Opinion
HHDCV146055022S
10-08-2019
STATE of Connecticut Department of Labor v. B&G RESTORATIONS, LLC et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE.
Trial began in this wage enforcement matter on December 4, 2018, and continued on four additional trial days thereafter, with the plaintiff’s case in chief not yet concluded. Other scheduled days were utilized for the presentation of oral argument. Additional trial days are anticipated.
In its three-count complaint, the State of Connecticut, Department of Labor, alleges, based on General Statutes § 31-72 and other statutes, that defendants B&G Restorations, LLC (B&G) and James Bonito failed to pay wages to four employees for the period August 31, 2009 to December 31, 2012. See complaint, dated September 29, 2014.
Before the court for consideration are the written submissions and the oral arguments presented on July 23, 2019 concerning the defendants’ objection (#141) (objection) to the plaintiff’s May 15, 2019 request for leave to amend the complaint (#136). The court was provided with a copy of the transcript of the oral arguments on October 4, 2019, which, by agreement, commenced the 120-day period for adjudication of the objection. See Practice Book § 11-19(a).
As to Bonito personally, under Count III of the original, operative complaint, the plaintiff alleges that Bonito was the owner and principal member of B&G and violated General Statutes § 31-71b by personally deciding to neglect or refuse to pay the alleged unpaid wages.
See complaint, Count III, ¶9.
In the proposed amended complaint, dated May 15, 2019 (#136), the plaintiff seeks to add new paragraphs 10 and 11 to Count III. In proposed paragraph 10, the plaintiff alleges that Bonito is also personally liable for the wages due "by piercing the corporate veil in, inter alia, the absence of meetings of the limited liability company, Bonito Millwork, LLC [ (Bonito Millwork) ] and related books and records, and the presence of use of business funds for personal purposes." Bonito Millwork is not as party to this action.
In proposed paragraph 11, the plaintiff alleges that Bonito Millwork is the successor to B&G and liable for the wages due "in having a continuity of management, personnel, members and the general conduct of its business, as well as B&G’s cessation soon after Bonito Millwork’s taking control of the business and Bonito Millwork holding itself out as the effective continuation of B&G. The defendant James Bonito’s personal liability is based on piercing the corporate veil of Bonito Millwork, having successor liability."
In its previous memorandum of decision (#135) concerning the defendants’ motion to quash and for a protective order (#132), the court noted that claims of piercing and successor liability had not been pleaded as bases for recovery.
"While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ... The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial ... Whether to allow an amendment is a matter left to the sound discretion of the trial court." LaFrance v. Lodmell, 322 Conn. 828, 846-47, 144 A.3d 373 (2016). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003).
"In exercising its discretion with reference to a motion for leave to amend, a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment, or to his adversary by granting the motion, with the resultant delay." DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971).
The defendants argue that the request to amend is untimely, asserts new theories of liability during trial, involves a nonparty, is prejudicial, and was caused by plaintiff’s negligence in failing to file the claims for the over three and one-half years the litigation has been pending, despite discovery and depositions.
They assert that they have objected to questions during trial about successor liability and piercing the corporate veil. They assert that the plaintiff seeks to introduce new evidence, that has not been part of the case to date, for the first time, concerning the operating procedures of Bonito Millwork and to claim that Bonito profited from his management of Bonito Millwork.
The defendants assert that the new allegations would re-open the pleadings and lead to additional discovery, which would be prejudicial since records which were given to the plaintiff’s investigators were never returned to the defendants and cannot be located by the plaintiff. Depositions would be sought as to the loss of these records.
Also, the defendants argue that they are prejudiced since they prepared for trial for many years and the proposed amendment would open the pleadings and introduce whole new areas of litigation concerning Bonito Millwork, thereby causing long delays, and additional legal work and trial days.
In addition, the defendants argue that the amendment does not relate back to the original complaint and is time-barred. Issues need not be considered "when they are merely mentioned and not briefed beyond a bare assertion ... with no mention of relevant authority and minimal or no citations from the record ..." (Internal quotation marks omitted.) Rock v. Univ. of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016). Since this argument is not supported by case law or analysis, the court need not consider it.
The plaintiff contends that amendment may occur at any time and the defendants were previously aware of the plaintiff’s piercing allegations, which are closely related to the originally pleaded theories of liability. The plaintiff asserts that amendment became warranted when, during trial, it became clear when Bonito’s personal liability attached in relation to Bonito Millwork.
The plaintiff also argues that, in view of discovery conducted before trial, the defendants cannot show either surprise or prejudice. For example, the plaintiff cites Bonito’s deposition testimony (plaintiff’s Exhibit 26 for identification) concerning his role at Bonito Millwork, and questions related to piercing the corporate veil. In addition, the plaintiff cites its opening statement, which referred to its piercing theory, and the defendants’ opening statement, in which defense counsel stated that he did not believe that Bonito had liability on piercing. Also, the plaintiff notes that piercing is referred to in the plaintiff’s legal memorandum (#128), which was presented before the commencement of the presentation of evidence.
While piercing the corporate veil was referenced in the opening statements and the plaintiff’s pretrial memorandum, the new, proposed allegations in paragraphs 10 and 11 concern factual issues which have not been litigated at trial. See paragraph 10, concerning the absence of meetings of the limited liability company, Bonito Millwork, and related books and records, and the presence of use of business funds for personal purposes; and paragraph 11, that Bonito Millwork is the successor to B&G and liable for the wages due "in having a continuity of management, personnel, members and the general conduct of its business, as well as B&G’s cessation soon after Bonito Millwork’s taking control of the business and Bonito Millwork holding itself out as the effective continuation of B&G."
In contrast, see Landry v. Spitz, 102 Conn.App. 34, 45, 925 A.2d 334 (2007), where factors and circumstances concerning the unpleaded theory of bad faith "were a major focus of the trial ..." Here, the new allegations will require the presentation of different evidence. As the Supreme Court has explained, "[t]he trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Town of Wallingford v. Glen Valley Assocs., Inc., 190 Conn. 158, 161-62, 459 A.2d 525 (1983).
The circumstances in cases relied on by the plaintiff in particular at oral argument are distinguishable from the situation here. In Franc v. Bethel Holding Co., supra, 73 Conn.App. 114, no additional evidence was involved. There, the plaintiff’s requested leave to amend their complaint to add allegations of recklessness after resting, in order "to conform to the evidence they had presented." Id., 131. The trial court deferred ruling on the plaintiffs’ request until the end of the trial. See id., 132. Thus, the plaintiffs did not seek amendment in the midst of their case in chief in order to present additional evidence. Also, the defendant chose to forgo the opportunity to present additional evidence. See id., 135.
Similarly, in Moore v. Sergi, 38 Conn.App. 829, 833-34, 664 A.2d 795 (1995), cited by the plaintiff, the defendants sought to amend their counterclaim after the trial, after viewing photographs taken by and presented at trial by the plaintiff. The court accepted the explanation that the defendants could not possibly have included alleged items of property taken by the plaintiff in the original counterclaim for conversion since they did not know about the evidence depicted in the photographs until trial. See id., 834. Here, as stated above, the plaintiff asserts that it explored piercing the corporate veil in pretrial discovery.
Likewise, the need for amendment could not reasonably have been anticipated in All American Pools, Inc. v. Lato, 20 Conn.App. 625, 569 A.2d 562 (1990), also cited by the plaintiff. That matter also involved an amendment after trial. See id., 629. There, a Supreme Court decision was issued during the trial construing General Statutes § 20-429, a section of the Home Improvement Act, and the plaintiff had no way of knowing that that decision would be issued "midway through trial and that the defendants would be able to rely on its ruling in presenting their evidence ..." Id., 630.
As noted above, the first day of trial in this matter was over ten months ago, December 4, 2018. Trial of this matter already has been delayed, for various reasons. As its piercing theories were explored in advance of trial, the plaintiff reasonably could have sought to amend the complaint much earlier. Under these circumstances, in view of the delay in seeking amendment and the fact that, after several days of trial, different proof would be involved in presenting evidence concerning the newly proposed allegations, resulting in this matter being unduly delayed, in the exercise of its discretion, the court finds that the greater injustice will be done to the defendants than to the plaintiff by denying him his day in court on the subject matter of the proposed amendment.
CONCLUSION
For the reasons stated above, the defendants’ objection to the plaintiff’s request for leave to amend the complaint is sustained. Counsel are directed to contact the Caseflow office to schedule a telephonic status conference in order to discuss the resumption of the presentation of evidence at trial.