Blumberg Associates Worldwide, Inc. v. Brown & Brown of Conn., Inc. et al (2010)

MEMORANDUM OF DECISION

This commercial contract matter is before the court concerning the plaintiff Blumberg Associates Worldwide, Inc.'s (plaintiff or BAW) motions to reargue, to open judgment, and to amend complaint (# # 142, 143, 144).   The defendants, Brown & Brown of Connecticut, Inc. and Brown & Brown, Inc. (defendants or Brown & Brown), filed omnibus objections (# 149).   After considering the parties' arguments, the court issues this memorandum of decision.   For the reasons set forth below, the motions are denied.

I

Motion To Reargue

On May 11, 2010, the court issued its memorandum of decision (# 140) (May 2010 decision), in which it granted the defendants' motion for summary judgment as to the remaining counts of the plaintiff's complaint.   The court concluded that Brown & Brown was contractually entitled to terminate the parties' agreement.   Previously, by memorandum of decision dated July 14, 2009, the plaintiff's fourth count was stricken (# 110).   Judgment entered against the plaintiff as to that count on September 23, 2009 (# 119).   After summary judgment was granted against it, through its three new motions, the plaintiff now seeks to amend its complaint to add a claim for breach of the duty of good faith and fair dealing.

The court explained the background of this matter in its May 2010 decision, pages 1-5.   The plaintiff's five-count complaint is dated September 4, 2008.   Pursuant to the scheduling order agreed to by the parties, dated August 26, 2009, the pleadings were to be closed by October 1, 2009.   Depositions were concluded by early December 2009.   According to the scheduling order, all discovery was to be concluded by January 8, 2010 and the deadline for filing dispositive motions was January 29, 2010.

The appellate courts repeatedly have reiterated the standards which govern reargument or reconsideration.  “[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple.”  (Emphasis in original;  internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n.28, 952 A.2d 1 (2008).

“A motion to reargue is not a device to ․ present additional cases or briefs which could have been presented at the time of the original argument.”   (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).  “[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court.”   (Emphasis omitted;  internal quotation marks omitted.)  Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005).  “[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ․” Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).

“Newly discovered evidence may warrant reconsideration of a court's decision.   However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.”  (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).

The plaintiff's presentation in connection with the motion to reargue ignores the settled appellate decisional authority, quoted above, concerning motions for reargument.   Instead, it asserts, without explanation or support, that the court erred in not considering the plaintiff's “bad faith” arguments as raising a material issue of fact.   See motion to reargue, p. 1.

As to this subject, in the May 2010 decision, page 17, the court stated that “[b]reach of the duty of good faith and fair dealing is not alleged.   Termination in bad faith is not alleged.”   The court also stated, at page 17, that “[a] plaintiff may not allege one cause of action and recover upon another.”  (Citation omitted;  internal quotation marks omitted.)   At page 18, the court stated, after citing appellate decisional authority, “[s]ince BAW has not alleged bad faith termination of the Agreement by Brown & Brown in its complaint, and since Brown & Brown has objected to BAW's raising the issue in opposition to the motion for summary judgment, the court may not consider this issue as raising a material issue of fact.”

The only decision cited by the plaintiff is Pekera v. Purpora, 273 Conn. 348, 358, 869 A.2d 1210 (2005), for the proposition that a plaintiff can, after an adverse decision on summary judgment, file a motion to open the judgment in order to restore it to the docket and to seek to amend the complaint.   Pekera did not involve a motion for reargument and does not provide support for such a motion.

In Pekera, the Supreme Court stated, “the record reveals that the plaintiffs did not wish to amend their complaint when the defendant's summary judgment motion was filed because an amendment might have weakened their position that the existing complaint encompassed a claim of failure to inform.   The plaintiffs' reference to a possible future amendment in their reply memorandum thus cannot be considered a request to amend under the applicable rules of practice.”  (Emphasis in original;  footnote omitted.)  Pekera v. Purpora, supra, 273 Conn. 356-57.

Pekera simply stated that “[t]he plaintiffs could have filed a motion to open the judgment for the purpose of restoring the case to the docket and amending the complaint after the court had granted the defendant's motion and rendered judgment thereon.”  (Footnote omitted.)  Pekera v. Purpora, supra, 273 Conn. 358.   The Supreme Court also noted that “an argument can be made that, because the plaintiffs did not assert their failure to inform claim until they replied to the summary judgment motion, more than three years after the plaintiffs filed their complaint, it was the defendant who suffered an injustice by having to respond to new allegations long after the action had been commenced.”  Id., 358.

Here, the plaintiff has not shown that a controlling decision or some principle of law has been overlooked, or that there has been a misapprehension of facts, or that there was a claim of law that was not addressed by the court.   No new facts nor newly discovered evidence is cited.   Rather, it is evident that the motion to reargue impermissibly seeks a second bite of the apple.   See Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n.28.

As discussed below, the court has denied the motions to reopen judgment and to amend the complaint.   The court also declines to reconsider its summary judgment decision in light of the proposed amendment.   Based on the foregoing reasons, the motion to reargue is denied.

II

Motions To Open And To Amend Complaint

“The principles that govern motions to open or set aside a civil judgment are well established.   Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation ․ Because opening a judgment is a matter of discretion, the trial court [is] not required to open the judgment to consider a claim not previously raised ․ The exercise of equitable authority is vested in the discretion of the trial court ․” (Footnote omitted;  internal quotation marks omitted.)   Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94-95.

“The theory underlying these rules governing the vacating of judgments is the equitable principle that once a judgment is rendered it is to be considered final ․ and should be left undisturbed ․ except for a good and compelling reason ․” (Internal quotation marks omitted.)  Priest v. Edmonds, 295 Conn. 132, 138, 989 A.2d 588 (2010).  “While such a motion should not be readily granted nor without strong reasons, it ought to be when there appears cause for which the court acting reasonably would feel bound in duty so to do.”  (Internal quotation marks omitted.)  Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710-11, 462 A.2d 1037 (1983).

“An amendment after judgment ․ is a possible, but most extraordinary, remedy, to be allowed only in exceptional cases and with the greatest caution.”  Kelly, Administrator v. New Haven Steamboat Co., 75 Conn. 42, 47, 52 A. 261 (1902).  “Where a case has been litigated wholly upon the merits a party is not permitted after judgment to take advantage of defects in procedure which, had attention been called to them at the trial, could readily have been amended.”  (Internal quotation marks omitted.)  Tedesco v. Stamford, 215 Conn. 450, 462, 576 A.2d 1273 (1990).

In the motion to open, no good and compelling reason is advanced by the plaintiff to overcome the principle that, once rendered, a judgment is to be considered final.   Rather, the plaintiff again cites Pekera, and contends that it is controlling here.   See motion to open judgment, p.1. As discussed above, Pekera simply stated that, after judgment was rendered, the plaintiffs could have filed a motion to open the judgment for the purpose of restoring the case to the docket and amending the complaint.   See Pekera v. Purpora, supra, 273 Conn. 358.  Pekera did not alter the standard of review on a motion to open and does not compel a trial court to grant such a motion.

In the motion to amend, the plaintiff asserts that denying leave to amend would deprive it of its day in court on the subject matter of the amendment.   The plaintiff cites the liberal policy in favor of permitting amendments, in order to accomplish justice.

“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 trial court has wide discretion in granting or denying amendments, and its determination will not be reversed absent an abuse of discretion ․ Our jurisdiction generally follows a liberal policy in allowing amendments to complaints ․ Factors to be considered in determining whether leave to amend should be granted are the length of the delay, the fairness to the opposing party, and the negligence, if any, of the party offering the amendment.”  (Citations omitted;  internal quotation marks omitted.)  Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987).   There, the trial court refused to allow an amendment to conform the pleadings to the proof.   See id.  “From our review of the record, the court's action was not an abuse of its discretion.   The trial was nearly completed at the time the variance emerged, and the trial judge could reasonably have believed that allowing the plaintiff to present proof of statements made after the sale of the vehicle would have unreasonably prejudiced the defendant.”  Id.

The circumstances here are analogous to those in Collum v. Chapin, 40 Conn.App. 449, 453-54, 671 A.2d 1329 (1996), where the Appellate Court stated, “[t]he trial court's refusal to allow a belated amendment to a pleading in response to the filing of a motion for summary judgment by the adverse party will be sustained unless there is clear evidence of an abuse of discretion ․ Where, as here, the motion was filed after the court had already ruled in favor of the defendant on its summary judgment motion, its action was clearly justified.”  (Internal quotation marks omitted.)

Also, the appellate courts have stated that belated attempts to avoid adverse results should not be rewarded.  “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.  Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967) ․ The plaintiffs attempt to manipulate the arbitration process by reserving objection until after the announcement of the arbitral award is precisely the kind of conduct we discountenanced in Krattenstein v. G. Fox & Co., supra.   We will not reward such conduct here.”  (Internal quotation marks omitted.)  Shore v. Haverson Architecture And Design, P.C., 92 Conn.App. 469, 476-77, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).

The plaintiff's reliance on Stuart v. Stuart, 112 Conn.App. 160, 182, 962 A.2d 842 (2009), reversed in part on other ground, 297 Conn. 26 (2010), is misplaced, since, there, as opposed to here, the opposing party did not object when the new claim was presented.   There, “the plaintiffs filed a motion for reargument in which they claimed, inter alia, that Christman Stuart Interiors, LLC, was not entitled to a setoff because it failed to raise that claim in its pleadings.   In the [trial] court's memorandum of decision on the motion for reargument, the court addressed the plaintiffs' claim as follows:  ‘[Christman Stuart Interiors, LLC] presented evidence in support of a setoff without objection at trial, and the case was tried and subsequently briefed by all parties on that basis.   Having been belatedly alerted to the alleged pleading deficiency by the reargument motion, [Christman Stuart Interiors, LLC] subsequently requested to amend its pleading to include a setoff claim, and this request was not objected to.   Under these circumstances, equity and good conscience will not permit allowance of the plaintiffs' claim on reargument to eliminate the setoff.’   We agree with the court's resolution of that claim.”   Id., 112 Conn.App. 181-82.   Here, in contrast, as explained in the court's May 2010 decision, the defendants objected to the plaintiff's raising of good faith and fair dealing in response to their motion for summary judgment.

In addition, the circumstances here show that the plaintiff unreasonably delayed in offering the proposed amendment, and that the defendants would be unreasonably prejudiced if it were now permitted.  “While our courts have been liberal in permitting amendments ․ this liberality has limitations.   Amendments should be made seasonably.”  Intercity Development, LLC v. Andrade, 286 Conn. 177, 190, 942 A.2d 1028 (2008).

Fact discovery concluded in early December 2009.   Dispositive motions were to be filed by January 29, 2010.   The plaintiff does not contend that its previous complaint contained allegations of bad faith termination of the agreement at issue.   Plaintiff makes no argument that it learned of new facts which caused it to seek to amend its complaint by adding a new claim for breach of the duty of good faith and fair dealing.   Rather, it did not seek to amend its complaint before the defendants' motion for summary judgment was filed and then chose to raise its bad faith claim in response thereto.   Even after oral argument on the summary judgment motion on March 22, 2010, no motion to amend was filed.   The plaintiff never sought to amend the pleadings in advance of receiving the court's May 2010 decision.

In contrast, the defendants defended this matter based on the allegations in the plaintiff's complaint and filed a dispositive motion based on the allegations made therein.   There is no legal justification for permitting the plaintiff to turn back the clock.   If the court permitted that now, after the expiration of the agreed-to and court-ordered deadlines for closing the pleadings, completing discovery, and filing dispositive motions, the dispositive motion process followed by the parties and the court would be rendered meaningless.   Likewise, discovery, which was completed over six months ago, would have to be reopened to address the plaintiffs new bad faith claim.   Having conducted discovery based on the plaintiff's original allegations in its complaint, and having fully litigated and prevailed on the motion for summary judgment, the defendants would be unduly prejudiced if the court were to open the judgment and now afford the plaintiff an opportunity to amend in order to add a new claim.

In the exercise of its discretion, the court concludes that the greater injustice would be done to the defendants if the court opened the judgment, and permitted the amendment, with the resultant delay, then to the plaintiff by denying the plaintiff its day in court on the subject matter of the proposed amendment.   See DuBose v. Carabetta, supra, 161 Conn. 263.   The plaintiff's motions to open judgment and to amend complaint are denied.   Accordingly, the court need not consider the defendants' additional argument, that the plaintiff's proposed amendment would be futile.

CONCLUSION

For the foregoing reasons, the plaintiff's motions to reargue, to open judgment, and to amend complaint are denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.