Opinion
No. CV-09-5026869S
February 3, 2011
RULING ON DEFENDANT MENAJE LLC'S OBJECTION TO PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT (#141)
This action was originally brought by way of a complaint in six counts alleging negligence against various defendants and dated January 22, 2009, with a return date of March 3, 2009. An amended complaint was filed on May 7, 2009. On September 2, 2010, the plaintiff Jorge Gonzalez (Gonzalez) filed a Request for Leave to Amend and an Amended Complaint that sought to add two counts sounding in intentional fraud against the defendant Menaje, LLC ("Menaje"). On September 9, 2010, Menaje objected to the plaintiff's request for leave to amend. On January 19, 2011, the plaintiff filed a reply to Menaje's objection. The objection appeared as a non-arguable matter on the January 24, 2011 short calendar.
Menaje raises three grounds in its objection. First, it objects on the ground that the allegations of the proposed seventh and eighth counts are scandalous, impertinent, immaterial and otherwise improper allegations. Second, it objects on the grounds that the proposed counts allege intentional fraud and are beyond the three-year statute of limitations for torts. Third, it maintains that these counts do not relate back to the original allegations of negligence against it in the 2009 complaints. The second and third grounds are dispositive.
As to the first ground, deletion of "scandalous, impertinent, immaterial or otherwise improper allegations" requires the timely filing of a request to revise. Practice Book § 10-35.
In the proposed seventh and eighth counts, Gonzalez alleges a cause of action sounding in common-law or civil fraud. The statute of limitations for this intentional tort is set forth in General Statutes § 52-577 which provides that: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Section 52-577 is a statute of repose. LaBow v. Rubin, 95 Conn.App. 454, 468-69, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). The three-year limitation period "begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." Farnsworth v. O'Doherty, 85 Conn.App. 145, 150, 856 A.2d 518 (2004). Whether a claim is barred by the statute of limitations is a question of law. Watts v. Chittenden, 115 Conn.App. 404, 409, 972 A.2d 770, cert. granted on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009). Since the conduct alleged in the proposed counts occurred on or about February 21, 2007 and Gonzalez did not move to amend his complaint until September 2, 2010, more than three years after that conduct, the allegations are beyond the statute of limitations unless they relate back to the allegations of the original complaint. See New Hartford v. Connecticut Resource Recovery Authority, 291 Conn. 433, 483, n. 38, 970 A.2d 592 (2009) ("if a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted").
Although a trial court has wide discretion to permit an amendment to a complaint, see Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), it cannot be allowed if the amendment asserts an entirely new cause of action that does not relate back to the original complaint and would be barred by the applicable statute of limitations if filed independently. Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007) cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).
The question, then, is whether the allegations in the proposed seventh and eighth counts arise from the same or a different set of facts than the allegations of the original complaint. The operative facts of the original complaint as they pertain to Menaje are as follows: Menaje was subcontracted by the defendant American Construction Group, Inc. to work on a construction project at the Hospital of St. Raphael in New Haven, Connecticut. (Third and Fourth Counts, ¶¶ 2, 3.) Menaje employed the defendant Carlos Cordova (Cordova) as a foreman on the project. (¶¶ 5, 7.) On February 13, 2007, Cordova got into an argument or altercation with the plaintiff Jorge Gonzalez who was working on the project installing sheetrock as the employee of Daniel Gonzalez, a subcontractor working for Menaje. (¶¶ 4, 8.) Jorge Gonzalez lost his balance and fell through a window opening that was only covered by styrofoam. (¶ 9.) The injuries and damages he sustained resulted from the negligence of Menaje in failing "to take note of the work area for any openings or obstructions which had the potential to cause injury to the Plaintiff or others," in failing "to monitor and/or supervise its subcontractors and the employees of the subcontractors while on the job site," in allowing Cordova "to engage the Plaintiff in a confrontational manner at a time and place when it was not safe to do so," in failing "to direct the Plaintiff out of the area of danger," in failing to exercise "reasonable care and inspection" to determine that the second floor work area was unsafe and remedying the condition, and in failing to remedy the dangerous and unsafe condition of the window opening when it knew or should have known that the styrofoam covering was unsafe. (¶ 10a-g.)
The factual allegations of the third and fourth counts against Menaje in the amended complaint dated May 5, 2009 and filed on May 7, 2009 are identical to those in the original complaint.
The third count alleges a direct cause of action in negligence on behalf of Jorge Gonzalez and the fourth count alleges a derivative cause of action of loss of consortium on behalf of his spouse Blanca Gonzalez.
In the proposed seventh and eighth counts, Gonzalez has repeated the factual allegations contained in paragraphs 1 through 9 of the third and fourth counts of the original complaint. In paragraphs 10 through 13, however, Gonzalez sets forth new factual allegations against Menaje, specifically that on or after February 21, 2007 Menaje "prepared a subcontract agreement, a Request for Taxpayer Identification Number and Certification and a Waiver of Workers' Compensation Coverage for signature by the defendant, Carlos Cordova" (¶ 10), that these documents were undated "at the specific request of Vernon Austin who held himself out to be the CEO" of Menaje (¶ 11), that Cordova was "coerced or forced" into signing these documents upon threat that he would not receive his paychecks if he failed to do so (¶ 12), that subsequently Vernon Austin, or someone else on Menaje's behalf, backdated the documents to December 8, 2006 (¶ 13), and that in so doing Menaje "committed a fraud in an attempt to escape liability for the acts of Carlos Cordova." (¶ 14.) In the fifteenth paragraph, Gonzalez sets forth the elements of a cause of action for intentional or common-law fraud in conclusory fashion.
As with the allegations of the third and fourth counts, the seventh count makes a direct claim on behalf of Jorge Gonzalez and the eighth count alleges a derivative claim on behalf of his spouse Blanca Gonzalez.
"The essential elements of an action in common law fraud . . . are that (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of that reliance." (Quotation marks omitted, internal citation omitted.) Suffield Development Assoc. v. National Loan Investors, 260 Conn. 766, 777-78, 802 A.2d 44 (2002).
When a proposed amendment to a complaint involves "different sets of circumstances and depend[s] on different facts to prove or disprove the allegations of a different basis of liability," Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988), it does not relate back. In Sharp, the court concluded that even though the same defendant was accused of negligence resulting in the same injury in both the original and amended complaints, the defendant did not have fair notice of the amended complaint's new basis of negligence liability based on the allegations of the original complaint. Consequently, the defendant would have "to gather different facts, evidence and witnesses to defend the amended complaint." Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991). Similarly, in Alswanger, supra, 257 Conn. 66-67, the court concluded that the allegations of the amended complaint changed the focus of the original claim of informed consent away from patient's consent to the surgical procedure itself and onto unrelated facts regarding a resident's involvement in the surgery.
In this case, the original complaint alleged that Menaje acted negligently due to its conduct on February 13, 2007 in supervising Cordova and in failing to maintain a safe workplace for Gonzalez. The proposed new counts allege conduct that took place after the events on February 13, 2007, reference occurrences that do not involve Gonzalez at all and allege transactions with some individuals who were not identified in the original complaint. Moreover, the proposed counts set forth an entirely new basis for liability purporting to sound in fraud. But see Suffield Development Assoc. v. National Loan Investors, 260 Conn. 766, 778, 802 A.2d 44 (2002). To establish the first three elements of common-law fraud, see n. 5 supra, clear and convincing proof is required. Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 163, 681 A.2d 293 (1996). Consequently, to defend against this claim of intentional conduct Menaje will be required to develop new facts and evidence that are unrelated to the original claims of negligence against it, as well as to identify and interview new or additional witnesses about which the original complaint did not give it fair notice. Since the new theory of liability set forth in the proposed counts is not supported by the factual allegations of the original complaint, they do not relate back. See Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010). The allegations are barred by § 52-577, the applicable statute of limitations.
For the foregoing reasons, the objection to the request to amend is sustained.