KDM Servs., LLC v. DRVN Enters., Inc.

211 Conn.App. 135

271 A.3d 1103

KDM SERVICES, LLC

v.DRVN ENTERPRISES, INC.

AC 44243

Appellate Court of Connecticut.

Argued December 6, 2021

Officially released March 8, 2022

Teresa Capalbo, Wethersfield, with whom was William S. Shapiro, for the appellant (defendant).

Kevin M. Blake, with whom, on the brief, was Lee A. Gold, Hartford, for the appellee (plaintiff).

Alvord, Moll and Alexander, Js.

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 allegations 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 pursuant 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 defendant had an outstanding balance of $132,459.25. The complaint set forth causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and account stated. Each of the counts exclusively relied on the viability of the contract. The defendant 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 relationship between the parties and that, although the contract had been satisfied in 2014, the plaintiff continued to perform services and receive payment from the defendant in 2015, 2016, and 2017. Westerberg further testified 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 initial 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 contract, which had been fulfilled. The trial court, in discussing 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 relationship 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 ... Westerberg 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 present, 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 complaint 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 created 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 refusing 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 complaint after trial. The defendant points out that the plaintiff's original complaint alleged causes of action exclusively 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 opportunity to defend the new cause of action. The plaintiff argues, in response, that the defendant was not surprised 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 discretion. ... 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 negligence, 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 defendant 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 discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial." (Citations omitted; ...