Opinion
No. CV 01 0186911 S
January 4, 2005
MEMORANDUM OF DECISION
This action is before the court on the plaintiff, Superior Amusement Companies, Inc.'s (hereinafter "Superior Amusement") Objection to Motion for Judgment on Report (131.00). The action arises from an alleged breach of a written agreement between Superior Amusement and the defendant, Night Games Corp. ("Night Games") pertaining to certain coin-operated bar equipment.
Superior Amusement commenced an action against Night Games and the defendant Daniel P. Riggio ("Riggio"), alleging breach of contract by way of writ of summons and complaint filed on November 30, 2001. At all relevant times, Night Games was the owner and operator of a so called gentlemen's club known as Shoreline Cafe, which name was later changed to Mermaids. The purported agreement involved Night Games leasing from Superior Amusement, for a five-year term starting in December 2003, the following coin-operated equipment: two pool tables, one juke box, and two countertop video amusement games. The equipment was provided for use on the premises of the club.
The action was referred to attorney trial referee Kenneth B. Provodator (hereinafter the "ATR"). The matter was tried on September 4, 2003. The parties filed post-trial briefs, and consequently the trial was completed upon the filing of the briefs on October 23, 2003. The ATR filed his report on December 19, 2003. Superior Amusement timely objected to the court's motion for judgment on the report, which objection is presently before the court for consideration.
Concerning the claim against Riggio, individually, the ATR found that Riggio's signature on the agreement was made in his representative capacity. The ATR commented in his report that there was no evidence to prove that Riggio was individually liable on the agreement.
In his report, the ATR recommends that judgment enter in favor of the defendant, Night Games, based on the conclusion that there was no meeting of the minds. Alternatively, the ATR recommended that judgment enter in favor of the plaintiff, Superior Amusement, in the amount of $57,483.08 if the court were to disagree with the ATR's primary recommendation and conclude that there was evidence of a meeting of the minds.
The law concerning the function of attorney trial referees, and the trial court in reviewing decisions of such referees, is well settled. "The report of a[n] . . . attorney trial referee shall state . . . the facts found and the conclusions drawn therefrom . . . The report should ordinarily state only the ultimate facts found . . . but if the . . . attorney trial referee has reason to believe that the conclusions as to such facts from subordinate facts will be questioned, it may also state the subordinate facts found proven." Practice Book § 19-8. Unless the trial court finds that the attorney trial referee has materially erred in its ruling or there are other sufficient reasons why the report should not be accepted, "[the] court shall render such judgment as the law requires upon the facts in the report." Practice Book § 19-17.
"While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based on the evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact[s] thus found . . .
"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 . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court . . .
"Although it is true that when the trial court reviews the attorney trial referee's report the trial court may not retry the case and pass on the credibility of witnesses, the 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." (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201, 819 A.2d 191 (2003), quoting Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001).
"The factual findings of a [referee] on any issue are reversible only if they are clearly erroneous . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999). "Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee." Alliance Partners, Inc. v. Oxford Health Plans, Inc., supra at 202.
In its objection to the ATR's report, Superior Amusement argues that the referee erred in concluding that the parties did not enter into a binding agreement because there was no meeting of the minds. In his report, the referee stated, in relevant part, as follows: "It is recommended that judgment be entered in favor of [Night Games] based on the absence of a binding agreement reflecting a mutual meeting of the minds." The court is required to review the ATR's report and recommended judgment, in light of the objection to it, with the foregoing legal principles in mind.
The crux of Superior Amusement's argument is that the ATR could not reasonably have concluded that there was no meeting of the minds because, after considering the conflicting evidence offered by the parties' handwriting experts, the ATR found that the defendant Riggio signed the form agreement as proprietor of the business. Basically, Superior Amusement argues that the ATR's finding that Riggio signed the agreement on behalf of Night Games is conclusory evidence that the parties had a meeting of the minds. Superior Amusement dovetails that argument with the further claim that there was "scant testimony . . . for the ATR's conclusion that Riggio did not understand what he was signing."
Specifically, Superior Amusement asserts two objections in support of its argument. First, Superior Amusement objects to the ATR's finding in support of its ultimate conclusion that Riggio experiences limitations in reading and writing, which limitations were "variously characterized as a learning disability, writing problems and/or dyslexia." Second, Superior Amusement objects to the ATR's conclusion that there was no meeting of the minds based, in part, on the fact that the alleged agreement does not include revenue relating to cigarette machines.
The ATR found that Riggio signed the claimed agreement on behalf of Night Games, and aptly noted in its report that "[t]he existence of a signed document purportedly representing an agreement of the signatories, cannot be easily disregarded." The ATR further cited the general rule "that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a [person] of reasonable business prudence off . . . guard in the matter." First Charter National Bank v. Ross, 29 Conn.App. 667, 671, 617 A.2d 909 (1992).
"A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." Burnham v. Karl and Gelb, P.C., 50 Conn.App. 385, 389, 717 A.2d 811 (1998). "[T]he burden rest[s] on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract." Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Cheverie v. Ashcraft Gerel, 65 Conn.App. 425, 439, 783 A.2d 474 (2001). "To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties." Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., supra at 249.
Concerning Superior Amusement's objection to the ATR's finding that Riggio has reading and writing limitations, the ATR noted that those limitations went "unchallenged" at trial by Superior Amusements. The ATR found such limitations to be a significant factor supporting its conclusion that there was no meeting of the minds.
Superior Amusement contends that there was "scant testimony" to support the ATR's factual finding concerning Riggio's limitations. Significantly, Superior Amusement does not argue that there exists no testimony on that issue. Contrarily, it properly recognizes that Riggio testified on direct examination that he has a learning disability, is dyslexic and has attention deficit disorder. Counsel for Superior Amusement did not question Riggio on cross-examination concerning the disabilities to which he testified. Rather, counsel's brief examination of Riggio related to his signature as it appeared on the alleged agreement and his intention concerning renewal of the agreement.
The ATR's thoughtful and well-reasoned report shows that the ATR carefully considered the testimony of the witnesses, the documentary evidence and the arguments of the parties in making its findings of fact, conclusions of law and recommended judgment. As the trier of fact, the ATR was in the best position to judge the credibility of the witnesses and the weight of the evidence, and commented on both factors throughout his report.
As previously discussed, it is not the function of this court in reviewing the ATR's report to retry the facts or determine the credibility of the witnesses. "The trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It's is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness's testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The record shows that there was evidence to support the ATR's factual finding that Riggio suffers from conditions that limits his reading and writing abilities. Riggio testified on direct examination that he has reading and writing difficulties caused by dyslexia and attention deficit disorder. Riggio also testified that he would have any contracts concerning the business reviewed by his lawyer. The ATR commented in his decision that he believed Riggio to be credible concerning his "testimony that he does not sign contracts without review by a lawyer . . .," particularly in this case where the referee was of the opinion that the agreement contained "relatively onerous terms . . ." Finally, Riggio testified that he would not have knowingly and voluntarily signed a five-year agreement relating to vending machines when he only had three years left of his lease. In view of that evidence, the ATR discussed that Riggio "did not understand that he was signing a contract (entering into a binding agreement) . . ." and concluded that the agreement does not represent a meeting of the minds of the parties.
Superior Amusement's counsel did not ask Riggio any questions about his learning disability on cross-examination. The cross-examination was brief and limited to the physical aspects of Riggio's signature and whether Riggio intended to exercise the option to renew the lease. The ATR was in the best position to assess Riggio's credibility on the issue of his learning disability as the ATR had the opportunity to view him on the witness stand and judge his testimony and demeanor in the context of the totality of the evidence. Based on the foregoing, this court does not find that the ATR clearly erred in making that factual finding.
Concerning Superior Amusement's objection to the ATR's finding that the ostensible agreement did not include cigarette machines, Superior Amusement admitted on cross-examination that such machines were not included in the agreement. The ATR found that the alleged agreement did not include the division of proceeds concerning cigarette machines, notwithstanding that Superior Amusement intended and believed that such machines were included in the agreement. That factual finding was a material consideration in the ATR's conclusion that there was no meeting of the minds. The finding was supported by Superior Amusement's foregoing admission, and by the integration clause in the agreement to the effect that the document represented the entire agreement and any changes had to be in writing.
A review of the entire record demonstrates that the subordinate facts found by the ATR sufficiently support the ultimate conclusions. In view of the foregoing, Superior Amusement's objection to the report of the ATR is overruled (131.00), and judgment on the report is granted.
The ATR further recommended that the court award Superior Amusement, pursuant to Practice Book § 13-25, the amount of $2,700.00, which amount represents the expenses of Superior Amusement's handwriting expert. The AIR recommends payment of those expenses because Riggio denied the genuineness of his signature on the agreement at issue in accordance with a request for admission, and Superior Amusement was required to prove the genuineness through a handwriting expert.
Practice Book § 13-25 provides that if a party fails to admit the genuineness or truth of a matter upon request and the party requesting the admission proves the disputed matter, the party may apply to the court "for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable."
The rules of practice do not provide that a referee has the authority to order the payment of reasonable expenses in accordance with Practice Book § 13-25, nor is it the referee's function to recommend decision on an application under that section. That section provides that such an application shall be made to the court. The court, however, will construe the matter as an application to the court by Superior Amusement as the issue is likely to arise again postjudgment.
Consistent with his denial of the admission request, Riggio denied at trial that he signed the agreement at issue. Riggio produced an expert at trial who testified that, in his opinion, the signature on the document "was not written by Daniel Riggio" and supported his decision with reasons. The ATR believed Superior Amusement's expert to be more credible and, as previously discussed, found the signature on the document to be Riggio's signature.
The trial consisted, in part, of a classic "battle of the experts." The fact that Riggio didn't merely deny that his signature was genuine, but produced a handwriting expert in support of his position, evinces that the denial was in good faith.
In view of the foregoing, the court finds that Riggio's failure to admit the genuineness of his signature was reasonable. Therefore, the court denies the application of Superior Amusement for an order requiring the payment of reasonable expenses incurred by it in proving that Riggio's signature was genuine.
BY THE COURT
TYMA, J.