Opinion
(4314)
On the defendants' appeal from the trial court's judgment rendered in accordance with the report of the attorney trial referee to whom the matter had been assigned, held that it was error for one trial judge to render judgment in accordance with the attorney referee's report where another trial judge had heard, but had not yet ruled upon, an objection to that report.
Argued March 12, 1986 —
Decision released April 29, 1986
Action to recover damages for breach of contract, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford and referred to Frederick U. Conard, Jr., attorney state trial referee, who recommended judgment for the plaintiff; thereafter, the court, Stoughton, J., rendered judgment accepting the referee's report, from which the defendants appealed to this court. Error; further proceedings.
Stanley Falkenstein, with whom was Robin Murdock-Meggers, for the appellants (defendants).
Kathleen D. Stingle, for the appellee (plaintiff).
The defendants appeal from the judgment of the trial court rendered in accordance with the report of an attorney trial referee. The underlying dispute concerns a contract in which the plaintiff agreed to transfer his East Windsor ambulance service to the defendants in exchange for which the defendants agreed, among other things, to secure and deliver to the plaintiff a release of a mortgage on the plaintiff's property. The mortgage was given by the plaintiff and his wife to a third party. Although the transfer of the business took place and thereafter the plaintiff performed services for the defendants, the defendants failed to secure and deliver the release of the mortgage and to pay the plaintiff for the services rendered.
The action was referred to an attorney trial referee; Practice Book 430; who found the issues for the plaintiff. He awarded the plaintiff damages and ordered that the plaintiff be released from the mortgage and discharged from the debt which it secured. The attorney referee's report was filed in the trial court on May 1, 1985. On May 17, 1985, the plaintiff filed a motion for judgment on the report. Practice Book 442. On that same date, the defendant filed an objection to the court's acceptance of the report and requested that judgment not be rendered in accordance with such report. Practice Book 440. On May 28, 1985, the trial court, Aspell, J., heard the plaintiff's motion for judgment, the defendants' objection thereto and the plaintiff's replies to that objection, but did not rule on them. On June 6, 1985, the court, Stoughton, J., without further notice to the parties, rendered judgment for the plaintiff in accordance with the attorney referee's report. The record does not disclose how or why the file was transferred from Judge Aspell to Judge Stoughton.
Although the defendants raise several claims on appeal, the dispositive issue is whether the trial court, Stoughton, J., erred in rendering judgment in accordance with the attorney referee's report notwithstanding the absence of a ruling by Judge Aspell on the defendants' objection to the acceptance of such report. We conclude that it did so err.
Practice Book 442 provides in part that "[i]f exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon; and the court may, upon its decision as to them, forthwith direct judgment to be rendered." Although the defendants' objection to the acceptance of the attorney referee's report was heard by Judge Aspell, the record is devoid of any ruling on that objection. The plaintiff contends that the defendants waived their right to object because their motion was untimely.
Inasmuch as the defendants have a right to object to the trial court's acceptance of an attorney referee's report; Practice Book 440; they are entitled to the trial court's express ruling on that objection, including a ruling on whether the objection was timely, prior to the acceptance of that report and the rendition of judgment in accordance therewith. Moreover, they were entitled to that ruling by the judge to whom the matter was argued and submitted. We conclude that Judge Stoughton should not have rendered judgment in accordance with the attorney referee's report when the defendants' objection had been presented to Judge Aspell. See Practice Book 434 through 442.