Martin Printing, Inc. v. Sone

• Decision Date: 31 May 2005
• Docket Number: (AC 25435).
• Citation: 89 Conn. App. 336,873 A.2d 232
• Court: Connecticut Court of Appeals
• Parties: MARTIN PRINTING, INC. v. ANDRES J. SONE ET AL.

89 Conn. App. 336

873 A.2d 232

MARTIN PRINTING, INC. v. ANDRES J. SONE ET AL.

(AC 25435).

Appellate Court of Connecticut.

Submitted on briefs February 15¹, 2005.

Officially released May 31, 2005.

Schaller, McLachlan and Dupont, Js.

Richard J. Novak filed a brief for the appellant (defendant Gary R. Towler).

W. Glen Pierson filed a brief for the appellee (plaintiff).

Opinion

DUPONT, J.

The defendant Gary R. Towler² appeals from the judgment of the trial court rendered in favor of the plaintiff, Martin Printing, Inc., in the amount of $79,932, plus costs, following a trial to the court. The defendant claims on appeal that the court improperly (1) ordered the plaintiff to amend its complaint, posttrial, to conform to the evidence adduced at trial and (2) concluded that the personal guarantee the defendant executed was valid and enforceable. We disagree and affirm the judgment of the trial court.

The following facts as found by the court and set forth in its memorandum of decision filed April 19, 2004, are relevant to our disposition of the defendant's claims on appeal. The plaintiff is a commercial printing company in North Haven that prints magazines, brochures and flyers. Martin D. Santacroce is the plaintiff's president and owner. In December, 2001, a representative of the plaintiff began negotiations with representatives of Abbey, Inc. (Abbey), concerning the printing of a magazine known as "Pub Links Golfer Magazine" (magazine), which is distributed nationally. Abbey publishes the magazine six times per year. The defendant is the president of Abbey, and H. James Kuhe was its treasurer and vice president of finance. Andres J. Sone was the publisher of the magazine. All were sophisticated businessmen at all times relevant to this action.

In late 2001, representatives of the plaintiff and Abbey began negotiating what the parties intended would be a long-term business relationship. The parties understood that the plaintiff would print six bimonthly issues of the magazine. In December, 2001, the plaintiff submitted a proposal for printing expenses to Abbey, and Abbey completed one of the plaintiff's credit applications on December 20, 2001. The court specifically found that the parties intended that the plaintiff would extend short-term credit to Abbey for printing expenses.

The plaintiff printed the January-February, 2002 issue of the magazine, and in an invoice dated January 31, 2002, billed Abbey $44,459.90 for the printing expenses. Abbey failed to pay that charge within the allowed fortyfive day grace period. The plaintiff incurred substantial costs in printing the magazine. Santacroce became concerned that payment was not forthcoming from Abbey because it was a financial burden for the plaintiff, and it was contrary to the expected success of an ongoing, mutually beneficial business relationship. After issuing the January 31, 2002 invoice, the plaintiff began to print the March-April, 2002 issue of the magazine, for which the plaintiff sent Abbey an invoice, dated March 31, 2002, in the amount of $79,932 for the cost of printing that issue. As of March 31, 2002, Abbey had not paid for the printing cost of the January-February, 2002 issue of the magazine, which compounded the ongoing detrimental financial impact on the plaintiff.

On April 5, 2002, after Santacroce requested that the defendant and H. James Kuhe personally guarantee past and future printing expenses, the defendant executed a document entitled "Guaranty Agreement."³ The executed agreement provides in relevant part: "For and in consideration of credit extended or to be extended by [the plaintiff], its successors or assigns, to and at the request of [the defendant] (hereinafter called `Purchaser') the undersigned, jointly and severally, do hereby unconditionally guarantee the payment at respective maturity dates if any and all indebtedness of any kind whatsoever, whether now due or which may hereafter become due from Purchaser to [the plaintiff]. . . and hereby agree to pay punctually such indebtedness, plus interest at the maximum rate allowed by law together with all costs of collection (including a reasonable attorney's fee), if default in payment thereof be made by Purchaser." The court found that the defendant was not forced or coerced into signing the guarantee agreement.

On April 12, 2002, the plaintiff received a check from Abbey in the amount of $44,894.90 for payment of the January-February, 2002 issue of the magazine. On May 27, 2002, Kuhe, on behalf of Abbey, executed a check in the amount of $79,932 as payment for the March-April, 2002 issue of the magazine. There were insufficient funds in Abbey's account to cover the amount of the check. The outstanding debt was $79,932.

Trial occurred in two phases, the first part taking place on September 10, 2003, and the second part on March 29, 2004. During the first phase of the trial, the parties stipulated to a judgment in favor of the plaintiff against Abbey in the amount of $79,932. On that same day, the plaintiff introduced evidence in support of its claim against the defendant on the issue of the personal guarantee. The parties were ordered to file posttrial briefs by October 15, 2003.⁴ On December 18, 2003, the plaintiff filed its posttrial brief in which it argued that the personal guarantee executed by the defendant was the basis for his liability to the plaintiff.

On February 20, 2004, the court issued the following order: "The plaintiff is ordered to file a second amended complaint no later than March 1, 2004, which conforms to the evidence presented at trial . . . . The amended complaint filed on October 16, 2003, fails to allege the execution of [the] personal [guarantee] from [the defendant] for debts incurred by [Abbey]." On March 1, 2004, the plaintiff filed its second amended complaint in accord with the court's order in which it alleged, in count five, a breach by the defendant of the guarantee agreement executed on April 5, 2002. On March 8, 2004, the defendant filed his second amended answer, admitting all of the new allegations in count five of the plaintiff's second amended complaint except the amount in controversy. The defendant also asserted two special defenses alleging that the guarantee agreement was unenforceable because it was (1) not supported by consideration and (2) executed under duress.

On April 19, 2004, the court rendered judgment in favor of the plaintiff in the amount of $79,932 plus costs. This appeal followed. Additional facts will be set forth as necessary.

I COURT'S ORDER REGARDING THE PLAINTIFF'S SECOND AMENDED COMPLAINT

The defendant first claims that the court improperly ordered the plaintiff to file its second amended complaint to conform to the evidence adduced at trial and, therefore, improperly granted the plaintiff relief on a cause of action that had not been raised in its previous pleadings. Practice Book § 10-60 (a)⁵ provides for the amendment of pleadings at any time by consent of all of the parties, judicial order or failure by the adverse party to object. "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." (Citations omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003).

In this case, the plaintiff filed its second amended complaint on March 1, 2004, pursuant to an order by the court at the specific request of the defendant, which request was made in open court. On September 10, 2003, the following exchange took place at trial:

"[The Defendant's Counsel]: Your Honor, if I may address the court. I would ask that the plaintiff, if [it is] going to proceed on the guarantor aspect, amend [its] pleadings to conform to the proof today. Because there is not present in the complaint, [it] is naming [the defendant] as a principal, rather than as a guarantor.

"[The Plaintiff's Counsel]: Yes, Your Honor, we can do that.

"The Court: Sure."

The defendant now claims that the court "erred in granting relief to the plaintiff on a cause of action that had never been raised in any of the pleadings or even been the subject of a single discovery request. From the pleadings, [the defendant] had no reason to suspect that [the] plaintiff sought to enforce his personal guarantee until the time of the trial, when [the] plaintiff revealed that this was the sole basis upon which relief was sought from [the defendant]." The defendant further contends that allowing the plaintiff to amend its complaint posttrial prejudiced him because he was not able to "seek some recourse in the form of, perhaps, posttrial discovery regarding the personal guarantees," thus precluding him from mounting an adequate defense.

It cannot be disputed seriously that the defendant had notice, prior to the first phase of the trial, which occurred on September 10, 2003, that the plaintiff sought relief on the basis of the personal guarantee that is the subject of this appeal. First, the original answer and special defense filed by the defendant, H. James Kuhe and Abbey on March 5, 2003, provides: "If the [defendant] and H. James Kuhe ever made, executed, signed and delivered any personal guarantees in favor of the [p]laintiff, said personal guarantees . . . were made, executed, signed and delivered without consideration on [the] [p]laintiff's part, and the [defendant] and H. James Kuhe owe [the] [p]laintiff nothing." Second, on September 10, 2003, before the...