Geo-Mobile, Inc. v. Dean Bender Chevrolet, Inc.
| Decision Date | 14 May 1986 |
| Docket Number | INC,No. 11104,GEO-MOBIL,11104 |
| Citation | 386 N.W.2d 918 |
| Parties | , Plaintiff and Appellant, v. DEAN BENDER CHEVROLET, INC., Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Howe, Hardy, Galloway & Maus, Dickinson, for plaintiff and appellant; argued by Gary A. Ficek.
Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendant and appellee; argued by Paul G. Kloster.
The plaintiff, Geo-Mobile, Inc. (Geo-Mobile), appeals from an order of the district court denying its motion to amend its complaint. We reverse and remand.
During November 1983, Geo-Mobile sued Dean Bender Chevrolet, Inc. (Bender) alleging that Bender negligently repaired one of Geo-Mobile's welding trucks. Bender answered by denying liability.
During January 1985, Geo-Mobile filed a motion to amend its complaint to increase its prayer for damages. The amendment was granted. During February 1985, Geo-Mobile took the deposition of a former Bender employee through which, Geo-Mobile asserts, it became aware that it had a possible claim against Bender for breach of express and implied warranties. By motion, dated October 7, 1985, Geo-Mobile requested permission to amend its complaint to include a breach of warranty claim. The motion was resisted by Bender and on October 28, 1985, the district court entered an order denying Geo-Mobile's request to amend its complaint.
On appeal, we are requested to resolve the following two issues:
(1) Whether an order denying a motion to amend a complaint is an appealable order; and
(2) Whether the district court abused its discretion in denying Geo-Mobile's motion to amend its complaint.
Bender asserts that the order denying Geo-Mobile's motion to amend its complaint is not appealable because it does not involve the merits of the case. We disagree. The rule enunciated in the prior cases of this Court, which we follow today, is that an order granting or denying a motion to amend a pleading is appealable if it involves the merits of the case. Blasl v. Peterson, 78 N.D. 915, 53 N.W.2d 856 (1952); Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238 (1951). See also, Vigen v. Marvel Steel, Inc., 264 N.W.2d 201 (N.D.1978). We conclude that the court's order in this case is appealable, because it involves the merits of the action by effectively precluding Geo-Mobile's right to present its breach of warranty claim. See Section 28-27-02(5), N.D.C.C.; Sheets v. Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D.1981).
Rule 15(a) of the North Dakota Rules of Civil Procedure permits amendments to pleadings and provides that such amendments shall be freely given when justice so requires. It is well settled that the decision on a motion to amend a pleading is within the sound discretion of the trial court and will not be overruled on appeal in the absence of an abuse of discretion by the trial court. E.g., Bender v. Time Insurance Co., 286 N.W.2d 489 (N.D.1979).
When Geo-Mobile filed its motion to amend, neither party had filed a certificate of readiness. Geo-Mobile has explained its delay in raising the warranty claim on the ground that it was not cognizant of the basis for...
To continue reading
Request your trial
-
Estate of Stuckle, Matter of
...a coherent and sensible approach to the subject. Compare Keller v. Gama, 378 N.W.2d 867 (N.D.1985) and Geo-Mobile, Inc. v. Dean Bender Chevrolet, Inc., 386 N.W.2d 918 (N.D.1986), where we decided appeals from intermediate orders, with Gillan v. Saffell, 395 N.W.2d 148 (N.D.1986) and Gast Co......
-
First Trust Co. of North Dakota v. Scheels Hardware & Sports Shop, Inc.
...Under Rule 15(a), N.D.R.Civ.P., amendments to the pleadings are to be freely given when justice so requires. Geo-Mobile, Inc. v. Dean Bender Chevrolet, 386 N.W.2d 918 (N.D.1986); Crosby v. Sande, 180 N.W.2d 164 (N.D.1970). However, it is well settled that a trial court's decision on a motio......
-
Peterson v. Zerr
...of the case, and proceeded to consider the appeal without discussing the applicability of Rule 54(b). See Geo-Mobile, Inc. v. Dean Bender Chevrolet, 386 N.W.2d 918 (N.D.1986). However, Geo-Mobile, Inc. predates the "shift in our appellate procedure regarding the applicability of Rule 54(b) ......
-
United Hosp. v. D'Annunzio
...NDCC 28-27-02(5) authorizes appeals from orders which involve "the merits of an action or some part thereof." Geo-Mobile, Inc. v. Dean Bender Chevrolet, 386 N.W.2d 918 (N.D.1986), overruled to the extent that it appears to sanction an appeal from intermediate order without a NDRCivP 54(b) c......