No. 92-190 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

EDWARD B. STANFORD; BETH STANFORD; 

NANCY H. STANFORD, Personal 

Representative of the Estate of 

Neal A. Stanford, Deceased; and 

REAS MADSEN, 

Plaintiffs and Respondents, 

ROSEBUD COUNTY, MONTANA, et al., 

including EARL M. CRANSTON and 

RICHARD C. HOEFLE, 

Defendants and Respondents, 

and 

BOYD KINCHELOE and MAVIS 

KINCHELOE, husband and wife, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Robert C. Smith and John J. Cavan, Cavan, Smith, 

Grubbs & Cavan, Billings, Montana 

For Respondents: 

James P. Healow, Sweeney & Healow, Billings, Montana 

Joseph W. Sabol, Attorney at Law, Bozeman, Montana 

Filed: 

Submitted on Briefs: August 20, 1992 

- T Decided: September 22, 1992 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Appellants Boyd and Mavis Kincheloe appeal from an order of 

the Sixteenth Judicial District Court, Rosebud County, denying 

their Motion to Amend and Supplement their pleadings. We affirm. 

The sole issue on appeal is whether the District Court abused 

its discretion in denying appellants8 motion to amend their 

pleadings. 

The facts in this case are set forth in our opinion in 

Stanford v. Rosebud County (1991), 251 Mont. 128, 822 P.2d 1074. 

Litigation over the disputed royalty interest began with an 

interpleader action in the federal district court in Billings, 

Montana, in 1978. On destruction of diversity jurisdict~on, that 

action was removed to the Sixteenth Judicial District, Rosebud 

County where it subsequently was consolidated with this action by 

plaintiffs/respondents Stanford. The litigation has proceeded, 

albeit intermittently, since that time. 

The procedural events relevant to the issue before us begin 

with the District Court's scheduling conference on March 21, 1989, 

at which the case was set for trial on January 9, 1990. After a 

subsequent hearing on various motions by the parties, the District 

Court entered an order which, in pertinent part, directed the 

parties to file a statement of their claims, "setting forth all 

right, title and interest they claim in and to the remaining 3.125% 

royalty interest." The parties1 statements of claim were filed by 

September 18, 1989. Appellants claimed title to a 75% proportional 

share in the royalty interest based on their underlying mineral 

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interest. 

Appellants subsequently moved for, and were granted, summary 

judgment on their claim. We reversed on appeal on December 16, 

1991. After denial of appellantst petition for rehearing, the case 

remitted to the District Court on January 15, 1992. 

Appellants moved to amend their pleadings on January 17, 1992, 

to add a new theory of recovery based on constructive trust. 

Respondents Hoefle and Cranston moved to join a real party in 

interest on February 3, 1992. The District Court granted 

respondentst motion on March 13, and denied appellants' motion on 

March 30, 1992. 

Did the District Court abuse its discretion in denying 

appellants' motion to amend their pleadings? 

The District Court denied leave to amend based on its 1989 

order mandating statements of all claim, the length of time the 

case had been pending, and the lack of a showing of good cause why 

the claim appellants sought to assert was not raised prior to the 

summary judgment ruling. Appellants contend that the court abused 

its discretion. 

Appellants rely on Rule 15, M.R.Civ.P., which requires that 

leave to amend be freely granted. They cite Village Bank v. 

Cloutier (1991), 249 Mont. 25, 813 P.2d 971, for the proposition 

that refusal to allow an amendment offered at an opportune time and 

necessary in the furtherance of justice is an abuse of discretion. 

It is axiomatic that Rule 15, M.R.Civ.P., requires that leave 

to amend be freely given when justice so requires. Our cases in 
support of liberality in allowing amendments are so numerous and 

well-settled as to require no recitation here. In the case before 

us, the significant fact is that appellantsr motion was made after 

this Court held that they had established no claim to title. 

Appellants1 argument is that, even after judgment against them, 

they are entitled to amend under the liberality doctrine. 

Acceptance of this argument essentially would revise Rule 15 to 

reauire leave to amend at anv time and remove all discretion from 

the district courts. Neither the Rule nor our cases support such 

a result. 

In addition, while appellants correctly state the principles 

regarding liberality in allowing amendments to pleadings from 

Cloutier, they fail to take into account the facts of that case. 

In Cloutier, defendants moved to amend; for the most part, the 

amendments sought to redesignate as defenses matters originally 

pleaded as counterclaims. The district court did not rule on the 

motion. Some five months later, the district court entered summary 

judgment against defendants on the basis of their original 

pleading. We reversed, concluding that the court abused its 

discretion in refusingto permit amendments offered at an opportune 

time and resulting in little, if any, prejudice to plaintiff. 

Cloutier, 249 Mont. at 28, 813 p.2d at 973. 

The facts before us differ significantly from those in 

Cloutier. In August, 1989, the District Court directed the parties 

to file statements of claim setting forth all right, title and 

interest to the disputed royalty. Appellants' statement of claim 
did not assert the constructive trust theory they now seek to add. 

At no time prior to their motion for summary judgment did 

appellants seek leave to amend; instead, they successfully 

proceeded to summary judgment on their asserted claim in the 

District Court. Only after reversal of that judgment, based on a 

conclusion by this Court that appellants failed to demonstrate any 

claim to title whatsoever, did appellants attempt to assert--for 

the first time in this litigation which has been ongoing for nearly 

fourteen years--a claim based on a constructive trust theory. 

Under these facts, there is nothing "opportune" about the timing of 

appellantsv motion for leave to amend. 

Appellants also rely on other Montana cases which they assert 

support their entitlement to amend their pleadings: Priest v. 

Taylor (1987), 227 Mont. 370, 740 P.2d 648; White v. Lobdell 

(1984), 208 Mont. 295, 678 P.2d 637; Prentice Lumber Co. v. Hukill 

(1972) , 161 Mont. 8, 504 P.2d 277. None of these cases involved an 

effort to amend pleadings after the party had lost on its original 

claim. 

Appellants' final argument relates to the fact that the 

District Court allowed respondents Stanford to amend to add a real 

party in interest after our Stanford decision, while denying their 

motion to amend. We need note only briefly that the two situations 

are not analogous. Other differences aside, judgment has not been 

entered against the Stanfords on their claims. 

Appellants have cited no authority for the proposition that, 

under Rule 15 and the liberality doctrine, they are entitled to 
amend their pleadings when the motion to amend is made after 

judgment has been entered against them and that denial of such a 

motion constitutes an abuse of discretion. Indeed, both common 

sense and authority are to the contrary. The result contended for 

would allow seriatim assertion of claims. Under such a process, 

one of the important thrusts of the rules of civil and appellate 

procedure--that actions contain all related claims and parties in 

order that cases proceed in an orderly and expeditious manner to 

final judgment--would be completely undone. The detriment to 

parties litigant, as well as the burden such a process would place 

on Montana courts, cannot be overstated. 

The Ninth Circuit Court of Appeals addressed these matters in 

Nguyen v. United States (9th Cir. 1986), 792 F.2d 1500. It cited 

C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 

2712 (2d ed. 1983) for the general rule that "a court ordinarily 

will be reluctant to allow leave to amend to a party against whom 

summary judgment has been entered. . . . Nquyen, 792 F.2d at 

1503. It went on to note that, 

[mluch of the value of summary judgment procedure in the 

cases for which it is appropriate . . . would be 

dissipated if a party were free to rely on one theory in 

an attempt to defeat a motion for summary judgment and 

then, should that theory prove unsound, come back long 

thereafter and fight on the basis of some other theory. 

fd., citing Freeman v. Continental Gin Co. (5th Cir. l967), 381 

F.2d 459, 469-70. We agree with the Ninth Circuit's reasoning. 

We conclude that the rationale is equally applicable to the reverse 

situation before us, involving a party affirmatively moving for 

summary judgment on its pleaded theory of the case and then, 

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ultimately having been unsuccessful, seeking to inject a new theory 

of recovery via a post-judgment motion to amend pleadings. Indeed, 

faced with this precise situation, the Fifth Circuit Court of 

Appeals cogently summarized as follows: 

A busy district court need not allow itself to be imposed 

upon by the presentation of theories seriatim. 

Liberality in amendment is important to assure a party a 

fair opportunity to present his claims and defenses, but 

"equal attention should be given to the proposition that 

there must be an end finally to a particular litigation." 

Freeman, 381 F.2d at 469 (citation omitted). 

Under the facts before it, the District Court exercised its 

discretion to deny appellants' motion to amend their pleadings 

based on the time at which the motion was made and the lack of a 

showing of good cause why the claim appellants sought to assert was 

not raised prior to the summary judgment ruling. We hold that the 

District Court did not abuse its discretion. 

Affirmed. 

We concur: fi 

JA .- 

Chief Justice 

/