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Johnson v. GMAC Mortgage Corp.2/22/2005
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Before considering Mr. Johnson's points on appeal, this court must determine which pleadings are properly before it for review. In several of his points, Mr. Johnson is asking this court to review the dismissal of both his first and second amended petitions. Respondents argue that this court may not consider any issue pertaining to Mr. Johnson's first amended petition because Mr. Johnson abandoned that pleading when he filed his second amended petition. We agree.
By filing an amended pleading, a plaintiff generally abandons his former pleadings and those pleadings may not be considered for any purpose afterward. Beckman v. Miceli Homes, Inc. , 45 S.W.3d 533, 543 (Mo. App. E.D. 2001); see also Lightfoot v. Jennings , 254 S.W.2d 596, 597 (Mo. 1953) (where trial court dismisses some but not all claims in pleading, appeals court cannot consider issues arising from that pleading because they were abandoned by amended pleading and are not appropriately before the court). This rule is valid "when the original pleading and the amended pleading are addressed to the same defendant or arise from a dismissal with leave to amend." R.C. v. Southwestern Bell Tel. Co. , 759 S.W.2d 617, 619 (Mo. App. E.D. 1988). When a court dismisses a petition with leave to amend, the plaintiff has a choice between standing on the original petition and appealing the dismissal or making the amendment and proceeding to trial on the amended petition. Id . Because the plaintiff in this situation has a choice between appealing or amending, " t is reasonable that the pleading a plaintiff elects to go to trial on is the one that forms the basis for appeal." Id.
But when "the reason for dismissal is not correctible by an amended pleading and the case remains pending against other defendants, the court and the parties should not be required to engage in useless procedural gestures in order to preserve the propriety of the dismissal for review." Id . at 619-20. In that situation, the general abandonment rule does not apply. Beckmann, 45 S.W.3d at 543.
Mr. Johnson's second amended petition arises from the trial court's dismissal of counts two through nine of his first amended petition with leave to amend. This is exactly the situation that R.C . identifies as proper for application of the general abandonment rule. 759 S.W.2d at 619 ("That rule has validity when the original pleading and the amended pleading are addressed to the same defendant or arise from a dismissal with leave to amend.").
Furthermore, many of the defects cited by the trial court in its dismissal order were at least potentially "correctible." If they were "correctible," then it would not have been " useless" for Mr. Johnson to make corrections to them and re-assert them in his second amended petition. Cf. Gittemeier v. Contractors Roofing & Supply Co. , 932 S.W.2d 865, 869 (Mo. App. E.D. 1996) ("Gittemeier appeals from summary judgments granted as to four of his claims. Summary judgments are final and may be appealable if so designated. No amendment to Gittemeier' s petition could cure the summary judgment order by the trial court."); Prayson v. Kansas City Power & Light Co. , 847 S.W.2d 852, 853, 859-60 (Mo. App. W.D. 1992) (where trial court concluded that claim for direct liability against power company was barred by case law and where court denied plaintiff's motion for leave to file second amended petition with this count, plaintiffs did not abandon the count by failing to include it in third amended petition, because it would have been a useless procedural gesture to do so since the trial court merely would have denied their motion again based upon its misunderstanding of the case law); Blum v. Airport Terminal Servs
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