2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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acquired pending the action which might have been, but which were not, required to be litigated. ' Plaintiffs may bring events occurring after the filing of the complaint into the scope of the litigation by filing a supplemental complaint with leave of court, but there is no requirement that plaintiffs do so.") (emphasis added.) The opening brief at pages 29-30 argues that abatement is a matter of subject matter jurisdiction citing Shelton. As noted above,Shelton held that-- "Abatement almost always refers to a procedural or jurisdictional defect which can be cured rather than to a substantive issue." This quote from Sheldon cited to Thomas v. Navas, 47 Haw. 605, 393 P.2d 645 (1964). The Thomas court held that a suit on behalf of a minor in her own name as opposed to through an appointed guardian "was of a nature that could have been cured by amendment at any time. . . [and] is a matter of procedure and not of substance, and must be made by plea in abatement or by plea or answer in the nature thereof and is waived by pleading to the merits." Id. 47 Haw. at 608-09, 393 P.2d at 647. Since subject matter jurisdiction is not waivable it is not likely that the Hawaii Supreme Court intended to hold that abatement involves subject matter jurisdiction. Saracino, 50 Conn. Supp. 503, 2007 WL 5145671 at 2 (Conn. Super. 2007) and Halpern v. Board of Education, 196 Conn. 647, 652 n. 4,495 A.2d 264, 266 (1985)held that abatement does not implicate the subject matter jurisdiction of the court and the trial court has broad discretion in applying abatement. It appears that courts that hold that abatement implicates subject matter jurisdiction also strictly require that the causes and relief be"identical." Whereas, courts that do not equate abatement with subject matter jurisdiction give trial judges broad discretion in applying abatement. For example, Kelly v. Kelly, 245 S.W.3d 308, 314 (Mo. App. W.D. 2008)held: The abatement doctrine technically does not apply unless the issues are the same, and the alignment and identity of the parties is identical. Cf. Conley, 760 S.W.2d at 950 (acknowledging that the rule is not inflexible and may apply in some situations even though the parties are reversed.) The pending action doctrine is described in Rule 55.27(a)(9), which has been said to codify the common law doctrine of abatement. Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co., 119 S.W.3d 551, 556 (Mo.App. E.D.2003). But the pending action defense can be waived under the express provision of Rule 55, which states that `[a] defense [ ][t]hat there is another action pending between the same parties for the same cause in this state ... is waived' if not made by motion `nor included in a responsive pleading.' Rule 55.27(g)(1)(F). One would never view subject matter jurisdiction as being waivable. In fact, Rule 55.27(3)recognizes the difference between the abatement doctrine and subject matter jurisdiction, stating that 19