Opinion
No. CV98 0165510
April 29, 2003
MEMORANDUM OF DECISION
This case, which was tried by an attorney trial referee, involves a dispute about repairs to the brakes of a motor vehicle. The plaintiff, Abdus Sattar, filed a three-count amended complaint on March 13, 2001, against the defendants, Gosley Thomas, James Thomas and Allridge Thomas, who were doing business as West Broad Service Center in Stamford, at 59 West Broad Street in Stamford, which was also a Getty station.
In the first count of his complaint, the plaintiff alleges that he hired the defendants to service the brakes. On or about May 30, 1996, the defendants advised him that the brake job had been finished and that he should back his vehicle out of a work bay. The plaintiff also alleges that while he was backing up, the brakes failed to work and he crashed into a truck. The plaintiff contends that the defendants were negligent in a variety of ways and, as a result, he sustained personal injuries. In the second count, the plaintiff alleges that the defendants impliedly warranted the merchantability and fitness of the brake job on his motor vehicle and had breached said warranties. In the third count of his complaint, the plaintiff alleges that the defendants' activities and conduct violated General Statutes § 42-110b, the Connecticut Unfair Trade Practices Act (CUTPA).
The defendants denied the material allegations of the complaint and the case was referred to Attorney John F. Carberry, an attorney trial referee, in accordance with General Statutes § 52-434 (a)(4) and Practice Book § 19-2 A. The referee conducted a trial and submitted a report on December 13, 2002, containing his factual findings, conclusions and recommendations as required by Practice Book § 19-8.
The attorney trial referee made the following factual findings: (1) the plaintiff brought his 1989 Chevrolet to the defendants' place of business on May 30, 1996, seeking to replace brake pads on the front wheels, and he waited at the station while the work was being performed; (2) at the defendants' direction, the plaintiff backed his vehicle out of the work bay, but struck a truck because the brakes did not work; (3) the changing of the brake pads by the defendants was not performed in a workmanlike manner because they failed to pump the brakes a number of times and to road test them before turning the vehicle over to the plaintiff; and (4) as a result of this collision, the plaintiff sustained personal injuries, was treated by a chiropractor and had to leave his employment as a waiter.
Based on these findings of fact, the attorney trial referee concluded that the plaintiff should recover from the defendants $5,000 for pain and suffering, $4,341 for medical bills, and $24,750 for diminution of earning capacity, as he was currently a chauffeur and earning less than he did as a waiter, for a total award of $34,091.
The defendants' objection to the attorney trial referee's report and recommendations, which is authorized by Practice Book § 19-14, involves the police accident report that was admitted as an exhibit in the trial before the attorney trial referee. This report states that: "[o]perator of V#1 [the plaintiff] stated that `he might' have stepped on the accelerator instead of the brake pedal." The defendants contend that this statement was an admission of fault by the plaintiff and they ask that the referee's report be "amended such that the plaintiff's own negligence as evidenced by plaintiff's own words be accounted for and rightly considered."
Practice Book § 19-14 provides: "A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not property 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) concerns 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 that: "[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 objection filed by the defendants, the only issue identified by the defendants is the plaintiff's alleged admission of his contributory negligence contained in the police accident report. The attorney trial referee did refer to the police report and stated that: "[i]t is not clear from whom the police officer obtained this alleged admission by the Plaintiff." In their objections to the report, the defendants assert that this statement by the plaintiff was made to the police officer. The quoted statement in the police report, however, does not say so; rather it simply says that the plaintiff made that statement, so it leaves open the possibility that the alleged admission was made to a third party and hence was inadmissible hearsay.
Moreover, the defendants did not file a transcript with their objections, so it is impossible to know to whom the alleged admission was made or in what context the statement about stepping on the accelerator was made. Assuming such information was revealed during the trial before the attorney trial referee, as noted in Beizer v. Goepfert, 28 Conn. App. 693, 706-07, 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), because the plaintiff did not provide a transcript of the hearing before the fact finder, it may be "assumed that such a transcript [was] not crucial to the objections to the fact finder's report." It is impossible for a reviewing court, without a transcript, to determine whether the subordinate facts found by the fact finder are supported by the evidence. See Meadows v. Higgins, 249 Conn. 155, 170 n. 10, 733 A.2d 172. (1999).
Although he agreed that Gosley Thomas, a defendant, was also a credible witness, the attorney trial referee chose to believe the testimony offered by the plaintiff regarding how or why the accident happened. "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, supra, 28 Conn. App. 706.
It is true that the attorney trial referee heard contrary testimony from the defendants, but, as he stated, Gosley Thomas did not perform the repairs to the plaintiff's brakes and it was not "crystal clear that he actually witnessed the events which unfolded after the car was repaired." The referee instead relied on the plaintiff's testimony. "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 [his] 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).
Because the factual findings of the attorney trial referee are unchallengeable in this case, the only remaining task for the court is to determine whether the report is "legally and logically correct." See Meadows v. Higgins, supra, 249 Conn. 170. The referee's conclusion that the defendants were negligent follows from his factual determination, based to some extent on expert testimony, that the brakes should have been pumped a number of times and that the vehicle should have been road tested before being returned to the plaintiff. The referee also found by a preponderance of the evidence that the collision with the truck and the resultant injuries were caused by the defendants' negligence.
Thus, the referee was justified, both legally and logically, in concluding that the plaintiff had sustained damages, both economic and noneconomic, as a result of the defendants' negligence.
On December 18, 2002, the plaintiff filed a "motion to correct" (#140) regarding offer of judgment interest as authorized by General Statutes § 52-192a (b) and Practice Book § 17-18. The plaintiff claims that he filed an offer of judgment on October 2, 2000 for $7,500. A review of the file indicates that on July 8, 1999, the plaintiff filed (#103) a "Notice" that he "served" an offer of judgment on the defendants' attorney, but there is no such offer in the file. The plaintiff also filed the same "notice" both on March 31, 2000 (#112), and on October 2, 2000 (#118), again without filing the actual offer of judgment.
Practice Book § 19-12, which previously authorized such a motion, was repealed effective January 1, 2000.
General Statutes § 52-192a (b) provides in pertinent part that: "After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his `offer of judgment,' the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed . . . from the date the complaint in the civil action was filed with the court if the `offer of judgment' was filed not later than eighteen months from the filing of such complaint . . . The court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly." Practice Book § 17-18 is to the same effect.
The motion to correct attached a copy of the offer of judgment dated October 2, 2000, but it was not actually filed with this court until December 18, 2002, well over two years after it was dated. The offer was filed in this court five days after the report of the attorney trial referee denying offer of judgment interest was filed and mailed to counsel. The plaintiff attempted to cure this problem by filing the offer of judgment with the court after the report was received. There are no provisions in either General Statutes § 52-192a (b) or Practice Book § 17-18 permitting offers of judgment to be filed after a decision is rendered. Thus, the attorney trial referee was justified in denying offer of judgment interest.
The report of the attorney trial referee is accepted and judgment may enter for the plaintiff to recover from the defendants the amount of $29,091 as economic damages and $5,000 as noneconomic damages, for a total recovery from the defendants of $34,091.
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.
Dated at Stamford, Connecticut, this 29th day of April 2003.
William B. Lewis, Judge