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Prudential Securities Inc. v. E-Net9/5/2001
nt, Count VI, deceit, and Count VIII, constructive fraud, were based on an August 27, 1998, telephone message to Valerie Kerr, in which e-Net counsel failed to inform Prudential that the shares were subject to a lockup agreement. Count VII, negligent hiring and supervision, alleged error in e-Net's failure to "investigate AST" and its negligent supervision over AST in ensuring that the lockup agreement continued to be referenced on the stock certificates. The last count, Count IX, injurious falsehood, alleged error in e-Net's releasing a press statement concerning appellant's sale of e-Net shares on the market.
We have reviewed and compared the two complaints. Although Prudential alleges facts in the Amended Complaint not present in the first complaint, we believe that the "operative factual pattern" remains the same and that the Amended Complaint merely contained more factual detail than the original complaint. The prejudice complained of by appellees relates to further delay of the case and additional costs to be incurred, but costs and delay, although unfortunate, are not unusual in complicated commercial litigation.
In light of the policy in this State allowing liberal amendment of the pleadings, and because a trial date was not set at the time the Amended Complaint was filed, we reverse the trial court's ruling granting appellees' motion to strike. We note, however, that in light of our decision affirming the trial court's grant of the motion for summary judgment, discussed above, some of the claims raised in the Amended Complaint may be precluded. For example, in light of our earlier discussion on the risks involved with stock trading as well as the lack of privity between Prudential and e-Net and AST, Count III, breach of warranty, may be precluded. In addition, Count IV relates to negligence, which the trial court may find to be precluded in view of our discussion of negligence and appellees' defenses, supra. The other counts appear to involve matters not yet addressed or matters involving e-Net's alleged affirmative representation that Prousalis's shares were clean. It will be up to the trial court to make the determination as to which, if any, of these claims should proceed further.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.
COSTS TO BE SPLIT BETWEEN THE PARTIES.
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