McBurney v. Aldrich
| Decision Date | 22 March 1991 |
| Citation | 816 S.W.2d 30 |
| Parties | Randall D. McBURNEY, Plaintiff-Appellant, v. Don C. ALDRICH and Teresa Aldrich, Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
John D. Kitch, Kitch, Deas & Klein, Nashville, for plaintiff-appellant.
J. Russell Heldman, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, A Professional Corp., Nashville, for defendants-appellees.
The plaintiff, Randall D. McBurney, has appealed from all orders entered by the Trial Court, and specifically from orders entered on March 30, 1990, July 24, 1990, and September 7, 1990.
A proper understanding of the issues requires a detailed recitation of the proceedings in the Trial Court.
On December 22, 1989, plaintiff sued Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich, Carl H. Keeran, and Pegasus Entertainment Group, Inc., seeking judgment against all named defendants, for accounting, payment for plaintiff's shares of stock, attorney's fees and general relief.
On February 16, 1990, Don and Teresa Aldrich and Pegasus Entertainment Group, Inc., moved for dismissal for failure to state a claim for which relief can be granted.
On March 7, 1990, without leave of the Trial Court, plaintiff filed an amended complaint in which Pegasus Entertainment Group, Inc., was omitted from the captioned defendants, and the name of the captioned plaintiff was changed to read:
Randall D. McBurney, Individually and on behalf of Pegasus Entertainment Group, Inc.
The text of the amended complaint was somewhat different from that of the original complaint.
On the same date, March 7, 1990, plaintiff filed his "Response to Motion to Dismiss".
On the same date, March 7, 1990, plaintiff filed a "Notice of Dismissal" of Pegasus Entertainment Group, Inc.
On March 8, 1990, Don and Teresa Aldrich and Pegasus Entertainment Group, Inc., filed an "Objection to Filing of Amended Complaint and Motion to Strike Amended Complaint".
On March 8, 1990, the Trial Court entered an order of dismissal of Pegasus Entertainment Group, Inc.
On March 20, 1990, plaintiff filed his "Rule 12.02 Response to Objection and Motion".
On March 30, 1990, the Trial Court entered an "Order of Dismissal of Complaint and Striking Amended Complaint" stating:
... The motion to dismiss is well taken and should be granted and the original complaint should be dismissed; the amended complaint is not properly before the Court and, therefore, defendants' motion to strike the amended complaint is well taken and should be granted, ...
It is, therefore, ORDERED, ADJUDGED and DECREED that the motion of defendants, Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, and Pegasus Entertainment Group, Inc., to dismiss the original complaint is granted and plaintiff's original complaint against these defendants is dismissed.
It is further ORDERED, ADJUDGED and DECREED that the motion of defendants, Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, and Pegasus Entertainment Group, Inc., to strike the amended complaint is hereby granted and that plaintiff's amended complaint filed on March 7, 1990, should be stricken from the record in this cause. (Emphasis supplied.)
On June 11, 1990, plaintiff moved the Trial Court to modify the foregoing order.
On the same date, plaintiff moved for leave to amend to add Don and Teresa Aldrich as parties defendant and to file an amended complaint substantially identical with that previously filed and stricken. (It appears that Don and Teresa Aldrich were already named defendants).
On July 11, 1990, Don and Teresa Aldrich, individually and d/b/a Pegasus II filed an "Objection and Motion to Strike Those Portions of the Motion to Modify Order and Motion for Permission to Amend" which states (sic) "that he is suing on behalf of Pegasus Entertainment Group, Inc."
On the same date, July 11, Don and Teresa Aldrich, individually and d/b/a Pegasus II filed a: "Response and Objection to Plaintiff's Motion to Amend", attaching a copy of a new complaint filed by plaintiff on July 11, 1990, in the same court, but under a new and separate case number, 90-1071-I, which appears to be identical or substantially identical with that tendered with the Motion for Leave to Amend. (The Trial Court case number of the case on appeal is 89-3565-I.)
Also attached to said "Response and Objection" was a copy of a Motion to Dismiss filed in the new case (90-1071-I) by Don and Teresa Aldrich individually and d/b/a Pegasus II, seeking dismissal of the new complaint on grounds of res judicata, based upon the order of Dismissal entered on March 30, 1990, in the first case (89-3565-I).
On July 24, 1990, in the original case (89-3565-I), the Trial Court entered an order reciting:
... [t]he Court having earlier this day already granted these same defendants' motion to dismiss the complaint in case number 90-1071-I, Randall D. McBurney, individually and on behalf of Pegasus Entertainment Group, Inc., v. Don C. Aldrich and Teresa Aldrich, individually and d/b/a Pegasus II, Roy Sinkovich and Carl H. Keeran, Davidson County Chancery Court, on the grounds that the complaint in case number 90-1071-I fails to state a claim upon which relief can be granted under T.R.C.P. 12.02(6), the Court is of the opinion that the motion for permission to amend is not well taken and should be denied. The court specifically finds that the proposed amended complaint which is the subject of plaintiff's motion for permission to amend is identical to the complaint in case number 90-1071-I which has already been dismissed as against these same defendants. The Court further is of the opinion that defendants' objection to plaintiff's use of "on behalf of PEGASUS ENTERTAINMENT GROUP, INC.", in said motion for permission to amend should be sustained and that those words should be stricken from said motion.
It is, therefore, ORDERED that plaintiff's motion for permission to amend his complaint is hereby denied, that the objection and motion to strike is hereby sustained and granted, and that the words "on behalf of PEGASUS ENTERTAINMENT GROUP, INC.," shall be stricken from plaintiff's motion.
On September 6, 1990, plaintiff filed notice of voluntary dismissal of defendants Roy Sinkovich and Carl H. Keeran, and on September 7, 1990, an order was entered accordingly.
On September 26, 1990, the notice of appeal was filed in the present case (No. 89-3565-I). On the same date, plaintiff filed notice that no transcript or statement of the evidence would be filed.
On November 14, 1990, an "Order of Correction" was entered stating:
It is hereby ORDERED that the motion of the defendants shall be granted and that the phrase: "and on behalf of PEGASUS ENTERTAINMENT GROUP, INC." which appears in the caption of the Order of Dismissal of March 8, 1990, shall be deleted and stricken, and further treated as such for purposes of the record in this cause.
On the same date, November 14, 1990, an "Order Pursuant to TRAP 24(e)" was entered requiring that designated portions of the record of the new suit (No. 90-1071-I) be included in the record of this appeal. Included in this appendage to this record are the new complaint, motion to dismiss, response thereto and order of dismissal entered on July 23, 1990.
On appeal, plaintiff presents three issues, of which the first two challenge the rulings of the Trial Court striking the amendment filed without leave of court and refusing leave to amend when sought by motion.
TRCP Rule 15.01 states:
Amendments.--A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served ... Otherwise a party may amend his pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires.... (Emphasis supplied.)
Prior to March 7, 1990, when plaintiff filed the amended complaint, the defendants Don and Teresa Aldrich and Pegasus Entertainment Group, Inc., had, on February 16, 1990, filed a motion to dismiss, but no answer to the complaint.
In Adams v. Carter County Memorial Hospital, Tenn.1977, 548 S.W.2d 307, the defendants moved to dismiss for failure to state a claim upon which relief may be granted. When the Trial Judge indicated his inclination to sustain the motion, plaintiff moved to amend. The Trial Court overruled the motion to amend and sustained the motions to dismiss. The Supreme Court said:
The trial court further erred in denying plaintiff's motion to amend. Rule 15.01, Tenn.R.C.P., provides that "a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served." Under this provision, the plaintiff clearly had the right to amend without leave of court since no responsive pleading to the complaint had been served. A motion is not such a responsive pleading. [citing authorities]
Based upon the foregoing, the motion to dismiss did not deprive the plaintiff of the absolute right to amend his complaint, and it was error for the Trial Court to strike the amended complaint which must be restored and dealt with upon its merits.
Defendants assert that striking of the amended complaint was not error because it did not state a claim for which relief could be granted. The issue of the sufficiency of the amended complaint was not presented to or decided by the Trial Court in this case. Therefore it is not a proper issue for consideration by this Court in this appeal. Chilton Air Cooled Engines, Inc. v. First Citizens Bank of Hohenwald, Tenn.App.1987, 726 S.W.2d 526, and authorities cited therein.
Defendants argue that the original complaint was subject to dismissal. An "amendment" to a complaint merely modifies the complaint...
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