Opinion
No. CV 03-0821859
February 4, 2005
ARTICULATION
The above-captioned matter was decided in a finding of fact dated June 14, 2004 with Docket No. CV 03-0821859. The undersigned entered judgment on the fact finder's report on October 6, 2004. Although Judge Mary Hennessey ordered argument on the matter on October 19, 2004, that order was vacated on November 12, 2004 because Judge Booth had already decided the matter.
Judge Booth decided the matter without an opinion. On January 5, 2005, the defendant-appellant filed a pleading entitled "Notice That Trial Court Has Not Filed Decision In Compliance With Section 64-1 of the Rules of Appellate Procedure." In response to that notice, which was forwarded to Judge Sooth with Appellate Docket No. 26164, the Court articulates its decision. The defendant's objection to the fact finding was based primarily on alleged non-compliance with Section 10-27 of the Connecticut Practice Book. That Section provides: "A party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself is equitable relief."
The defendants relied on the Supreme Court opinion in Bronson Townsend Company v. Richard Battistoni, 167 Conn. 321, 327 (1974), and a trial court case, Rowley Engineering Associates, P.C. v. Phyllis Cuomo, 1991 Conn.Super. Lexis 29, N.O. 507476, J. Teller (1991) ( 3 Conn. L. Rptr. 79).
The defendants relied on the following language in Judge Teller's opinion:
As the plaintiff failed to plead or prove claims for recovery under any of these theories, which are claims for equitable relief, no recovery can be had by the plaintiff on any of them. Emphasis supplied.
Bronson, which Judge Teller cited contains the following language:
The defendant, in his pleadings, in his brief, in his appendix, and at trial, failed to allege or even to submit any testimony as to what constituted a reasonable bonus, leaving the trial court without basis by which to accord him relief.
Bronson Townsend Company v. Richard Battistoni, 167 Conn. 321, 327 (1974).
Judge Teller specifically points to the absence of pleading and proof and the Supreme Court remarks on the absence of any testimony which would serve as a reasonable basis for according relief.
In the instant case, the Court finds that the nature of the demand itself indicates that the relief sought is, or at least may be, equitable in nature. In addition, unlike Bronson and Rowley, in the instant case the attorney fact finder clearly found evidence from which he could determine an appropriate amount of damages in response to the plaintiff's claim.
After considering the fact finder's report in its entirety, this Court does not find that Practice Book Section 10-27 prohibits recovery by the plaintiff.
The Court finds that the facts as found by the fact finder were properly reached on the basis of subordinate facts found and finds no error in ruling on evidence or other matters.
In its objection the defendants state:
The fact finder's rejection of the defendants' special defenses of payment is erroneous as a matter of law. The evidence was clear and uncontested that the defendant, Carlos doNascimento, paid the plaintiff's bill in full.
The defendant's claim that the evidence was clear and uncontested is not supported by the facts found by the fact finder. Equally important, an absence of evidence does not make the rejection of a special defense "erroneous as a matter of law."
For the foregoing reasons, this Court enters judgment upon the report of the fact finder.
BY THE COURT
KEVIN E. BOOTH, J.