City of Stamford v. Kovac

626 A.2d 792, 31 Conn. App. 599, 1993 Conn. App. LEXIS 275
CourtConnecticut Appellate Court
DecidedJune 15, 1993
Docket11526
StatusPublished
Cited by6 cases

This text of 626 A.2d 792 (City of Stamford v. Kovac) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Stamford v. Kovac, 626 A.2d 792, 31 Conn. App. 599, 1993 Conn. App. LEXIS 275 (Colo. Ct. App. 1993).

Opinion

Freedman, J.

The dispositive issue in this appeal is whether a trial court must hold a hearing on a party’s seasonably filed exceptions and objections with respect to the acceptance of the report of an attorney trial referee. Because we conclude that Practice Book § 4421 [601]*601requires a hearing on such exceptions and objections, we reverse the judgment and remand the case to the trial court for the purpose of permitting the defendant to present oral argument on his exceptions and objections.

This is an action to enjoin claimed violations of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, as well as local regulations that implement that act. Without first hearing oral argument from the defendant on his exceptions and objections, the trial court rendered judgment pursuant to an attorney trial referee’s report and supplemental report finding that fill was unlawfully placed within twenty-five feet of wetlands on property owned by the defendant in Stamford. The court accepted the reports of the referee and ordered extensive injunctive relief, imposed a fine and entered an award of attorney’s fees and costs against the defendant. On appeal, the defendant claims that the trial court improperly (1) denied his objection to a trial before an attorney trial referee, (2) denied his exceptions and objections to the referee’s reports without permitting him the opportunity to present oral argument, (3) sustained the trial referee’s preclusion of testimony by certain expert witnesses, (4) found a violation of the inland wetlands statute, and (5) awarded (a) costs, fees and expenses that included the overhead costs of the municipal enforcement agency and (b) attorney’s fees for services performed by salaried city attorneys.

[602]*602Before addressing the issue of whether the trial court’s failure to hear oral argument from the defendant requires that we reverse the judgment and remand the case to the trial court for a hearing on the defendant’s exceptions and objections to the referee’s reports, we must first address the defendant’s claim that the trial court improperly denied his objection to the reference of the case to an attorney trial referee. We address this claim first because, if it is successful, this claim would require that we reverse the judgment, declare the reference invalid and remand the case for a trial to the court.

The following facts are relevant to this claim. The plaintiff commenced this action by writ, summons and complaint returnable on May 16,1988. The defendant, represented by attorney L. Morris Glucksman, filed his answer and claimed the case for the trial list on December 4,1989. At some time thereafter, the parties were notified that the case would be assigned to an attorney trial referee unless there was an objection. Neither party objected at that time. The case was scheduled for trial before an attorney trial referee several times during 1990, but no trial was commenced because, at one point, the parties appeared to have reached a tentative settlement and because, later, the defendant’s counsel was not ready to proceed when the settlement fell through. On December 17, 1990, the trial court, Katz, J., allowed Glucksman to withdraw his appearance on behalf of the defendant, subject to the defendant’s being notified that a firm trial date would be set. On December 19,1990, attorney Sigmund L. Miller filed his appearance on behalf of the defendant in lieu of Glucksman. On the same date, the parties were notified that the matter was assigned for trial before an attorney trial referee on January 17, 1991. On January 15, 1991, the trial court, Katz, J., denied the defendant’s December 26,1990 request for a con[603]*603tinuance. On January 17, 1991, the defendant filed a written “objection” to trial before an attorney trial referee. On the same date, after hearing from the parties, the trial court, Lewis, J., denied the defendant’s request to have the case tried before the court because “consent was given at the time of the calendar call” and because the objection was “too late on the eve of trial.”

It is well established that consent of the parties is required for a reference to an attorney trial referee. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 515, 508 A.2d 415 (1986). A party, however, is “deemed to have given [its] implicit consent to the referral by failing to raise [its] objection in a timely fashion.” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 251, 524 A.2d 610 (1987).

The defendant contends that his objection to the reference, made on the date the hearing before the referee was to commence, was timely under our case law and was sufficient to revoke the reference. It is clear that the defendant’s objection was timely. Our cases have determined that while it is too late to attack the reference after trial to the referee and the filing of the referee’s report; id.; Rowan Construction Corporation v. Hassane, 17 Conn. App. 71, 79, 549 A.2d 1085 (1988), aff’d, 213 Conn. 337, 567 A.2d 1210 (1990); “[t]he appropriate time to object . . . [is] at the time of the referral, or at least prior to the commencement of the hearing before the referee.” Bowman v. 1477 Central Avenue Apartments, Inc., supra.

While Bowman clearly permits an objection to be filed after the time of referral and before the commencement of the hearing before the referee, it does not indicate what consequences follow from an objection made at that stage of the proceedings. Here, the defendant consented to atrial before an attorney trial referee by [604]*604his failure to object at the time of the referral. Id. Once the referral was made with the express or implied consent of the parties, the reference may be revoked thereafter only “upon stipulation of the parties or order of court.” Practice Book § 432. If a party can, by its objection alone, unilaterally revoke a reference to which it has previously consented or failed to object, the purpose of the reference will not be served. See Bray v. English, 1 Conn. 498, 501-502 (1816). In the absence of a stipulation of both parties that the case should not be tried before an attorney trial referee, the defendant’s objection was properly addressed to the discretion of the court to revoke the reference for good cause shown. Dion v. Dion, 128 Conn. 416, 419, 23 A.2d 314 (1941). We conclude, under the circumstances of this case, that the trial court did not abuse its discretion in refusing to revoke the reference where the matter had been previously scheduled several times for trial before an attorney trial referee with the consent of the parties, only to be continued to a later date, and where the objection was made on the date of trial after the court had ordered no further postponements.

We now address the defendant’s claim that the trial court improperly rendered judgment accepting the referee’s initial and supplemental reports without permitting the defendant the opportunity to present oral argument on his exceptions and objections to the reports.

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Collard & Roe, P.C. v. Klein
806 A.2d 580 (Connecticut Appellate Court, 2002)
Baldwin v. Warden, No. Cv 93 0001625-S (May 23, 1997)
1997 Conn. Super. Ct. 5294 (Connecticut Superior Court, 1997)
City of Stamford v. Kovac
650 A.2d 626 (Connecticut Appellate Court, 1994)
City of Stamford v. Kovac
632 A.2d 689 (Supreme Court of Connecticut, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
626 A.2d 792, 31 Conn. App. 599, 1993 Conn. App. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-stamford-v-kovac-connappct-1993.