Martin Alexander v. Antares Yale & Towne (2011)

OBJECTION TO REQUEST TO AMEND—# 690.00

The Plaintiffs commenced this action by way of a Complaint dated March 11, 2008 in five counts seeking to recover damages from the defendants for losses allegedly sustained as a result of the April 3, 2006 fire at the property located at 735 Canal Street in Stamford then known as the Stamford Antiques Center.   An Amended Complaint was filed on April 30, 2008 correcting several plaintiffs' names and businesses and paragraph 1 of all counts.

On June 10, 2011 the plaintiffs filed a request to amend their complaint, as amended on April 30, 2008, accompanied by the proposed amendment.   Plaintiffs seek to amend paragraphs 17, 18, 24, 25 & 27 of the First Count, paragraphs 34, 36, 37 & 41 of the Fourth Count and paragraph 8 of the Fifth Count.   The defendant, Paul Haller, filed an objection on June 27, 2011 opposing plaintiffs' request to amend the complaint to the extent that the plaintiff's proposed Amended Complaint contains new allegations, specifically paragraph 8 of the Fifth Count.¹  The defendant contends the amendments do not relate back to the Amended Complaint of March 11, 2009 and asserts that the new allegations are pleaded beyond the time limit for tort liability under Conn. Gen. Stats.   Sec. 52–584.²  The plaintiffs submitted a memorandum on July 11, 2011 responding to the objection to the request to amend and defendant filed a reply on July 14, 2011.   On July 14, 2011, the court conducted a hearing on the objection to the proposed amendment.

DISCUSSION

Practice Book § 10–59 provides that a party may, as a matter of right, amend its complaint within thirty days following the return date.   When a plaintiff does not amend the complaint within thirty days following the return date, a request to amend is necessary.  Practice Book § 10–60.  Practice Book § 10–60(a)(3) provides that “[i]f no objection ․ has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.” ³  If another party objects to the request, “[i]t is within the discretion of the trial court to grant or deny an amendment ․” Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).  “[I]f justice to the party offering [the amendment] requires its allowance, the fact that his adversary objects is an insufficient reason to refuse permission to amend.”  French v. French, 135 Conn. 542, 548, 66 A.2d 714 (1949).   While amendments to the complaint are discretionary with the court, consideration must be given to the timeliness, basis and possible resulting prejudice when deciding that issue.  “In the interest of justice, our courts have generally been most liberal in allowing amendments.”  Moore v. Sergi, 38 Conn.App. 829, 836 (1995).⁴  However “[w]hile 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 delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ․” Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995).  Constantine v. Schneider, 49 Conn.App. 378, 389, 715 A.2d 772 (1998).

A request to amend a complaint may be denied if the claim sought to be added is barred by a relevant statute of limitations.   See, e.g., Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 666–68, cert. denied, 220 Conn. 922 (1991).   The bar of the statute of limitations is avoided if the amendment can be said to relate back to the date of the original pleading.   For statute of limitations purposes, an amendment to a complaint relates back to the date of the initiation of the lawsuit, unless it alleges a new cause of action;  if so, the amendment speaks as of the date it is filed.  Sharp v. Mitchell, 209 Conn. 59, 70–75 (1988); ⁵  Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285 (1974).   Accordingly, if the proposed additional counts set forth a new cause of action, they are barred by the statute of limitations, and Plaintiff's request must be denied.  “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.”   Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239 (1980),⁶ quoting Gallo v. G. Fox & Co., 148 Conn. 327, 330 (1961).   The test is whether an entirely new and different factual situation is presented.  Sharp v. Mitchell, supra, 71–72.

“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 ․ A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change 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 ․” (Internal quotation marks omitted.)  Barrett v. Danbury Hospital, 232 Conn. 242, 263–64, 654 A.2d 748 (1995).  “Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ․” (Internal quotation marks omitted.)  Id., 264.

The primary issue before this Court is whether the proposed Fifth Count set forth a new and different cause of action, or merely amplifies or expands what has already been alleged in any of the relevant existing counts.   In order to make this determination, the court must compare the proposed new Fifth Count with the existing Fifth Count of the April 30, 2011 amendment.   In their objection to the plaintiff's request to amend the complaint, the defendant argues that the request should be denied because the proposed amended complaint includes a new cause of action that is barred by the statute of limitations.   The defendant argues that the proposed Fifth Count at paragraph 8 contains new factual allegations by referencing defendant's liability arising from a claimed use of improper fire extinguishers and thus this additional count is barred by General Statutes § 52–584.   The defendant argues that the specific claim as to the improper fire extinguisher creates a negligence per se allegation which is a new cause of action and thus beyond the applicable statute of limitations.   In opposition the plaintiffs argue that the proposed paragraph expands on the way in which defendant Haller created and maintained conditions in his workshop conducive to causing the fire and relates to the method by which the fire spread.   The argument of counsel in this matter is similar to the claims recently addressed by the court in Mario Martis v. 456 Lombard, LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6007184 S (May 3, 2011, Lager, J.) [51 Conn. L. Rptr. 805].   In Martis, the plaintiff amended the complaint to add a negligence per se claim and the defendant objected claiming it was a new and different cause of action and that it was barred by the applicable statute of limitations.   The court analyzed the negligence claims and stated “both common law negligence and negligence per se requires the same two essential elements—a breach of duty and resulting harm proximately caused by the breach.”   See e.g. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 650 A.2d 153 (1994);  Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 127 (1965).   The court went on to address some differences between the two but determined that the identity of the cause of action remained the same and thus was only an alternate theory of negligence.   This is precisely the claim in the instant action and thus the court does not find that the claim is new and different.   The court finds that there is an adequate relationship between the Amended Complaint and the proposed amendment.   The proposed amendment merely elaborates on allegations in the amended complaint based on information elicited from the deposition of the defendant, and therefore relates back.

Further on July 14, 2011 during argument on the request to amend, counsel for defendant Haller admitted that he was aware of the issue of the claimed use of improper fire extinguishers.   The allegations in the amended complaint are based upon the same set of facts and circumstances in the original complaint.   The amendment relies upon the same facts but has more specific allegations.   Counsel became aware of this issue during discovery in one of the related cases arising out of the April 3, 2006 fire.⁷  Conversely, there is no evidence that plaintiffs' counsel was aware of this issue.   There is no allegation of negligence by defendant on the part of the plaintiffs as to the timing of when the amendment was filed.   The defendant Haller has been on notice that he may be required to defend a claim of the use of improper fire extinguisher and is protected from having to defend a claim that is stale.   The amended complaint is supported by the original factual allegations and thus relates back and is not time barred.   The amendment will not unreasonably delay this matter and there is no undue prejudice to the defendant.   Given the totality of the circumstance and the liberality of our courts in granting amendments the amendment to the complaint is granted.

CONCLUSION

In light of the foregoing, the defendant's objection to the plaintiffs' request to amend is overruled.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The Fifth Count at paragraph 8 alleges that “defendant Haller did not have the proper fire extinguishers on his premises as required under the State Fire Safety Code and pursuant to his lease agreement with defendant Antares SPE.”.  FN1. The Fifth Count at paragraph 8 alleges that “defendant Haller did not have the proper fire extinguishers on his premises as required under the State Fire Safety Code and pursuant to his lease agreement with defendant Antares SPE.”

FN2. Sec. 52–584 provides in relevant part that “[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․”.  FN2. Sec. 52–584 provides in relevant part that “[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․”

FN3. The objection was filed 17 days after the request to amend was filed but the timeliness of the filing was not raised by the plaintiffs..  FN3. The objection was filed 17 days after the request to amend was filed but the timeliness of the filing was not raised by the plaintiffs.

FN4. Defendant properly permitted to amend counterclaim during trial..  FN4. Defendant properly permitted to amend counterclaim during trial.

FN5. Sharp v. Mitchell held that an amendment alleging negligent design and construction of a facility did not relate back to a complaint alleging negligent supervision in sending employees into the facility..  FN5. Sharp v. Mitchell held that an amendment alleging negligent design and construction of a facility did not relate back to a complaint alleging negligent supervision in sending employees into the facility.

FN6. In Giglio v. Connecticut Light & Power Co., an amendment adding a claim that the defendant had permitted certain defects to remain in a furnace system to a complaint alleging strict liability did not state a new cause of action as the gravamen of the cause of action remained a defective furnace..  FN6. In Giglio v. Connecticut Light & Power Co., an amendment adding a claim that the defendant had permitted certain defects to remain in a furnace system to a complaint alleging strict liability did not state a new cause of action as the gravamen of the cause of action remained a defective furnace.

FN7. This case is one of several cases consolidated pursuant to P.B. § 9–5 for discovery purposes on the X08 Complex Litigation Docket at Stamford arising out of the April 3, 2006 fire..  FN7. This case is one of several cases consolidated pursuant to P.B. § 9–5 for discovery purposes on the X08 Complex Litigation Docket at Stamford arising out of the April 3, 2006 fire.

Brazzel–Massaro, Barbara, J.