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Johnson v. GMAC Mortgage Corp.2/22/2005
., Inc ., 762 S.W.2d 67, 71 (Mo. App. E.D. 1988) (plaintiffs did not abandon right to appeal trial court's dismissal of decedent's employer from wrongful death action where trial court granted motion to dismiss employer from lawsuit on ground that court lacked subject matter jurisdiction because workers' compensation law furnished the exclusive remedy against the employer and the reason for the dismissal was not correctible by amendment).
Likewise, Mr. Johnson abandoned his original petition by filing his first amended petition. See, e.g., Welch v. Cont'l Placement, Inc. , 627 S.W.2d 319, 321-22 (Mo. App. W.D. 1982).
We therefore conclude that Mr. Johnson has abandoned his prior pleadings such that they cannot be considered for any purpose here. Accordingly, we review only the dismissal of Mr. Johnson's second amended petition.
B. The Doctrine of "Relation Back" Saves the TILA Claims in Mr. Johnson's Second Amended Petition from the Bar of the Statute of Limitations
In his fourth point, Mr. Johnson argues that the trial court erred in dismissing the TILA claims in his second amended petition because those claims "related back" to the filing of his original petition and his first amended petition and, therefore, were not barred by the statute of limitations. Because this point could be dispositive, we address it first.
The parties agree that TILA claims are subject to a one-year statute of limitations. See 15 U.S.C. section 1640(e) ("Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation."). The parties further agree that Mr. Johnson's TILA claims in this case would be untimely unless they "relate back" to the filing of the original petition or the first amended petition.
Rule 55.33(c) sets forth the doctrine of "relation back" in this state. In pertinent part, it says: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." This rule abrogates the old "same evidence" and "theory of law" tests in favor of the "conduct, transaction, or occurrence" test. Mogley v. Fleming , 11 S.W.3d 740, 750 (Mo. App. E.D. 1999). "The language, 'conduct, transaction or occurrence,' as used in Rule 55.33(c), is accorded broad and liberal construction." Id . (internal quotation marks and citation omitted).
Citing cases involving pleading and relation back under the wrongful death statute, respondents argue that the claims do not relate back here given the trial court's ruling that Mr. Johnson's first amended petition did not state a cause of action against GMAC. And respondents further argue that Mr. Johnson cannot now challenge the trial court's ruling on the first amended petition here because -- as noted already -- he abandoned his first amended petition when he filed his second amended petition. See Butler v. Circulus, Inc., 557 S.W.2d 469, 481-82 (Mo. App. 1977).
We agree that Mr. Johnson cannot challenge the trial court's ruling as to the claims raised in his original and first amended petitions; we do not agree, however, that his TILA claim cannot relate back. While Smith v. Tang , 926 S.W.2d 716, 719 (Mo. App. E.D. 1996), states that " n amendment will relate back to the original petition so as to save the action from the statute of limitations only when the original plaintiff had the legal right to sue and stated a cause of action at the time the suit was filed," this principle is derived from a li
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