Opinion
No. X08 CV05-4007323S
August 12, 2008.
Memorandum of Decision on Plaintiff's Objections to Defendants' Motions for Permission to Cite In Counterclaim Defendant And Amend Counterclaims
In this foreclosure action, soon to be pending for three years, the defendants had filed in May of 2007 without objection from the plaintiff answers, special defenses and counterclaims against the plaintiff. The plaintiff served multiple requests to revise the counterclaims, to which the defendants objected. The objections were reportedly taken up by the court (before this case was approved for the complex litigation docket) but have not been ruled on because of a suggestion of the court (Tierney, J.) that the parties attempt to work out a solution to the requests to revise. Now, the defendants reports that ". . . counsel have agreed that the defendants will voluntarily amend their Special Defenses and Counterclaims in an attempt to resolve, or at least narrow, the dispute" (Defense motions, p. 1. fn.1). The proposed amendments to the counterclaim bring in claims not only against the plaintiff Ulster Savings Bank but also claims against the plaintiff's affiliated mortgage company, Ulster Home Mortgage, Ltd.; hence the motion to cite in that entity as a new third-party defendant. The motion and proposed amendments of the defendant Victoria Koch (No. 203) are virtually identical to the motion and proposed amendments of the defendants 28 Brynwood Lane, Ltd. and Robert T. Chipley (No. 206). The plaintiff objects (No. 209) to both defense motions.
The answer, special defenses and counterclaim of the defendants Brynwood and Chipley filed on May 31, 2007 were amended from a previous answer, special defense and counterclaim filed by those defendants. The plaintiff did not oppose the request to amend at that point.
The plaintiff does not dispute that there was a general understanding of counsel reached during a discussion with Judge Tierney on September 24, 2007 that the defendants would propose amendments to their answers, special defenses, and counterclaims in an effort to resolve totally or at least in part the contested requests to revise. The plaintiff nonetheless objects to the amendments as actually proposed some seven months later. In addition to the usual pleading practice technicalities which will be addressed herein, the plaintiff has splashed the usually bleak canvas of amendment jurisprudence with a full spectrum of color. Premising the need for a vigorous objection on ". . . [t]he forlorn perspective on the horrifically disproportionate effort Plaintiff has been required to expend (in the unrequited hope these pleading may one day close)" plaintiff variously objects the proposed amendments as "a farrago of improperly conjoined theories," "irascible irredentism," ". . . general bullox" and "a carnival of flummocky pleadings . . . to crank up the volume on cognitive dissonance," likened to "some shadowy attempt to reclaim Iraq as a Turkish outpost of the Ottoman Empire." Although refreshing in their color and creativity, plaintiff's arguments cannot overcome Connecticut's established policy of liberality with regard to pretrial amendments to the pleadings, and the objections to the proposed amendments are overruled. Plaintiff's hopes of closing the pleadings may nonetheless be somewhat less forlorn, since this court has entered a Case Management Order No. 1 which includes a February 9, 2009 firm deadline for closing the pleading in anticipation of a January 5, 2010 trial date, and this case now has the advantage of assignment to a single judge with the authority to "make any appropriate order which facilitates the management of [the case]" (Practice Book § 23-14).
The standard on requests for pretrial amendments has been clearly stated by the Appellate Court:
In the interest of justice, our courts have generally been most liberal in allowing amendments. Where a sound reason to amend is shown, the court must allow the amendment . . . Refusal under such circumstances constitutes an abuse of discretion. The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial. 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. (Internal quotation marks and citations omitted.)
Moore v. Sergi, 38 Conn.App. 829, 835-36 (1995).
Here, there are existing counterclaims previously filed by all defendants without objection. The proposed amendments have their genesis in defendant's efforts, at the suggestion of a judge of this court, to resolve or accommodate plaintiff's own requests to revise certain allegations of the existing counterclaims, which amounts to a sound reason to permit their filing. The trial date for this case is still some seventeen months in the future and there is no apparent risk of these amendments causing a trial delay or being the cause of misleading the plaintiff. The fact that the plaintiff apparently disagrees that the amendments satisfy its requests to revise, or that the allegations are factually accurate or legally sufficient are not grounds for denying permission to file them. Those issues are properly raised by motion to strike or motion for summary judgment after the amendments are filed, and should not be decided preliminarily in conjunction with a motion to amend. Smith v. Furness, 117 Conn. 97, 99-100 (1933) ("The trial court in so deciding erred in that substantive rights are not to be determined upon a motion for permission to amend"); Jimmie's, Incorporated v. Planning Zoning Commission of the City of West Haven, Docket No. CV06-4018289S, Superior Court, Judicial District of New Haven (June 15, 2006, Corradino, J.) (2006WL1828469 (Conn.Super.); 41 Conn. L. Rptr. 516) (". . . [a] ruling on a motion to amend pleadings should not be a vehicle to decide an issue of law," quoting from Horton Knox, Connecticut Civil Procedure, p. 490 commentary to Practice Book § 10-60); and Solomon v. Liquor Control Commission, 8 Conn.Sup. 511 (1940) (". . . [n]either does the granting of the motion [to amend answer] have the effect of giving sanction or refusing it, to the claims made . . . in support of such motion, as concerns the effect of the amendment, if and when filed, upon the fate of the proceedings").
The defendants claim that the proposed amendments to their counterclaims would resolve 24 of the plaintiff's 32 requests to revise their existing counterclaims.
It is likewise clear that defendants have the right to cite into the case the proposed third-party defendant Ulster Home Mortgage, Ltd. Connecticut General Statutes § 52-110 and Practice Book § 9-22 both provide that "[w]hen a counterclaim raises questions affecting the interests of third parties, the defendant may, and if required by the court shall, cause the third parties to be summoned in as parties to the action."
The plaintiff also argues non justiciability of the issues pleaded in the proposed amended counterclaims "for failure to sensibly identify cognizable claims" as a reason to deny the requested amendments. But a claim of lack of a justiciable controversy goes to the court's subject matter jurisdiction, which must be raised by motion to dismiss. Practice Book § 10-30. By raising this issue in opposition to a motion to amend, the plaintiff in effect seeks an advisory ruling of the court that there is no subject matter jurisdiction over claims which are not yet formally before the court. The very preliminary nature of this claim of lack of justiciability is evident from the total lack of any justiciability analysis of that claim in plaintiff's memorandum. The Appellate Court recently had occasion to reconfirm the four elements of justiciability: "(1) an actual controversy between the parties, (2) adversity of interests between the parties, (3) the capacity of a judicial authority to adjudicate the matter and (4) the ability to procure practical relief for the plaintiff through resolution of the dispute." Weiner v. Clinton, 100 Conn.App. 753, 759-60 (2007). Other than simply citing Weiner, the plaintiff has offered no explanation why these four elements are not present in the proposed amended counterclaims. The plaintiff claims (Plaintiff's Objection, No. 209, fourth page) that "[d]efendants mischaracterize the first two communications as agreements to modify or refinance the original loan." This is factual argument. To the extent that they are relevant to subject matter jurisdiction, factual claims must be supported by affidavits, and, if the parties' affidavits are not in agreement ". . . due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross examine adverse witnesses . . . Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties . . ." Coughlin v. Waterbury, 61 Conn.App. 310, 315-16 (2001). (Emphasis added.) If there is a justiciability issue or a subject matter jurisdiction issue lurking in the proposed amendments, it neither been identified nor properly presented.
Order
For the foregoing reasons:
(1) The Motion for Permission to Cite In Counterclaim Defendant and to Amend Counterclaims, filed by the defendant Victoria Koch (No. 203) is granted. The court has signed the order attached to the motion with a service date of August 27, 2008 and a return date of September 9, 2008;
(2) The Motion for Permission to Cite In Counterclaim Defendant and to Amend Counterclaims, filed by the defendants 28 Brynwood Lane, Ltd., and Robert T. Chipley (No. 206) is granted. The court has signed the order attached to the motion with a service date of August 27, 2008 and a return date of September 9, 2008; and
(3) The Objection to Defendants' Request for Leave to File Second Amended Complaint and to Cite In Ulster Home Mortgage, Inc. (No. 209), filed by the plaintiff, is overruled.