Linn v. D E Construction Inc.

December 9 2014
DA 14-0243
Case Number: DA 14-0243
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 326N
JANICE LINN,
Plaintiff and Appellant,
v.
D & E CONSTRUCTION, INC.,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV-12-0629
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Janice Linn, M.D. (Self-Represented), Billings, Montana
For Appellee:
J. Reuss, Guthals, Hunnes & Reuss, P.C., Billings, Montana
Submitted on Briefs: November 19, 2014
Decided: December 9, 2014
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Janice Linn appeals from the District Court’s order granting summary judgment to
D & E Construction and denying her motion for leave to file an amended complaint. We
affirm.
¶3 In 2009 Linn began the process of having a log home constructed. She contacted
D & E to arrange the purchase of the logs, windows and other materials from various
suppliers. The logs and materials were delivered to Linn’s building site, where other
persons or entities, principally Sielinsky Construction, constructed the home. After
construction Linn experienced problems with water leakage, settling and other issues. In
May 2012 Linn sued D & E and Sielinsky to recover for the damage to her house. Other
parties were brought in as defendants.
¶4 After extensive discovery, in 2014 Linn settled her claims with all defendants
except D & E, who moved for summary judgment. The District Court granted summary
judgment to D & E because there was no evidence that D & E participated in the
construction of the house or that it did anything to cause the structural problems that Linn
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suffered. In addition, Linn failed to provide evidence, including expert opinion, that the
materials furnished by D & E were improper for use in the house.
¶5 About a week before the hearing on the motion for summary judgment Linn
requested leave to file a third amended complaint to realign her claims and to state a
claim against D & E for negligent misrepresentation. The District Court declined to rule
on the motion to amend in the summary judgment order, but noted that it had previously
denied Linn’s motion to file a second amended complaint. That earlier motion failed
because it was proposed several months after the time set by the scheduling order for
amending pleadings, and because Linn had not shown good cause or that justice required
the amendment. The proposed third amendment was similarly late, coming eleven
months after the date set for amending pleadings and after D & E had moved for
summary judgment. In the Judgment of April 14, 2014, the District Court denied the
motion to amend because it raised new claims, because it was not timely, and because it
was moot in light of the summary judgment granted to D & E.
¶6 A district court has the discretion to deny a motion for leave to file an amended
complaint when the motion is filed late in the litigation and there would be prejudice to
the opposing party. Peuse v. Malkuch, 275 Mont. 221, 226-27, 911 P.2d 1153, 1156
(1996).
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. There was
clearly not an abuse of discretion and the issues are controlled by settled Montana law,
which the District Court properly applied.
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¶8 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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