Opinion
No. FST CV 06 500 2530
July 16, 2010
MEMORANDUM OF DECISION RE MOTION FOR CLARIFICATION (181.00)
As Presiding Judge, Civil, the defendants' motion "for clarification" dated July 8, 2010 was referred to this court. The additional time requested to file memoranda at the conclusion of an Attorney Trial Referee trial was granted. However, that motion the defendants contended that they have "consistently and continually opposed ATR and have never waived their right to insist on a trial by judge and jury." That statement prompted the court to inquire further.
The court has some familiarity with this case, a mechanic's lien foreclosure matter. In addition, the court has carefully reviewed the file in light of the defendants' contention. In April 2009 the defendants failed to appear at a scheduled pre-trial conference. The notice of the conference, dated March 19, 2009, stated that unless a written objection was made at the conference, the parties would be deemed to consent to an attorney trial referee (ATR) trial. The notice also stated an ATR trial date would be selected at the conference. Following this nonappearance, and noting the long and torturous history of this case initiated in 2006, the court ordered that the plaintiff to pick a trial date more than a month hence for a trial of the matter before an ATR. Dkt Entry 152.00 The date of May 13, 2009 was chosen and appropriate notices were sent on April 6, 2009 to the parties and counsel.
The defendants are husband and wife, owners of residential real estate in Westport, Connecticut. Defendant Kristan Peters-Hamlin is a licensed Connecticut attorney representing herself and her spouse.
On May 11, five weeks later, the defendants filed a motion to adjourn the ATR trial stating "five" reasons. The fifth reason was based on the contention that they were entitled to a jury trial. Included in that paragraph was a brief reference that defendants had "not agreed to ATR." The motion to adjourn was denied, as was a subsequent motion to reconsider which never raised the consent to ATR issue. The ATR trial proceeded on May 13, 2009.
Defendants filed an answer, special defenses, counterclaim, and cross claim on January 25, 2009 (144.00). Although the body of that pleading made reference to a jury trial, no jury claim was ever filed.
Subsequently, a status conference was held on July 1, 2009 because another judge had ordered this case consolidated with three other mechanic's lien actions against the defendants. This court also granted an adjournment of a session of the ATR trial scheduled for June 3, 2009. At the status conference, in open court involving counsel and parties in three cases, this court ordered this case to be unconsolidated with the others because the ATR trial had started and ordered the ATR trial to proceed. The other cases were to be scheduled for trial later in 2009. Defendants moved to reconsider and this motion made clear that defendants objected to an ATR. The motion was denied because the ATR trial had already commenced. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 251 (1987) (appropriate time to object to reference to ATR is at time of reference or at least before commencement of the hearing.)
Having now reviewed the file carefully the court concludes the defendants did refer to their objection to an ATR trial in their May 11, 2009 motion for continuance, although such reference was nearly buried in numerous other arguments. In addition, the court recently obtained the file from the ATR containing the transcript of the May 13, 2009 hearing before Attorney Phillips. At that hearing defendants again stated an objection to the ATR trial, although once again the basis for the objection is the defendants' desire for a jury trial. Transcript May 13, 2009, 6. The defendants also stated the "ATR process was chosen by plaintiff's counsel without consultation with me"; id. 7; ignoring the court notice about the pretrial conference which defendants failed to attend, that made clear the court would order an ATR trial unless written objection thereto was received.
To the extent that defendants made an objection prior to the hearing on May 11, 2009 to litigating this matter before an ATR, it was made in the context of arguing that defendants were entitled to a jury trial. Nevertheless, there was an objection, and this court either overlooked it or did not comprehend it to be an objection to the ATR process per se. The objection in the May 11, 2009 motion to adjourn was timely in accordance with Bowman v. 477 Central Avenue Apartments, Inc., supra, as confirmed by Collard Roe, P.C. v. Klein, 72 Conn.App. 683, 691 (2002). The statement made before evidence was taken at the hearing on May 13, 2009, although the court was not aware of it, probably was also timely.
Therefore, although the defendants hardly comported with the announced procedures set forth in the court notice of March 19, 2009 the court concludes the ATR proceedings were not consented to, and hereby orders a mistrial of those proceedings. The court notes, with thanks, that Attorney William Phillips conducted the ATR trial proceedings in an exemplary fashion, and the mistrial is in no way connected with any defect attributable to his actions.
The court will schedule a trial management conference for this case and the related cases that are scheduled for trial on August 17, 2010.