Naftzger v. Naftzger & Kuhe, Inc.

602 A.2d 606, 26 Conn. App. 521, 1992 Conn. App. LEXIS 49
CourtConnecticut Appellate Court
DecidedFebruary 4, 1992
Docket9853
StatusPublished
Cited by20 cases

This text of 602 A.2d 606 (Naftzger v. Naftzger & Kuhe, Inc.) 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
Naftzger v. Naftzger & Kuhe, Inc., 602 A.2d 606, 26 Conn. App. 521, 1992 Conn. App. LEXIS 49 (Colo. Ct. App. 1992).

Opinion

Lavery, J.

The defendants appeal from the judgment rendered on December 18, 1990, by the trial court in accordance with an attorney trial referee’s report. The attorney trial referee found that the defendants had waived the arbitration clause in the agreement with the plaintiff by failing to seek enforcement of the clause until the end of the hearing before the attorney trial referee. He further found that the defendant H. James Kuhe had defaulted under a modification of a promissory note and recommended that judgment enter in favor of the plaintiff in the amount of $135,267.66 plus costs. In this appeal, the defendants claim that (1) the attorney trial referee lacked subject matter jurisdiction, (2) the plaintiff breached the terms of the parties’ agreement by failing to proceed with arbitration as a condition precedent to any litigation, and (3) both the attorney trial referee and the trial court lacked subject matter jurisdiction to decide that the defendants had waived the arbitration provision. The plaintiff has filed a cross appeal challenging the manner in which the attorney trial referee calculated the interest portion of the judgment. We affirm the judgment of the trial court in all respects.

The plaintiff and the defendant Kuhe were equal partners in the named defendant corporation, Naftzger and Kuhe, Inc. On March 4,1986, the parties entered into a stock redemption agreement. By the terms of their agreement, the plaintiff was to transfer his 50 percent interest in the corporation to Kuhe for a price of $300,000. On March 4, 1986, the parties signed three documents to effectuate the sale: (1) the stock redemption agreement, which set forth terms of the sale; (2) a [523]*523consulting agreement, under which the plaintiff was to be paid $120,000; and (3) a promissory note payable to the plaintiff in the amount of $180,000, executed by Kuhe both personally and in his capacity as president of the corporation. The $120,000 compensation pursuant to the consulting agreement was paid in full. The defendants failed to pay the promissory note according to its terms, however, missing the first payment entirely, and making only a single $60,000 payment in July, 1988.1 The defendants made no further payment on the note. Subsequent to default, the plaintiff demanded payment.

The consulting agreement contained an arbitration clause providing that any dispute relating to the stock redemption agreement, the consulting agreement or the promissory note would be settled by arbitration at the election of either party. The promissory note provided that in the event of default, the defendants would pay interest at 12 percent per annum from the date of default until the balance due under the promissory note had been paid in full, and the defendants would pay costs and expenses of collection, including reasonable attorney’s fees.

The plaintiff did not file any notice of an arbitration claim, but on March 29, 1988, filed suit to recover the amount due under the promissory note. A hearing was [524]*524conducted before an attorney trial referee on September 13, 1990. After both the plaintiff and defendants presented all their evidence, the defendants’ counsel made a demand for arbitration pursuant to the terms of the agreement and moved to dismiss the suit, pending arbitration of the dispute. The attorney trial referee denied the motion to dismiss.

The attorney trial referee filed findings of fact with the Superior Court on November 9,1990. In the findings of fact, he found that the defendants had waived the arbitration clause by failing to seek its enforcement until the end of the hearing. He further found that the defendants had defaulted on the promissory note and recommended that judgment enter in the sum of $126,000 plus interest from March 4,1990, at the statutory rate, plus attorney’s fees in the sum of $9267.66, plus costs. The trial court thereafter rendered judgment in accordance with the attorney trial referee’s report.

The defendants first claim that the attorney trial referee lacked subject matter jurisdiction to hear the case because arbitration was a mandatory prerequisite. The defendants argue that under Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), because this is a jurisdictional claim and not a challenge to a factual finding or conclusion, we may consider the claim. We disagree.

In Seal Audio, our Supreme Court examined the challenge to the attorney trial referee system despite the defendant’s failure to comply with relevant rules of practice, concluding that the appointment of trial referees is constitutional. Id., 508-509. The court refused, however, to examine the various claims relating to the merits of the factual findings of the attorney trial referee and the subsequent judgment rendered by the trial court. Id., 518.

[525]*525Here, the defendants concede that a party must comply with Practice Book §§ 438 through 441 in order to seek appellate review of the factual findings and conclusions of an attorney trial referee and trial court’s judgment. The defendant did not file a motion to correct the findings of fact pursuant to § 438, nor did he file exceptions to the report pursuant to § 439. Likewise, the defendant failed to file an objection to the trial court’s acceptance of the report pursuant to §§ 440 and 441.

“[T]he defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to acceptance thereof pursuant to Practice Book § 440.” Seal Audio, Inc. v. Bozak, Inc., supra. Although the defendants have couched their claim in terms of lack of subject matter jurisdiction, it is in reality a challenge to the attorney trial referee’s factual finding that the parties had waived their right to arbitration. Such a claim cannot prevail, especially in light of the fact that the defendants have disregarded the rules of practice. “A litigant cannot wholly ignore established procedures for the protection of its rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Id.

It is undisputed that the agreement contained a provision requiring arbitration of disputes. As in any contract provision, the parties may waive an arbitration provision. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 432, 534 A.2d 213 (1987). Indeed, “an arbitration clause may be waived by the parties or by the one entitled to its benefit. . . . The same result follows from going to trial without insisting upon the arbitration condition.” (Citations omitted.) Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954); Giulietti v. Connecticut Ins. Place[526]*526ment Facility, supra. “Our review of the trial court’s determination is guided by the principle that, because waiver and estoppel are questions of fact; New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62

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Bluebook (online)
602 A.2d 606, 26 Conn. App. 521, 1992 Conn. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naftzger-v-naftzger-kuhe-inc-connappct-1992.