Heather Isringhausen Gvillo Feb. 27, 2014, 7:31am

Madison County Circuit Judge William Mudge has denied attorney Thomas Maag’s motion for substitution of judge in a consolidated case involving claims that a riding lawn mower malfunctioned, losing all or most of its hydraulic pressure.

Plaintiff Eddie Kindrick claims he was unable to steer or stop his Ferris mower as a result of alleged malfunctions. He lost control and accelerated down a hill until the accelerated mower was stopped in collision with a tree.

Kindrick filed his lawsuit on Aug. 6, 2013, claiming he broke his leg in the incident.

Plaintiff David Ray filed his suit on Nov. 25, 2013, claiming he sustained property damage in the incident.

Briggs and Stratton, the manufacturer of the mower, is named a defendant for allegedly causing the injuries and damage. Krause and Son is named a defendant for selling the product and allegedly performing repair work on Kindrick’s mower.

The two lawsuits were consolidated on Feb. 6

Maag filed a motion for change of judge on behalf of Ray on Jan. 31 alleging no substantial rulings have been made.

Mudge filed his order on Feb. 18 tracing the timeline of the action in Ray’s case.

Mudge stated that Krause filed its answer, jury demand and motion to transfer on Oct. 1, 2013.

Then on Oct. 23, 2013, Ray was granted leave to file an amended complaint.

A hearing on the motion to transfer was set for Nov. 1, 2013, but Maag requested a continuance. The court rescheduled the hearing for Feb. 7.

Ultimately, Mudge denied the motion.

“[T]his court has ruled on a substantive issue in the case by granting, over defendant’ objection, a continuance along with a directive by this court that the discovery requested by plaintiff should be focused on the issue of fact raised by such a motion and should be tailored to address all the private and public interest factors that a trial court must analyze in ruling upon a forum non conveniens motion," Mudge wrote.

Krause appeared on Feb. 7 objecting to the motion for substitution on the grounds that it was untimely. Krause stated that the plaintiff was able to "test the waters." The business argued that the court had advised the parties to address all private and public matters by a forum motion analysis at the November hearing.

“The fact that David Ray had not filed suit should not be controlling in this court’s consideration of these issues,” Krause’s response stated. “David Ray was and is represented on Nov. 1 by attorney Maag; the same attorney representing Eddie Kindrick. The cases filed by Ray and Kindrick have now been consolidated. If it is improper and untimely for a substitution of judge to be made in one case, then it is equally improper and untimely in both cases.”

In Maag’s response to Krause, he addresses the "testing the waters" argument.

“Krause & Son, Inc.’s counsel referenced in another pleading case law that ‘testing the waters,’ so to speak, can be grounds to deny a motion for change of judge as a matter of right,” the motion stated. “Opposing counsel forgot to cite to this court that there is a split of authority on the ‘testing the waters’ argument – even if it did apply – which it does not.”

Amy Jackson and Ryan Byers of Rammelkamp Bradney of Jacksonville represent the defendant.

Madison County Circuit Court case number 13-L-1316 and 13-AR-618

More News