Opinion
(6707)
The plaintiff sought by way of a replevin action, to recover possession of two boats, a trailer and an outboard motor from the defendant. The matter was referred to an attorney trial referee who recommended judgment for the plaintiff, and the trial court rendered judgment in accordance with that report. On the defendant's appeal, held; 1. The defendant, having failed to file a motion to correct the findings of the attorney trial referee, waived any right to attack the subordinate factual findings in his report supporting the amount of depreciation awarded to the plaintiff for the value of the replevied items. 2. The trial court did not err in accepting the attorney trial referee's determination that the defendant's counterclaim for storage fees and interest was inappropriate and that the defendant presented no credible evidence to substantiate its claims of unjust enrichment.
Argued December 14, 1988
Decision released March 28, 1989
Action to recover possession of certain of the plaintiff's personal property from the defendant, brought to the Superior Court in the judicial district of Fairfield, where the defendant filed a counterclaim for storage charges; the matter was referred to Daniel E. Brennan, Jr., attorney state trial referee, who recommended judgment for the plaintiff; thereafter, the court, Licari, J., rendered judgment in accordance with the referee's report, and the defendant appealed to this court. No error.
Kenneth E. Taylor, for the appellant (defendant).
John R. Bryk, with whom, on the brief, was Linda R. Stark, for the appellee (plaintiff).
This is an appeal by the defendant from a judgment in favor of the plaintiff in an action of replevin to regain possession of two boats, a trailer and an outboard motor. The plaintiff claimed damages for wrongful detention and the defendant counterclaimed for storage charges and interest. The case was referred to an attorney trial referee who found that the plaintiff was entitled to possession of the two boats, trailer and motor. The referee also found damages for the plaintiff arising from the defendant's wrongful detention of the property in the amount of $714.13 in taxes, insurance and registration fees and $5000 in depreciation. The trial court accepted the attorney trial referee's report and rendered judgment for the plaintiff. The defendant claims that it was error (1) to award $5000 in depreciation value to the plaintiff, (2) to conclude that the defendant's counterclaim was limited to damages as a result of the replevy, and (3) to conclude that the defendant failed to prove unjust enrichment. There is no error.
The defendant first claims that there was error in the award of $5000 in depreciation value to the plaintiff. The defendant concedes, as it must, that depreciation in value during the period of detention is a proper element of damages in an action of replevin. Staub v. Anderson, 152 Conn. 694, 695, 211 A.2d 691 (1965). The defendant contends, however, that the amount of the award was unwarranted and not supported by the evidence presented.
The defendant did not file a motion to correct the findings of the attorney trial referee as required by Practice Book 438, but did file an objection to the acceptance of the trial referee's report, as required by Practice Book 440, claiming that there was no evidence to support a depreciation figure of $5000, except for the testimony of the plaintiff's father who was not an expert. The trial court overruled the objection, stating that there was sufficient evidence to support the depreciation figure. The amount of depreciation to be awarded is a question of fact. Not having filed a motion to correct any of the facts or to add further facts to those found by the attorney trial referee, the defendant has waived any right to attack the subordinate factual findings in the report. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 301-303, 552 A.2d 827 (1989); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985).
The defendant next claims that it was error to conclude that the defendant's counterclaim for storage fees and interest was inappropriate. Relying on Switzer v. Turansky, 101 Conn. 60, 61, 124 A. 826 (1924), the attorney trial referee determined that the defendant's counterclaim for storage fees and interest did not arise out of the replevy and, therefore, these costs were not recoverable. The defendant argues that the plaintiff's failure to pay the storage fees and interest created a lien in favor of the defendant under General Statutes 42a-7-201 et seq., and that this lien was eliminated, to the detriment of the defendant, by the plaintiff's action in replevin. The defendant did not claim during the trial that any such lien was created, however, and therefore we cannot consider this argument in reviewing the referee's conclusion that the defendant did not sustain damages arising out of the replevy. Accordingly, the attorney trial referee did not err in determining that the defendant's counterclaim for damages was limited to damages arising out of the replevy. General Statutes 52-529; Switzer v. Turansky, supra.
The defendant's last claim relates to its second claim. The defendant argues that the attorney trial referee erred in concluding that the defendant failed to prove an unjust enrichment counterclaim for storage fees against the plaintiff. Even if the defendant had an allowable counterclaim for storage fees in an action for replevin, the referee found that the defendant presented no credible evidence to substantiate its claim of unjust enrichment. See Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987). Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988).