Opinion
CV176010541S
10-30-2018
Catherine Camera v. Carriage Crossing Condominium Association, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Harmon, Gerald, J.
MEMORANDUM OF DECISION RE REQUEST FOR LEAVE TO AMEND #116; OBJECTION TO REQUEST TO AMEND #117 AND REPLY TO OBJECTION #118
Harmon, Judge.
i. Standard for Request to Amend
Practice Book § 10-60 provides in relevant part that "a party may amend his or her pleadings ... at any time ... (1) [b]y order of judicial authority; or (2) [b]y written consent of the adverse party; or (3) [b]y filing a request for leave to file and amendment together with ... (B) an additional document showing the portion or portions of the original pleading or other parts of the record or proceedings with the added language underlines and the deleted language stricken through or bracketed ..." "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." Practice Book § 10-60(b).
"Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion ... It is the [amending party’s] burden ... to demonstrate that the trial court clearly abused its discretion." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 184, 73 A.2d 742 (2013) see also Moaraski v. Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 967 A.2d 1199 (2009). "In determining whether there has been an abuse of discretion [in granting or denying an amendment], much depends on the circumstances of each case ... In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party." Miller v. Fishman, 102 Conn.App. 286, 293, 925 A.2d 441, cert. denied, 285 Conn. 905 (2007).
There remains a lack of authority with regards to whether or not a court retains discretion when a party is not in complete compliance with Practice Book § 10-60(a)(3). However, in New Haven v. Y&H Investments, LLC., Superior Court, judicial district of New Haven, Docket No. CV-18-6078155-S (August 20, 2018, Spader, J.) , the defendant objected to the plaintiff’s request to amend because the request was not in compliance with § 10-60(a)(3). As a practical matter, the trial court granted the request to amend over the defendant’s objection reasoning that the complaint was straight forward and did not prejudice the defendant.
ii. New Claims or Causes of Actions and Relation Backk
"It is true that a party properly may 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. If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 129, 788 A.2d 83 (2002).
General Statutes § 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 ..."
"[I]f an amendment to a complaint states a new and distinct cause of action and is made after the [statute of limitations] has run, the timeliness of the original complaint is immaterial, for such an amendment speaks as of the date of its own filing, and the new cause of action thereby raised is barred by the statute of limitations." Nave v. Ryan, 266 F.Supp. 405, 407 (D.Conn. 1967). "[A]n amendment to the specifications setting forth more clearly the negligence complained of as to the cause of the same injury does not amount to the statement of a new cause of action but relates back to the original complaint so far as the operation of the statute is concerned." Ballou v. Jewett City Savings Bank, 10 Conn.Supp. 419 (1942). "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. " Briggs v. Merrell, 27 Conn.Supp. 60, 62, 229 A.2d 550 (1966).
In a suit against a drug manufacturer for alleged ill effects of a drug on the plaintiff, the statute of limitations did not bar the substituted complaint because it alleged the same single groups of facts as in the original complaint. The court found that the substituted complaint merely amplified what had already been alleged. Briggs v. Merrell, supra, 27 Conn.Supp. 60.
FACTS
The Plaintiff’s original complaint listed four counts: breach of Conn. Gen. Stat. § 47-255(h)(1) for the Defendant’s failure to promptly repair the Plaintiff’s unit, causing further and continuous damage to her unit; breach of Conn. Gen. Stat. § 47-255(e), incorporating count one and alleging failure to make repairs in breach of the Defendant’s fiduciary duty as trustee causing further damage and mold infestation; breach of Conn. Gen. Stat. § 47-211, incorporating counts one and two, obligation of good faith in the Defendant’s failure to repair the Plaintiff’s unit causing further damage and mold infestation; breach of Conn. Gen. Stat. § 47-245(a), incorporating all prior counts, failure of the Defendants to exercise care and loyalty to the association required of an officer with said breach causing further damage and mold infestation of the Plaintiff’s unit; and negligent infliction of emotional distress, incorporation all prior counts, in that the failure to promptly repair the Plaintiff’s Unit caused further damage and continued mold infestation causing emotional distress. Each count concerns ice damming that occurred in the Winter of 2015. See Complaint, Count One, ¶4. All counts of the Complaint and Amended Complaint incorporate all other counts and allege damage to the Plaintiff’s unit caused by water infiltration and mold infestation.
The Defendant claims that Count Six, Injunctive Relief, "injects new facts, that will require different evidence and an entirely new analysis that will involve weighing/balancing the equitable concerns."
FINDINGS
The court in a review of the request to amend finds that the Plaintiff has asserted no new facts or new parties to the action. The Plaintiff’s request to amend her complaint and the facts alleged therein expand and/or amplify the original facts in support of her cause of action and do not present a different factual situation, therefore the relation back doctrine applies and the Defendant’s objection is denied and the Plaintiff’s request to amend is hereby granted.