Opinion
No. FST 085006672 S
August 11, 2010
MEMORANDUM OF DECISION OBJECTIONS TO ATTORNEY TRIAL REFEREE REPORT
BACKGROUND
The plaintiff, Greenwich Fine Properties, LLC, is in the business of listing and selling real estate. One of the employees of the office is Mrs. Obernesser who was the listing agent for the property located at 17 Suburban Avenue in the City of Stamford. The defendants, Ennio Gallo and Anna Gallo, are the owners of the property that is the subject of this action. The defendant, Ennio Gallo, developed this site for purposes of sale. He entered into a contract with the plaintiff for a real estate listing. However, the defendants refused to pay a commission when the property sold contending that the agreement was improper in a number of ways. The action was heard by Attorney Donna Nelson Heller as the Attorney Trial Referee on September 17 and 22, 2009. The Attorney Trial Referee recommended judgment enter in favor of the plaintiff on the First Count of the Complaint in the amount of $72,500.00 together with prejudgment interest at a rate of 8% per annum, attorney fees and costs, and in favor of the plaintiff on the First and Second Counts of the Counterclaim.
On April 29, 2010 the Report of Attorney Trial Referee dated April 28, 2010 was filed with the court. Although the report was received within the allotted time, the clerk's office calculating the last date for submission did not date stamp or mail the report until April 30, 2010. (See #120 letter of the clerk). An objection was filed within 21 days by the defendant. This objection did not raise as an issue timeliness of the filing of the report nor has the plaintiff filed a response to the report or the objections thereto. The defendant submitted a second memorandum on June 15, 2010 supplementing the objections to the report as well as including claims of law as to the objections. This matter has been assigned for review and decision of the defendants' objections. On June 15, 2010, counsel for both parties appeared to argue the objection to the report submitted by the defendant. The court has reviewed the defendants' "Objection to Acceptance of Report of Referee," "Findings of Fact in Referee's Report to be Stricken as Clearly Erroneous," portions of the transcripts dated September 17, 2009 and September 22, 2009, referred to in the defendant's objection and findings of fact to be stricken and considered the argument of both counsel.
DISCUSSION
The defendants have requested that this court set aside the decision of the trial referee and order a new hearing. The defendants' objection to the trial referee report requests that the court add several findings of fact, strike a number of findings of fact and determine that the listing agreement is unenforceable in accordance with the law because it fails to satisfy statutory requirements and in the alternative it has been modified or terminated.
P.B. § 19-14 provides that "A party may file objections to the acceptances of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of 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." P.B. § 19-17(a) outlines 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."
"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." Killion v. Davis, 257 Conn. 98, 102 (2001). Second, the court must insure that the report does not contain "legal conclusions for which there are no subordinate facts." Id., 102. Third, the report must be reviewed to determine if it is "legally and logically correct." Id., 103.
Other principles governing an Attorney Trial Referee's report 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." Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804 (1990). A fact finder's recommendation should be accepted when "there is nothing that is unreasonable, illogical or clearly erroneous in the finding of the fact finder and the reasonable inferences that may be drawn therefrom." Id., 425. "The factual findings of [an attorney trial referee] on any issue are reversible only if they are clearly erroneous . . . A reviewing court cannot retry the facts or pass upon the credibility of the witnesses . . . 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 the definite and firm conviction that a mistake has been committed." Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999).
The Attorney Trial Referee included within the final report seventy separate paragraphs as the findings of fact followed by seventeen paragraphs as the conclusions of facts and Recommended Ruling. The report and decision were detailed and thoroughly analyzed.
The objection by the defendants is in two parts. They ask that the court include certain facts that they contend are undisputed and that the court strike certain facts found by the trial referee that they contend are "clearly erroneous." The second part of the objection contends that with the corrections the court should find that the report is not legally and logically correct and erroneous in its findings.
The court will first address the findings that defendants request the court add. The defendant has provided thirty-four separate findings of fact that they contend should be added as undisputed or admitted facts to the report of the attorney trial referee as findings of fact. The Practice Book § 19-17 states that the "court may correct a report at any time before judgment or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found." The court has not addressed by its own motion any facts that should be added as a finding of fact. The request comes solely from the defendant seeking an order from the court and a revocation of the finding of the Attorney Trial Referee. Courts have frowned upon the addition of factual findings by the court upon review of the matter to address objections. Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420 (1989). In the present action, the court has not "upon its own motion" addressed undisputed facts to correct the report. However, the court has reviewed the thirty-four additional findings proposed by the plaintiff and has determined not only is there no stipulation or motion by the court but in reviewing each finding the court determines that each one is not properly presented as undisputed or admitted testimony that should be included within the findings as discussed below.
Paragraph A requests that the court add more than the testimony at trial based upon the submitted trial transcript. The findings of fact by the trial referee includes the content of the testimony in that Elizabeth Obernesser is a real estate salesperson licensed by the State of Connecticut since 2006. The court denies the request to add Paragraph A because it contains inferences and not simply testimony presented to the trial referee.
Paragraph B requests that the court add the finding that "At the time of attempting to secure a listing from Defendants' Ennio and Anna Gallo ("the Gallo's) in October of 2007, this would become her only listing, although she had prior experience with possibly two others." This statement, while somewhat accurate to the trial testimony, is not precise in that there was no mention of time period and the reference to two others is two other listings(but not quite sure) before for sale in the Town of Greenwich. This finding is not undisputed and the court will not permit its' inclusion as a finding of fact.
Paragraph C requests the addition of testimony but also requests a portion of the finding to include argument of counsel. The request does not accurately reflect the testimony cited nor the arguments advanced by counsel. The court denies the request to add paragraph C.
The request to add the findings of fact in paragraphs D and E is denied because this request does not accurately reflect the trial testimony cited by the defendant and in fact embellishes the testimony.
Paragraph F includes proposed findings that are not included in the trial testimony cited by the defendants and therefore the court denies the request to add the paragraph as a finding of fact.
As to Paragraphs G and H, the defendant asks the court to make a finding based upon the court's review of an exhibit which is beyond the scope of its review.
Paragraphs I and J request that the court add findings of fact based upon the testimony in the transcript and although the court is not of the opinion that the Multiple Listing Service is relevant to the allegations in this matter, the court denies the request to include this finding of fact because the referee has made findings related to this request in finding numbers thirty-one, thirty-two, thirty-three, and thirty-four which refer to the Multiple Listing Service.
Paragraph K refers to Exhibit B which was noted as an exhibit for identification and there is no reference to its admission as a full exhibit. Therefore, the finding of fact which includes an exhibit not admitted as full will not be included and the request is denied.
Paragraph L repeats the premise in paragraphs I and J and as such it is cumulative and already a part of the Attorney Trial Referee findings. The reference to the PJR hearing is not relevant to the present findings and the statement is a misrepresentation of the testimony as the court reviewed the testimony as a whole. Therefore, the finding is not undisputed and the court will not add the paragraph to the findings of fact.
Paragraph M requests the addition of a finding of fact that is not contained in the transcript as referred to by the defendants. Therefore, the court denies the addition of this disputed finding.
Paragraphs N and O are not an accurate recitation of the testimony and thus are not accurate or undisputed to include as findings of fact.
Paragraph P, Q and S recite portions of the testimony of Mr. Gallo which is either quoted or provides an accurate recitation of the testimony but there is no agreement of the parties and thus it is not undisputed. Additionally, the Attorney Trial Referee who considered as part of the determination in arriving at a decision, the credibility of the parties and their testimony has not included the statements as necessary or credible for the conclusion and decision in this matter.
Paragraph R is repetitive and inaccurate as to the finding that "he was upset." The transcript does not reflect this state of mind. The objection is overruled and the inclusion as a finding is denied.
Paragraph T includes a mixture of testimony, counsel's view of testimony and argument as to what was not produced. The paragraph offers minimal supported testimony. The court denies the request to add because the finding is not agreed upon by the parties nor a part of the testimony as presented by the defendant in the transcript of the hearing.
Paragraph U includes an accurate recitation of the testimony, however, the Attorney Trial Referee in her report indicates very specifically that upon careful consideration of the testimony and considering the demeanor and manner of testimony that she does not consider the testimony of Mr. Gallo as credible. The requested addition would require the court to give validity to statements that the Attorney Trial Referee in its analysis after observation refused to do. The court denies the request to add this paragraph as a finding of fact.
Paragraph V includes an accurate recitation of the statement of Mr. Gallo, however, the decision of the Attorney Trial Referee as to the credibility of the statement is the ultimate issue in this matter and to include this statement will be infringing upon the finding of the attorney trial referee as to which evidence she determined credible. The court therefore denies the addition to the findings of fact.
Paragraph W does not accurately recite the testimony noted by the defendant and thus the court will not add it as a finding of fact.
Paragraphs X, Y, Z, AA, and BB are determinations as to credibility for the finding of facts that is to remain with the Attorney Trial Referee. The trial referee did include within the findings of fact paragraphs that addressed this factual pattern and the findings of the Attorney Trial Referee were made upon a determination as to what testimony was credible and would be accepted as true for purposes of a final conclusion. (See paragraphs 50, 51, 52, 53, 54, 55, 56, 57, 58, and 60). The court denies the addition as a finding of fact.
Paragraph CC is argument and not a finding of fact.
Paragraph DD does not completely provide undisputed testimony and there is no agreement to add it as undisputed. The exhibits that are referred to are already part of the record but are not included within the written and undisputed facts that would become a finding of the court.
Paragraph EE is already a partial finding of fact in the Attorney Trial Referee report, paragraph 69. The additional language that refers to a 4% commission is not included nor agreed upon and thus, the court denies the request to add it as a finding of fact.
Paragraph FF is argument and the trial referee has included a finding of fact that addresses this finding in paragraph 64. An additional finding of the same information is denied as repetitive and argumentative.
Paragraphs GG and HH are foundation and background of the defendant and are not part of the factual background incorporated for the conclusions and findings by the Attorney Trial Referee. The defendant, although requesting that the court add these findings, has not incorporated these findings as necessary to support the decision in this matter.
The defendants also contend that some of the findings of fact contained in the Attorney Trial Referee report are clearly erroneous. In this regard the defendants address a number of paragraphs within the report of the Attorney Trial Referee, particularly paragraphs 6, 28, 29, 50, 51, and 52. The findings of the Attorney Trial Referee in relation to these paragraphs was supported by the trial testimony. The defendants' argument regarding these findings is that they disagree with the truthfulness of the testimony. That is not an issue for this court to address.
The defendants are attacking and challenging the findings of the Attorney Trial Referee as clearly erroneous based upon their interpretation of the credibility of various witnesses and parties. "The factual findings of a trial referee on any issue are reversible only if they are clearly erroneous . . . [A reviewing court] cannot retry the facts or pass upon the credibility of witnesses . . . 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 the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Elgar v. Elgar, 238 Conn. 839, 848-49 (1996). The defendants have not satisfied this burden to support a ruling that the findings of fact were clearly erroneous. There is support in the record for each of the findings enumerated. Therefore, the court will not strike any of the findings of fact as clearly erroneous.
The defendants next argue that Conclusions of Fact, paragraph numbers 14 and 15 are clearly erroneous because there is testimony that the plaintiffs construe as evidencing fraudulent behavior on the part of Ms. Obernesser and Mr. Stevens. The plaintiffs contend there are not subordinate facts to establish these findings. The plaintiffs completely ignore the testimony of Ms. Obernesser and Mr. Stevens and rely solely upon the testimony of the Gallos that they were pressured to sign the listing. There is testimony that was contrary to the claim of fraud. For instance, finding numbers 28, 30, 31, 35, 43, 44, 46, 60 and 64 are not consistent with a finding of fraudulent behavior as alleged by the plaintiffs. The Attorney Trial Referee appropriately refers to her responsibility to assess credibility "not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . ." (Citation omitted.) Additionally, the report clearly states that: "As the fact finder in this case, the undersigned has determined that neither Mr. Gallo nor Mrs. Gallo were entirely credible, and to the extent their testimony regarding the Listing Agreement materially conflicted with that of Ms. Obernesser, the undersigned has concluded that Ms. Obernesser was testifying truthfully." The findings and conclusions of fact were supported by this testimony, evidence and weighing of credibility.
The last argument of the defendants is that with the addition of the requested facts, the striking of the findings they contend were erroneous, and the application of the law to the added and omitted facts, the report is legally erroneous and should be revoked. This argument is a question of law that requires a plenary review. Meadows v. Higgins, 249 Conn. 155, 162 733 A.2d 172 (1999)
The first claim of legal error raised by the defendant is that the listing agreement is invalid because it does not comply with the requirements of General Statute § 20-325a(b). In particular, the statute requires that the agreement: "1) be in writing, 2) contain the names and addressed of the real estate broker performing the services and the name and address of the person for whom the acts were done or the services rendered, 3) show the date on which such authorization was entered into or such authorization given, 4) contain the conditions of such contract or authorization, 5) be signed by the owner and by the real estate broker or his authorized agent . . ." The defendants specifically contend that the fourth and fifth criteria have not been met by the plaintiffs. The argument as to whether it contained the conditions is disputed by the defendant. The Attorney Trial Referee made a number of findings of fact that support the recommended ruling. In particular, paragraph 22 outlines the discussions to list the condominiums at a price of $1,495,000 for each unit and paragraph 23 establishes that the parties discussed a term of a year or more because the property involved new construction. The contract actually included a term of one year. Paragraph 24 recognizes the discussion of a commission to Ms. Obernesser. In Paragraph 28 of the report, the Attorney Trial Referee finds that based upon the testimony, the terms of the Listing Agreement were discussed with Mr. Gallo and thereafter the Attorney Trial Referee found that Mr. Gallo signed the completed Listing Agreement, brought it home to have his wife sign, and returned it the next day to Ms. Obernesser. The findings of fact in paragraphs 37, 38, 39, 40, 41, 42, and 43 specifically contain the details and conditions that were contained in the Listing Agreement that was signed by the plaintiffs. The ultimate conclusion based upon the Attorney Trial Referee's findings supports the testimony of the plaintiffs that the necessary contractual elements were contained in the listing. The defendants offer no legal basis to revoke this finding. Instead the defendants argue that their testimony is very credible and Ms. Obernesser cannot be believed. This decision as to credibility balanced with the legal requirement falls squarely within the purview of the attorney trial referee. "Where the evidence is in conflict, its probative force is for the trier of fact to determine." Bowman v. 1477 Central Avenue Apartments, Inc. 203 Conn. 246, 257, 524 A.2d 610 (1987). The defendants argue that the contract was not complete, but the testimony of Mrs. Obernesser that was included as finding of fact Paragraph numbers 28, 29 and 30 offers contrary testimony that satisfies the fourth element of the statute. This court will not disturb the findings and decision that are consistent with the law.
The defendants contend the fifth element requiring a signature by the owner and by the real estate broker or his authorized agent was not satisfied. The defendants refer to the portion of the Listing Agreement that is for the "Firm's Authorized Representative." The defendants contend that the plaintiffs failed to sign as required by the statute. The defendants' argument that there is a requirement for an "authorized signature" is flawed. The defendants misinterpret the purpose and necessity for the signature of the authorized agent. The defendants confuse the placement of the property on the Greenwich Multiple Listing Service with the contract to sell the property as a Listing Agent. The defendants have inaccurately recited the legal requirements for the agreement, mixing the requirements for an enforceable contract pursuant to General Statutes § 20-325 and the requirement to submit the listing for the multiple listing service (MLS) as part of real estate services available. As noted above, the Attorney Trial Referee properly and legally determined that the listing agreement satisfied all of the criteria to satisfy General Statute § 20-325a(b). The findings of fact by the Attorney Trial Referee in paragraphs 29, 30, 31, 32, 33 and 34 offer the support for the court to find that the multiple listing agreement requirement of the private MLS service is not a legal requirement to satisfy the statutory obligations. Therefore, the defendants' motion to reject and revoke the report of the Attorney Trial Referee based upon this argument is denied.
Lastly, the defendants argue that the original agreement was rescinded, modified or terminated for cause by the plaintiffs' non-performance. The Attorney Trial Referee made several findings that relate to this claim. In paragraph 48, the Attorney Trial Referee finds that beginning on December 28, 2006, Ms. Obernesser was informed by counsel for the defendants that she did not have a listing. Thereafter, the Attorney Trial Referee makes a number of findings regarding the continued efforts of the plaintiffs to address the concerns raised by the defendants including an unaccepted offer to reduce the commission to 2 1/2% if the defendants found a buyer on their own. Although the Attorney Trial Referee finds that the plaintiffs were ready, able and willing to continue representation and were of the opinion that they would have sold the unit, their calls were not returned and they were informed by counsel to stop communicating with the defendants or be faced with a complaint to the Greenwich Police Department for harassment. (Findings of Fact, paragraphs 56, 57, 58, and 59.) Based upon the findings set forth in the report, the Attorney Trial Referee concluded that there was no modification or termination of the Listing Agreement. In arriving at these findings the Attorney Trial Referee stated: "No credible evidence was introduced at trial to support defendants' claim that the Listing Agreement was subsequently modified or agreed to be modified by Mr. Stevens." This analysis as to the credibility of the parties combined with the findings of fact support the ultimate conclusion that the Listing Agreement as signed by the defendants is an enforceable contract.
The Attorney Trial Referee addressed the claim that even if there was a modification for a 2 1/2% commission, it was not applicable because the condition was if the defendants had a direct buyer. It did not modify if the defendant chose to use another real estate agent.
CONCLUSION
Viewing the findings of the Attorney Trial Referee, this court cannot determine that she ignored or failed to follow the law or apply the facts to the law as it applies to claim of the statutory requirements pursuant to § 20-325a. Therefore, the court enters judgment in accordance with the report of the Attorney Trial Referee and overrules the defendants' May 21, 2010 and June 15, 2010 objections and claims of law as to the Report of the Attorney Trial Referee.