Opinion
No. CV 044000598
July 25, 2007
MEMORANDUM OF DECISION RE WHETHER PROPOSED AMENDED COMPLAINT ADDS NEW CAUSE OF ACTION BEYOND STATUTE OF LIMITATIONS
Plaintiffs Deborah Mastroanni and Joseph Mastroanni allege that they entered into a contract pursuant to which the defendant Frankson Fence Company would remove old fence material and install a new fence and post caps. They also allege that they instructed the defendant to place the new fence posts in the same locations as the existing fence posts, yet the defendant drilled new holes, thereby damaging a subsurface drainage pipe, and failing to install the fence posts at an appropriate depth. The plaintiffs further allege that the damaged drainage pipe caused flooding and damage to their basement. In counts one through three of the complaint, the plaintiffs assert claims against the defendant for negligence, breach of implied and express warranties, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., respectively.
The plaintiffs have filed a request for leave to amend their complaint. The plaintiffs seek to supplement count three with the allegation that the defendant violated General Statutes §§ 42-134a and 20-429 by not including a notice of cancellation rights and a start and end date in the contract. Sections 42-134a and 20-429 are provisions of the Home Solicitation Sales Act and the Home Improvement Act, respectively. The defendant filed an objection to this request. In its objection the defendant argues that the amended complaint concerns a different group of facts from the original complaint and therefore a new cause of action. The amended complaint, the defendant argues, therefore does not relate back to the original complaint and is barred by the statute of limitations. The defendant contends that the original complaint did not put the defendant on notice of the allegations in the amended complaint.
The plaintiffs counter that the amended complaint merely expands on the third count of the original complaint, which is based on CUTPA. The plaintiffs maintain that the Home Solicitation Sales Act and Home Improvement Act violations alleged in the amended complaint are used as a shield against the defendant's third and fourth special defenses of contractual assumption of liability, and therefore do not constitute a separate cause of action. The plaintiffs also emphasize that the Home Improvement Act does not create an independent cause of action.
Practice Book § 10-60(a)(3) allows a party to amend pleadings "[b]y filing a request for leave to file such amendment . . . If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection . . . shall . . . be filed with the clerk . . . and placed upon the next short calendar list." Section 10-60(a)(3) gives an opposing party fifteen days to file such an objection. In the present case, the defendant timely filed an objection twelve days after the plaintiffs' request to amend was filed.
"The grant or denial of a motion to amend . . . pleadings is a matter within the discretion of the trial court . . . In the interest of justice courts are liberal in permitting amendments; unless there is . . . an abuse of discretion." (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn.App. 165, 181, 694 A.2d 1376, cert, denied, 241 Conn. 926, 696 A.2d 1264 (1997), citing Wassell v. Hamblin, 196 Conn. 463, 466, 493 A.2d 870 (1985).
When considering whether to permit an amended complaint, the courts have focused on whether the amendment presents an "entirely new and different factual situation" See, e.g., Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 775; see also Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991); Barrett v. Danbury Hospital, 232 Conn. 242, 264, 654 A.2d 748 (1995); Patterson v. Szabo Food Service of New York Inc., 14 Conn.App. 178, 183, 540 A.2d 99, cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988). An example of a case in which the court determined that an amended complaint raised a new factual situation is Barrett v. Danbury Hospital, supra, 232 Conn. 264. In the original complaint, alleging negligence, res ipsa loquitor and loss of consortium, the plaintiffs in Barrett originally alleged that the employees of a hospital negligently exposed one of the plaintiffs to potentially contaminated blood. In the proposed amended complaint, the plaintiffs alleged that the chief executive officer of the hospital refused to release information about the health status of the persons from whom the potentially contaminated blood came. Id., 263. Based on these new allegations, the proposed amended complaint alleged claims of negligent and intentional infliction of emotional distress. Id. The court held that the plaintiffs' "additional claims for negligent and intentional infliction of emotional distress arose out of different facts than those giving rise to the plaintiffs' original cause of action" because those claims "arose out of events that occurred the day after the events that were the subject of the original complaint . . ." Id., 264. The Barrett court distinguished between the alleged negligence of hospital staff on one day and the refusal of the chief executive officer to release information about the blood on another day. Id., 264-65.
In Gurliacci v. Mayer, supra, 218 Conn. 531, on the other hand, "the plaintiff's amendment reiterated [a] negligence claim based on [the defendant's] operation of a motor vehicle, but added that [the defendant] was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The new allegations did not inject two different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability." (Internal quotation marks omitted.) Id., 549.
In the present case, the plaintiffs attempt to supplement their CUTPA count by alleging violations of the Home Improvement Act and the Home Solicitation Sales Act. The court must address whether these additional allegations offer an "entirely new and different factual situation" or merely "amplify or expand what has already been alleged." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 775. The original complaint alleges negligence, breach of warranty and CUTPA violations based on the defendant's improper installation of a fence. The amended complaint alleges that the defendant did not include a start and completion date or a notice of the owner's cancellation rights in the contract between the parties. As in Gurliacci, the amended complaint in the present case does not "inject two different sets of circumstances and depend on different facts . . ." (Internal quotation marks omitted.) Gurliacci v. Mayer, supra, 218 Conn. 549. Rather, the additional allegations concern the same contract that governs the fence installation at issue in the original three counts. Unlike the plaintiffs in Barrett, the plaintiffs here are not attempting to add allegations that stem from different events than "the events that were the subject of the original complaint . . ." Barrett v. Danbury Hospital, supra, 232 Conn. 264. Here, count three of the original complaint contains broad allegations of unfair and unlawful acts by the defendants that allegedly violated CUTPA. The amended complaint, which alleges the defendant's failure to include pertinent information in the contract, describes specific unfair acts, including violations of the Home Solicitation Sales Act and the Home Improvement Act. The additional allegations thus merely expand on the original complaint, and do not assert a new cause of action, because they merely explain in greater detail the factual and legal basis for the CUTPA claim in the original complaint.
When applying the relation back doctrine, courts also consider whether an amended complaint unfairly prejudices the defendant. See Billy Leo, LLC v. Michaelidis, 87 Conn.App. 710, 715, 867 A.2d 119 (2005) ("[b]elated amendments to the pleadings are allowed except where the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues." (Internal quotation marks omitted.)) See also Eisenbach v. Downey, supra, 45 Conn.App. 181-82; Kaye v. Manchester, 20 Conn.App. 439, 444, 568 A.2d 459 (1990). In Gurliacci, the court addressed whether a defendant would be "required to gather different facts, evidence and witnesses to defend the amended claim." Gurliacci v. Mayer, supra, 218 Conn. 549.
The allegations in the plaintiffs' amended complaint clearly lie within the purview of the CUTPA violations alleged in the complaint. "A party seeking to recover damages under CUTPA must . . . establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . [A] plaintiff's undisputed failure to comply with the Home Improvement Act's written contract requirement is a per se violation of CUTPA by virtue of General Statutes § 20-427(b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice." A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). In addition, General Statutes § 42-141(b) of the Home Solicitation Sales Act provides in relevant part: "[F]ailure to honor any provisions of the notice of cancellation required by this chapter shall constitute an unfair or deceptive act or practice . . ."
In the present case, the third count in the original complaint required the defendant to gather facts and evidence related to the contract and the defendant's alleged unfair acts. The amended complaint narrows the focus of the allegations in count three by citing specific examples of misconduct. Because the third count and the amended complaint both address unfair acts related to the contract, the amended complaint does not require the defendant to gather additional facts. The defendant has thus received "fair notice" of the Home Solicitation Sales Act and Home Improvement Act allegations, because such allegations fall within the scope of those of the original complaint. Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 775.
Furthermore, as the plaintiffs correctly point out, trial courts have held that the Home Improvement Act does not provide an independent cause of action. See McClain v. Byers, Superior Court, judicial district of Fairfield, Docket No. CV 93301761 (April 12, 1995, Hauser, J.) [14 Conn. L. Rptr. 99] (1 Conn. Ops. 562); Thompson v. Brevetti, Superior Court, judicial district of Waterbury, Docket No. 106806 (June 10, 1993, Pellegrino, J.) (9 Conn. L. Rptr. 243, 243-44); For the reasons stated in these decisions, the Home Improvement Act allegations in the plaintiffs' amended complaint do not create an independent cause of action.
Conclusion
For the foregoing reasons, the court overrules the defendant's objection to the plaintiffs' request for leave to amend their complaint.