KDM Services, LLC v. DRVN Enterprises, Inc.

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KDM SERVICES, LLC v. DRVN
ENTERPRISES, INC.
(AC 44243)
Alvord, Moll and Alexander, Js.

Syllabus

The plaintiff, which had entered into a written contract in 2014 with the
defendant to supply deicing liquid, brought an action alleging, inter alia,
that the defendant had breached the contract by failing to pay the
plaintiff for services rendered on four occasions in 2018. The defendant
filed an answer and special defenses alleging, inter alia, that the contract
was satisfied in full prior to the four occasions in question. The trial court
rendered judgment in favor of the plaintiff, concluding that, although
the parties’ written contract had expired, the parties had an implied
contract on the basis of their course of dealings over the years since
2014, and the defendant breached that implied contract. Thereafter, the
court granted the plaintiff leave to file an amended complaint alleging
breach of implied contract, and the defendant appealed. Held that the
trial court abused its discretion in allowing the plaintiff to amend its
complaint after trial to conform to the evidence; although both com-
plaints sought payment for services rendered on specific occasions,
the amended complaint alleged an entirely new and different factual
situation, as the original complaint was based on the parties’ express
written contract and sought the outstanding balance allegedly due and
the amended complaint alleged an implied contract and sought only the
plaintiff’s commission, and the defendant was not given the opportunity
to defend against the amended complaint by filing amended special
defenses, conducting discovery, or calling witnesses at trial to rebut
the plaintiff’s claim for a commission; accordingly, the defendant was
entitled to judgment in its favor.
Argued December 6, 2021—officially released March 8, 2022

Procedural History

Action to recover damages for, inter alia, the defen-
dant’s alleged breach of contract, and for other relief,
brought to the Superior Court in the judicial district
of Hartford and tried to the court, Moukawsher, J.;
judgment for the plaintiff; simultaneously, the court
granted the plaintiff leave to file an amended complaint,
and the defendant appealed to this court. Reversed;
judgment directed.
Teresa Capalbo, with whom was William S. Shapiro,
for the appellant (defendant).
Kevin M. Blake, with whom, on the brief, was Lee
A. Gold, for the appellee (plaintiff).
Opinion

MOLL, J. The defendant, DRVN Enterprises, Inc.,
appeals from the judgment of the trial court, rendered
following a trial to the court, in favor of the plaintiff,
KDM Services, LLC, in this action related to the sale
and supply of deicing liquid at a property located in
New London. On appeal, the defendant claims that the
court abused its discretion by allowing the plaintiff
to amend its complaint after trial. We agree with the
defendant and, accordingly, reverse the judgment of
the trial court.
The following procedural history and factual allega-
tions from the original complaint are relevant to this
appeal. The plaintiff provides wholesale winter deicing
products, ice melt for retail, bulk deicing liquids, and
mixing service to treat bulk salt. On September 29, 2014,
the parties entered into a written contract (contract)
pursuant to which the plaintiff agreed to provide its
services to the defendant at 200 State Pier Road in New
London.1 The contract provided that full payment was
due within fifteen days of completion of the work. By
complaint dated February 11, 2019, the plaintiff brought
this action alleging that it had performed services pursu-
ant to the contract on January 3, 7, 9, and 16, 2018. The
plaintiff alleged that the defendant had failed to pay
the plaintiff for its services and claimed that the defen-
dant had an outstanding balance of $132,459.25. The
complaint set forth causes of action for breach of con-
tract, breach of the covenant of good faith and fair
dealing, and account stated. Each of the counts exclu-
sively relied on the viability of the contract. The defen-
dant filed an answer and special defenses alleging that
(1) the contract was satisfied in full prior to January
1, 2018, (2) the plaintiff provided no services of any
kind to the defendant in 2018, and (3) the defendant
had provided proof that it had used a different vendor
for services in January, 2018, and had paid that vendor
for those services.
A trial took place on August 27, 2020. At trial, Karl
Westerberg, the owner of the plaintiff, testified that the
contract was a ‘‘guideline’’ for the start of the relation-
ship between the parties and that, although the contract
had been satisfied in 2014, the plaintiff continued to
perform services and receive payment from the defen-
dant in 2015, 2016, and 2017. Westerberg further testi-
fied that the plaintiff had performed services for the
defendant on January 3, 7, 9, and 15, 2018, but the
defendant did not pay the plaintiff for those services.2
During closing arguments, counsel for the plaintiff
argued that the parties’ written agreement was the ini-
tial memorialization of the terms of the agreement and
that ‘‘the plan of the parties was that it would continue
until terminated by someone.’’ The defendant countered
that the complaint in this action was based on the con-
tract, which had been fulfilled. The trial court, in dis-
cussing the issue, stated that ‘‘the parties did seem to
have, regardless of whether the initial written document
was fulfilled—I mean, there isn’t a claim here that [the
defendant] had an ongoing duty to continue this rela-
tionship but that at least the evidence is there was a
relationship all the way up to 2017, in which material
was supplied and invoices were both rendered and paid
from the plaintiff . . . .’’ Counsel for the plaintiff then
stated that, if the court deemed it necessary, the plaintiff
would amend the complaint to conform to the evidence.
On August 27, 2020, the court issued a decision in
which it concluded that, although the contract had
expired, a course of dealing had ensued for several
years. The court stated that ‘‘[the plaintiff] would buy
the liquid from a company called [Millennium Roads,
LLC (Millennium)] and Millennium and . . . West-
erberg would join Millennium workers in mixing it with
the solution at [the defendant’s] location . . . . For
years, [the plaintiff] billed [the defendant] its costs
together with a commission of [thirty-three] cents per
gallon, and [the defendant] paid the bills. At some point
some of the calls for the liquid were made directly
to Millennium. Millennium would alert Westerberg and
they would go to the site, do the job, and [the plaintiff]
[would] bill [the defendant]. During virtually all of these
visits [the defendant’s] owner Steven Farrelly was pres-
ent, and he frequently interacted with Westerberg.
‘‘During those years [the plaintiff] and [the defendant]
had an implied contract. Millennium would provide the
liquid. [The plaintiff] would bill [the defendant] for it
and keep its commission. By course of dealing, a call
for the liquid to [the plaintiff] or Millennium implied an
agreement to pay the [plaintiff’s] invoice, including the
[plaintiff’s] commission.’’
Without reference to any particular count and on the
basis of an implied contract theory, the court thereafter
rendered judgment in favor of the plaintiff in the amount
of $24,978.03, representing the commission that the
plaintiff claimed it was owed.3 In its decision, the court
also granted the plaintiff permission to amend its com-
plaint to conform to the evidence at trial. Thereafter,
on September 3, 2020, the plaintiff filed an amended
complaint asserting one count of breach of implied
contract. Specifically, the amended complaint alleged
that, based on the parties’ course of dealing over the
prior four years, an implied contract existed that cre-
ated an expectation of future performance and payment
until notice of termination of the agreement was made
by either party. The plaintiff further alleged that the
defendant had breached this implied contract by refus-
ing to pay for the services rendered by the plaintiff in
January, 2018. This appeal followed.
On appeal, the defendant argues that the court abused
its discretion in allowing the plaintiff to amend its com-
plaint after trial. The defendant points out that the plain-
tiff’s original complaint alleged causes of action exclu-
sively based on the written contract while the amended
complaint alleged a cause of action based on an implied
contract and course of dealing. The defendant contends
that, by permitting the plaintiff to amend its complaint
after trial, the court denied the defendant the opportu-
nity to defend the new cause of action. The plaintiff
argues, in response, that the defendant was not sur-
prised or prejudiced by the amendment because in both
the original and amended complaints, the plaintiff
sought payment for services rendered in 2018. We agree
with the defendant.
We first set forth the applicable standard of review.
‘‘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 [defendant’s] burden . . . to
demonstrate that the trial court clearly abused its dis-
cretion. . . . A trial court may allow, in its discretion,
an amendment to pleadings before, during, or after trial
to conform to the proof. . . . Factors to be considered
in passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.)
Fountain Pointe, LLC v. Calpitano, 144 Conn. App.
624, 640, 76 A.3d 636, cert. denied, 310 Conn. 928, 78
A.3d 147 (2013).
‘‘While our courts have been liberal in permitting
amendments . . . this liberality has limitations.
Amendments should be made seasonably. . . . The
motion to amend is addressed to the trial court’s discre-
tion which may be exercised to restrain the amendment
of pleadings so far as necessary to prevent unreasonable
delay of the trial.’’ (Citations omitted; internal quotation
marks omitted.) Farrell v. St. Vincent’s Hospital, 203
Conn. 554, 561–62, 525 A.2d 954 (1987). ‘‘[I]n exercising
their discretion with regard to motions to amend plead-
ings filed after a judgment has been rendered, trial
courts must recognize that such amendments should
be permitted sparingly and only when special circum-
stances exist to warrant them.’’ Featherston v.
Katchko & Son Construction Services, Inc., 201 Conn.
App. 774, 789, 244 A.3d 621 (2020), cert. denied, 336
Conn. 923, 246 A.3d 492 (2021).
In Billy & Leo, LLC v. Michaelidis, 87 Conn. App.
710, 715, 867 A.2d 119 (2005), an action related to the
sale of leased property, the plaintiff’s original complaint
relied on the alleged breach of a written contract
between the parties. The plaintiff filed a request to
amend the complaint just prior to trial to allege promis-
sory estoppel resulting from the breach of oral modifica-
tions to the contract and partial performance in compli-
ance with the modified contract. Id. In concluding that
the trial court did not abuse its discretion in denying
the plaintiff’s request to amend its complaint, this court
stated that, ‘‘[i]n an amended complaint, [i]t 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. . . . A cause of action is that single group of
facts which is claimed to have brought about an unlaw-
ful injury to the plaintiff and which entitles the plaintiff
to relief.’’ (Internal quotation marks omitted.) Id., 714–
15.
Similarly, in Antonofsky v. Goldberg, 144 Conn. 594,
599, 136 A.2d 338 (1957), our Supreme Court affirmed
the decision of the trial court denying the plaintiff per-
mission to amend his complaint, stating that ‘‘[w]hile
our courts have followed a liberal policy in passing
upon claims of variance between pleading and proof,
it is still the law that the allegations of the complaint
provide the measure of recovery. The plaintiff alleged
in his complaint a state of facts and asserted that they
spelled out one or more specified acts of negligence
which caused his injuries. He sought to recover, how-
ever, on proof of materially different facts, on which
he asked that the defendant be found guilty of negligent
acts not specified in his complaint. The test was whether
the variance misled or prejudiced the defendants on
the merits of the case.’’
On the basis of our review of the original and
amended complaints in the present case, we conclude
that the court abused its discretion when it allowed the
plaintiff to amend its complaint after trial to conform
to the evidence. Although the original complaint alleged
breach of a written contract and sought the outstanding
balance of $132,459.25 pursuant to that contract, the
amended complaint alleged an implied contract based
on the parties’ course of dealing and sought the plain-
tiff’s commission of $24,978.03. Although both com-
plaints sought payment for services rendered in Janu-
ary, 2018, the amended complaint alleged ‘‘an entirely
new and different factual situation’’ (internal quotation
marks omitted); Billy & Leo, LLC v. Michaelidis, supra,
87 Conn. App. 714; in that the amended complaint
sought the plaintiff’s commission for services rendered
pursuant to an implied contract and course of dealing.
An implied contract and course of dealing, however,
were not mentioned in the original complaint, as that
complaint was based entirely on the parties’ express
contract. The special defenses asserted by the defen-
dant necessarily were addressed to the original com-
plaint. The defendant was not given the opportunity to
defend against the amended complaint by filing
amended special defenses, conducting discovery, or
calling witnesses at trial to rebut the plaintiff’s claim
for a commission. See AirKaman, Inc. v. Groppo, 221
Conn. 751, 767, 607 A.2d 410 (1992) (trial court did
not abuse its discretion by denying request to amend
complaint where pleadings had been closed, opposing
party had submitted trial brief, and claim would require
additional discovery); Beckman v. Jalich Homes, Inc.,
190 Conn. 299, 303, 460 A.2d 488 (1983) (trial court did
not abuse its discretion by denying request to amend
that was filed day before trial and would have added
new bases of liability). Under these circumstances, we
conclude that the court abused its discretion in allowing
the plaintiff to amend its complaint after trial to con-
form to the evidence.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
In this opinion the other judges concurred.
1
The contract provided, in its entirety, as follows:
‘‘Scope of work: [The plaintiff] will provide spraying services to coat 8000
to 10,000 tons of salt located at 200 State Pier Rd in New London, CT as
described below.
‘‘1. [The plaintiff] will provide a Pug mill, labor and a stacker for coating.
‘‘2. [The plaintiff] will provide the Safe Melt liquid at a rate of 6 gallons
per ton to coat the salt.
‘‘[The defendant] will provide necessary labor and equipment to move
salt from storage pile to pug mill.
‘‘Spraying price $1.92 per gallon x 6 gallons per ton = $11.52 a ton
‘‘Terms: Full payment due within 15 days of completion of work.’’
2
Westerberg testified that Steven Farrelly, the owner of the defendant,
notified him on the evening of January 15, 2018, that he was terminating
the parties’ agreement. Westerberg sent the plaintiff’s final invoice to the
defendant on January 16, 2018.
3
Westerberg acknowledged at trial that the plaintiff was not seeking the
original invoice amount of $132,459.25 referenced in the February 11, 2019
complaint.