*1 330 fense. Id. partial For cases, a list of see evidence that the amendments would have

id. n. 97 pocket and part. prejudiced defendants in the least. The United Supreme States Court in Fo Furthermore, as Foman and Smith de- Davis, man v. 178, U.S. 83 S.Ct. clare, a district court’s refusal grant to 227, 230, 9 (1962), L.Ed.2d 222 defined the leave to amend any without justifying of intent Rule 15: reason per is se an abuse discretion. of 15(a) Rule Exactly declares that to this case. In denying leave amend Clark’s mo- freely given shall be tion to justice where amend the so district court offered not requires; this mandate one is to justify be reason to heeded. its decision. This If the underlying facts Court’s or refusal to apply Smith, circumstances supra, upon by may Plaintiff case is prop- be a inexcusable. majori- While the er subject relief, ty’s of bald ought he to declaration be that the decision to awarded an grant opportunity to or permission refuse test his claim to amend com-

on the plaint merits. In the is left absence of to the district court’s»discre- apparent or correct, declared tion is reason —such as un- is not the end of the delay, due inquiry. bad faith or dilatory question motive on unanswered is part movant, the of the repeated whether failure discretion was abused. to cure deficiencies Based the pre- interpretation amendments correct of viously allowed, undue I.R.C.P. prejudice to the Idaho law interpreting that opposing rule, party by virtue it certainly most allow- was.3 The district ance of amendment, the court’s order futility of should be reversed out of amendment, etc.—the hand. leave sought

should, as the rules require, “be freely

given.” course, Of grant the or denial of

an opportunity to amend is within the

discretion of court, the District but out-

right refusal grant the leave without

any justifying reason appearing for his is denial not an discretion; exercise of it 715 P.2d 1000 merely abuse that discretion and IDAHO, INC., STEWART TITLE OF inconsistent spirit of the federal Plaintiff-Appellant, rules. In Smith v. Co., Great Basin Grain 266, 272-73, 561 P.2d 1305-06 COMPANY, NAMPA INC., LAND TITLE (1977), this Court expressly adopted Fo- corporation, an Idaho and Rod Astle language, and, addition, man’s placed ford, individually, Defendants-Respon the burden of showing why a court should dents. not grant leave complaint to amend a No. 15635. the parties opposed to the amendment. Id. Supreme Court of Idaho. it How cannot be held to have been an March 1986. abuse of deny discretion to leave Clark’s amend his complaint is unfathomable.

Nothing in the supports record

court’s order. There is absolutely no evi- faith,

dence bad delay, undue dilatory or

motive on part; Clark’s there is also no Turning again preamble action, ing numero equitable uno—the parties send back Procedure, to our Rules of particularly Civil wholly to "GO”—a may new One lawsuit. also "speedy inexpensive” language, may question expense one putting litigants expedient well wonder if it is pend- payment dismiss a filing fees. new. *2 time purchase at the option to

ing lease and Gentry and Sandra Kenneth sold. it was 40 acres of purchasing in interested were The Iola from Doramus. property real Nettleton, a Lomas & approached Gentrys institution, February 1976 to in lending purchase. Lomas financing for the obtain agreed to loan the tentatively & Nettleton price $40,000.00 purchase Gentrys the property mortgage on the a exchange for title search preliminary requested Com- Nampa Land Title respondent, from appellant’s Nettleton hired & pany. Lomas .County interest, Es- Ada predecessor agent for the transac- closing crow, as tion. prepared report was preliminary title

A Nampa Astleford, employee of an by Rod and was Title, March Land Net-& Lomas & Nettleton. to Lomas sent Darlene report tleton forwarded County Anderson, employee of Ada an exceptions listed nine report The Escrow. Title was Nampa Land subject to The property. willing to insure title that closing directed instructions any funds disburse agent not the escrow 3, 4, and other than exceptions until all the the title. cleared from had been exceptions only 6—the 5 and Exceptions that relevant —indicated outstanding subject to an property purchase. option an farm lease August Do- that in record reveals three-year lease granted ramus had and Doris Gerald purchase to option to Trunnell. Rod Astle- Anderson contacted

Darlene exceptions 5 regarding telephone ford repre- Astleford that testified and 6. She Manweiler, Be- Manweiler, of I. Howard 6 would 5 and exceptions to her sented Cameron, Boise, plaintiff-appel- &vis warranty of a upon recordation be deleted lant. Gentrys. Astle- to the Doramus deed from Ei- Green, and Bradford L. Scott Ander- told however, that he ford, Cumer Boise, Offices, for de- dam, Law of Green a release to obtain would need son that she fendants-respondents. conveyance or a rights lienholder’s to Doramus back Trunnells from DONALDSON, Chief Justice. exceptions to clear order remove the done to event, nothing was real sale appeal arises out This exceptions. to an outstand- subject property which Anderson testified that she made a sec- Stewart appealed Title has from judg- ond telephone call to Astleford on March ment. 29, prior closing the transaction. She presents arguments two stated that Astleford told her during that appeal: (1) that the trial court erred in conversation that the “title was clear.” concluding that a prudent reasonable and Astleford making denies any such state- closing officer would not have relied on *3 ment. Immediately thereafter, Anderson alleged Astleford’s misrepresentations; closed the transaction and disbursed the (2) and that the court’s failure to make loan funds from escrow. Exceptions 5 and specific findings on the theory of negligent 6 not were removed from the policy. misrepresentation constitutes reversible er- filing The of lawsuits began: then the ror. We will discuss argument each in the Trunnells sued to have their lease-option presented. order agreement declared valid superior and to the interests of any other party; Lomas & I Nettleton sued County Ada Escrow and An essential element of the torts Nampa Land Title to recover pro- the loan both of negligent fraudulent misrepre and ceeds resulting $67,000 in a judgment sentation is that recipient’s the reliance on against County Escrow; Ada and in the the misrepresentation justified. must be action which subject is the appeal, this (Second) Restatement of Torts §§ Ada County Escrow, Title, now Stewart (1977). 552 case, the instant the trial Nampa sued Land alleging that Rod concluded, court law, as a matter of that Astleford made misrepresentations to Dar- Anderson’s reliance on alleged Astleford’s lene Anderson she upon relied to her misrepresentations justified. was not detriment and to the detriment Ada court determined that a reasonable and County Escrow. prudent closing in officer the Boise area Trial in the instant action held be- would not have represen such fore court, sitting without a tations, but would have investigated fur jury, 26, on March 1984. The court found ther and further taken action to insure that that Rod Astleford did not make fraud- were, the exceptions fact, prior in cleared ulent or misrepresentations intentional to closing. Appellant argues that the trial Darlene Anderson. The court determined court’s conclusions are supported by not that Anderson was a experi- trained and the evidence. enced closing agent, escrow and concluded Our task on to ascertain wheth- that even if her version of the conversation er the supports evidence the trial court’s correct, between herself and Astleford was findings of fact and findings whether those “A reasonable prudent and closing offi- in turn support the conclusions of law. cer in the Boise area in would not 1976 LaBonte, 751, Fahrenwald v. 103 Idaho have relied solely exclusively upon and 653 (Ct.App.1982). P.2d Af- representations the Astleford, of Rod reviewing record, ter the we conclude that such as Darlene Anderson remembers evidence, the although conflicting, is suffi- be, them to in closing this transaction support cient to the trial court’s conclu- funds, and in disbursing but would have sions. inquired investigated instead and further

as what necessary to eliminate Stewart Title’s case at trial consist exceptions 5 and 6 from the final title primarily ed testimony. Anderson’s policy, have taken would further ac- That testimony established that Anderson tion to exceptions insure that 5 and 6 was an experienced closing agent in 1976 prior cleared closing were the transac- when the instant transaction was closed. tion distributing funds.” Anderson admitted always that it is Accordingly, the judgment court entered in responsibility closing agent escrow favor Nampa of Astleford and Land Title. objectionable insure all excep- that reasonable mation, exercise if he fails to prior to the title from are cleared tions obtaining in or com- competence care or closing. Restate- municating the information.” testimony offered Nampa Land Title (Empha- (Second) 552. of Torts ment § procedure the local as to witnesses of two added). sis in transactions closing real estate Nampa manager Vestal, at Dan former opinion as to express While we no in experience title Title, years Land negli action for viability a cause of area, that it was work in the Boise state, do in we misrepresentation gent in 1976 for practice unusual very recognize if we were that even note communica- rely on oral company to recovery tort, from Title is barred disbursing officers from title tions The trial court concluded theory. a loan Mollerup, who was funds. Richard alleged on the reliance that Anderson’s Nettleton at & officer Lomas and, justified were not misrepresentations Title of Idaho Lawyer’s manager of above, conclusion noted as we have *4 trial, that a of at the time Boise jus by the evidence. Since supported was agent would reasonably prudent element of is an essential reliance tifiable trans- Doramus-Gentry closed not have representation negligent the tort of misrep- alleged on Astleford’s action based that Ander court concluded the trial since simply Mollerup explained it resentations. recovery justified, was not son’s reliance that a deed logical to assume not would be pre was misrepresentation negligent for another could remove party to from one Therefore, failure to the court’s cluded. An- Aside from party. of a third interest theory not er findings make did testimony, Stewart Title own derson’s ror. any testimony in rebuttal. not offer af- court is of decision whole, testimony, as a taken The above firmed. support the trial court’s was sufficient to respondents. Costs to justified was not that Anderson conclusion misrepresenta- alleged relying on the appeal. attorney fees on No findings the trial court’s Because tions. supported by evi- are and conclusions HUNTLEY, JJ., concur. SHEPARD dence, appeal. they will be disturbed not BAKES, J., I and concurs in Part concurs

II II. of Part in the result court’s argues that the trial Justice, dissenting. BISTLINE, theory of findings on the failure to make re- constitutes negligent misrepresentation from the deci- respectfully dissent I must mis- negligent world, The tort versible error. real majority. sion of the tort newly emerging is a representation dealing in real and others closing officers in the recognized yet has to be the tele- over business transact estate do in the It is defined courts of this state. found reality may be phone. Proof follows: Co., Inc., Restatement as Valley Sun Hoffman Sup- (1981), Negligently 628 P.2d 552. Information “§ telephone ne- held plied of Others for the Guidance this Court wherein lot constituted sale of a gotiations over the who, busi- “(1) course of his in the One contract ulti- contract, though that oral or employment, ness, or profession failure to for unenforceable mately proved has in which he transaction other No frauds. the statute comply infor- with interest, supplies false pecuniary agree- undermined reliance in their unreasoned guidance of others for the mation have been none should Hoffman; ment in transactions, liabili- subject to business As- had dealt Anderson found here. loss caused them ty pecuniary reliable; she and found him tleford before infor- upon the reliance justifiable their was entitled rely on him in the instant

transaction as well.

Contrary to the majority’s claim, the

record does not support the district court’s

finding of fact that a pru- reasonable and

dent closing officer in the Boise area would

not have a title officer’s oral

representations regarding exceptions to a

title. For thing, one the two witnesses to

whom the district court and the majority

deferred testified only to industry stan- in Canyon

dards County, not in the Boise another,

area. For both witnesses equivo- and expressed

cated the opinion that An- justified

derson in relying on the word

of title officer Astleford.

The district court never resolved con-

flict between the testimony of Anderson

and Astleford. Such would have been es- sential to determine whether had Astleford

misrepresented the status of the title here concerned. The holding erroneous to-

day’s majority permits the answer to the Charles B. Lempesis, Kootenai County question essential in this lawsuit to remain Defender, Public Anthony Sanchez, M. unspoken. forever Deputy Defender, Public Falls, Post defendant-appellant. Jones,

Jim Atty. Gen., Lynn Thomas, E. Gen., Myrna Stahman, Sol. A.I. Deputy Gen., Atty. Boise, for plaintiff-respondent. PER CURIAM. P.2d Jennings Duane was convicted of second Idaho, STATE of Plaintiff-Respondent, degree burglary and sentenced to an inde- years terminate term of five in the custody JENNINGS, Duane Defendant-Appellant. Board of Correction. The sole issue appeal is whether the sentence ex- No. 16049. and represents cessive an abuse of sentenc- Court Appeals of Idaho. ing discretion the district court. We affirm. Feb.

Our standards for sentence are review well-settled. possesses The trial court dis cretionary authority to appro determine an priate sentence. A sentence within the statutory maximum will not be disturbed unless clear abuse of sentenc ing discretion is Delin, shown. State v. 102 Idaho (1981); 627 P.2d 330 State v. Beltran, (Ct. 706 P.2d 85 App.1985). A may sentence represent an