Moses Johnson v. Alcraft, Inc. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102) AND MOTION TO AMEND (# 104)

Procedural and Factual Background

The plaintiff, Moses Johnson filed a two-count complaint alleging in count one breach of contract and in count two fraud.   The allegations of the complaint are as follows.   On or about July 31, 2008, the plaintiff entered an agreement with the defendant, Alcraft, Inc. to install a hardwood floor in the plaintiff's bathroom for $6,100.   On or about July 31, 2008, the defendant commenced work and completed the work on or about August 13, 2008.

After the defendant completed the work the plaintiff discovered that the defendant had installed Pergo floors which had been represented to the plaintiff by the defendant as hardwood floors.   The plaintiff discovered that Pergo floors are not hardwood floors and had National Floors Direct provide an estimate of the cost of the work that the defendant had performed which amounted to $3,400, almost half of the amount the defendant charged the plaintiff for the Pergo floors.   The plaintiff alleges that the defendant's conduct constitutes a breach of contract and fraud and seeks money damages.

The defendant filed a motion to dismiss on grounds that the court lacks personal jurisdiction because process was returned to the court less than six days before the return day therefore not in accordance with General Statutes § 52-46a which provides in relevant part that “[p]rocess in civil actions ․ shall be returned ․ if returnable to the Superior Court ․ at least six days before the return day.”

The plaintiff filed a motion for leave to amend the return date after the defendant filed its motion to dismiss.   In his motion to amend, the plaintiff argues that “The defendant has filed an appearance in this matter and the matter has not been set for trial and is in the early stages of litigation therefore no parties are prejudiced by this action.”   The defendant subsequently objected to the plaintiff's motion to amend, arguing that:  “In support of his motion the plaintiff relies on an un-referenced Practice Book Section which would allow him to amend the return date of his action to correct a fatal defect in the filling of this action.   Defendant's counsel had reviewed the Connecticut Practice Book and is not aware of any section that allows for the amending of a return date.”   The defendant did not argue that it would be prejudiced by such an amendment.   The matter was heard at short calendar on March 8, 2010.

Discussion

Although the defendant is correct in its assertion that the plaintiff failed to cite any authority for its motion to amend, such authority exists.   Practice Book § 10-60 provides, in pertinent part:  “Amendment by Consent, Order of Judicial Authority, or Failure to Object (a) ․ a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:  (1) By order of judicial authority ․ (b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.   If the amendment occasions delay in the trial or inconvenience to the other party, the judicial authority may award costs in its discretion in favor of the other party.   For the purposes of this rule, a substituted pleading shall be considered an amendment.  (See General Statutes § 52-130 and annotations.)”  General Statutes § 52-72 provides:  “Amendment of Process (a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form. (c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form.   A certified copy of the finding shall be attached to and served with the amended process.”

Therefore, so long as a proposed amendment does not “delay in the trial or inconvenience the other party,” and the court finds that “the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect,” the court shall grant a motion to amend where a pleading is “defective.”   In Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), the Supreme Court took up the issue of whether a plaintiff's failure to comply with General Statutes § 52-46a is a “defect” as contemplated by General Statutes § 52-72.   The court held that the term defective, as used in General Statutes § 52-72, encompassed failure to return process at least six days prior to the return date, thus rendering the return date amendable.

Here, as in Coppola, “[t]he plaintiff's motion to amend would not deprive the defendant of any substantive rights and would simply correct the return date so that the return of process met the statutory six day period required by § 52-46a.   It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance.”   Id., 666.

Conclusion

Accordingly, for the foregoing reasons, the defendant's motion to dismiss is denied and the plaintiff's motion to amend is granted.

Wilson, J.

Wilson, Robin L., J.