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 

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 Lindeyls that 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, Lindeyls made 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 Lindeygs to 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. 

Lindeygs did 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 Lindeygs more 

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) .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'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 courtls decision 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 Lindeyls motions 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- do further discovery. 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 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 ~istrict Court 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. ~ffect 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