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Moore v. Michelin Tire Co.12/15/1999
of record activity. However, subsequent to the September 8, 1997 hearing, but prior to the trial court signing any order granting the motion to dismiss, Moore filed a motion requesting the court to reconsider its ruling on the motion to dismiss for lack of prosecution.
[ ] The hearing on Moore's motion to reconsider was held on June 26, 1998. The trial court heard evidence concerning an alleged agreement between attorneys Dasse and Holtzman in the fall of 1995. During this time Moore was having difficulty identifying the manufacturer of the tire and rim. Moore made a request, through Dasse, for an extension of time within which to respond to Michelin's discovery requests. Moore argued to the trial court that Michelin and Iverson Max had agreed to cease proceeding on the case and put the case on hold "indefinitely" pending the amendment of the pleadings to add the wheel manufacturer and vehicle manufacturer. Michelin and Iverson Max argued an agreement was reached, however, it was limited only to a "sixty-day" extension.
[ ] Moore presented evidence during the reconsideration hearing concerning Holtzman's October 3, 1995 letter to attorney Gerdes, which states: "My preference is to give an extension to a date certain. However, if you believe otherwise I would have no strong disagreement." The trial court determined, " hile Holtzman did write a letter to Gerdes on October 10, 1995 which provided they had agreed to a sixty-day extension, there was no evidence this letter was submitted to attorney Dasse or any other attorney for the Moores." Finally, in reaching its decision, the trial court ruled:
Because there is no evidence that [Michelin and Iverson Max] limited the extension of time to sixty days, and communicated this information to [Moore], this issue must be resolved in favor of [Moore] and in having this case resolved on its merits.
[ ] a. Motion to Reconsider
[ ] First, we must address the trial court's decision to allow Moore's motion to reconsider its previous ruling. This Court has stated, "pursuant to SDCL 15-6-58, an order becomes effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in his office." Mushitz v. First Bank of South Dakota, 457 NW2d 849, 857 (SD 1990). In State v. Lowther, 434 NW2d 747, 752 (SD 1989), the trial court originally ordered the suppression of evidence; however, no final order was reduced to writing, signed or duly recorded by filing. We held the trial court did not err in reconsidering defendant's motion to suppress evidence. Id. "Orders are required to be in writing because the trial court may change its ruling before the order is signed and entered." Id. (citing Lutz v. Iowa Swine Exports Corp., 300 NW2d 109, 111-12 (Iowa 1981)). A trial court has the inherent power to reconsider and modify an order any time prior to entry of judgment. Viehweg v. Mello, 5 FSupp2d 752, 757 (EDMo 1998), aff'd __ F3d __, 1999 WL 972160 (8th Cir 1999) (citing Murr Plumbing, Inc. v. Scherer Bros. Financial Services Co., 48 F3d 1066, 1070 (8th Cir 1995)); Lovett v. General Motors Corp., 975 F2d 518, 522 (8th Cir 1992)). "Thus, the Court may depart from an earlier holding if it is convinced that the holding is incorrect." Id.
[ ] In this case, the trial court issued an oral ruling, not an order reduced to writing, signed, attested by the clerk and properly filed. Thus, the trial court's final ruling was still pending and the trial court retained the discretion to hear additional evidence it considered appropriate prior to making a final determination. The second hearing, labeled as the "reconsideration hearing," held on June 26, 1998, was "in effect" a continuation of the first motion
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