Rule 55.33 Amended and Supplemental Pleadings

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

XXXIII. Rule 55.33 Amended and Supplemental Pleadings

A. Text of Rule

(a) Amendments. A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would cause prejudice in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit service of a supplemental pleading setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

B. Historical Note

The sources of Rule 55.33 are prior Rules 55.53, 55.54, and 55.55 and Federal Rule of Civil Procedure 15. The statutory predecessors of Rule 55.33 are §§ 509.490–509.510, RSMo 2000. Rule 55.33 was promulgated by the Supreme Court of Missouri under the authority of Article V, § 5, of the Missouri Constitution. Rule 55.33 supersedes the predecessor statutes when they are inconsistent. See State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423, 426 (Mo. banc 1978); see also Rule 41.02.

Rule 55.33(a) is the same as Federal Rule of Civil Procedure 15(a). Rule 55.33(b) is the same as Federal Rule of Civil Procedure 15(b) and prior Rule 55.54. Rule 55.33(c) is the same as the first paragraph of Federal Rule of Civil Procedure 15(c). Rule 55.33(d) is the same as Federal Rule of Civil Procedure 15(d).

Rule 55.33 was amended twice in 1986 and twice in 1993.

C. Cross-References

See §§ 509.490–509.510, RSMo 2000, and Federal Rule of Civil Procedure 15.

D. Time Constraints

Pleadings may be amended as a matter of right either (1) before service of a responsive pleading once or (2) if no responsive pleading is permitted and the case has not been set for trial, within 30 days after the pleading to be amended was served. With leave or written consent of the adverse parties, amendment may be made at any time. After a pleading has been amended, a party who must file a responsive pleading must do so within (1) the time remaining for response to the original pleading or (2) 10 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders. See Rule 55.25 above for time constraints on pleading.

Note: The statute of limitations applicable to an action may operate to bar new parties from being brought in under Rule 55.33(c) unless the requirements of that subdivision are met.

E. Comment

1. Amendments

Parties may amend their pleadings once as a matter of course at any time before a responsive pleading is served or, if no responsive pleading is permitted, within 30 days of service if the action has not been placed on a trial calendar. State ex rel. Bugg v. Roper, 179 S.W.3d 893, 894 (Mo. banc 2005). A motion to dismiss is not a responsive pleading and does not bar the filing of an amended pleading as a matter of course. Id. The right to file an amended pleading before the filing of a responsive pleading applies only to the initial pleading and not to any amended pleading. Moore v. Firstar Bank, 96 S.W.3d 898, 901 n.4 (Mo. App. S.D. 2003).

After the time for filing an amended pleading as a matter of course has expired, amended pleadings may be filed only with leave of court or with the written consent of the adverse party. But see Bledsoe Plumbing & Heating, Inc. v. Eldorado Springs R-II Sch. Dist., 189 S.W.3d 591, 596 (Mo. App. S.D. 2006) (permitting an amendment that was filed without leave of court or written consent when the amendment did not prejudice the adverse party).

Rule 55.33(a) emphasizes liberality in permitting amendments to pleadings. Nonetheless, the granting of such leave is not mandatory. Whether to allow a party to amend pleadings is within the trial court's discretion. City of Wellston v. SBC Commc'ns, Inc., 203 S.W.3d 189 (Mo. banc 2006). The various factors to be considered in ruling on a motion for leave to amend include:

· hardship to the moving party if leave is not granted;

· reasons for failure to include any new matter in earlier pleadings;

· timeliness of the application;

· whether an amendment could cure any inadequacy of the moving party's pleadings; and

· injustice resulting to the party opposing the motion, should it be granted.

See:

· Lester v. Sayles, 850 S.W.2d 858, 869 (Mo. banc 1993)

· Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 433 (Mo. App. W.D. 2003)

· Sill v. Burlington N. R.R., 87 S.W.3d 386, 395 (Mo. App. S.D. 2002)

· Century Fire Sprinklers, Inc. v. CNA/Transp. Ins. Co., 87 S.W.3d 408, 419 (Mo. App. W.D. 2002) (discussing the "Hounihan exception" (Hounihan v. Farm Bureau Mut. Ins. Co. of Mo., 523 S.W.2d 173 (Mo. App. S.D. 1975)) to Rule 55.33 applicable to denials of liability by insurance companies)

A trial court's ruling on a motion for leave to amend will not be disturbed on appeal unless it is shown that the court palpably and obviously abused its discretion. Atkins v. McPhetridge, 213 S.W.3d 116 (Mo. App. S.D. 2006); Clayton Brokerage Co. of St. Louis, Inc. v. Lowrance, 592 S.W.2d 218, 225 (Mo. App. W.D. 1979).

An amendment to a pleading may be made before trial, during trial, or even after trial by way of a motion for new trial. Firemen's Ret. Sys. v. City of St. Louis, No. ED 86921, 2006 WL 2403955 (Mo. App. E.D. Aug. 22, 2006); Shaw v. Burlington N., Inc., 617 S.W.2d 455, 457 (Mo. App. S.D. 1981).

The Supreme Court of Missouri's decision in Norman v. Wright, 100 S.W.3d 783 (Mo. banc. 2003) (Norman I) that a reduction for a settlement paid by a joint defendant in accordance with § 537.060, RSMo 2000, must be pled as an affirmative defense has raised numerous issues under Rule 55.33. In Norman I, the Supreme Court did not address the question of how late a trial court may...