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08/16/94 BEVERLY DREWEL v. POST MACHINERY CO.

August 16, 1994

BEVERLY DREWEL, ET AL., PLAINTIFFS/APPELLANTS,
v.
POST MACHINERY CO., INC., ET AL., DEFENDANTS/RESPONDENTS.



Appeal from the Circuit Court of St. Louis County. Honorable Philip O. Sweeney.

James A. Pudlowski, Judge, Paul J. Simon, Presiding Judge, and Kent E. Karohl, Judge, Concur.

The opinion of the court was delivered by: Pudlowski

This is an appeal from a dismissal of plaintiffs' amended petition and grant of summary judgment for defendant, Post Company Machinery Inc. (Post). Plaintiffs contend the trial court abused its discretion by dismissing their amended petition and erred in granting Post's motion for summary judgment. We reverse the trial court's dismissal of plaintiffs' amended petition and affirm Post's motion for summary judgment.

Beverly and Charles Drewel (plaintiffs) filed suit for products liability and loss of consortium against Post Machinery on December 15, 1989. The case was assigned to Judge Block. It was first set for trial in September, 1991. The parties motioned to have the case taken off the trial docket and the court granted the request. It was reset for February, 1992. In December, 1991, at the parties request, the matter was removed from the February docket. Trial was then set for May, 1992. In March, 1992, Post motioned for leave of court to join third-party defendants, The Paxall Group, Inc., PXL Holdings Corp. and Robert Hopkins (defendants). The motion was granted and Post then moved to continue the May, 1992 trial date. That motion was also granted and trial was reset for June, 1992. Post then dismissed third-party defendant Paxall and over plaintiffs' objection, requested the case be removed from the active trial docket. The suit was reset for January, 1993. In December, 1992, on the last day prior to the statute of limitations expiring against the then third-party defendants, plaintiffs were granted leave of court to amend their original petition. Plaintiffs named third-party defendants as defendants and joined previously dismissed third-party defendant Paxall as a defendant. Plaintiffs alleged products liability, loss of consortium and negligence against the added defendants, and alleged an additional negligence count to the claims against Post. The case was then transferred to the civil docket and assigned to Judge Campbell. Because of plaintiffs' amendments, defendants motioned the court for another continuance. At the hearing on April 7, 1993, Judge Campbell dismissed plaintiffs' amended petition sua sponte stating the amendments were too late. He denied defendants' motion to continue the litigation and set trial for April 26, 1993. Plaintiffs filed a writ of mandamus with this court. It was denied.

Post subsequently filed a motion for summary judgment. When the motion was heard, the original petition, alleging relief for strict products liability, was only before the court. In support of its motion Post submitted an affidavit stating they did not exist at the time the alleged defective machine was manufactured, designed and placed into the stream of commerce. Judge Sweeney found that Post was entitled to judgment as a matter of law and the motion was granted. This appeal followed.

As a threshold matter we first address plaintiffs' argument that Judge Campbell did not have the authority to dismiss the amended pleading once Judge Block granted it. We disagree. Missouri does not follow the rule that a motion once granted cannot be reconsidered. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc 1969). The Missouri Supreme Court opined that logic and Justice seem to indicate that the trial court should be permitted to retain control over every phase of a case so that it may correct errors or in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. Id. This rule was applied to a circumstance similar to the one before us today in Richey v. Meter Investments, Inc., 680 S.W.2d 381, 384 (Mo. App. W.D. 1984). In Richey, the initial Judge assigned to the case granted plaintiff's motion. The case was reassigned and the succeeding Judge reconsidered and denied the previously granted motion. Id. The Western District found the Supreme Court rule cited above vested the second Judge with discretion to reconsider the motion. Id. The court noted the purpose of the rule is to facilitate the effective administration of Justice by allowing the trial court to correct what it ultimately determines to be mistakes in judgment. Id. We agree with this analysis. Considering the fact that many cases are reassigned before a final judgment is rendered, the rule would be of little value if only the deciding Judge could reconsider errors. In the present case the trial court still had jurisdiction over the matter and, therefore, Judge Campbell acted within his authority in reconsidering plaintiffs' motion to amend. Plaintiffs' argument is rejected. *fn1

The operative question in this matter is whether the successor Judge abused his discretion in reconsidering and dismissing the amended pleading. We find he did. The determination of whether a trial court abused its discretion in granting or denying leave to amend is best measured in terms of whether Justice is furthered or subverted by the course taken. Scott v. Dowling, 636 S.W.2d 176, 178 (Mo. App. S.D. 1982). A look at the record reveals Post was the party that caused delays in the Disposition of this litigation. It motioned to join third-party defendants after the case was already set for trial and more than two years after the petition was filed. The joinder of third-party defendants prompted Post to petition the court to continue the case. The motion was granted. Before plaintiffs moved to amend, Post made two additional motions to have the case continued, both were granted. Plaintiffs did wait until the day the statute of limitations was due to run on their cause of action against third-party defendants but they were prepared to begin the trial in April, 1993. It was Post and the third-party defendants that were asking to have the trial continued when Judge Campbell, on his own initiative, dismissed plaintiffs' approved amended petition. In view of the fact plaintiffs were ready for trial and Post continually motioned for additional time, we find the trial court's decision to dismiss the amended pleading with prejudice did not further Justice.

Defendants argue plaintiffs' amendments prejudiced them by changing their status from third-party defendants to defendants. We disagree. Hopkins and PXL were in the case for ten months and had ample time for discovery. Paxall had previously been in the litigation for three months and was represented by the same attorney representing PXL Holdings. This is not a situation where defendants were brought into a suit at the last minute without opportunity to prepare for trial. We view this as a change in the designation of ...


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