Summary
holding that denial of leave to amend is proper where "numerous delays have already occurred, the proposed amendment is not tendered until just prior to the date of the trial, and no justification appears for further delay in bringing the litigation to an end"
Summary of this case from Rinker v. Colina-LeeOpinion
April 9, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Grant, Shafroth, Toll & McHendrie, P.C., J. Albert Sebald, Denver, for plaintiffs-appellees.
Roger D. Borland, Steamboat Springs, C. Elwood Bradley Steamboat Springs, for defendants-appellants.
SILVERSTEIN, Chief Judge.
Appellants, Harvey and Marjory Jones, and C. H. Probst, executor of the estate of John S. Bitzer, deceased, appeal from a judgment entered in a quiet title action brought by appellees, Charles and Mark Eckstine. The judgment decreed that appellants had no right, title or interest in the property which is the subject of the action. We affirm.
Appellants assert the trial court erred in denying their motion to amend their answer by adding an affirmative defense based on the 18-year statute of limitations for adverse possession (C.R.S.1963, 118-- 7--1), and in refusing to admit any evidence bearing on that defense. These are the only issues on appeal.
Plaintiffs commenced the action on November 6, 1967, by filing a complaint, and on November 16, 1967, obtained service on the appellants. Appellants filed a motion to dismiss on December 6, 1967And a motion for judgment on the pleadings on April 10, 1968, both of which were denied by an order which struck two paragraphs from the complaint. On April 19, 1968, an amended complaint was filed, and on May 20, 1968 appellants filed a motion to dismiss or for judgment on the pleadings, which was denied following a hearing which had been continued at appellants' request to March 25, 1969. Appellants filed their answer on April 14, 1969. Thereafter in April 1971, the case was finally set for trial on June 28, 1971.
Until about ten days prior to trial appellants were represented by a firm in Denver, with co-counsel in Steamboat Springs. At that time the appellants switched from the Denver firm to an additional local attorney who, five days prior to trial, filed the motion to amend the answer by adding the affirmative defense. The original answer, as pertinent here, denied the allegations of the complaint, except for admitting that appellants claimed title to the property.
The new counsel stated he was employed because his clients' Denver counsel was then not permitted to practice law. However, the record shows that although the senior member of the Denver firm was suspended from practice, he had not participated in the handling of the case. His associates signed all the papers filed and appeared at the various pre-trial hearings.
On the day of the trial appellants sought a ruling on their motion to amend the answer, the plaintiffs objected and the trial court denied the motion. The court pointed out that the case was three and one-half years old, had been at issue for two years and three months, and since plaintiffs had not been previously apprised of this issue, an additional continuance would be necessary if the motion were granted. The court determined it was high time to dispose of the case and hence denied the motion.
Appellant relies on C.R.C.P. 15(a), which provides that leave to amend pleadings '. . . shall be freely given when justice so requires.' Although the rule is to be liberally applied, Platte Valley Motor Company v. Wagner, 130 Colo. 365, 278 P.2d 870, denial of such leave is proper where, as here, numerous delays have already occurred, the proposed amendment is not tendered until just prior to the date of trial, and no justification appears for further delay in bringing the litigation to an end. See Colorado Racing Commission v. Brush Racing Association, Inc., 136 Colo. 279, 316 P.2d 582, and Shira v. Wood, 164 Colo. 49, 432 P.2d 243. We find no abuse of discretion in the denial of the motion to amend.
In support of their contention that the amendment should have been allowed, appellants also rely on C.R.C.P. 105(a) which provides that, 'The court in its decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights of the parties.' As was stated in Hodge v. Terrill, 123 Colo. 196, 228 P.2d 984, such relief should be granted on each issue, 'If that issue was properly before the court.' (emphasis in original) Here the issue was not properly nor timely tendered and was, therefore, not properly before the court.
Appellants also assert error in the trial court's refusal to admit evidence offered by them. Appellants attempted to introduce evidence to establish that a fence had existed for over thirty years along a line dividing appellants' property from that of the plaintiffs. The purpose of this evidence was to help establish appellants' defense of adverse possession which was sought to be raised by the tendered amendment to their answer. On objection by plaintiffs, the court refused to admit the evidence. Since the adverse possession de Silberfeld v. Solomon, 70 Colo. 413. 202 P. fense was not before the court, it was not error to refuse to admit the evidence. See 113.
We have considered appellants' arguments that their answer to the amended complaint raised the issue of adverse possession, and that the evidence was admissible under C.R.C.P. 15(b) and find those contentions to be without merit. See American National Bank v. Etter, 28 Colo.App. 511, 476 P.2d 287.
Judgment affirmed.
SMITH and RULAND, JJ., concur.