No. 90-084
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
LINDEYIS, INC., a Minnesota
Corporation,
Plaintiff and Appellant,
PROFESSIONAL CONSULTANTS, INC.,
a Montana Corporation, DAVID
SCHURIAN, and the ESTATE OF
WILLIAM C. FORREST, Deceased,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul Neal Cooley, Skelton & Cooley, Missoula,
Montana
-. -.
-. For Respondents:
John Tabaracci, Sullivan & Baldassin, Missoula,
Montana
Jerome T. Loendorf, Harrison, Loendorf & Poston,
Helena, Montana
Submitted on Briefs: June 20, 1990
~ecided: August 23, 1990
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
The Fourth Judicial District Court in Missoula County denied
plaintiff Lindey's Incorporated's motions to file second and third
amended complaints and granted summary judgment in favor of
defendant Estate of Forrest. Lindey's, Inc. now appeals the
District Court's decision. We affirm.
Two issues are presented for review:
1. Did the District Court err in denying Lindey's
various motions to amend, to add experts, and to lengthen
discovery schedules?
2. Did the District Court err in determining that
Lindey's breach of warranty claim against the Estate of
Forrest is barred by 28-2-904, MCA?
In the late 19708s,Lindey's Inc. (Lindey's) was looking for
property in Montana in order to open a restaurant. Lewis W.
Lindemer is the sole stockholder and president of Lindey's.
Lindemer was president and a member of the board of directors of
Lindey's in 1978 when the corporation bought lots 1 and 3 of Seeley
Lake Shore Sites from William C. Forrest. At closing for the sale
of lots 1 and 3, at Lindemer's request, Forrest gave Lindemer a
letter stating that he would employ a surveyor to have the property
restaked according to the plat on file in Missoula County.
On the day of closing, the realtor called defendant
Professional Consultants, Inc. (PCI) and arranged for a survey of
the property. Defendant David Schurian, an employee and
shareholder of PCI, performed the survey including a survey of the
common boundary lines between lots 1 and 2.
Over the years, a dispute developed between Lindeyls and its
neighbor, Pat Goodover, concerning the common boundary between lots
1 an 2. Various surveys of the boundary were conducted. Finally,
in 1984 Goodover filed suit against Lindeyls and the Estate of
Forrest and a trial was held in 1987. The trial resulted in PCI1s
survey being adjudged incorrect. On appeal the trial court was
affirmed in Goodover v. Lindeyls, Inc. (1988), 232 Mont. 302, 757
P.2d 1290. On October 25, 1988, Lindeyls filed a complaint against
Schurian and PC1 for negligent surveying and breach of warranty and
against the Estate of Forrest for breach of warranty. Lindeyls
claims that Forrest represented to Lindeylsthat the boundaries of
lots 1 and 3 extend along certain general lines and that Forrest
either actually or impliedly warranted that the actual lot lines
would be in accordance with the survey. Lindeyls asserts that
Schurian and PCI, acting as agents of Forrest, made a negligent
survey and, based on this survey, Lindeylsmade improvements within
the described boundaries. Lindeyls further asserts that it is
entitled to damages resulting from the loss of value of
improvements made and required to be removed by the judgment in
Goodover v. Lindeyls, the costs and damages awarded by the
judgment, attorney's fees in defending and appealing the judgment,
the costs of prosecuting this action and loss of the value of land
not purchased.
On February 10, 1989, all parties to this action stipulated
and agreed to deadlines for various activities, pursuant to Rule
16 (b), M.R. Civ.P. The trial court ordered that the stipulation
would govern the proceedings. The stipulation provided that all
amendments to pleadings must be filed by July 1, 1989.
Lindeygs filed its initial motion to amend on April 27, 1989.
With none of the defendants opposing the motion, the trial court
set a hearing on the matter for June 15, 1989. The June 15 hearing
was continued without date. Therefore, it was not until the
pretrial conference of August 8, 1989 that the trial court heard
Lindey s first motion to amend. Since three months had passed from
the time of filing at the pretrial conference, all defendants now
opposed the motion as not being timely. At the pretrial conference
the District Court ordered Lindeyts to file the first amended
complaint and required Lindeygsto provide the court with a written
order allowing the filing of the first amended complaint by August
17, 1989. Because Lindeygs failed to provide the court with such
order, the court, on August 23, 1989, issued another order denying
Lindeygs motion to file the first amended complaint.
Undaunted, Lindeygs filed motions to file a second and third
amended complaint. The second amended complaint is dated August
22, 1989 and the third amended complaint is dated August 29, 1989.
Lindeygsdid not withdraw its previous motion before attempting to
file its third amended complaint, thus forcing defendants to oppose
both motions to amend. On August 29, 1989 Lindeygs also filed a
motion to extend the trial schedule in order to allow Lindeygsmore
time to add and name expert witnesses, file amendments to the
complaint, and complete discovery. The Estate of Forrest had filed
a motion for summary judgment on August 10, 1989. PC1 and Schurian
filed a motion for summary judgment on September 29, 1989.
Following hearings on both motions for summary judgment, both
motions to amend, and the motion to modify the scheduling order,
the District Court issued its opinion and order. The court granted
defendant Estate of Forrest's motion for summary judgment on the
basis that the Estate of Forrest is not vicariously liable for the
negligence of an independent contractor and Lindey's claim for
breach of warranty is barred by 5 28-2-904, MCA. The court denied
the motion of defendants PC1 and Schurian for summary judgment,
finding that a genuine issue of material fact remained relating to
the date of discovery by Lindey's of its cause of action. The
District Court denied all three of Lindey's motions, stating "The
[District] Court does not find good cause required by Mont.
R. Civ. P. [16] (b) to modify the Scheduling Order, nor does the
Court find that justice requires amendment in this case as required
by Mont. R. Civ. P. 15(a) . I 1 Lindey's now appeals the District
Court's decision denying its motions to amend the complaint and
modify the scheduling order and granting Estate of Forrest's motion
for summary judgment.
Issue 1: Motions to amend, add experts, and lengthen
discovery schedules
The District Court summarily disposed of all Lindey's motions.
Regarding the motion to amend, the court stated only that justice
does not require the amendments be allowed under Rule 15(a) of
M.R.Civ.P. Of the motion to modify the scheduling order to allow
experts to be added and discovery lengthened, the court noted there
was no good cause to grant the motion as required by Rule 16(b),
M.R.Civ.P.
Lindeyts contends that, although it failed to meet time
requirements imposed by the District Court, its amendment to add
experts, extend discovery and amend pleadings should be granted in
the interest of justice in the absence of substantial prejudice to
the other parties. Rule 15(a), M.R.Civ.P., covering amendments
reads in pertinent part as.follows:
[A] party may amend his pleading only by leave of court
or by written consent of the adverse party; and leave
shall be freely given when justice so requires.
The decision to grant or deny a motion to amend lies within
the discretion of the trial court. Foman v. Davis (1962), 371 U.S.
178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226. The District
Court's decision will be reversed only for an abuse of discretion.
Roberts v. Arizona Bd. of Regents (9th Cir. 1982), 661 F.2d 796,
798; Mende v. Dun & Bradstreet, Inc. (9th Cir. 1982), 670 F.2d 129,
As this Court has previously noted, Rule 15 (a), M.R.Civ.P.,
provides for liberal amendment of pleadings but does not require
amendments to be allowed in all instances. Fry v. Heble (1981),
191 Mont. 272, 274, 623 P.2d 963, 964. While the rule favors
allowing amendments, a trial court is justified in denying a motion
for an apparent reason "such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by allowance of the amendment, futility of the
amendment, etc.I1 Foman at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226.
See also Lien v. Murphy Corp. (1982), 210 Mont. 488, 491, 656 P.2d
804, 806, and Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont.
418, 421, 708 P.2d 1014, 1016.
The party seeking to overturn the trial courtlsdecision must
demonstrate that an abuse of discretion occurred. Izaak Walton
League of America v. St. Clair (8th Cir. 1974), 497 F.2d 849, 854.
In this case, Lindeyls has failed to show that the trial court
abused its discretion in failing to allow second and third amended
complaints. Almost two months after the deadline for amending
pleadings, the trial court, in accordance with Rule 15(a),
M.R.Civ.P., granted Lindeyls first motion to file an amended
complaint. When Lindeyls failed to file the amended complaint
within the extended time granted, the trial court was well within
its discretion in not granting Lindeylsmotions to file second and
third amended complaints. Had the trial court granted Lindeyls
motion, all defendants would have been substantially prejudiced and
the trial unduly delayed. Granting the amendments would have
required additional discovery and time to determine the sufficiency
of the claims alleged in the amended complaints, all costing the
defendants additional time, energy and money to resolve the case.
Lindeyls contends that the trial court erred in denying its
motion to extend discovery'and add experts. The time allowed for
discovery and listing expert witnesses was set out in the February
10, 1989 stipulation which the court ordered would govern the
proceedings. Rule 16(b), M.R.Civ.P., provides that IRA schedule
shall not be modified except by leave of the judge upon a showing
of good cause. I'
Lindey's maintains that extension of deadlines is necessary
in order to add experts and- further discovery. Lindey's learned
do
on June 21, 1989 at the deposition of its expert witness, that the
expert it had retained did not agree with its allegation of
professional negligence and would not provide expert testimony.
As set out in the scheduling order, deadline for identifying expert
witnesses was June 1, 1989, but Lindey's did not move for an
extension until August 29, 1989, even though it knew two months
earlier that the expert it had retained did not agree with its
position on professional negligence.
Clearly, Lindey's failed to meet the threshold showing of good
cause. Lindey s motion was not timely and appears to be the result
of Lindey's procrastination and failure to act diligently. The
District Court did not err in finding there was not good cause to
amend the scheduling order. This Court will not disturb the
District Court's finding on appeal.
Issue 2: Summary Judgment
The District Court granted Estate of Forrest s motion for
summary judgment on the basis that the Estate is not vicariously
liable for the negligence of the surveyor defendants, and that the
breach of warranty claim is barred by 5 28-2-904, MCA. Lindey's
does not dispute that part of the District Court's decision finding
the Estate of Forrest was not vicariously liable for the acts of
its independent contractor, the surveyors. However, Lindey's
contends the ~istrictCourt erred in granting summary judgment on
the breach of warranty claim.
Summary judgment was properly granted pursuant to Rule 56 (c),
M.R.Civ.P., which states that where there is no genuine issue of
material fact, the moving party is entitled to judgment as a matter
of law. The party requesting summary judgment has the burden of
demonstrating that no issues of material fact exist, and, once this
burden is met, the responding party assumes the burden to show that
there are material facts which will require trial. Cereck v.
Albertsonls, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510-
11. If no material facts are at issue, the district court is then
able to determine whether the moving party is entitled to judgment
as a matter of law. a.
Lindeyls complaint alleges that "Defendant warranted that the
actual lot lines would be in accordance with the survey1'and that
the Estate of Forrest breached this warranty.
The District Court found Lindeyts breach of warranty claims
are barred by 28-2-904, MCA, which provides:
28-2-904. ~ f f e c t of written contract on oral
agreements. The execution of a contract in writing,
whether the law requires it to be written or not,
supersedes all the oral negotiations or stipulations
concerning its matter which preceded or accompanied the
execution of the instrument.
Lindeyls and Forrest executed a written contract for the
purchase of lots 1 and 3 of Seeley Lake Shore Sites.
Contemporaneously with the contract, Forrest, at Lindemer's
request, wrote the following letter:
October 19, 1978
Lindey's, Inc.
3610 North Snelling Avenue
St. Paul, Minnesota 55112
Gentlemen:
The undersigned, William C. Forrest, agrees that,
having sold you Lots 1 and 3 of Seeley Lake Shore Sites
at Seeley Lake in Missoula County, Montana, he will
employ a surveyor to have the property restaked according
to the plat on file in Missoula County; that the stakes
should be set at all corners shown on the plat; and that
the undersigned will pay the surveyor.
Very truly yours,
s/ William C. Forrest
William C. Forrest
WCF/sbs
As the District Court noted, review of these two written
documents (the contract and the letter) reveals no warranty by
Forrest of the survey or that the lot lines would be in accordance
with the survey. Since the alleged warranties were not included
in the written instruments constituting the contract between the
parties, they were superseded by the written documents pursuant to
3 28-2-904, MCA.
This is consistent with our previous holding in Hosch v. Howe,
where we quoted with approval Wiqmore on Evidence:
The chief and most satisfactory index is found in the
circumstance whether or not the particular element of the
alleged extrinsic negotiations is dealt with at all in
the writing. If it is mentioned, covered, or dealt with
in the writing presumably the writing was meant to
represent all the transactions on that element.
Hosch v. Howe (1932), 92 Mont. 405, 410-11, 16 P.2d 699, 700. See
also Aye v. Fix (1978), 176 Mont. 474, 580 P.2d 97; Merritt v.
Merritt (1974), 165 Mont. 172, 526 P.2d 1375; Heckman and Shell v.
Wilson (1971), 158 Mont. 47, 487 P.2d 1141.
Here, the survey was dealt with in the writing. Since the
survey was mentioned, covered or dealt with in the writing, then
presumably the writing was meant to represent all the transactions
on that element. Neither the contract nor the October 19 letter
from Forrest to Lindey's contains a warranty regarding the survey
of the boundary line. We affirm the District Court's finding that
the warranty claim is barred by 5 28-2-904, MCA.
We concur:
A