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

Filed: Submitted on Briefs: June 20, 1990 ~ecided: August 23, 1990

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

The Fourth Judicial District Court in Missoula County denied plaintiff Lindey's Incorporated'smotions 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 variousmotions toamend, 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 1978when the corporation bought lots 1and 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 thathewould employ a surveyortohave theproperty 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 Lindeylsand its neighbor,PatGoodover,concerningthe commonboundary between lots 1 an 2. Various surveys of the boundary were conducted. Finally, in 1984 Goodover filed suit against Lindeylsand 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 Goodoverv. Lindeyls,Inc. (1988), 232 Mont. 302, 757 P.2d 1290. On October 25, 1988,Lindeylsfiled a complaint against Schurianand PC1 for negligent surveyingand 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. Lindeylsasserts that Schurian and PCI, acting as agents of Forrest, made a negligent surveyand,based on this survey,Lindeyls made improvementswithin 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 stipulationwould govern the proceedings. The stipulationprovided that all amendments to pleadings must be filed by July 1, 1989. Lindeygsfiled its initial motion to amend on April 27, 1989. With none of the defendants opposing the motion, the trial court set a hearing on thematter forJune 15, 1989. TheJune 15hearing

was continued without date. Therefore, it was not until the pretrial conference of August 8, 1989 that the trial court heard Lindey s firstmotion to amend. Sincethreemonths had passed from the time of filing at the pretrial conference, all defendants now opposed themotion as notbeing timely. At thepretrial conference the District Court ordered Lindeytsto file the first amended complaintand required Lindeygs toprovide the court with awritten order allowing the filing of the first amended complaintby August 17, 1989. Because Lindeygsfailed to provide the court with such order, the court, onAugust 23, 1989, issued another order denying Lindeygsmotion to file the first amended complaint. Undaunted, Lindeygsfiled motions to file a second and third amended complaint. The second amended complaint is dated August 22, 1989 and the third amended complaint isdated August 29, 1989. Lindeygs did not withdraw its previous motion before attempting to file its third amended complaint,thus forcingdefendantsto oppose both motions to amend. On August 29, 1989 Lindeygsalso filed a motion to extend the trial schedule in order to allow Lindeygs more time to add and name expert witnesses, file amendments to the complaint,and completediscovery. TheEstate of Forresthad filed

amotion for summary judgmentonAugust 10, 1989. PC1 and Schurianfiled 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 DistrictCourt issued its opinion and order. The courtgranted 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 ofwarranty isbarred 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 requiresamendment in this caseasrequired by Mont. R. Civ. P. 15(a) .I1 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'smotion for summary judgment. Issue 1: Motions to amend, add experts, and lengthen discovery schedules TheDistrictCourt summarily disposed of all Lindey'smotions. 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 tobe added and discovery lengthened,the courtnoted 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 shouldbe granted in the interest of justice in the absence of substantialprejudice 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. Fomanv. Davis (1962)

### , 371U.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 (9thCir. 1982), 661 F.2d 796, 798;Mende

### v. Dun & Bradstreet, Inc. (9thCir. 1982), 670F.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 amotion for an apparent reason "such asundue delay,bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendmentspreviously 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), 210Mont. 488, 491, 656 P.2d 804, 806, and Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 421, 708 P.2d 1014, 1016. Theparty seeking to overturn the trial courtls decisionmust demonstrate that an abuse of discretion occurred. Izaak Walton League ofAmerica v. St. Clair (8thCir. 1974), 497 F.2d 849, 854. In this case, Lindeylshas 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 Lindeylsfailed to file the amended complaint within the extended time granted, the trial court was well within its discretion in not granting Lindeyls motions to file second and third amended complaints. Had the trial court granted Lindeyls motion, all defendantswould havebeen substantially prejudiced and the trial unduly delayed. Granting the amendments would have required additional discoveryand time todeterminethe sufficiency of the claims alleged in the amended complaints, all costing the defendants additional time, energy and money to resolve the case. Lindeylscontends that the trial court erred in denying its motion to extend discovery'andadd 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 IRAschedule shall not be modified except by leave of the judge upon a showingof good cause.I' Lindey's maintains that extension of deadlines is necessary in order to add experts and- do furtherdiscovery. Lindey's learned

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 inthe 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 tomeet thethreshold showing of good

cause. Lindey smotion was not timely and appearsto 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 doesnot dispute thatpart of theDistrict Court'sdecision finding the Estate of Forrest was not vicariously liable for the acts of its independent contractor, the surveyors. However, Lindey's contends the ~istrict Court erred in granting summary judgment onthe breach of warranty claim. Summary judgmentwas properly granted pursuant to Rule 56(c)

### , M.R.Civ.P., which states that where there is no genuine issue of material fact, themoving party is entitled to judgmentas amatter of law. The party requesting summary judgment has the burden of demonstrating thatno issues ofmaterial fact exist,and,once this burden ismet, the respondingparty assumestheburden to showthat 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 determinewhether themoving party is entitled to judgment

as a matter of law. 

# a. Lindeylscomplaint alleges that "Defendantwarranted 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 Lindeytsbreach of warranty claims

are barred by 28-2-904,MCA, which provides: 28-2-904. ~ffectof 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. Lindeylsand 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 surveyortohave theproperty restakedaccording to the plat on file in Missoula County; that the stakes should be set at all corners shown on theplat; 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 lineswould 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 supersededby thewritten documents pursuant to 3 28-2-904,MCA. This isconsistentwith our previous holding inHoschv. Howe, where we quoted with approval Wiqmore on Evidence: The chief and most satisfactory index is found in the circumstance whether ornot theparticular element of the alleged extrinsic negotiations is dealt with at all in thewriting. If it ismentioned, covered, or dealtwith in the writing presumably the writing was meant to represent all the transactions on that element. Hosch v. Howe (1932),92Mont. 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), 165Mont. 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 thewriting 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:

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