State ex rel. Charles F. Vatterott Commercial Properties, Inc. v. Rush

CLEMENS, Presiding Judge. In this proceeding in mandamus the relator, Charles F. Yatterott Commercial Properties, Inc., seeks a writ of mandamus compelling respondent, Honorable Fred Rush, to grant relator leave to amend its second amended answer by pleading the statute of limitations. For reasons herein stated we conclude our alternative writ of mandamus was improvidently issued and we order it discharged. On October 27,1975 Standard Drug Company, Inc., filed a suit in St. Charles County against St. Andrews Plaza, Inc. for a breach of a lease executed March 2,1967 but by its terms was not effective until the building was ready for occupancy. Plaintiff Standard Drug Company, Inc., the lessee, alleged St. Andrews Plaza, Inc., the defendant-lessor, had failed to furnish an air conditioned building. By its petition for mandamus relator contends it was entitled to amend its second amended petition by alleging the statute of limitations and seeks our writ to compel respondent to grant leave to so amend, contending his refusal to allow the amendment was an abuse of judicial discretion. Relator relies on Rule 55.33(a), VAMR 1969, permitting a party to amend its pleading only by leave of court, after the time for amending as a matter of course has expired, but providing that such leave “ . . . shall be freely given when justice so requires. To grant this writ of mandamus we must conclude respondent-judge abused his discretion in denying relator leave to amend. To do so we must find his ruling was “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of [865] justice and indicate a lack of careful consideration.” Shirrell v. Missouri Edison Co., 535 S.W.2d 446[2] (Mo.banc 1976). The Shirrell court then added: “When appellate courts are called upon to apply this test, it is well to heed the words: ‘If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ ” Respondent’s challenged order denying defendant (relator) leave to amend its second amended answer was entered January 8, 1978. When respondent-judge made that order — the one relator now assails— the following salient facts were apparent to him: February 27, 1976. Defendant had answered and the case was at issue. August 11, 1976. Without objection, the cause was certified ready for trial and set for trial on December 22, 1976 (but not then reached). March 7, 1977. Cause re-set for trial on April 14, 1977 (but not then reached). May 31, 1977. Defendant granted change of judge. June 10,1977. After the cause had been at issue for 15 months, defendant’s first motion to amend its second amended answer, by pleading the statute of limitations, was denied as untimely. (Defendant could then have sought mandamus relief.) November 7, 1977. Cause re-set for trial on December 22, 1977. December 22,1977. Special judge denied defendant’s renewed motion to amend by pleading the statute of limitations, but continued the case to allow defendant 30 days to apply for mandamus— which defendant did not do. December 28, 1977. Defendant again moved to amend by pleading the statute of limitations. January 6, 1978. Respondent denied motion to amend. February 3, 1978. Defendant filed its petition for mandamus. Confronted with the defendant’s challenged motion to amend on January 6,1978 the respondent-judge could see from the record that: Plaintiff’s cause had been at issue and ripe for trial since February 6, 1976; the cause had twice been set for trial; defendant had waited fifteen months after it answered to seek to amend by pleading the statute of limitations; it took no action after the June 10, 1977 denial of leave to amend until the date of trial six months later; on December 22,1977 when the cause came on for trial defendant was granted a thirty-day continuance to apply to this court for mandamus, but did not do so; instead, defendant again unsuccessfully sought to amend, and only then sought our writ of mandamus. The challenged order denying leave to amend was a discretionary ruling. From this record the respondent-judge could well have concluded that although plaintiff had diligently sought to bring its case to trial, defendant had persistently sought to avoid trial. We cannot conclude the respondent-judge’s ruling is so illogical and arbitrary that it shocks our sense of justice. We therefore rule our preliminary writ was improvidently issued and it is ordered discharged. SMITH, J., concurs. McMILLIAN, J., dissents in separate opinion.