                                                                                        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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