Bennett v. Owens, 18407
| Decision Date | 27 March 1989 |
| Docket Number | No. 18407,18407 |
| Citation | 378 S.E.2d 850,180 W.Va. 641 |
| Court | West Virginia Supreme Court |
| Parties | Michael L. BENNETT v. Dennis OWENS, Sr. |
Syllabus by the Court
"The purpose of the words 'and leave [to amend] shall be freely given when justice so requires' in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue." Syllabus point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).
Laura R. Tew, Askin, Pill, Scales & Burke, Martinsburg, for Michael L. Bennett.
James B. Rich, III, Martinsburg, for Dennis Owens.
This is an appeal by Michael L. Bennett from an order of the Circuit Court of Berkeley County denying a motion to amend the complaint in a battery action. On appeal the appellant claims that the trial court erred in refusing to allow the amendment. After reviewing the record this Court agrees and reverses the decision of the circuit court.
On June 1, 1985, the appellant attended a high school graduation party conducted on the premises of the appellee, Dennis Owens, Sr. In the course of the party someone, believed by the appellant to be Dennis Owens, Sr., struck the appellant with a club, broke his jaw, and knocked him out. Following the incident the appellant instituted a battery action against Dennis Owens, Sr. Dennis Owens, Sr. denied essential allegations of the complaint, and in a later deposition testified that he did not personally strike the appellant or inflict personal injury upon him. He did indicate, however, that he had heard of the circumstances surrounding the battery and he had heard that his son, Dennis Scott Owens had struck the appellant.
After the taking of the deposition the appellant moved to amend his complaint. He sought to alter his claim and allege that Dennis Owens, Sr. had been negligent in conducting the party by failing to monitor the consumption of alcohol by individuals attending the party, by allowing guests to become intoxicated, by failing to take precautionary measures to neutralize an argument between the appellant and other guests, and by encouraging other guests, including his son, to engage in drunken, rowdy, aggressive, and threatening conduct.
After conducting a hearing on the appellant's motion on August 31, 1987, the court ruled that the proposed amendment set up a totally separate cause of action and, since the motion for leave to amend the complaint was filed beyond the two-year limitation period governing tort actions, it was untimely. It is from the circuit court's ruling that the appellant now appeals.
The amendment of complaints in civil actions in West Virginia is governed by Rule 15 of the West Virginia Rules of Civil Procedure. That rule provides that a party may amend a pleading once as a matter of course at any time before a responsive pleading is served. It also provides that a party may amend after a responsive pleading is served with the written consent of the adverse party or by leave of the court. The rule specifies that "leave shall be freely given when justice so requires."
In Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973), this Court discussed circumstances under which a trial court should grant leave to amend under Rule 15. The Court concluded, in syllabus point 3, that:
The purpose of the words "and leave [to amend] shall be freely given when justice so requires" in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.
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