Isakson v. Parris, 18598

• Decision Date: 20 October 1994
• Docket Number: No. 18598,18598
• Citation: 526 N.W.2d 733
• Parties: Gregory ISAKSON, Plaintiff and Appellee, v. Robert PARRIS, Petitioner and Appellant, and Steve Oller, John Davis, Dwayne Tveidt, and Floyd Cleland, Defendants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 733

526 N.W.2d 733

Gregory ISAKSON, Plaintiff and Appellee, v. Robert PARRIS, Petitioner and Appellant, and Steve Oller, John Davis, Dwayne Tveidt, and Floyd Cleland, Defendants.

No. 18598.

Supreme Court of South Dakota.

Considered on Briefs Oct. 20, 1994.

Decided Jan. 25, 1995.

Mark Barnett, Atty. Gen. and John E. Haak, Asst. Atty. Gen., Pierre, for petitioner and appellant.

Benjamin J. Eicher of Wallahan, Banks and Eicher, Rapid City, for plaintiff and appellee.

PER CURIAM.

Robert Parris (Parris) appeals the denial of a motion to amend his answer to a complaint filed by Gregory Isakson (Isakson). We reverse and remand.

FACTS

Parris is employed as a trooper for the South Dakota Highway Patrol. On the night of August 3, 1987, he was escorting a convoy of custom combiners to a port of entry near the South Dakota/Wyoming border when one of the vehicles in the convoy collided with a motorcycle ridden by Isakson. Isakson suffered severe arm and leg injuries as a result of the accident.

On July 25, 1990, Isakson filed a summons and complaint against: the owner of the motor vehicles in the convoy; the driver of the vehicle that collided with Isakson; Parris; a Meade County deputy sheriff who assisted Parris with escorting the convoy; and, the Meade County sheriff. Parris answered the complaint on September 7, 1990. He raised four affirmative defenses: contributory negligence; sovereign immunity; and, qualified or good faith immunity. The remaining defendants also answered Isakson's complaint and raised various affirmative defenses. The affirmative defenses raised by the Meade County sheriff and deputy included Isakson's failure to give timely notice of his injury to the state of South Dakota or Meade County pursuant to SDCL 3-21-2 ¹.

A lengthy discovery process followed service of the initial pleadings. On March 26, 1991, the Meade County sheriff and deputy filed a motion for summary judgment premised upon Isakson's failure to give notice of injury pursuant to SDCL 3-21-2. On April 1, 1991, Parris filed a motion for summary judgment that was also premised upon Isakson's failure to give timely notice of injury under SDCL 3-21-2. Isakson resisted these motions by contending that additional discovery was necessary in the matter and by further contending that Parris had waived the notice defense when he failed to plead it as an affirmative defense in his answer.

The first set of summary judgment motions were heard on April 11, 1991 and denied in an order entered April 22. A series of motions to amend answers followed. The defendants all moved to amend their answers to include various cross-claims against each other. In response to these motions, Isakson stipulated that Parris could amend his answer to include a cross-claim against the owner of the vehicles in the convoy and the driver of the vehicle that collided with Isakson. Pursuant to that stipulation, Parris filed an amended answer, including his cross-claims, on August 28, 1991. However, the amended answer again failed to raise an affirmative defense relating to Isakson's failure to give notice of injury under SDCL 3-21-2.

A second round of summary judgment motions began in late 1991. All of the defendants, including Parris, renewed their previous summary judgment motions. Parris filed his renewed motion for summary judgment on December 12, 1991. Again, Parris's motion was based on Isakson's failure to give notice of injury under SDCL 3-21-2. Once again, Isakson resisted the motion by attacking Parris's failure to raise lack of notice of injury as an affirmative defense in his answer or amended answer. The summary judgment motions of all of the remaining defendants ² were denied by the trial court in an order entered February 27, 1992.

On August 13, 1993, Parris filed a motion to amend his answer to include Isakson's failure to give notice of injury as an affirmative defense. Parris contended that, prior to this court's decision in Cody v. Leapley, 476 N.W.2d 257 (S.D.1991) in September, 1991, this court had never ruled on whether lack of notice under SDCL 3-21-2 is affirmative defense that must be pled. Parris further contended that Isakson would suffer no prejudice by the amendment because the substance of the issue had already been argued in previous motions. Moreover, Parris pointed out that discovery was still proceeding, no trial date had been set and, therefore, Isakson still had a full and fair opportunity to litigate the issues raised by the amendment.

Isakson resisted Parris's motion to amend and a hearing was conducted. The trial court entered an order denying the motion. Parris subsequently filed a petition for allowance of an intermediate appeal of the trial court's order which this court granted.

ISSUE

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING PARRIS'S MOTION TO AMEND HIS ANSWER?

Parris moved to amend his answer to add a new affirmative defense pursuant to SDCL 15-6-15(a):

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has neither been placed upon the trial calendar, nor an order made setting a date for trial, he may so amend it at any time within twenty days after it is served. 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. (emphasis added).

In Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 423 (S.D.1994), this Court reiterated that:

A trial court may permit the amendment of pleadings before, during, and after trial without the adverse party's consent. Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987). SDCL 15-6-15(a) states that '[L]eave [to amend] shall be freely given when justice so requires.' A motion to amend is addressed to the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion which results in prejudice to the non-moving party. Id.

In Beyer v. Cordell, 420 N.W.2d 767 (S.D.1988) we explored the issue of whether the trial court abused its discretion by allowing the defendant to amend his answer during trial to assert the affirmative defense of contributory negligence against one of the co-plaintiffs. In reaching our decision, we applied the following reasoning:

An affirmative defense is not waived if the pleadings are properly amended to include the unpled defense or if the issue was tried by express or implied consent. The decision to allow amendment of pleadings is within the discretion of the trial court. SDCL 15-6-15(b) allows amendment of the pleadings to conform to the evidence. 'The test for allowing an amendment under SDCL 15-6-15(b) is whether the opposing party will be prejudiced by the amendment; i.e., did he have a fair opportunity to litigate the issue, and could he have offered any additional evidence if the case had been tried on the different issue.'

* * * * * *

The issue of contributory negligence was fairly litigated and the [plaintiffs] do not indicate that there was any additional evidence which could have been offered if the contributory negligence defense had been raised against [the co-plaintiff] in the original pleading. Therefore, the trial court did not abuse its discretion in allowing the amendment of [defendant's] answer.

Beyer, 420 N.W.2d at 769-70 (citations omitted) (emphasis added).

More recently, in Americana Healthcare Center v. Randall, 513 N.W.2d 566 (S.D.1994), we were confronted with the issue of whether the trial court abused its discretion by allowing the plaintiff to amend its complaint to include a new statutory claim. We held:

Before a court allows a complaint to be amended, it must determine whether the opposing party will be prejudiced by the amendment; i.e., did he or she have a fair opportunity to litigate the issue, and could he or she have offered any additional evidence if the case had been tried on a different issue. The trial court's decision to permit amendment of pleadings will not be disturbed on appeal absent a clear abuse of discretion which results in prejudice to the nonmoving party. [The defendant] was aware of the statutory claim two months before trial and had sufficient time to defend the claim despite being denied a continuance. He has not demonstrated that he has been unfairly prejudiced by this amendment.

Americana Healthcare, 513 N.W.2d at 571 (citations omitted) (emphasis added).

Finally, in the previously cited Kjerstad case, the defendant contended that the trial court erred in allowing the plaintiffs to amend...