Keith A. Cutler, Esquire
Relation back of amendments under Rule 55.33 applies to a
change of parties where party sought to be added has been given notice
sufficient to defend himself against the claims. Johnson v. Delmar
Gardens West, Inc., Delmar Gardens of Chesterfield, L.L.C., d/b/a
Delmar Gardens of Chesterfield, and Delmar Gardens of Chesterfield,
Inc., No. 95317 (Mo. App. E.D., March 8, 2011), Sullivan, J.
Plaintiff timely filed a wrongful death suit against Delmar Gardens
West for the death of her husband. In actuality, her husband had been a
resident at Delmar Gardens of Chesterfield. By the time Plaintiff
realized that she had sued the wrong facility/entity, the statute of
limitations had run on her wrongful death claim. Plaintiff sought to
amend her petition to name the correct facility (Delmar Gardens of
Chesterfield) as a Defendant. Delmar Gardens of Chesterfield filed a
motion to dismiss based on the statute of limitations; Plaintiff argued
that the statute of limitations had not expired because her amendment
related back to the original Petition under Rule 55.33(c). The trial
court granted Delmar Gardens of Chesterfield's Motion to Dismiss, and
Held: Reversed and remanded. The
court of appeals noted that this was not a situation where the correct
party had been sued, but under an incorrect name. In this situation,
the correct party was not initially named or served in the lawsuit at
all. Rule 55.33(c) allows an amendment changing a party to relate
back to the original petition if the party to be brought in by
amendment (1) has received such notice of the lawsuit as will not
prejudice that party, and (2) knew or should have known that, but for a
mistake, suit would have been brought against that party. In this
case, both criteria were satisfied. The evidence showed that both
Delmar Gardens entities shared the same corporate headquarters,
registered agent, and attorneys. Their annual reports with the
Secretary of State's Office were filed by the same person, and show
that they share a majority of the same officers and directors. "Rule
55.33 is to be applied liberally, and is based on the concept of
whether a defendant has been given notice sufficient to defend himself
against the claims." Therefore, the trial court erred in dismissing
the lawsuit, and the case was remanded.
Edward J. Hershewe, Esquire
Alison R. Hershewe, Esquire
City of West Plains held vicariously liable for personal
injury negligently caused by city fire fighter en route to an emergency
in his personal vehicle. Judgment against city for $162,500 upheld
despite numerous procedural objections including: late amendment to the
pleadings, alleged error in verdict directing instruction, denial of
affirmative converse instruction, no prejudice from mention of
insurance, reading a city ordinance at trial, and value of medical
services. Wheeler v. Phenix and City of West Plains, No. 30371 (Mo. App. S.D., February 8, 2011),Francis, Jr., J.
In the original action, Respondent, Desiree Wheeler, was a passenger
in a car driven by Frances Ness. As she approached a green light and
attempted to turn left, Michael Phenix, a city firefighter en route to
an emergency, drove his personal vehicle with lights and sirens on
through a red light, striking Ness's car. The Respondent filed a
personal injury suit against Phenix, later amending to add West Plains
under vicarious liability. A jury trial resulted in a judgment against
the city of West Plains for $162,500. The city appealed on six separate
points. All points were denied and the judgment affirmed.
Point 1: Late Amendment to the Pleadings-Two days before
trial, the Respondent moved to file an amended petition, adding
negligence counts based on city ordinances. The motion was sustained,
and only on appeal did the city formally object to its timeliness.
Reviewing under an abuse of discretion standard, the court stressed the
rules are designed to "liberally permit amendments when justice so
requires," considering potential hardships, surprises, and deprivation
of claims or defenses. The court stated this motion was sufficient as
it engaged the same defense strategy, and the Appellant presented no
evidence the amendment denied it any claim, defense, or additional
Point 2: Alleged Error in Verdict Directing Instruction-The
Appellant argued that a definitional difference in the term "emergency
vehicle" between the city ordinance and state law created an error in a
jury instruction. Under a de novo review, the court noted the
term was not even mentioned in the particular instruction and
therefore, any conflict is irrelevant.
Point 3: Denial of Affirmative Converse Instruction-The
Appellant claimed the court erred in refusing a tendered affirmative
converse instruction to follow the Respondent's negligence per se
instruction. Under de novo review, the court said the issue is
whether the tendered instruction was correct and proper in form, as
the burden is on the Appellant to submit a proper instruction showing
legal justification or excuse. The court held the instruction improper
as the Appellant used the term "negligence" for the first time without
defining it, leaving the jury without guidance. Additionally, the court
stressed the Appellant did not object to the form of the Respondent's
verdict director or tender an instruction that included the required
affirmative defense tail for the verdict director.
Point 4: No Prejudice From Mention of Insurance-In an
attempt to establish a foundation at trial, the Appellant's Safety
Director was asked if an accident report was prepared in the ordinary
course of business. He responded, "[i]t's prepared for the insurance
company." The Appellant immediately requested but was denied a
mistrial. Reviewing under abuse of discretion, the court noted it is
normally "improper to inject the issue of the existence of liability
insurance into an action for damages.but not every reference warrants
reversal." In this instance, the court concluded the question was not
asked in bad faith because it was asked only once, never revisited, and
worded to elicit a yes or no response.
Point 5: Reading a City Ordinance at Trial-The Appellant
argued the court erred in allowing an in-court reading of city
ordinances because law is supposed to be derived from submitted
instructions and the reading mislead the jury as to a purported
conflict in city and state law. The court, under an abuse of discretion
standard, noted case law does prohibit the reading of state statutes,
but even the Appellant admitted no such case law exists for city
ordinances. Regardless, when a statute is read it "is reversible error
only if counsel misstates the law, or states it in a manner calculated
to mislead the jury," and here, the court held counsel did misstate or
Point 6: Value of Medical Services-Before trial, both
parties filed motions asking the court assess the value of medical
services pursuant to Section 490.715, RSMo. Accordingly, the Respondent
presented nine affidavits and an itemized summary. The Appellant
argued the court's determination that the Respondent's evidence
represented the value of services lacked of sufficient proof. The court
said the finding must be upheld unless there is "no substantial
evidence to support," it is "against the weight of the evidence," or it
"erroneously declares or applies the law." Considering the Appellant
filed no controverting affidavits, the court held the nine affidavits
and other evidence sufficient. A further argument that the affiants'
statements were based on "mere speculation, guess or conjecture" was
dismissed because the information was apparently based on personal
knowledge and determining credibility is a matter for the trial court.
Plaintiffs Wallace and Deborah Shields (the Shields) appeal
from a denial of a motion for new trial following a jury verdict in
favor of the Defendant Freightliner of Joplin, Inc. (Freightliner). The
Shields moved for a new trial on the basis of intentional voir dire
nondisclosure by juror Russell Allgood (Allgood). The denial was
affirmed. Shields v. Freightliner of Joplin, Inc., No. 29515 (Mo. App. S.D., February 28, 2011), Bates, J.
In the original action, the Shields alleged Freightliner was
negligent in failing to repair a defective steering mechanism that
caused its vehicle to run the Shields' RV off the road. During voir
dire, the Shields' counsel asked if jurors (1) knew Kevin Loudermilk
(Freightliner employee); (2) were ever wrongly accused of "something"
or been a "defendant" in a lawsuit; or (3) had mechanical knowledge,
ever performed, or otherwise trained to, service vehicles. Allgood did
not respond and was seated as a juror, signing the verdict.
The Shields made a timely motion for a new trial, claiming Allgood
intentionally failed to disclose (1) two orders of protection issued
against him, and (2) he knew or recognized Loudermilk. The motion did
not mention the series of service work questions.
At the hearing, Allgood admitted that his wife, twice, filed pro se
petitions seeking orders of protection, to which he appeared pro se
and did not contest. He testified he did not understand those to be
lawsuits like the one between the Shields and Freightliner but rather,
personal matters between spouses. Similarly, evidence was presented
that a home, lived in by Allgood's mother but jointly owned, was sold
to Loudermilk in 2004. Allgood testified he had little to do with the
sale, and never met the purchaser.
The Shields, additionally, argued intentional non-disclosure
concerning the service questions. Allgood testified to changing oil and
flat tires but did not consider himself any more knowledgeable than
the average person. Freightliner properly objected, as the subject was
not mentioned in the motion.
Concerning the orders, the court found no intentional nondisclosure
because Allgood had not been asked "a clear question," and believed
Allgood's testimony genuine in his misunderstanding of "lawsuit."
Similarly, the court was satisfied with Allgood's testimony that he did
not know or recognize Loudermilk, finding no intentional
nondisclosure. Lastly, based on his testimony and demeanor, the court
found Allgood did his best in answering the service questions and found
no intentional nondisclosure.
On appeal, the court reviewed the case under the abuse of discretion
standard. Setting out a venire person's duty, the court said a juror's
response "is triggered only after a clear question has been asked,"
meaning the question must "clearly and unambiguously trigger the
juror's obligation to disclose the information requested." If
nondisclosure is found, next is a determination of whether it was
intentional or unintentional. Nondisclosure is considered intentional
when "(1) there is no reasonable inability of the prospective juror to
comprehend the information solicited by the question; and (2) the
prospective juror actually remembers the experience, or it was of such
significance that his or her purported forgetfulness is unreasonable."
Oppositely, nondisclosure is unintentional if "(1) the juror forget[s]
about an experience that was insignificant or remote in time; or (2) a
prospective juror reasonably misunderstand[s] about the questions
posed." Intentional nondisclosure of material information assumes
prejudice and bias, but unintentional nondisclosure must be accompanied
by actual, resulting bias and prejudice.
Reviewing the three issues individually, the court found no
nondisclosure concerning Allgood's knowledge of Loudermilk. The
appellate court stated that the trial court had the opportunity to
assess Allgood's demeanor, from which it was convinced Allgood did not
know Loudermilk. This finding was supported by ample evidence that
Allgood did not live at the property and was barely involved in its
Next, the court found the question asking if "anybody has ever been
accused of something that they did not do" to be unclear, extremely
vague and ambiguous.
The court restated nondisclosure is unintentional when questions are
reasonably misunderstood. In further review, the court stated counsel,
evidently, was not digging for personal information, and the orders
referred to Allgood as a respondent, not a defendant. Based on this
evidence and the weight given trial court's finding of creditably, the
court denied this point as well.
Last, the court found the line of questions concerning mechanical
training was not properly reserved for review. Relying on Rule 78.07,
the court said complained errors should be "stated specifically," and
the motion contained nothing about failing to disclose mechanical
knowledge or service work. The court refused to raise plain error sua
sponte. Nonetheless, the court included a footnote that claimed, even
if properly reserved, the trial court's finding was not an abuse of
In conclusion, the court found the trial court did not abuse its
discretion in denying the Shields' request for a new trial.
The Missouri Bar Courts Bulletin, 11-Apr