Opinion
No. FST CV 06 4010076-S
October 16, 2008
MEMORANDUM OF DECISION RE OBJECTION TO THE ACCEPTANCE OF THE REPORT OF THE ATTORNEY TRIAL REFEREE (AUGUST 20, 2008)
Background
This case is about an uncompleted sale of residential property, 41 Arlington Road, in Stamford, Connecticut. The Sellers were Julio and Maria Traslavina and the Purchaser was Diana Sebastian Landsberger of Falls Church, Virginia. Attorney Donald Reid represented the Sellers and by way of an interpleader action, named both Sellers and Purchasers as defendants in an action to establish what was to be done with the real estate deposit in the amount of $63,500. On May 4, 2006 an interlocutory judgment by stipulation of the parties was entered into the record.
A trial by Attorney Trial Referee, Edward O'Hanlan, was conducted on March 23 and April 2, 2008. A Report was prepared dated August 20, 2008 which recommended that judgment enter for the Sellers on the cross-complaint and also in their favor on the four counts of the amended cross complaint brought against them by the Purchaser. The Report recommended that the deposit paid initially to Attorney Reid and now in the custody of the clerk of court be awarded as liquidated damages for breach of the contract by Purchaser. The Report also recommended that no attorney fees be awarded and that costs be awarded to Sellers.
For the reasons discussed below the court accepts the Report of the attorney trial referee and overrules the objection of Purchaser, Diana Sebastian Landsberger.
Law and Discussion
A reviewing authority may not substitute its findings for those of the trier of facts. Wilcox Trucking, Inc. v. Manson Builders, Inc., 20 Conn.App. 420, 423 (1989); Rostenberg-Doern Co. v. Weiner, 17 Conn.App. 294, 299 (1989). Rather, it is the function of the court to determine whether the decision of the trial court is clearly erroneous. Allstate Ins. Co. v. Berube, 84 Conn.App. 464, 469, cert. denied, 271 Conn. 929 (2004); Duplisse v. DeVino, 96 Conn.App. 673, 682 (2006).
It is the province of the trier of fact to determine credibility. Lowe v. Shelton, 83 Conn.App. 750, 765; cert. denied, 271 Conn. 915 (2004).
The standard of review for evidence as to proof of negligent misrepresentation is by clear and convincing evidence. Mips v. Becon, 70 Conn.App. 556 (2002). The same standard applies to international misrepresentation. Paiba v. Vanech Heights Construction Co., 159 Conn. 512, 515 (1970).
Issues of witness credibility were evaluated by the referee. The referee also reviewed the circumstances of the statements made about the status of the deck in question and the significance of the deck, the absence of a certificate of occupancy for a time and the presence of a wetlands area. All such issues were evaluated, put into perspective in the totality of the circumstances of a residential sale and a decision was rendered.
It is not the place of a reviewing judge in effect, to second guess a trial referee on issues of credibility and findings of fact. It will not happen here.
While a reviewing judge can evaluate the application of the law to the facts by the trial referee, I find no significant errors were made by the referee in applying the law to the facts found in this case.
The Report appears in every regard to be a carefully reviewed and realistically evaluated decision. The Report in Finding of Fact #31 recognized that the Purchaser had counsel advising her at the time.
Therefore, the Report is accepted in its entirety.
So Ordered.