TAGGART D. ADAMS, J.
In this action the plaintiff Samuel McNeil sued the defendant Dwayne Thompson to recover monies under a promissory note made by Thompson in the amount of $225,323.25 in consideration for the sale of McNeil's asphalt paving business to Thompson. Thompson served a counterclaim containing five counts.
The matter was referred to an Attorney Trial Referee (ATR) pursuant to Chapter 19 of the Practice Book, and comes before the court by way of the plaintiff's motion for judgment on the report and recommendations of the ATR. See Practice Book § 19-16.
The well considered report and recommendation of the ATR made after a hearing is dated January 20, 2006 and consists of 32 separate findings of fact, 5 conclusions of law and some discussion. According to the representation of counsel for the plaintiff, the defendant does not intend to object, and indeed there is no objection in the court file nor is there a transcript of the hearing testimony required by Practice Book § 19-14 to accompany an objection. In these circumstances there is no basis for this court to reject or modify the ATR's findings of fact, and therefore such findings are accepted and adopted, by this court. See Meadows v. Higgins, 249 Conn. 155, 170 (1999).
In his conclusions the ATR found that the purchase and sale agreement and associated security agreement regarding the sale of the paving business were enforceable, as was the promissory note. The ATR also considered that there was a duty to mitigate damages and that the plaintiff's actions in retaking possession and control of the business assets and "locking out" the defendant capped the plaintiff's damages which the ATR found to be 5 unpaid monthly installments under the note ($17,901.25) and an unpaid loan ($10,000). Finally, the ATR recommended an award of interest at 10% running from December 1, 2002, the date the plaintiff retook possession of the business, and recommended that CT Page 23269
plaintiff be allowed to apply for attorneys fees under the provisions of the note.
The court has reviewed these conclusions and finds that they follow legally and logically from the ATR's findings of fact. The court is prepared to order the entry of judgment in accordance with the above at the appropriate time. However, the court finds it necessary in the first instance to remand this matter to the ATR for action on two matters. First, the ATR's report and recommendations make no reference to any finding or conclusion respecting the defendant's counterclaim. It might be inferred from the findings of fact that the counterclaims were rejected, but the report should be amended to reflect any additional findings deemed necessary and to recommend a disposition for the counterclaims. Second, there should be a finding and recommendation respecting attorneys fees by the ATR, if the plaintiff makes an application for such within fifteen days of the entry of this decision. Since the issue involves fact finding, the application should be made to the ATR.
The court orders the matter remanded to the ATR for the limited purposes described above. CT Page 23270