10 Mass. App. Ct. 38

February 14, 1980 - June 13, 1980

Middlesex County


An injunction issued on the basis of an original complaint was not extinguished by the subsequent filing of two amended complaints which were complete in themselves and without reference to the original complaint where the amended complaints reasserted the allegations and requests for relief in the same terms as the original pleading. [39-41]

A successful plaintiff in an action in the nature of equitable trustee process was not required to file an independent action to enforce liability on a surety bond but was permitted by Mass. R. Civ. P. 65.1 to enforce liability on motion. [41]

BILL IN EQUITY filed in the Superior Court on December 3, 1973.

A motion to enforce liability on a surety bond was heard by Vallely, J.

David E. Neitlich for the defendant.

Wade M. Welch for the plaintiff.

PERRETTA, J. In 1973, the plaintiff, National Construction Co., Inc. (National Construction), brought an action in the nature of equitable trustee process, otherwise known as a bill to reach and apply, see G. L. c. 214, Section 3(7), as in effect prior to St. 1973, c. 1114, Section 62, alleging that Professional Technology, Inc. (Professional), owed it money for completed construction work. National Construction obtained a temporary injunction enjoining the trustee-codefendant Scituate Federal Savings and Loan Association (Scituate

Page 39

Federal) [Note 1] from distributing to Professional $14,000 which that bank owed Professional. See Reed, Equity Pleading & Practice Section 195 (1952). In 1975, upon Professional's motion, a Superior Court judge dissolved the injunction and in its stead accepted a surety bond from National Grange Mutual Insurance Company (National Grange) in the amount of Professional's money which was held by Scituate Federal. In 1978, National Construction obtained a judgment against Professional, and it filed a motion pursuant to Mass.R.Civ.P. 65.1, 365 Mass. 834 (1974), seeking to have National Grange satisfy a portion of the judgment. The motion was allowed, and a final judgment was entered against National Grange. On appeal, National Grange disputes its liability on the bond and alleges that it was improper to enforce its liability on motion rather than by an independent action. We affirm the judgment.

National Grange disputes its liability on its surety bond on the basis of an alleged failure of the consideration for it. It proceeds on the sole theory that when National Construction twice amended its complaint in 1974, it did so by the filing of amended complaints which were complete in themselves and without reference to the original pleading. Consequently, asserts National Grange, the first complaint was withdrawn or eliminated. See Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1955); Bullen v. DeBretteville, 239 F. 2d 824, 833 (9th Cir. 1956). The argument concludes that because the underlying support for the 1973 injunction was eliminated in 1974, and because no new injunctive orders were obtained on each of the amended complaints, there was no obligation to release in consideration of the bond filed in 1975. Cf. Fidelity Mut. Life Ins. Co. v. Johnson, 152 Mich. 578 (1908); Hampshire Arms Hotel Co. v. St. Paul Mercury & Indem. Co., 215 Minn. 60 (1943).

Page 40

National Grange's argument is dependent on the erroneous premise that the filing of an amended complaint automatically extinguishes the original one for all purposes. Amendments have always been liberally allowed in this Commonwealth, see Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 627 (1977), and cases cited, so long as the amendment did not set out an entirely new cause of action. [Note 2] See Gallagher v. Wheeler, 292 Mass. 547, 550-551 (1935); Ideal Financing Assn. v. McPhail, 320 Mass. 521, 522-523 (1946); Wadsworth v. Boston Gas Co., 352 Mass. 86, 88-89 (1967). As a matter of practice, a change in the allegations can be made in one of two ways. The first is by setting out the desired amended facts with reference to, or incorporation of, the remaining unaltered allegations. When this procedure is followed, neither the complaint nor the amendment is complete in itself, and the two pleadings must be read together to fully ascertain the cause and scope of the action. The second method is by setting out in an amended complaint the allegations as expanded, altered or otherwise changed, and reasserting the intact allegations as originally recited. Under this procedure the amendment is complete in itself, and resort to the original pleading is unnecessary for full comprehension of the action. The difference between these procedures is one of style and professional preference. However, when the second method of amendment is employed, any matters which are not restated in the amended complaint are deemed waived or abandoned. Resort to the original complaint cannot be made to cure the defective amended complaint. See Nisbet v. Van Tuyl, 224 F.2d at 71; Davis v. Freels, 583 F.2d 337, 342 (7th Cir. 1978); Friedman v. Transamerica Corp., 5 F.R.D. 115, 116 (D. Del. 1946); Annot., 52 A.L.R.2d 516, 524-530, 576-577 (1957). In the present case, National

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Construction reasserted in its amended complaints all of its allegations and requests for relief against Scituate Federal in the same terms which it recited in the original pleading. There was no elimination of, or change in, those substantive recitals, and the only question is as to the effect, if any, of the amendments on the outstanding 1973 injunction.

Any request for injunctive relief which National Construction might have sought against Scituate Federal on the amended complaints would have been based upon the identical facts deemed sufficient in 1973. By way of comparison, Smith & Zobel in Rules Practice Section 15.11 (1974), state that "[a]n amending claimant must be sure that his amended complaint . . . still states the same claim which supported the court's determination of `reasonable likelihood.' If the amendment alters the claim, the party must again obtain court approval of the attachment or trustee process, based upon a new determination of `reasonable likelihood.'"

It serves no purpose to require new interlocutory orders or rulings each time a party amends the pleadings without affecting the basis for those orders or rulings. Such a requirement would erode our policy of favoring the liberal allowance of amendments, and it would create congestion and delay. When an enjoined party believes an amendment affects the basis for the injunction, he or she has merely to seek a dissolution of it on the ground that it is no longer supported by the alleged facts. Professional never did this; its only action was to seek a dissolution of the injunction through the filing of the bond. It properly did so because the claim and injunction against Scituate Federal were very much alive, and we reject National Grange's contention.

National Grange next argues that it should have been allowed to assert its defense, a failure of consideration, in an independent action, with a full trial, rather than on National Construction's motion for payment on the bond. There is nothing in the record which even hints that National Grange ever attempted to assert its defense to the motion or was somehow deprived of the opportunity to do so. The short answer to National Grange's contention is that it is

Page 42

contrary to the plain language of Mass.R.Civ.P. 65.1, 365 Mass. 834 (1974) ("liability may be enforced on motion without the necessity of an independent action"). See Monroe Div., Litton Business Sys., Inc. v. DeBari, 562 F.2d 30, 32 (10th Cir. 1977). See also 11 Wright & Miller, Federal Practice and Procedure Section 2972 (1973). Whatever the requirements may have been prior to the adoption of the Massachusetts Rules of Civil Procedure, cf. Castaline v. Swardlick, 264 Mass. 481 (1928), they are no longer controlling. The judge did not abuse his discretion by permitting National Construction to proceed by motion. There was a nine-month hiatus between the filing of the motion and its allowance. The certificate of service attached to the motion shows that National Grange was forwarded a copy of it, and National Grange cannot complain of a lack of notice or haste in the proceedings. See Haug, Public Official Bonds -- Judgments Against Principal as Binding on Surety, 34 Ins. Counsel J. 573, 577 (1967); Ager, Problem: The Effect on the Surety of a Judgment Against the Principal[;] Solution: The Due Process Clause, 36 Ins. Counsel J. 245, 248-252 (1969).

When National Construction filed its motion to enforce liability on the bond, it also filed an independent action in the event the judge declined to allow it to proceed by motion. National Grange claims that the mere filing of the action estopped National Construction from pursuing its rights by motion. National Grange offers nothing in support of this contention. This bare assertion does not satisfy Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), see Tobin v. Commissioner of Banks, 377 Mass. 909 (1979), and it is without merit.

The judgment is affirmed, and National Construction is to have double costs of the appeal and interest on the judgment at the rate of 12% per annum from the date of the filing of the notice of appeal. See Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979).

So ordered.


[Note 1] The parties named as defendants by National Construction in its complaint are not parties to this appeal, which is from a judgment on National Construction's motion seeking to collect on a bond filed by National Grange Mutual Insurance Company as surety for Professional.

[Note 2] The adoption of Mass.R.Civ.P. 15, 365 Mass. 761 (1974), removed even this restriction. However, neither the restriction nor rule 15 was applicable in the present case because the amendments did not assert a new cause of action and because they were filed and allowed prior to the effective date of rule 15. See Mass.R.Civ.P. 1A, 365 Mass. 731 (1974).