GURSKY v PARKSIDE PROFESSIONAL VIL
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92-242 No. IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 MICHAEL GURSKY, Plaintiff and Appellant, -vsPARKSIDE PROFESSIONAL Defendant APPEAL FROM: VILLAGE, and Respondent. District Court of the In and for the County The Honorable John S. Fourth Judicial of Missoula, Henson, Judge District, presiding. COUNSEL OF RECORD: For Appellant: J. Allen Bradshaw, Attorney at Law, Philipsburg, Montana Byron Boggs, Attorney at Law, Missoula, Montana For Respondent: Shelton Montana C. Williams: Submitted Williams on Briefs: Decided: Filed: & Ranney, December May 5, Missoula 29, 1993 1992 Justice John Conway Harrison This is an appeal the Missoula, Gursky denying his (Gursky) request not named in his Gursky enter John using original entrance of a the struck Gursky's walker because wife of the defendants in glass As it backward Gursky, to Missoula, door but at it closed, onto Montana, then the closed the door the sidewalk, drove building. right whose office He was using arm and leg him to the building and were accompanying in depositions age 71, was on his an ophthalmologist had weakened his back when he fell, testified orders when he attempted building the opening. Village The two women entered looked and add four The sliding accident with and granddaughter Philipsburg, Court hip. Professional a stroke Appellant of District Village and he fell way to an appointment the Parkside Court. County of presiding. opened as he approached, get through right District, 4, 1989, walker. metal of the We affirm. Professional building At the time a series on January he could his Henson complaint. before breaking Judicial to amend his complaint Parkside Montana, S. appeals was injured the the Opinion from the Fourth Honorable Michael delivered the building but neither that was in a walker in 1986. from his home in him to his appointment. just ahead of Gursky. of them saw him fall. when they His looked They Both back the door was open and not moving. Gursky filed Professional in damages for a complaint Village medical (Parkside) expenses, in September 1989, naming Parkside as defendant and seeking lost to work, 2 ability $500,000 disability, pain he had been a wheel the He testified and suffering. unable chair. for its alleged maintain the of In its its caused the building, to that the had breached building in door was and that Gursky's of Parkside denied all defenses the it a condition in duty of strict others, its suitable an unreasonably injuries and the were defective allegations. accident the liability, or the was breach of of the manufacturer responsible for remodelling the who also was responsible for who designed vendor-installer, the Gursky's that including contractor and of alleged fault, part general maintenance, 1992 he was in Parkside the that negligence, the January to door. on the door, that and was confined in breach affirmative warranty trial this by deposition accident complaint condition; answer, by pretrial participate. purpose: caused condition to his the of the door defective proximately since in his intended dangerous Among time and unable Gursky to walk the At hospital duty to at architect the remodelling project. The District 20, 1990, Court 1990, issued to join parties and other and to file September schedule. In his summer additional he had time parties Gursky's heart pleadings, 3 for order pleadings moved he testified surgery join February required by December attorney affidavit the The amended motions undergone amend conference order. and file supporting to pre-trial pre-trial 1990, twice the a scheduling all In set the by June 15, to 1, 1990. extend this that and other during the that he needed parties, and line up expert settlement a witnesses. offer to counteroffer Gursky, He also Parkside before delay opposed resolution of Nevertheless, 1990, stating justice" would scheduling filed its that by March 15, architect of or scheduling Inc., the "the set in its pretrial before 18, of previous the amended all defense. interests order all complaint court pleadings motions be be filed for the the on grounds Parkside's that Gursky add order. additional defendants Court 4 Eric to before Gursky and heard to this Tandberg City Hefty, the of these All original strike was required consent, to do so. The District to the following project; project. 1991, deadline door: remodelling answer 12, and he had failed the and March new the of remodelling written the adding manufacturer contractor moved on the to and days named in Parkside's complaint motion scheduling revised an amended designed Parkside complaint, its vendor-installer-maintainer: were court, times eleven filed who entities the 1991, the the by extending of would on December that 9, Besam, Construction, Glass, cost motion order and that of 1991. Gursky defendants: the and 1991, it for behalf that grounds Gursky's be joined in a indigent." on the 20, On January expired, costs and increase opinion parties by January and had waited extension granted In all ago" additional matter be served order. required the court in he had submitted as "essentially this the that months "some incurring whom he described Parkside stated complaint. the to obtain amended leave filing an amended immediately filed vacate revised motion the a on May 28, 1991. Gursky's At the May 28 hearing, interpreted the court's 1990 as permission attorney join that stipulating again, to revised it seems that order out that orders, attorneys under months to Judge Henson and amend the complaint, in the past the Parkside's discovery. to add defendants he had of December 18, pointing and conduct scheduling that Gursky had thirteen order, "increasingly stated defendants. extensions, scheduling motion scheduling additional defendants Gursky's commenting join to further revised additional denied to objected the Court's revised attorney six months, people and so forth. are controlling are And, once the court's calendar." On June 4, 1991, the District to strike Gursky's amended complaint, under Rule 15(a), with permission and Gursky had neither: 2, Gursky strike was required August the 13, appealed 1991, to appeal. motion 1990, liability for file Court In September summary judgment granting November 15, negligence. 1991, consent motion District (1) only of the other party, Court an answer to Parkside's motion Rule to but had not done so. Court's granted 1991, order Parkside's the that summary judgment except Parkside's on two grounds: and (2) under Uniform the District this based or written the amended complaint Gursky granted Gursky could amend his complaint M.R.Civ.P., the court's Court District Parkside with had filed respect 5 City motion Court Gursky then filed naming Besam, Inc., of June 4, but on to all to ruled in dismiss on the December theories of a new complaint, on Glass, and Tandberg Construction as defendants. jury A January trial 2, Parkside was held After 1992. was not as errors the and its motion court's to for The only discretion District the jury for of found a new trial, that absent on that alleging all defendants parties District could Court denied not this appealed. whether the District Gursky allowing requests to the grant that we to Court join remand and that its decision Lindeys, Inc. v. 797 P.2d 920. pleading, its only the abused additional case he be allowed cases See Hobble-Diamond (1991), 249 Mont. 678 P.2d justifying discretion: 322, 740 P.2d to 637. reason it is merely of to the join the a party offered Co. 1153; v. for to the of that 6 v. grant denial 244 Mont. that the leave Triangle (1984), is discretion to for amend not a denying (1987), 227 Mont. leave 238, district Irrigation Taylor the we will discretion. reason Priestv. Lobdell refusal abuse no valid a pleading and that (1990), denying White appearing abuse amend concluded 815 P.2d "[Olutright court, we have Cattle 648; district an in court leave. to Consultants discretion the a motion the for Professional because 370, deny of In certain abused or discretion reverse Mont. is a new trial decision within court jury negligence joinder allow and Gursky not for moved The on appeal Parkside's defendants. The lies 1992, Gursky additional the of testimony, injuries. in Court of to instruct issue defendants. days refusal 6, issue Gursky Gursky's on March its six negligent. refusal be blamed on the without an exercise and inconsistent Co. 221 370, any of with the spirit (quoting Foman v. 229-30, denying 2, to order his authority Gursky failed complaint: to P.2d at 83 S.Ct. grant 642 227, this to to to answer the in which objections. its he Court could Having discretion AFFIRMED. in and did accommodated amend granted denying his that further not an answer Gursky abuse Rule to that Parkside's District in amended Under admission therefore, motion the amend. file an for was expressed strike leave deemed reason the motion Court had extensions. discretion by extending the despite Parkside's complaint, extension, its a so doing. The District the a valid to failure Rules, amended well in denying taken." is the order days had motion be motion 181-82, though "shall ten 178, Court complaint, Court within strike District its District motion to 371U.S. Parkside's in 678 White, 226). amend the and not Rules." (1962), the granting Uniform Federal 222, however, leave complaint the Davis 9 L.Ed.2d Here, its of the court did not time abuse Justice Terry I dissent District to N. from Court complaint if majority the I would by denying and would incident occurred opinion. discretion defendant answer, that dissenting. its complaint its defense the abused amend his In Trieweiler reverse alleged which the in that plaintiff's Court. second subject the motion District its was the hold affirmative of plaintiff's as alleged: [T]he occurrence was caused by the negligence, fault, strict liability, or breach of warranty on the part of other parties or individuals, including but not limited to, plaintiff's relatives who accompanied him, Margaret Gursky and Sheila Hartman; themanufacturer, Besam, Inc.; the general contractor on the remodeling project in which the door was installed, Tandberg Construction; the vendor, installer, and maintainer of the door, Michotte Distributors and City Glass; the architect who designed the remodeling project, Eric Hefty. Defendant asserts under MCA 5 27-l-703 that the fault of all such individuals and entities may have contributed to the injury complained of and should be considered by the trier of fact in its apportionment of responsibility in this case. Presumably, its and before attorneys making investigated plaintiff's complaint allegation. Otherwise, M.R.Civ.P. reduce It the parties, nature it that of seems the these at time the the its allegation be presumed third trial parties at and defend the the time these so that Rule 11, to other of third trial the circumstances, so strenuously they above sought defendant objected themselves. 8 making have violated Under as defendants defendant surrounding by blaming prove same defendant for since own responsibility conduct. the basis that parties' the circumstances would to that of the was prepared third ironic naming of it an allegation, and had a factual can also degree such could to appear Understanding injuries plaintiff's allegation, 1990, modify which motion, procedures time defendant severely within join for his those other filed In spite within defendants' to the if the that plaintiff were pleadings. the two complaint impact the it he had extending order, would additional alleged be time that any on defendant. District and correctly for that allowed that surgical scheduling Defendant 1990, objection the grounds would have an adverse questionable of showing since 21, time support justification on the the additional In with refute on September affidavit year for to he had undergone comply on December 18, present Court, his people blame and allow obvious motion to amend his delay However, of this which opposed which during to parties. and that heart be order attorney prejudiced additional District practitioner been filed. the not scheduling plaintiff's was a sole sought moved the the to defendant who would plaintiff to within that Court overruled pointed out that: [I]t is the clear policy of the Montana Rules of Civil Procedure that all persons materially interested should be joined so that in one suit the court may hear and make a complete disposition of all disputes arising from the same transaction. Rule 19(a), Advisory Committee Notes, Annotations, MCA, p. 457 (1990), Wheatv. Safewav Stores, Inc., 146 Mont. 105, 112, 404 P.2d 317, [321] (1965), Julian v. Mattson, 219 Mont. 145, 710 P.2d 707 (1985). Furthermore, in the present case, defendant's Second Affirmative Defense asserts that other persons have caused and are liable for plaintiff's injuries, and defendant asks that any judgment against him be reduced accordingly. For these reasons, and extended the the District dates set Court by the 9 granted court's plaintiff's previous motion scheduling order. On scheduling joined the order it M.R.Civ.P., before required the Defendant join. The to and the set January as named within pleadings in been day a simple after defendant's to Motion issue the to Defer the filed in an amended only amended on that did and so then On court's in which parties to whom The injuries. complaint was served same date. purpose the complaint plaintiff's the time court of those show that action, to be filed. expiration for fully this were complaint were blame the parties The trial pleadings the sought why additional be joined. amended pass order significant amend plaintiff's could complied not court-imposed attorney to its true plaintiff raised in 15(a), equally every that issues before attorney had been be obtained is in the all days case procedure with parties defendants to point, the attorney sought that be Rule it why which defendant At complaint, understood parties this of which additional on defendant's must Court of plaintiff's he new with District was complied eleven deadline, of the explained within 1991, a parties Court Court additional 9, entered compliance rule a resolution a deadline Court additional amended was aware be granted the all technical consent District District that his of that necessary that that filed spirit respect. should that District 1991. true plaintiff that provided 20, is the date, which by January While to same filed Response spirit with. rules what On January for amending a document entitled to Motion for 10 the However, end there. deadline of should 21, civil have 1991, one the Brief Summary of pleadings, in Opposition Judgment in which for he, the complaint first had been filed in violation without additional 14, 1991, defendants Court that was filed to consent no brief plaintiff plaintiff's of court, it and the majority amended and therefore, However, to amend was the with the should to motion raised resolved fact to strike in plaintiff's by defendant's been add and brief. make much of the issue have motion an affidavit to defendant's same issue and one brief a formal opinion in response amended complaint. strike filed and supported The District motion that of Rule 15(a). On March the suggested time, motion sufficient for both purposes. In support the District of his Court motion, that plaintiff we have previously stOreS,InC. (1965), 146 Mont. 105, purpose rules joinder of our M.R.Civ.P., is multiplicity expedite all to of promote of lawsuits. final parties resolution directly filing the the complaint, lack defendant allow of his of formal again 112, found litigation 321, that the 19 and 20, Rules the rules Safeway and are prevent intended in to one suit in the same controversy. was fully and could aware of plaintiff's prior intention to the deadline for have in no way been prejudiced Court opposed plaintiff's amendment would result 317, out to Wheat% by including amended complaint District in in convenience Furthermore, of pointed held 404 P.2d trial interested Even though defendant and the nature correctly consent motion in additional 11 until a later on the grounds delay of the trial. by date, that to For reasons which be discussed motion plaintiff's will was specious Plaintiff's motion later, at conclusion denied in open court. However, merits of motion, plaintiff's defendant, its of oral the oral argument, District to on May 28, argument plaintiff's instead 1991. gave motion of basing as opposed Court opposition best. for was set At the defendant's to the was verbally its denial on the any potential following harm explanation to for decision: Well, the purpose in establishing these scheduling orders, which I established a number of years ago, is to try and properly manage these cases . . . . And I have noticed increasingly in the past six months that people are stipulating to revised scheduling orders, and so forth. And, once again, it seems that the attorneys are controlling the court's calendar. So the motion for leave to add the parties and amend the complaint is denied. On June denying 5, 1991, plaintiff's the parties attorney prejudice regarding the this and continuous that further over matter, basis, date. a year trial the after which attorney date case plaintiff signed included for finally went moved 12 next to to several five days about statement: had a busy months." 1991 was vacated amend his he could a stipulation defendant trial order so concerned following the June 1991, and filed the the written so that 10, who had been for its complaint representing set entered On June delay, schedule trial This from date the amend his defendant client trial to Court as defendants. for to his "In District motion name additional later, the on January complaint. On without 2, 1992, For the following abused his its discretion when it Rule approval before defendant the District plaintiff's M.R.Civ.P., motion the original be freely given in the multiplicity Court to amend complaint, 3. Prejudice granting additional January defendants 15, their them for motion 1990. role plaintiff's plaintiff's 4. to amend. of all in order that parties to avoid resulted have Defendant fact, defendant injuries joinder not time incident requires from it filed its answer was sufficiently that it in order was aware of the filed an to reduce on familiar answer blaming its own liability Court agreed damages. On December 18, because of the health until plaintiff complied complaint and served with it 20, that to cure with his motion by plaintiff's the deadline 1991. In deadline on defendant in the amended complaint District experienced to extend January the 1990, problems would be reasonable parties would the in this after litigation. from In also one action defendant Court so requires." favor and unnecessary to plaintiff's in District can be filed when justice same dispute of claims requires complaint Rules 19 and 20, M.R.Civ.P., involved defect which an amendment to the "shall 2. with 15(a), has answered approval it denied that complaint: 1. for I conclude reasons, for all adding practical when he filed on January was a technical 9, 1991. attorney, additional respects, an amended The only one which he sought to amend on March 14, 1991. 13 that 5. The District motion on its regarding merits. It on calendar. to the practical did purposes, complied is to Neither plaintiff's and irrelevant scheduling orders to involve control scheduling reason which a stipulation, court's that client or his defendant's the was defendant its were own and order for prejudice which could it had because it would there to not be easier plaintiff from for defend arbitrary denial of reinforced use of would surprise trial for been joining to to technicality that from blame The motion likelihood result all fully potential therefrom. an unexpected went additional defendant plaintiff's with Defendant themselves. procedural the was not prepare. prevent and diminished that about to not concern concerned lengths case others District amend would great defendants if they Court's his as a litigation this to complaint strategy be resolved on merits. For Court and these reasons, remand plaintiff's join, denying effort not the obvious amendment its for with. It were no basis revise court's case This gave gave some unrelated stipulations encroaching delay Court claim including this I would case against Parkside to all reverse the the District the defendants Professional Village. 14 order of the District Court for trial of that he sought to May 5, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: J. Allen Bradshaw Attorney at Law P.O. Box 490 Philipsburg, MT 59858 Byron Boggs Attorney at Law 336 Ryman Missoula, MT 59802 Shelton C. Williams Williams & Ranney 235 E. Pine Missoula. MT 59802 ED SMITH CLERK OF THE SUPREME COURT STATE Ox MQNTANA
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