Amendment of Pleadings in Motion to Modify

Rule 55.33 (a) provides leave to amend "shall be freely given where justice so requires." Trial courts have broad discretion in granting leave to amend and only clearly erroneous decisions can be reversed. Wheelehan v. Dueker, 996 S.W.2d 780, 782 (Mo.App.E.D. 1999). "In determining whether leave to amend should be granted, courts evaluate three different criteria: 1) reasons for the moving party's failure to include the matter in the original proceedings; 2) any prejudice to the non-moving party; and 3) hardship to the party requesting amendment if the request is denied." Id.Hudson, et al., Appellants, v. Riverport Performance Arts Centre, Joint Venture, et al., ED77306 (E.D.Mo. 2000)

 

 

Factors that should be considered in deciding whether to allow leave to amend a petition are: (1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier pleadings; (3) timeliness of the application; (4) whether an amendment could cure the inadequacy of the moving party's pleading; and (5) injustice resulting to the party opposing the motion, should it be granted. Dueker v. Gill (App. S.D. 2005) 175 S.W.3d 662.

 

Court of Appeals will not disturb the decision of the trial court to grant or to deny leave to amend absent a showing the trial court obviously and palpably abused its discretion. Firemen's Retirement System v. City of St. Louis (App. E.D. 2006) 2006 WL 2403955.

 

Amendment of pleadings.

509.490. A party may amend his pleading as a matter of course at any time before a responsive pleading is filed and served, or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is filed. Otherwise a party may amend his pleading 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.

Trial court should be abundantly liberal in granting leave to amend pleadings under the statute. Sympson v. Rogers (Sup. 1958) 314 S.W.2d 717. Pleading 229

 

Where several causes of action are joined in one suit, the plaintiff may dismiss his suit as to any one of them, and such dismissal is not an amendment of the petition, so as to entitle the defendant to file another answer. Weigand v. Schrick, 34 Mo. 510.