Opinion
No. CV 09-5034505-S
January 7, 2011
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT AND REQUEST FOR LEAVE TO AMEND COMPLAINT
Defendant Jeffrey S. Hoffman has moved this Court to enter judgment in his favor on Count VI of the plaintiff's Complaint, alleging tortious interference with business relations, which the Court ordered stricken in a written Memorandum of Decision issued on November 2, 2010. As grounds for his present motion, which was filed on November 24, 2010, the defendant argues that he is entitled to judgment on Count VI because the plaintiff failed to replead its stricken claim within 15 days of the issuance of the Court's Memorandum of Decision, as required by Practice Book § 10-44.
At all times relevant to this case, Section 10-44 has provided as follows:
Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof. Nothing in this section shall dispense with the requirements of Sections 61-3 or 61-4 of the appellate rules.
On December 24, 2010, over 50 days after the striking of Count VI and over 30 days after the start of trial herein on the plaintiff's remaining claims, all of which are directed solely and exclusively to a separate defendant known as Hoffman Enterprises Limited Partnership, the plaintiff sought leave of this Court to replead the stricken count in a pleading entitled "Opposition to Defendant's Motion for Judgment and for Leave to Amend Complaint." The purpose of the proposed amendment, as described in the plaintiff's Opposition, is "to restate Count VI of the Complaint for negligent misrepresentation and restate the facts to conform to the evidence." Id., p. 1.
In support of its request for leave to amend, the plaintiff invokes the well established liberality of Connecticut courts in allowing amendments to civil pleadings and urges this Court to exercise its broad discretion to permit the amendment to conform to the evidence already presented to date at trial. That evidence, it claims, is that "the Defendant misrepresented the entities of which he [ha]s control and which he and the other Defendant, Hoffman Enterprises Limited Partnership are now asserting a defense that the plaintiff should not possibly recover due to the confusion of the entity names and existence." Memorandum of Law in Support of Plaintiff's Opposition to Defendant's Motion for Judgment and for Leave to Amend Complaint, p. 1. "The issue[,]" it claims, "was part of Count VI originally but the pleading needs to be amended to conform better to the issue now presented by the evidence." Id. Asserting that "[t]his type of amendment was allowed in Stafford Higgins Industries, Inc., v. Norwalk, 245 Conn. 551, 575 (1998)[,]" the plaintiff argues that "[t]here is no prejudice or surprise to the Defendant in this case as the issue was clearly referred to in the original complaint and in the evidence presented and the Defendant has been present in Court the entire time of trial." Id., pp. 1-2.
The defendant opposes the plaintiff's request for leave to amend not only because it comes far later than the 15-day Practice Book deadline for repleading stricken claims, but because the belated granting of such relief at this time would completely undermine the individual defendant's right to a fair trial. When the Court granted his Motion to Strike, notes the defendant, there were no remaining claims in this case against him. Thus, as the trial of this case began and has proceeded to this point, through 10 full days of evidence including over five days each of testimony from the defendant, as a member of Hoffman Enterprises Limited Partnership, and from Miguel Coppola, the plaintiff's principal, the defendant had no reason to address or defend himself against any claims that had been or might be brought against him in his individual capacity. Against this background, any claim that he would not be prejudiced by the proposed amendment due to his presence in the courtroom, in his representative capacity, throughout trial is wholly unfounded.
The notion, moreover, that Mr. Hoffman would not be prejudiced by repleading the stricken count in mid-trial — indeed after day 12 of what was to have been a 6-day trial — is further undermined by the fact that the claim now sought to be presented involves a wholly different cause of action than that which the Court ordered stricken in its Memorandum of Decision. Not surprisingly, the plaintiff never claimed in its Opposition to the defendant's Motion to Strike that it had pleaded or wished to pursue a claim of negligent misrepresentation, but rather concentrated its advocacy efforts on insisting that it had properly presented a claim of tortious interference with business relations. In short, Mr. Hoffman had no notice that a negligent misrepresentation claim was even contemplated by the plaintiff until the plaintiff filed its Opposition to his motion for judgment and accompanying request for leave to amend.
As for the plaintiff's suggestion that our Supreme Court has previously approved belated amendments of civil pleadings under these circumstances, the Court has examined the authorities relied upon by the plaintiff and respectfully disagrees. Although, to be sure, Connecticut has traditionally taken a liberal approach to the amendment of civil pleadings; Smith v. New Haven, 144 Conn. 126, 132 (1956); and has at times permitted post-trial amendments of the pleadings to conform to the evidence by stating unpleaded claims that the parties "actually litigated" at trial; see, e.g., Sophia v. Neustadt, 177 Conn. 191, 206 (1979); this Court has found no case in which an amendment has been permitted to add a new defendant to the case after the start of trial, let alone an amendment belatedly repleading a stricken count against a defendant after trial has begun against other defendants on counts brought only against them. Stafford Higgins Industries, Inc., v. Norwalk, supra, 245 Conn. 551, the case cited by the plaintiff as authority for the granting of such belated requests for leave to amend, the municipal defendant against which the plaintiff claimed that the trial court had authority to reach the merits of an unpleaded claim had actually participated in a full trial against it on that claim and several other related claims. Indeed, it had joined with the plaintiff in submitting the unpleaded claim to the trial court for adjudication. In that case, then, the defendant against which the unpleaded claim was pressed on appeal had not only been present in the courtroom throughout the trial but had agreed to litigate and actually participated in litigating that very claim. Here, by contrast, the individual defendant has not been before the Court in his individual capacity since the granting of his Motion to Strike. Thus he never agreed to litigate, much less actually litigated, any claim against him in that capacity. The Stafford Higgins case is thus inapposite to the situation now before the Court.
Similarly, other cases cited by the Supreme Court in Stafford Higgins for the proposition that post-trial amendments of pleadings may sometimes be allowed to plead previously unpleaded claims have all been limited to situations in which the new claims were directed to parties who actually litigated those claims at trial. See, e.g., Tedesco v. Stamford, 215 Conn. 450, 458-63 (1990), remanded, 24 Conn.App. 377 (1991), rev'd, 222 Conn. 233 (1992) (upholding the plaintiff's right to recover damages on a deficiently pleaded federal civil rights claim where the defendant had fair notice of and actually litigated the claim at trial without objecting to the introduction of evidence upon which the plaintiff's claim was based); McLaughlin Fund, Inc. v. Ford Motor Co., 192 Conn. 558, 564 (1984) (no error to allow amendment of complaint to conform to evidence admitted at trial, and thus to elaborate upon the original allegations against the defendant which were contested at trial); Sophia v. Neustadt, supra, 177 Conn. at 191 (no error to allow post-trial amendment of complaint to add a claim based upon the same single group of facts alleged to have caused the plaintiff's injury which were contested at trial). The upshot of these authorities is that a pre-condition to amending a complaint after the start of trial is that the claim is based upon evidence relating to a claim duly pleaded and brought to trial against the same defendant to whom the amended pleading relates. Where, as here, the defendant was completely out of the case when trial began by virtue of the granting of his pretrial Motion to Strike the only count against him, a mid-trial amendment of the Complaint to reinstate the stricken claim is impermissible, for it will necessarily subject him to the expense of and possible exposure to liability after a trial in which he had no right or opportunity to participate from the outset, and no notice of his vital need to do so. This Court will not countenance such a manifest injustice, and thus must order that the defendant's Motion for Judgment be GRANTED and the plaintiff's request for Leave to Amend its Complaint be DENIED.
IT IS SO ORDERED.