of the complaint and filed a special defense of the statute of frauds. In addition, the defendant filed a counterclaim that the plaintiff breached the contract by failing to install the curbing as originally agreed, which resulted in the defendant incurring a higher cost for alternative installation.
The case was referred to Attorney Bernadette Coomaraswamy, an attorney trial referee, in accordance with General Statutes § 52-434(a)(4) and Practice Book § 19-2k. The attorney trial referee conducted a trial and submitted a report dated January 17, 2003, containing her factual findings, conclusions and recommendations as required by Practice Book § 19-8.
The attorney trial referee made the following factual findings. The defendant was a subcontractor on a reconstruction project at Newtown High School and was responsible for, inter alia, installing precast concrete curbing at the construction site. The plaintiff is a manufacturer of precast concrete products. As evidenced by a May 14, 1996 letter from the plaintiff to the defendant, the plaintiff originally proposed to sell concrete curbing to the defendant at a cast of $13.75 per foot, which price included installation of the curbing by the plaintiff. In a conversation on or about August 14,1997, the parties orally agreed to modify that original agreement to $8.75 per linear foot of curbing, supply only, not installation. The plaintiff noted that oral modification on a copy of the May 14, 1996 letter containing the original price quote. Between August 15, 1997 and August 30, 1997, the plaintiff delivered approximately 2000 linear feet of curbing to the Newton High School construction site, and the curbing was used in the construction project. The plaintiff submitted invoices to the defendant demanding payment in the amount of $8.75 per linear foot or $17,409.57. The defendant, however, refused to pay the plaintiff.
Based on these findings of fact, the attorney trial referee concluded that the defendant authorized a substitution of a lower price for uninstalled cement and hence owed the plaintiff $17,409.57, plus interest pursuant to General Statutes § 37-3a of 10% per cent per year from 30 days after the debt was due, that is, from September 30, 1997 to the date of judgment. The referee also recommended that judgment enter in favor of the plaintiff on the defendant's counterclaim "because there [is] no basis in law for the assignment of damages against Plaintiff on Defendant's failure to complete its contract with OG Industries."
The plaintiff did not object to the report and recommendations of the attorney trial referee, but the defendant did file objections, as authorized by Practice Book § 19-14. In its objections, the defendant contends that the court should reject the report and its recommendations because: (1) the attorney trial referee's factual findings and conclusions are based on speculation and are inconsistent with the evidence submitted at trial; (2) prejudgment interest should not have been recommended; and (3) the referee failed to award the defendant any damages for its counterclaim based on the plaintiff's own breach of contract.
Practice Book § 19-14 provides that: "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 . . . attorney trial referee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted."
Practice Book § 19-17(a) involves the function of this court in reviewing reports of attorney trial referees and provides: "The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings 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 . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court."
"[T]he trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report." (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). Second, the court must insure that the report does not contain "legal conclusions for which there are no subordinate facts." (Internal quotation marks omitted.) Id. Third, the report must be reviewed to determine if it is "legally and logically correct." (Internal quotation marks omitted.) Id., 103.
Other principles governing attorney trial referee reports provide: "A reviewing authority may not substitute its findings 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 . . . attorney trial referees." (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). A fact finder's recommendations should be accepted when "there is nothing that is unreasonable, illogical or clearly erroneous in the findings of the fact finder and the reasonable inferences that may be drawn therefrom." Id., 425.
In terms of the objections filed by the defendant, much of its memorandum is devoted to characterizing and restating the facts and evidence in an attempt to recast them in a light favorable to its position, often in contradiction to the findings of the attorney trial referee. This court, however, cannot retry the case. Shapero v. Mercede, 262 Conn. 1, 6, 808 A.2d 666 (2002). "The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotation mark omitted.) Cheverie v. Ashcraft Gerel, 65 Conn. App. 425, 439, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). As long as there is some evidence to support the referee's factual findings, this court must accept those findings.
The defendant argues that the attorney trial referee's finding that the plaintiff had reached an oral agreement with the defendant to supply curbing at $8.75 per linear foot was improper because the only evidence of any agreement between the parties was the plaintiff's May 16, 1996 letter proposing to supply and install curbing for $13.75 per linear foot. A review of the transcript and the exhibits submitted at trial shows that the referee was presented with conflicting evidence regarding when the parties' contract was formed and the terms of their agreement. The attorney trial referee found that the defendant had accepted the original May 16, 1996 proposal. This is supported by the testimony of the defendant's witness, Tim Tarini. The referee also heard testimony from the plaintiff's witness, Thomas Cataldi, that on August 14, 1997, the parties orally agreed to a price of $8.75 per linear foot, supply only, which, in effect, modified the terms of the earlier agreement. The plaintiff submitted into evidence a copy of the May 16, 1996 proposal letter containing Catalbi's handwritten note that he had spoken with the defendant regarding the changes and that the defendant had authorized delivery of the curbing. Contrary to the defendant's argument, therefore, there was sufficient evidence to support the referee's finding that the contract between the plaintiff and the defendant was for curbing only, no installation, at a price of $8.75 per linear foot.
Because the ATR found that the contract was for supply only, she correctly rejected the defendant's counterclaim for damages arising from the installation of the curbing. Therefore, the defendant's argument that the ATR ignored the damages allegedly caused by the plaintiff's breach of the contract is without merit.
The defendant also argues that there is no evidence that the plaintiff delivered the curbing to the defendant or that the defendant in fact accepted delivery. "Both acceptance and receipt of goods sold under an oral contract of sale are necessary to avoid a defense of the Statute of Frauds in an action to enforce the contract." Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 80, 239 A.2d 500 (1968). `Whether there have been an acceptance and a receipt ordinarily presents a question of fact for the trier." Munzenmaier v. Quick, 134 Conn. 404, 407-08, 58 A.2d 378 (1948). Testimony was elicited at trial that beginning on August 15, 1997, the plaintiff began delivering curbing to the construction site and that the curbing was utilized in the construction. The defendant never contacted the plaintiff to ask the plaintiff to stop supplying the curbing or to otherwise complain about the curbing. Because the terms of delivery were not expressly set forth in writing, the attorney trial referee necessarily construed the terms from the testimony of the parties and, on the basis of that testimony, decide whether delivery had been made and accepted. The referee, as the trier of fact, found that the plaintiff presented the more compelling testimony on the issue of delivery.
Moreover, "[w]hether and on what terms a contractual commitment has been undertaken are ultimately questions of fact for the trier of facts." (Internal quotation marks omitted.) Presidential Capital Corp. v. Reale, 231 Conn. 500, 507, 652 A.2d 489 (1994). The findings of fact in a contract action, such as this case, "should be overturned only when they are clearly erroneous." Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra, 20 Conn. App. 425. It is well recognized, furthermore, that whether a contract has been breached is an issue of fact for the trier of fact. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987).
It is quite evident that the attorney trial referee chose to believe the testimony offered by the plaintiff and not the testimony of the defendant regarding the oral modification of the contract and the obligations it created regarding installation of the concrete curbing. "The finder of fact is in a better position to determine the credibility of witnesses and the weight to be accorded their testimony." Beizer v. Goepfert, 28 Conn. App. 693, 706, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S.Ct. 1416, 122 L.Ed.2d 786 (1993).
It is true that the attorney trial referee heard contrary testimony from the defendant, but the referee obviously relied on the testimony of the plaintiff and its witnesses. "In making this explicit factual determination, the attorney trial referee implicitly found certain witnesses to be credible and believable in their testimony. This was precisely her function as a fact finder." Griffin v. Planning Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993). "[C]redibility is a matter for the trier of fact to determine. In a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses . . . The probative force of conflicting evidence is for the trier to determine." (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 179, 786 A.2d 1171 (2001).
The defendant argues that the attorney trial referee's recommendation of prejudgment interest is improper under the circumstances of this case. The court disagrees, and concludes that the record supports the recommendation.
Prejudgment interest is an element of damages and the decision as to "whether interest should be awarded is within the province of the trier of fact." Pilato v. Kapur, 22 Conn. App. 282, 283-84, 576 A.2d 1315, cert. granted, 216 Conn. 813, 580 A.2d 59 (1990) (appeal withdrawn). "The decision to award interest is to be made in view of the demands of justice rather than through the application of any arbitrary rule . . . The real question in each case is whether the detention of the money is or is not wrongful under the circumstances . . . The person best able to make this equitable determination is the attorney referee who heard the case and thus is most familiar with the facts." (Citation omitted; internal quotation marks omitted.) Id., 284.
The defendant provides no legal support for its argument that prejudgment interest is improper. Rather, it reasserts that it did not have a contract with the plaintiff, it did not benefit from delivery of the curbing and it suffered damages from the plaintiff's refusal to install the curbing. Those assertions, however, are contrary to the referee's factual findings, which the court has concluded are adequately supported by the record. "Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been detained by another party." Foley v. Huntington Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). The attorney trial referee's finding that the defendant refused to pay $17,409.57 for the concrete curbing as contractually obligated after demand for payment is, therefore, sufficient to support a finding for prejudgment interest.
The attorney trial referee, on the basis of the facts that she found regarding the modification of the contract, was justified, both legally and logically, in concluding that the plaintiff had sustained its burden of proof on the complaint. There was sufficient evidence to justify the referee's finding regarding the defendant's counterclaim. Therefore, the report of the attorney trial referee is accepted and judgment may enter for the plaintiff to recover from the defendant $17,409.57 on its complaint, plus General Statutes § 37-3a interest from September 30, 1997 to the date of this judgment, which amounts to $10,881, for a total of $28,290.57.
Costs are to be taxed in favor of the plaintiff by the clerk of this court in accordance with General Statutes § 52-257 and Practice Book § 18-5.
So Ordered.
WILLIAM B. LEWIS, JUDGE.