GRIGERIK v. SHARPE, 56 Conn. App. 314 (2000)

742 A.2d 434

(AC 15099)Appellate Court of Connecticut

Landau, Spear and Shea, Js.

Syllabus
The plaintiff sought damages from the defendants, an engineering firm and its owner, alleging negligence and breach of contract in the performance of site plan work on certain of the plaintiff’s real property. The defendants had been employed by the plaintiff’s grantor to perform percolation tests on the property. The trial court rendered judgment for the plaintiff on both counts, from which the defendants appealed to this court, which reversed the trial court’s judgment on the negligence count on statute of limitation (§ 52-584) grounds and remanded the contract count for further findings as to the plaintiff’s status as a third party beneficiary. The Supreme Court concluded that the jury’s findings precluded the plaintiff from being a third party beneficiary, but, upon concluding that the plaintiff had satisfied the requirements of the applicable statute of limitations (§ 52-584a), reversed the judgment of this court and remanded the case for consideration of the defendants’ claim that the trial court had abused its discretion in permitting the plaintiff to amend his complaint to add further specifications of negligence after the jury was selected. Held that the trial court properly determined that the original complaint fairly apprised the defendants of the nature of the plaintiff’s claim, and that court did not abuse its discretion in permitting the amendment; this court therefore affirmed the judgment of the trial court on the negligence count only.

Argued October 28, 1999

Officially released January 4, 2000

Procedural History
Action to recover damages for, inter alia, breach of contract, brought to the Superior Court in the judicial district of New Haven, where the court, Gray, J., granted the plaintiff’s motion to add Angus McDonald-Gary Sharpe and Associates, Inc., as a defendant; thereafter, the matter was tried to the jury befor Hon. John

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N. Reynolds, judge trial referee; verdict and judgment for the plaintiff, from which the defendants appealed to this court, which reversed the trial court’s judgment and remanded the case with direction to render judgment for the defendants on the negligence count of the complaint and for a new trial on the breach of contract count, and, on the granting of certification, the plaintiff appealed and the defendants cross appealed to the Supreme Court, which reversed this court’s judgment, directed judgment on the breach of contract count and remanded the case to this court for further proceedings. Reversed in part; judgment directed.

Lorinda S. Coon, with whom, on the brief, was Elizabeth Fairbanks Flynn, for the appellants (defendants).

Timothy Brignole, for the appellee (plaintiff).

Opinion
SHEA, J.

When this appeal was before this court the first time, we reversed the judgment of the trial court awarding damages to the plaintiff landowner on the negligence count of the complaint pursuant to a jury verdict on that count against the defendants, Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc. The defendants had been employed by the plaintiff’s grantor to perform percolation tests on his land for the purpose of obtaining a building permit. The plaintiff’s grantor later sold the land to the plaintiff. Grigerik v. Sharpe, 45 Conn. App. 775, 699 A.2d 189
(1997), rev’d, 247 Conn. 293, 721 A.2d 526 (1998). We upheld the defense of the statute of limitations pleaded by the defendants because the action had not been commenced within two years of the date when the negligence of the defendants was discovered or should have been discovered, as provided

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by General Statutes § 52-584.[1] We rejected the plaintiff’s claim that the applicable statute of limitations was General Statutes § 52-584a,[2] which allows actions to be brought against architects and professional engineers within seven years after substantial completion of an

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improvement to real property. The Supreme Court, after granting certification to appeal, reversed our decision with respect to the applicable statute of limitations and upheld the plaintiff’s claim that the proper statute to be applied was § 52-584a, which allows seven years after substantial completion of an improvement to bring an action for negligence against professional engineers, such as the defendants.[3] The plaintiff had satisfied that requirement. The Supreme Court, therefore, remanded the case to this court with direction to consider the defendants’ claim that the trial court had abused its discretion in permitting the plaintiff to amend his complaint to add further specifications of negligence after the jury had been selected.[4] Grigerik v Sharpe, 247 Conn. 293, 309-18, 721 A.2d 526 (1998).

The negligence count of the original complaint alleged that the defendant Sharpe was negligent in performing the site plan work for the property purchased by the plaintiff in one or more of the following ways: (a) he failed to perform percolation tests at the subject property; (b) he indicated that a percolation rate test of approximately 13.3 minutes per inch or less was

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obtained at the subject property; (c) he failed to utilize the services of trained servants and employees in physically performing said percolation rate tests; and (d) he failed to supervise properly servants and employees retained by him to physically perform said percolation rate tests.

The plaintiff’s motion to amend the complaint, which the trial court granted, added the following specifications of negligence as to the defendant Sharpe and the defendant corporation, which had been joined as an additional party earlier in the proceedings: (e) they failed to validate the percolation test information provided on the site plan; (f) they failed to take the percolation test in the proper place or area; (g) they failed to follow the proper protocol in completing the site plan in violation of § 19-13-B103e of the Regulations of Connecticut State Agencies; (h) they designed the septic tank system in a faulty manner; (i) they failed to allow an adequate time for the presoak portion of the percolation test in violation of the Public Health Code Regulation, Technical Standards Chapter VII; and (j) they failed to meet the proper conditions of the percolation test in violation of the Public Health Code Regulations, Technical Standards Chapter VII.

The four specifications of negligence in the original complaint refer expressly to the claim of negligent performance of the percolation tests. Of the six specifications added by the amendment, four, (e), (f), (i) and (j), also refer expressly to that claim. Even without an amendment, evidence to prove the facts alleged in those four specifications would have been admissible under the allegations of negligence in performing the percolation tests as alleged in the original complaint. “The modern trend is to read pleadings broadly and realistically, rather than narrowly and technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62

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(1985); see Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988).

The remaining two specifications, (g) and (h), refer respectively to failure to follow the proper protocol in completing the site plan in violation of a state regulation and to faulty design of the septic tank system. Paragraphs eight, nine and ten of the original complaint allege that the defendant Sharpe provided a site plan to the plaintiff’s grantor representing that he had performed deep-pit tests and percolation rate tests that indicated a satisfactory percolation rate, and that the plaintiff had relied on those representations in purchasing the property. It appears that the faulty percolation tests were the basis for the claim that the site plan and the design of the septic tank system were faulty, as alleged in (g) and (h). Paragraph 6a of the interrogatories submitted to the jury joined performance of soil testing and site plan work in inquiring whether the defendants had breached the applicable standard of care, and provided for a single answer, “yes” or “no.” The defendants never objected to that form of the interrogatory, which the jury answered affirmatively.

The trial court allowed the amendment, relying on the principle that when the original complaint fairly apprises the defendant of the nature of the plaintiff’s claim, additional specifications in support of that claim are permissible. “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.” (Internal quotation marks omitted.) Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Giglio v. Connecticut Light Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980). As requested by the defendants, the court granted a continuance, requiring suspension of the trial for one day, to permit the defendants to depose the plaintiff’s expert

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witness with respect to the specifications of negligence added by the amendment.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will this court overturn the decision of the trial court.” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). “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). We conclude that the defendants were not unfairly prejudiced by allowing the additional specifications of negligence and that the trial court did not abuse its discretion in allowing the amendment.

With respect to the negligence count, the judgment is affirmed; with respect to the breach of contract count, the judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.