No. 13811
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
EDDIE A. ZIEGLER and KATHRYN ZIEGLER,
Plaintiff and Appellant,
-vs-
STEPHEN A. KRAMER et al.,
Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial
District, ,.
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellant:
Joseph P. Hennessey argued, Billings, Montana
For Respondent:
Hibbs, Sweeney and Colberg, Billings, Montana
Maurice R. Colberg, Jr. argued, Billings, Montana
Submitted: December 6, 1977
Decided: - '; 1977
-
Filed: - 727
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Plaintiffs appeal from an order of the District Court,
Yellowstone County, denying plaintiffs' motion to file an
amended and supplemental complaint and granting defendant's
motion for summary judgment.
On April 8, 1976, defendant and respondent, personal
representative of the estate of Rita G. Klein, published a
first "notice to creditors" of the decedent's estate, pursuant
to section 91A-3-803, R.C.M. 1947. Plaintiffs filed a creditors'
claim against decedent's estate, alleging that the estate was
indebted to plaintiffs in an undetermined amount for services
rendered to decedent, and that this claim was secured by a writing,
signed by the decedent, which said that decedent gave plaintiffs
"ALL MONIES ON DEPOSIT AT THE FIRST NATIONAL BANK AND TRUST
COMPANY, BILLINGS, MONTANA." Defendant, personal representative,
rejected the claim and plaintiffs then filed an action in District
Court, Yellowstone County, on the same contract theory that they
had set forth in their creditors' claim.
Defendant submitted a motion to dismiss, which was denied
by the District Court. Defendant then filed his answer, and based
on plaintiffs' testimony in depositions, moved for summary judg-
ment. In the depositions, plaintiffs admitted that the services
on which they based their claim were neighborly services which
they had performed for the decedent without any expectation of
payment. Defendant supported his motion for summary judgment
with a brief in which he cited authorities for the proposition
that " * * * when services are rendered without expectation of
compensation on the part of the one rendering the service * * *
no contract is implied."
Plaintiffs thereafter filed a motion to amend and add
supplemental complaint, pursuant to Rule 15(a) and (d), M.R.civ.P.
In their proposed supplemental complaint, plaintiffs sought
to add a theory of recovery under gift causa mortis to their
contract theory. In support of their gift causa mortis claim,
plaintiffs submitted, as an exhibit, the same document, signed
by decedent, which had supported their contract claim. Defen-
dant filed a brief in opposition to plaintiffs1 motion to amend
and supplement their complaint, asserting that there was no
claim of gift in either the claim against the estate or the
original District Court complaint. Defendant asserted that the
complaint based on gift causa mortis was therefore barred by
the statute of limitations in section 91~-3-$$08,
R.C.M. 1947,
because it was a new claim which was not filed within four months
of the first notice to creditors of decedent's estate. The first
notice to creditors was published on April 8, 1976; the proposed
amended and supplemental complaint was filed on February 23, 1977.
District Judge Charles Luedke denied plaintiffs1 motion
to file an amended and supplemental complaint and granted de-
fendant's motion for summary judgment.
The issues raised by plaintiffs in this appeal are:
1. Did the district judge abuse his discretion in deny-
ing plaintiffs' motion to submit an amended and supplemental
complaint?
2. Did the district judge abuse his discretion in
granting defendant's motion for summary judgment?
We shall discuss these issues in reverse order.
Our inquiry as to the propriety of the summary judgment
order focuses on whether l
' * * * the pleadings, depositi~ns* * *
and admissions on file * * * show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * *v Rule 56(c), M.R.Civ.P.
In Montana, by statute, filing a creditor's claim with
the estate within four months of the first publication of
notice to creditors is a prerequisite to bringing an action on
the claim in District Court. Section 91A-3-803, R.C.M. 1947.
In this case, the only claim which plaintiff filed on the es-
tate within the four month statute of limitations was based on
a contract theory "That said estate is indebted to (appellants)
* * * for services rendered over a period of nine years. * * *"
In depositions, plaintiffs stated that the services rendered to
decedent upon which they based their claim, included heavy work,
shoveling sidewalks, trimming hedges, taking decedent to the
stores for shopping, and helping decedent with her screens and
storm windows.
Plaintiffs, in their depositions, admitted that they had
performed the services for decedent with no expectation of pay-
ment; rather, plaintiffs indicated that they performed the services
out of kindness for an elderly neighbor. However laudable plain-
tiffs' actions on behalf of decedent may have been, there was no
implied contract of payment since there was no understanding be-
tween plaintiffs and decedent that plaintiffs would receive pay-
ment as consideration for the services they performed. In deny-
ing a plaintiffs' contract claim against an estate for services
rendered to a decedent, the California Court of Appeals stated:
" * * * If at the time the services were orig-
inally rendered they were intended to be gratui-
tous or as an accomodation, motivated by
friendship, kindness, or some other significant
relationship existing between the parties, and
were tendered without any expectation of re-
muneration, they cannot afterwards be converted
into an obligation to pay their reasonable
value under the theory of an implied contract. * * *"
Payne v. Bank of America National Trust and Savings Assn. (1954))
128 Cal.App.2d 295, 275 P.2d 128, 134. See also, Kershaw v.
Tracy Collins Bank and Trust Co. (1977) Utah 2d , 561 P.2d
683, 685; 54 A.L.R. 548. Because in this case there was, as a
matter of law, no implied contract for payment, summary judgment
was properly granted on the contract claim.
Nor did the district judge abuse his discretion in
denying appellants' motion to amend and supplement their Dis-
trict Court complaint to include a gift theory of recovery. The
four month statute of limitations in section 91A-3-803 was enacted
to expedite the closing of decedents' estates. The claim sued
upon in District Court must be within the scope of the claim pre-
sented to the executor.
" * * * The plaintiff may not prove a cause
of action entirely other than or different from
that stated in his claim, and clearly cannot
recover upon evidence showing an entirely dif-
ferent claim. As the Montana court [in Brown v.
Daly (1906), 33 Mont. 523, 84 P. 8831 tersely
remarks regarding the claim upon which an action
may be maintained: 'What claim? It goes without
saying that it is the identical claim which was
presented; otherwise the law would be a dead
letter. "' Banc.Prob.Prac.2d S901.
Here the claim sued upon (gift) is not within the scope
of the claim (contract) presented to the executor. See Brown v.
Midland Nat. Bank (1967), 150 Mont. 422, 435 P.2d 878 (claim in
debt materially different from court action based on oral con-
tract to bequeath); Brion v. Brown (1959), 135 Mont. 356, 340 P.2d
539 (claim in quantum meruit materially different from court
action based on contract to deed or devise real property).
Plaintiffs maintain that under Rule 15(a), M.R.Civ.P.,
the judge was required to allow them to amend their complaint so
as to include a gift theory of recovery. Rule 15(a) provides
that, after a defendant has served his answer, a plaintiff may
amend his complaint by leave of court, " * * * and leave shall
be freely given when justice so requires. * * *" Plaintiffs note
that the fact that a proposed amendment of the complaint would
change the legal theory upon which the action is brought is not
in itself a valid reason for denying a motion to amend. Prentice
Lumber Co. v. Hukill (1972), 161 Mont. 8, 504 P.2d 277.
While we agree with plaintiffs that the purpose of
Rule 15(a), M.R.Civ.P., is to encourage the resolution of cases
on the merits by freely allowing amendment of complaints "when
justice so requires", we do not believe that that is in issue
in this case.
It is irrelevant whether plaintiffs bring a District
Court claim based on the contract theory of their original
complaint or on the gift theory in their proposed amended com-
plaint; the legal theory of their District Court complaint
cannot alter the fact that the only claim which plaintiffs
timely filed with the personal representative against the dece-
dent's estate was a contract claim. A District Court complaint
against the personal representative based in contract is within
the scope of the creditor's claim filed against the estate but,
for the previously discussed reasons, fails as a matter of law.
A complaint brought on a gift theory fails because it is a
material variance from the contract claim brought against the
estate.
The order of the District Court denying plaintiff's
motion to submit an amended and supplemental complaint and grant-
ing defendant's motion for summary judgment is affirmed.
I /-
Chief Justice I)
We concur:
-----__-_---_______----------
Justices
- 6 -