FAILURE TO AMEND
February 19, 2013 § 1 Comment
It’s pretty common for lawyers to file pleadings subsequent to their initial pleading with updated allegations, added issues, and the word “Amended” prominently displayed in the document’s title. Quite often the lawyer on the other side treats the subsequent pleading(s) as the one(s) at issue, and the proof proceeds accordingly.
That practice, however, is not what the rules require, and, as we shall see, can cost your client big time. The proper procedure to amend pleadings is set out in MRCP 15:
(a) Amendments. A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; 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 longer, unless the court otherwise orders.
and
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions, occurrences, or events which 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.
So to amend after the deadline in R15(a), you have to get leave of court. Otherwise, that “Amended” pleading is a nullity.
That’s what happened in McKnight v. Jenkins, decided February 14, 2013, by the MSSC.
Holly McKnight filed a petition to modify custody against Walter Jenkins, the father of her child whom she had given custody in a prior judgment of the court. Walter countered with a counterclaim for contempt and for modification. The contempt allegation was based on Holly’s alleged failure to return all of the child’s belongings at the conclusion of visitation. Some time before the date set for hearing, Walter filed a motion to amend his pleading to add the allegation that Holly had failed to pay her share of the child’s medical expenses, but Walter never presented the motion to the court.
Following a hearing, the chancellor denied Holly’s petition to modify, but found her in contempt for failure to pay the medical bills, and ordered her to pay Walter $21,000 for her share.
The MSSC reversed, pointing out that in order to recover on a contempt claim, there must be a pleading putting the other party on notice. The unamended pleading simply did not support the relief granted. By failing to get a court order granting leave to amend, Walter’s award of $21,000 was reversed.
There is language in the opinion to the effect that the parties understood that the issue of contempt for failure to pay the medical bills was not properly before the court, and the judge acknowledged as much, but he went ahead and adjudicated contempt anyway, which was error. Of course, had the issue been tried without objection, Walter’s lawyer could have made a timely motion to conform the pleadings to the proof, as set out in MRCP 15(b):
(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed 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 prejudice the maintaining of the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.
THE CURSE OF HCIT STRIKES AGAIN
April 4, 2012 § Leave a comment
Amanda Alexander filed for divorce charging her husband, Khari, with the sole fault ground of adultery. She had discovered amorous emails on Khari’s computer. For his part, Khari admitted being attracted to other women, and even having flirtations with them, including one episode in which he was alone in a hotel room with a woman and put on a condom, but he denied adultery.
Amanda also testified that Khari threatened her and used profane language, slapped a phone out of her hand when she attempted to call the police, and took her car keys so that she had to get the help of police to get them back.
At the conclusion of the trial, the special chancellor found that Amanda had not proven adultery and suggested that she move to amend her pleadings under MRCP 15 to seek a divorce on the ground of habitual cruel and inhuman treatment, which she immediately did, and the judge granted Amanda the divorce on that ground.
Khari appealed, complaining that it was improper to allow the amendment because the requirements of MRCP 15(b) were not met to allow an amendment.
The COA reversed. In Alexander v. Alexander, decided March 27, 2012, Judge Lee, writing for the court, said, beginning at ¶8:
“Mississippi Rules of Civil Procedure Rule 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. Fisher v. Fisher, 771 So. 2d 364, 368 (¶13) (Miss. 2000). However, the chancellor found Amanda failed to prove adultery.
¶9. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that:
either endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.
S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp. 1991); Gardner v. Gardner, 618 So. 2d 108, 113-14 (Miss. 1993). A causal connection between the treatment and separation must exist. Fournet v. Fournet, 481 So. 2d 326, 329 (Miss. 1985). “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Moses v. Moses, 879 So. 2d 1043, 1047 (¶9) (Miss. Ct. App. 2004) (quoting Keller v. Keller, 763 So. 2d 902, 908 (¶29) (Miss. Ct. App. 2000)).
The court went on to find that Amanda’s proof did not meet the standard required to prove habitual cruel and inhuman treatment (HCIT). As Judge Lee pointed out, Amanda, when asked in her testimony what was the reason she was seeking a divorce, answered “Adultery,” and said that the reason for the separation was the inappropriate relationships with other women. Judge Lee noted that the conduct that is the ground for divorce must be the cause of the separation, not some other ground, and he pointed out that, although adultery can be considered HCIT, in this case the trial judge had found that there was inadequate proof of adultery.
This is yet another case that hammers home 2 points: (1) Make sure your pleadings are in order and map out what you are going to try to prove at trial and how to get there; and (2) You might as well not even try to get an HCIT divorce unless you have the requisite proof.
Judge Ishee wrote a dissent, joined by Judge Carlton, concluding that the chancellor did have adequate proof to support a finding of HCIT, but the dissent did not carry the day.
Two more points:
First, this case is another unfortunate example where the chancellor tried to do what he felt needed to be done, but did not have either the proof in the record or proper pleadings to go on. It’s up to the attorney to make sure that the pleadings cast a wide enough net to cover everything that needs to be covered, and that there is sufficient direct and corroborating evidence to support the judge’s ruling.
Second, I had to laugh out loud when I read this statement by the special chancellor: ” … but under the new rules an amendment can be made right up to the final order.” No, I’m not laughing at the distinguished and respected former chancellor and COA judge who made that statement. I’m laughing at myself. Here’s why: several months ago I was talking with a young lawyer about a procedural matter, and I commented that “Under the new rules … ” we now have to do so and so. Her face clouded up, and I asked her whether I had confused her. “It’s not that,” she said “it’s only that I didn’t know we had some new rules.” I explained that I still called the MRCP, put into effect in 1983 (that’s almost 30 years ago), the “new rules.” She laughed innocently and said, “1983? I was still in diapers then!” Yikes. I have since tried to purge my speech of any reference to the “new rules,” at least until we actually do have some new rules. Still, it’s hard not to feel old as Moses when someone tells you something like that.
AMENDING BY THE BOOK
February 15, 2012 § 2 Comments
Things seem to go in phases. A motion to do thus and such is filed, finds some success, and a slew of others follow. Or a court of appeals decision makes a point, and a salvo of pleadings ensue.
Lately, a phase in pleadings is for lawyers to file successive so-called “amended” or “supplemental” pleadings and answers thereto, along with counterclaims (bearing all manner of names, such as “counter-motions,” “cross-complaints,” “counterpetitions,” etc., etc., etc.), and responses thereto, to the extent that casting the pleadings for trial is like assembling a jigsaw puzzle. Nearly always, this plethora of pleadings is filed in a willy-nilly cascade of paperwork without any leave of or input by the court. It does not have to be, nor should it be, this way.
MRCP 15 lays out an orderly process for amendments that is fairly simple if followed. Here’s the simple scheme laid out in Rule 15(a):
- You may amend at any time, without leave of court, before an answer is served.
- If your pleading is one to which no answer is permitted, you may amend without leave of court at any time within 30 days after service of process, unless the matter has been placed on the trial calendar.
- Any other amendment will require leave of court, with notice to the other side and opportunity to be heard, OR written consent of the adverse party or parties.
It’s really that simple. There are some other interesting wrinkles in Rule 15, and we’ll touch on them, but the important thing to remember is that if your pleadings don’t meet the criteria in 1 and 2 above, you must file a motion and get permission of the court to amend or get an agreed order. Note that the rule requires “written consent.” I take that to mean an agreed order of the court, not a handshake deal that is later the subject of heated dispute.
An important caveat: Rule 15 specifically says that leave to amend shall be freely given. Don’t confuse that principle with freely amending without leave of court.
The importance of following the requirements of Rule 15(a) is illustrated by what happened in Lone Star Industries, et al. v. McGraw, decided February 2, 2012. In that case, the Mississippi Supreme Court held that the circuit judge should have dismissed a second amended complaint for failure of the plaintiff to get leave of court before filing it. As a result, some plaintiffs were dismissed from the suit, and the statute of limitations (SOL) has likely run.
You can have a similarly unpleasant result in chancery, although we seldom deal with SOL. Imagine that you have unilaterally updated your modification pleadings 10 days before trial to bring up some claims that surfaced in discovery, only to face an objection at trial that you did not comply with Rule 15. The judge should sustain the objection and throw out your updated claims. In a modification case, that could be significant to your client, because the judgment that results from this trial will time bar any later claims based on acts that precede it.
So, how do you successfully update your pleadings to capture transactions, occurrences or events related to the original claim that occurred after the filing of the original pleadding? You file a motion pursuant to Rule 15(d). If you can’t get the other side to agree via an agreed court order, you should call your motion to amend up for hearing right away, because the judge can deny your request if to grant it would prejudice the other party, as, for instance where you wait until immediately before or the day of trial.
Rule 15(b) says that even if you have not amended, you may be able to get your amendment anyway if you present evidence that is outside the scope of the pleadings at trial and the other side does not object. The court in such a case may allow the pleadings to be amended to conform to the proof. That’s the subject of a post to come later.
Amendments relate back to the date of filing of the original pleading, if they arise out of the same conduct, transaction or occurrence set forth “or attempted to be set forth” in the original pleading. That’s what Rule 15(c) provides, and it has some important language about adding parties.
Sloppy amendment practice makes a mess out of litigation. Recently I delayed a trial and ordered the parties to file updated, consolidated pleadings where there was a train of pleadings extending back to 2008, with petitions, counterclaims, responses and answers to responses of such byzantine proportions that I could not discern what were the issues in the case. I suspect that when the case bubbles back up, many of the issues will have fallen by the wayside, and we will have a streamlined, current, sensible package of issues for adjudication. Or at least that’s what I’m hoping.
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