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: ForAppellants: Robert C. Smith and John J. Cavan, Cavan, Smith, Grubbs & Cavan, Billings, Montana For Respondents: James

### P. Healow, Sweeney & Healow,Billings, Montana JosephW. Sabol,Attorney at Law, Bozeman,Montana

Filed: Submitted 

### on Briefs: August 20, 1992 

# - T Decided: September 22, 1992

ClerkJustice 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 iswhether 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 consolidatedwith 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 onMarch 21, 1989, at which the case was set for trial on January 9, 1990. After a subsequent hearing onvarious 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,titleand interest they claim inand to the remaining 3.125% royalty interest." Theparties1statements of claimwere filedby September18, 1989. Appellants claimed titleto a 75%proportional share in the royalty interest based on their underlying mineral 2interest. Appellants subsequentlymoved for, and were granted, summary judgment on their claim. We reversed on appeal on December 16, 1991. After denial of appellantstpetition for rehearing,the case remitted to the District Court on January 15, 1992. Appellantsmoved toamend their pleadingsonJanuary 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 respondentstmotion onMarch 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

casehad been pending, and the lack of a showing of good causewhy 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 thatrefusal to allowanamendmentoffered at an opportune timeand necessary in the furtherance of justice is an abuse of discretion. It isaxiomatic that Rule 15,M.R.Civ.P., requires that leave to amend be freely given when justice so requires. 

### Our cases insupport of liberality in allowing amendments are so numerous and well-settled as to require no recitationhere. In the case before us, the significant fact is that appellantsrmotion 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, thedistrict courtentered summary judgment against defendants on the basis of their original pleading. We reversed, concluding that the court abused its discretion inrefusingtopermit amendmentsoffered at anopportune 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. InAugust, 1989, the District Court directedtheparties to file statements of claim setting forth all right, title and interest to the disputed royalty. Appellants' statement 

### of claimdid not assert the constructivetrust 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 conclusionby this Court that appellants failed to demonstrate any claim to title whatsoever, did appellants attempt to assert--for the first time in this litigation whichhasbeen ongoing fornearly fourteen years--a claim based on a constructive trust theory. Under these facts,there isnothing "opportune" aboutthetiming of appellantsvmotion for leave to amend. Appellants also rely on otherMontana caseswhich they assert support their entitlement to amend their pleadings: Priest v. Taylor (1987), 227 Mont. 370, 740 P.2d 648; White v. Lobdell

(1984), 208Mont. 295, 678 P.2d 637;Prentice Lumber Co. v. Hukill (1972)

## , 161Mont. 8, 504 P.2d 277. None of these cases involvedan effort to amend pleadings after theparty 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 onlybriefly that the two situations are not analogous. Other differences aside, judgmenthas 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 toamend 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 authorityare 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, aswell as theburden such a process would place on Montana courts, cannot be overstated. TheNinth Circuit Court ofAppeals addressed thesematters in Nguyen v. United States (9thCir. 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 againstwhom summary judgment has been entered. 

# . . . Nquyen, 792 F.2d at 1503. Itwent on to note that, [mluchof thevalue 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 thattherationale isequally applicable to thereverse situation before us, involving a party affirmatively moving for summary judgment on its pleaded theory of the case and then, 6ultimatelyhaving beenunsuccessful, seekingto injectanew theory ofrecoveryvia apost-judgmentmotion to amend pleadings. Indeed, faced with this precise situation, the Fifth Circuit Court of Appeals cogently summarized as follows: Abusy district courtneed not allow itself tobe imposed upon by the presentation of theories seriatim. Liberality in amendment is important to assure aparty a fair opportunitytopresent his claimsand defenses,but "equal attention shouldbe given to the proposition that theremust be an end finallyto aparticular litigation." Freeman, 381 F.2d at 469 (citationomitted). 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 causewhy the claimappellants soughtto 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 

# .- 

# JAChief Justice /