*2 HOLLOWAY, Bеfore HILL and Cir- Judges, BRATTON, cuit Judge. District HILL, Judge. Circuit diversity litigation This arises from ap- two real estate transactions between pellants appellees. Monods and court, jury, trial court, without findings making after of fact and law, judgment conclusions of entered a dismissing complaint the action. trial, Monods, plaintiffs, In the including urged relief, for four claims damages deceit, rescis- fraud restitution, cancellation, sion and group provide excluded claim for title. After but formed a which would defendants, in favor of the needed assets. In late an as- plaintiffs appellant’s Aspen to amend and alter sociate of moved traveled to 59, F.R.Civ.P., to under Rule and at that time became aware of the zoning regulation. pleadings pursuant Negotiations to Rule amend the 15(b), F.R.Civ.P., *3 larger procure and to amend and commenced to a forthwith findings supplement parcel upon lodge and conclusions the which the could be 52(b), constructed, Jones, of employee thе lower court under the of judge Futura, copies trial F.R.Civ.P. The denied each Inc., sent of latest the zoning appeal from of these motions. plat pro- ordinances and a of the posed acquisition the of dismissal and the order tо Monod as- and his denying post-trial Michigan. mo- During March, entered the three in sociates Aspen tions. Monod traveled to to discuss proposed exchange March, the and in facts, by as found the The relevant 1964, Futura, Inc., group and Monod the court, spring in the of show negotiated agreement a new which was Whipple 1959 Gerard Monod contacted agreement escrowed. The of terms this Jones, Futura, employee Van Ness an of provided for Monod and associates to Inc., informing of an in him interest reconvey original the acre seven-tenths High- constructing lodge Aspen a the Futura, Inc., to and the former was to originally a tri- lands. Monod angular selected lodge of commence construction the a forty-four site of some one acreage September new on or before subsequently acre hundreths which was Appellants deposit were further to enlarged to the contested seven-tenths one thousand dollars in the as escrow October, 1959, Monod and acre. good payment a faith which was to re- Futura, Inc., penned contract for the a appellees vert to if the was structure partial price acre at a of sale agreed not built in the time. It was agreement $14,000. a Within was the additionally agreed money that the conveyance provision of the deed of documents title as set out in the escrow reserving to should include Futura, condition a agreement were to be furnished the es- Inc., right to re-enter and agent sixty days crow within of March possession parcel of if Monod take 20, 1964. lodge to of at failed construct a club Appellees complied thirty living-units premises with the escrow least on the agreement by depositing years the deed to within four from the date of the acreage agent. new with the deed. escrow plat Monod deed to the acre seven-tenths When the contract was executed agent was never to thе escrow sent January, in delivered, when the deed was May 21, 1964, appellant not until did zoning a effect remit the one thousand dollars which regulation County, in Pitkin effective by May had 21, 1964, that time become due. On prohibited question, the land informing posted, а letter was lodge, the construction of such as was appellees Monod that had exercised the re-entry, required of under the condition right original re-entry of seven- containing on a tract of land less than deed, posses- tenths acre and had taken regula- two acres. existence this premises. sion of said Monod then in- Futura, Inc., tion but was was known stituted this suit. pur- not known nor related to builder, prospective Monod. chaser and appeal The heart of this is the Con- operator clusion Law the trial Monod was the owner taking possession in British Columbia the of the seven- resort summer Michigan by appellees illegal in the acre be- and a ski instructor tenths was conveyance skiing Being unable to finance cause the deed of contained areas. alone, Inc., Highland Futura, Aspen project a condition knew entire regulations acquaintances zoning and which appellant violated the contacted several рerformance impossible. Because 195-196 made properly the record in- before and find no was not reviewed this issue injustice manifest is mere dicta stance sufficient conclusion judge’s require appellants of the trial reversаl must be read as such. The 15(b), exercise of discretion under Rule 16. their motions under Rules filed 52(b), subsequently dropping 59(e) and pre-trial order of this Nowhere latter, their to conform any trying was case there mention of motion was Each evidence. title the seven-tenths acre. Absent in denied. any attempt by plaintiffs the record is argue to amend the order under Rule 16 appellants On facts this state prevent injustice. We thorough manifest believe consideration perceived triаl court matter given matter and to the Rule light its true when it concluded that light, *4 analyzed proper their when afterthought by ap- amendment an argument prevail. Appellants es- must pellants; complaint that a and amended 15(b) sentially Rule that whеreas state filed; complaint had been that sufficient grounds grants for amendments two elapsed thorough time had for reflec- conform,1 con- trial court failed to the amend, re- tion than Monod and rather ex- of them. We envision the sidеr one seeking money dam- mained steadfast panded placed Rule interpretation ages, cancellation or rescission. by appellants 15(b) cannot concur but they to the conclusions that such leads trial, procеeded to Plaintiffs urge. theory. resting upon its the chosen case purpose Federal Rules One the 16, provided It within Rule procedure simplify Procedure is to Civil pre-trial order sets the F.R.Civ.P. expedite litigation. purpose and “This pre-trial The of the trial. the limits litigant could would be defeated if alia,, for provides, inter conference rule upon he choose issue wants the “simplification for the the issues” * * * then, tried and after his case desirability “necessity of amendments or against him, has decided [the court] pleadings.” the court to the Thereafter set aside have the verdict here, may, an order it did make theory.” retry on a different his case to those limits trial “which the issues Washington Ac Motors v. General agree disposed or admissions 370, Corp., ceptance 372 19 F.R.D. counsel; order and such ments of * (S.D.Fla.1956). * * subsequent course the controls appears action, at the what modified We are faced with of the unless injustice.” As Rules prevent a conflict between trial to manifest to be stated, Appellants argue former is- the previously once the 16.2 we definitively the it unneces We find stated includes the latter.3 have been sues since, super- sary question order, pleadings pre-trial аre this to determine the discovery rule, appeal on its seded, fails are set and either the issues under however, is, impression accordingly. issues our proceeds With the merits. ought authority defined, they reading having of the a careful beеn thus post- by appellants support a of some will to in the absence cited to be adhered reason, pre-trial order good must amendment and sufficient only conform, has been largely of the issue if an discretion rest within implied Abrams, еxpress consent F.2d or 352 court. v. tried with trial Case Johnson, at 983. 3 See 294 Moore's Federal Johnson v. F.2d F.2d Geffen, 200 Practice, (1960) 111 U.S.App.D.C. ; ¶ Young 15.13 [2] 3. 3 Moore’s Federal Pre-Trial Bucky 1953); ¶ 16.19 (9th v. Dering Cir. Order, Sebo, 1967). 1132; v. 208 F.2d 29 Practice, Williams, F.R.D. Christenson, 304 ¶ 378 15.13 (2d 375; F.2d Cir. at parties, pleadings. of objections. and not over defendant’s made Allowance of synthesized ap- discretionary result amendments is but should pears under opposing party an amendment be that be allowed if the “fails to during permitted satisfy be Rule will the court admission of injustice prevent trial manifest prejudice such evidence would him in * * * have, 15(b) if maintaining later by Rule issues under upon defense parties, all tried. consent of been 15(b), the merits.” F.R.Civ.P. rule appeal. supports Neither theorem this U.S.C.A. to conform thе pause Amendments here to note that dur actually ing tried issues trial the court allowed an amendment 15(b). procedurally are divided to include However, the issue of title. part provides if issues first toward the close of this was re express implied are either tried with why judg versed. The of this reversal consent, they if raised are treated as dispositive present ment is ques pleadings.4 of consent The test tion. The court stated: “I don’t know should defendant would be whether the [appellees’ that Mr. attorney] Pascoe amendment, prejudiced by implied prepared, fully prepared, point.” on this e., opportunity i. had a fair whether he complete We find a absence of abuse of offer to any he could defend and whether rulings discretion in the trial court’s *5 if the case were additional evidence concur in its conclusions. theory. on a different to be retried Appellant’s concluding allegation Less, Bottles, or 47 More United States v. Etc., of argument error is the anomalous that 1963). (3d 573 Cir. 320 F.2d 59(e) the Rule motion should have been op every appellees in At this case turn granted despite 15(b) denial, the Rule try posed any which would amendment 54(c) entry since Rule required quiet of a Appellant in title to the real estate. title decree when the District Court con- by introduced sists that was evidence they cluded to entitled that relief. question parties on both bore We believe the answer lie within the effectively argument is title. This “ * * * lаnguage 54(c): of Rule that by appellees’ assertions countered [E]very grant final shall obvious connections while there are party relief to which the in whose favor title, question evidence * * it is rendered is entitled [Em- they and much additional were inevitable phasis opinion It was the added.] documentary proof testimony would at the conclusion of the trial it been proffered them had have been now, appellants and is ours are not tried. the issue would be known that еntitled to relief on the issue of title. stating agreed, it was trial court “apparent not ex this issue was by appellants,5 those cases cited parties.” pressly impliedly tried given grounds was on other bring 15(b) purpose Rule prayed than that prоof for because the actually issues line with “legal sustained that relief. The dimen- permit amendment tried * and does * * sions of claim are meas- [the] may find include issues which collateral ** * ured [plaintiff] plead- what support Gallon in the record. incidental proved prayer.” ed and Blazer —not Lloyd-Thomas Company, F.2d 264 v. Black, 196 F.2d at The fault un- 1959). (8th 417 Cir. n. 77 A.L.R.2d recognized by is that the Monod relief he now sufficiently seeks has not been provision of Rule The other pleaded proved. objection the trial The issue is made at has not arises where issues airing appellees not within had full evidence is its cannot 4. 3 Moore’s Federal Practice ¶ 15.13 [2] 5. Garland v. F.2d (10th Cir. 1947) ; Garland, Blazer v. 165 F.2d Black, up- may retained be that which denied evidence. full рresentation of their on harm committed The trial 59(e) mo denying less error filing. untimely grounds of tion on the period day fell on Sun the ten end ought day been extended to have F.R.Civ.P., 6(a), provided in Rule affirmed The dismissal
U.S.C.A. motion. merits of the
Affirmed. Judge (concur-
HOLLOWAY, Circuit
ring) : opinion majority agree
I with the disposition of the and its the affirmance states, questions
procedural raised.
however, mere dicta re-entry il- was of law that conclusion required perform- legal deed because impossible. that was ance a condition the basis it this conclusion
As I read of the claim denial
for the trial court’s payments for the seven- restitution conclusion To me tract.
tenths acre recognition as a denied should not be judgment, in view necessary for the basis *6 litiga- possible future of its effect
tion. America,
UNITED STATES of Plaintiff-Appellee,
Henry BUCKNER, Carvan Defendant- Appellant.
Crim. A. No. 67-CR-158. Appeals
United States Court of Tenth Circuit.
Sept.