Opinion
No. 4003809
February 7, 2007
MEMORANDUM OF DECISION RE OBJECTION TO REFERENCE #125
On July 13, 2005, this medical malpractice action was commenced by the plaintiff, Bertha Jessen, against the defendants, Eastern Connecticut Foot Specialists, P.C., and Harris Kleinkopf. Presently, the pleadings in this case have been closed and a jury claim has been filed. The matter currently before the court is the defendants' objection to reference of any further pretrial matters to a judge trial referee. This objection was filed on November 1, 2006, and accompanied by a memorandum of law in support. On November 8, 2006, the plaintiff filed a memorandum of law in opposition. The matter was heard on November 13, 2006.
The defendants' objection can also be construed as objecting to reference of the case to a judge trial referee for trial and judgment. Since it is uncontested that a judge trial referee may not preside over the trial and render judgment in a civil jury case without the parties' consent, the defendants' present objection is considered as limited to pretrial matters.
The defendants argue that, under the circumstances of this case, no pretrial matters may be referred to a judge trial referee in civil jury without the parties' consent after the pleadings are closed. Before addressing the defendants' specific protestation, the court takes note of the history and vital purpose of our judge trial referee system as recounted by our Supreme Court in Great County Bank v. Pastore, 241 Conn. 423, 428-30, 696 A.2d 1254 (1997). In addition to recounting the history of the position, the court noted the several occasions in which it has "reviewed, with approbation, the role of [judge trial] referees." (Internal quotation marks omitted.) Id., 429. In its discussion, the court explained that "[judge trial] referees serve the very practical purpose of relieving the court's crowded dockets . . ." (Internal quotation marks omitted.) Id., 429. "This history demonstrates the referees' importance to the functioning of the judicial branch and provides the proper perspective by which to view their authority." Id., 428.
As an initial matter, insofar as the defendants' argument rests on finding a conflict between Practice Book § 19-3 and General Statutes § 52-434, the defendants' claim is without merit. General Statutes § 52-434(a)(1) provides in relevant part: "The Superior Court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to a judge trial referee who shall have and exercise the powers of the Superior Court in respect to trial, judgment and appeal in the case . . ."
Practice Book § 19-3 provides in relevant part: "In addition to matters required to be referred to a judge trial referee, the judicial authority may refer any civil nonjury case or, with the written consent of the parties or their attorneys, any civil jury case, pending before such court, in which the issues have been closed, to a judge trial referee, who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case . . . Any case referred to a judge trial referee shall be deemed to have been referred for all further proceedings and judgment, including matters pertaining to any appeal therefrom, unless otherwise ordered before or after the reference. The court may also refer to a judge trial referee any motion for summary judgment and any other pretrial matter in any civil nonjury or civil jury case." (Emphasis added.)
The emphasized sentence of Practice Book § 19-3 is not contained in General Statutes § 52-434. This sentence, and its expressed authority to decide pretrial matters, previously has been challenged before our appellate courts as exceeding the scope of authority permitted by General Statutes § 52-434. In Great County Bank v. Pastore, supra, 241 Conn. 433, and Girard v. Weiss, 43 Conn.App. 397, 408, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996), the courts, in a civil nonjury and civil jury case respectively, held that the authority to decide pretrial matters articulated in the practice book does not exceed the authority provided for by § 52-434.
The defendants argue, however, that dicta in Girard v. Weiss, supra, 43 Conn.App. 397, supports their position. In Girard, the Appellate Court held that a state trial referee is authorized to decide pretrial matters in cases claimed for a jury in which the issues have not been closed at the time of reference. Id., 407. The court included the following discussion. "Although this case was claimed for trial by a jury, the pleadings were not closed at the time the motions at issue in this appeal were referred to and heard by the state trial referee, and, therefore, the status of the pleadings in this case was such that it was not a `civil jury case pending before the court in which the issues have been closed.' Section 52-434 makes it clear that if the issues have been closed in a civil jury case at the time of reference to a state trial referee, written consent of the parties must be obtained. The determinative issue in this appeal is whether a state trial referee is authorized to hear and decide pretrial motions involving cases claimed for a jury in which the issues have not been closed at the time of reference and which, therefore, have not been placed on the jury trial list. The statute does not specifically address this issue, and we next look to the rules of practice.
"Practice Book § 430 echoes § 52-434 and adds a sentence that permits the reference to a state trial referee of any civil jury case and `any motion for summary judgment and any other pretrial matter in any civil nonjury or civil jury case.' Section 430, however, is silent as to whether the consent of the parties is needed to refer pretrial motions including motions for summary judgment to a state trial referee. We conclude that the absence of a consent requirement in the provisions of § 430 regarding the referral of pretrial matters to trial referees, in contrast to the express mandate for such consent contained in the provisions of General Statutes § 52-434(a)(1) and Practice Book § 430 regarding the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal, indicates that no such consent is necessary for the referral of pretrial matters, including motions for summary judgment. Because all of the motions at issue in this appeal were pretrial motions, including a motion for summary judgment, the trial court was authorized to hear and decide those motions without the consent of the parties." Girard v. Weiss, 43 Conn.App. 406-07.
The language of former Practice Book § 430 is identical to the present Practice Book § 19-3.
Given that there is no conflict between the rules of practice and the statute, the essence of the issue presented by the defendants' objection is whether the reference of a pretrial matter in a civil jury case where the pleadings are closed is governed by (1) the final sentence of Practice Book § 19-3, or (2) the provision requiring the parties' consent contained in both Practice Book § 19-3 and General Statutes § 52-434(a)(1). While the first two sentences quoted above from Girard (see page 3, supra) seem to support the defendants' position, the remainder of the court's explanation belies that position by clarifying the extent of the requirement for consent. Specifically, this court concludes that the express mandate for consent contained in § 52-434(a)(1) applies to "the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal" (Emphasis added.) Girard v. Weiss, supra, 43 Conn.App. 407. In other words, if there is a limited referral of a pretrial matter, as opposed to a referral for "trial, judgment and appeal," then the express mandate for consent does not apply.
ORDER
Based on the foregoing, this court finds that all further pretrial matters in this case, including any motion for summary judgment, may be referred to a judge trial referee for hearing and decision.
Devine, J.