Opinion
No. 107,323.
2012-11-2
Phil CLINE, Appellant, v. Karl SWOYER and Melynda Swoyer, Appellees/Third-party plaintiffs, v. Charles Summerville and King's Construction Co., Inc., Appellees/Third-party defendants.
Appeal from Jefferson District Court; Janice D. Russell, Judge. Ira Dennis Hawver, of Ozawkie, for appellant. Joel W. Riggs, of Larson & Blumreich, Chartered, of Topeka, for appellees/third-party plaintiffs.
Appeal from Jefferson District Court; Janice D. Russell, Judge.
Ira Dennis Hawver, of Ozawkie, for appellant. Joel W. Riggs, of Larson & Blumreich, Chartered, of Topeka, for appellees/third-party plaintiffs.
William P. Denning, of Sanders Warren & Russell LLP, of Overland Park, for appellee/third-party defendant King's Construction Co., Inc.
Thomas E. Knutzen, of Knutzen & Ney, P.A., of Oskaloosa, for appellee/third-party defendant Charles Summerville.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM:
Phil Cline appeals the district court's grant of summary judgment in favor of Karl and Melynda Swoyer and denial of Cline's motion to amend his petition. Cline contends the Swoyers had a duty to maintain their side of a shared common wall. Cline also claims the Swoyers prevented him from discovering that the structural integrity of the common wall had weakened. Finally, Cline contends that the district court abused its discretion by denying his motion to amend his petition to add claims against the Swoyers, Charles Summerville, and King's Construction Co., Inc. We affirm.
Cline owns a building at 316–318 Washington Street, Oskaloosa, Kansas. Karl and Melynda Swoyer (the Swoyers) owned the building that was attached to the east side of Cline's building. On May 24, 2007, a fire destroyed most of the Swoyers' building, and the City requested that the Swoyers demolish what remained of their building. The Swoyers hired King's Construction Company, Inc. (King's Construction) to do the demolition. The demolition was completed on August 24, 2007.
Although Cline was not formally notified of the exact demolition date, he was aware that it was going to occur because he had read about it in the local newspaper. The day before the demolition, Cline contacted his insurer, State Farm, and expressed concerns that the common wall might fail if the demolition work was not done properly. Three days after the demolition, Cline again contacted State Farm. Even though Cline indicated that the eastern wall of his building was structurally sound, he told State Farm that he was concerned that the wall was bowed and could fail. State Farm's records show that Cline reported that he had looked at the wall after the demolition and had felt that the wall was moving, and he had seen it move. Cline spoke with State Farm a third time on September 12, 2007, expressing serious concerns about the wall bowing, and he stated that he was unsure if this was due to the fire, age, or the demolition.
On September 19, 2007, State Farm hired Dressler Consulting Engineers, Inc. (Dressler) to assess the integrity of the east wall of Cline's building. Dressler's report stated that the north portion of the wall extended beyond the corner of Cline's building and this created an unstable condition. Dressier recommended Cline demolish the wall back to the corner of the building. The report also noted that a small portion of the wall on the front had some loose bricks and mortar. Dressier recommended that it be stabilized or removed to prevent debris from falling on pedestrians. The report concluded that the common wall did not exhibit any signs of movement or damage from the fire. Dressier recommended that the wall be cleaned and sealed with an appropriate adhesive mortar.
In January 2008, Cline obtained estimates from two companies to repair and seal the common wall. That same month, Cline wrote to State Farm and stated that water runoff was penetrating through the wall and that he believed this condition could cause the entire wall to fail. On March 26, 2008, Cline informed State Farm that the wall was experiencing moisture damage and that stones were falling out due to repeated freeze-thaw cycles. In April 2008, State Farm sent Cline a $30,365.40 check to pay for the repair of the wall. Cline accepted the check but never repaired the wall.
In June 2008, Karl Swoyer hired Charles Summerville to clean his side of the common wall and to coat the wall with a mud mortar adhesive. Summerville completed the work around the end of June that year. Cline was aware of Summerville's work and knew that it did not extend to the top of the wall because he spoke with Summerville while Summerville was working on the wall.
In March 2010, Cline hired Norton & Schmidt Consulting Engineers (Norton & Schmidt) to assess the condition of the wall. Clark Kelly, an employee of Norton & Schmidt, performed the assessment and sent a report to Cline dated March 22, 2010. Kelly's report stated:
“The repairs, from our discussions, included sand blasting and surfacing during the summer of [2008], should have been completed immediately after the fire, and it is my opinion that these repairs are an ‘incomplete job.’ The entire wall should have been repaired immediately after the fire including the entire top as well as the exposed wall....The repairs should have been completed with proper cap and counter flashings for the roof to wall conditions.” (Emphasis added.)
Kelly also stated:
“It is my opinion that the cracking noted in the presently surfaced wall does not indicate a foundation failure but an internal material failure within the wall components. Inner common walls of buildings of this vintage are not made to be permanent exterior walls without proper preparations and repairs. Weathering of the surface of the wall and interior moisture penetration cause breakdown damages due to the ‘time period’ construction methods using lime mortar and freeze/thaw/moisture issues from moisture penetration. In my opinion, the breakdown of the lime mortar and internal shifting of the brick/stones within the wall has caused the type of failures noted at the time of this inspection.”
Kelly's report did not comment on or draw conclusions as to whether the demolition of the Swoyers' building caused any damage to the common wall.
In April 2010, the Swoyers' insurer hired HDHY Engineering, Inc. (HDHY) to assess the condition of the common wall. Michael Hanson, an employee of HDHY, performed the assessment. Hanson's report stated:
“The exact cause of the localized deflection of the common wall is unknown. The localized nature of the deflection suggests that the movement is caused by a point application of force rather than generalized deterioration or the weight of ice and snow. Review of photographs of the Swoyer building taken following the fire finds that joists supporting a portion of the roof structure tied into the common wall in the area where the deflection is occurring. It can be theorized that forces applied to these joists during demolition of the Swoyer building caused the common wall to deflect outward.” (Emphasis added.)
Hanson concluded that the deflection occurred sometime after May 24, 2007, but before June 2009.
On July 9, 2010, Cline filed a petition in the Jefferson County District Court, alleging that the Swoyers were negligent in failing to preserve “the structural integrity of the wall” and that the repairs performed by Summerville were “unworkmanlike, ineffective, and did not meet the standards of the industry.” Cline claimed he had suffered emotional distress due to his interactions with Karl Swoyer and the Oskaloosa Police Department about the continuing deterioration of the wall, and he sought damages in excess of $75,000.
The Swoyers filed a third-party petition claiming that if they were found liable to Cline, they would be entitled to indemnification from Summerville and King's Construction.
After extensive discovery, the Swoyers filed a motion for summary judgment. Attached to the motion was a report from Kevin Kirchmer, one of the Swoyers' designated expert witnesses. Kirchmer's report indicated that there was no evidence of negligence during the demolition or in the application of the mortar adhesive by Summerville. The report concluded that the removal of floor joists and/or ceiling joists during the demolition of the Swoyers' building reduced the lateral stability of the wall and continued forces on the wall have caused the wall to shift eastward where the lateral support no longer existed.
Cline filed a response to the Swoyers' summary judgment motion and abandoned his claim that the Swoyers had a duty to maintain or repair the party wall. Instead, Cline argued that the Swoyers were liable for damages he suffered because they gratuitously undertook repair of the wall and Summerville's repairs were negligently performed.
Before the court ruled on the Swoyers' summary judgment motion, Cline filed a motion to dismiss without prejudice. Shortly thereafter, Cline filed a motion to amend his petition to add a claim against the Swoyers and their agents for the removal of lateral support; he also sought to add negligence claims against Summerville and King's Construction. Cline claimed Kirchmer's report constituted newly discovered evidence that showed that the removal of lateral support caused the deflection of the wall.
The district court granted the Swoyers' summary judgment motion. In its memorandum decision, the district court made the following findings: (1) Cline had notice of the demolition of the Swoyers' building and the demolition work was not negligently performed; (2) Summerville's work on the common wall did not render the Swoyers liable to Cline because Summerville was an independent contractor and the Swoyers did not have the right to control the work performed by Summerville; (3) Cline's motion to dismiss without prejudice should be denied because the motion was an attempt by Cline to prevent summary judgment from being entered in favor of the Swoyers; (4) Cline's motion to amend his petition should be denied because the Kirchmer report was not newly discovered evidence and Cline's claims against King's Construction and Summerville were barred by the statute of limitations. Cline filed a motion to reconsider, which the district court denied. Cline timely filed his notice of appeal.
Summary Judgment
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law and summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, the adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Cline's first issue in his appellate brief is: “Whether the defendants [Swoyers] and their agents had a duty to maintain their side of the common wall.” Cline claims that the district court erred in entering summary judgment in favor of the Swoyers because the Swoyers did not provide him notice of the demolition of their building. He also claims that “[t]he eventual production of discoverable reports showing the loss of lateral support caused the damage provided evidence that steps could have been taken and should have been taken to prevent the shifting of the wall as the adjacent building's beams were removed.”
Notice of the Demolition
Under Lambert v. City of Emporia, 5 Kan.App.2d 343, 345, 616 P.2d 1080 (1980):
“Cases uniformly hold that the owner of a building sharing a party wall may remove his building without liability to the adjoining owner so long as he gives notice of the removal to the adjoining owner and uses reasonable care to protect the structural integrity of the party wall and avoid damage to the adjoining owner's building resulting from the removal. This rule applies even though removal of the building leaves the party wall exposed to the elements or unsightly. [Citations omitted.] The purpose of giving notice is to enable the adjoining owner to look to his own protection.”
Cline asserts that the Swoyers had a duty to serve him personally with legal notice of the pending demolition and, because they did not give him legal notice, he was deprived of his constitutional due process rights. However, the Lambert decision does not hold that the owner of a building sharing a common wall must give the adjoining landowner legal notice accompanied by service of process before the demolition can occur. Cline misreads Lambert, and he cites no other relevant authority to support his argument.
Cline admitted that he was aware that the Swoyers' building was going to be demolished even though he did not know the exact date of the demolition. In fact, the day before the demolition occurred, Cline contacted his insurance company, State Farm, and expressed concern that the demolition could damage his building if it was not done properly.
After the demolition was completed, the Swoyers were not obligated to give Cline any further warnings or notice or to provide continued support for the common wall. Notice of the demolition gives the adjoining owner an opportunity to protect the common wall after the neighboring structure is demolished. Lambert, 5 Kan.App.2d at 345. The district court did not err in finding that Cline had notice of the demolition.
An Owner's Opportunity to Protect Property
Cline claims he “could” have protected his property if he had known that the deflection of the common wall was a direct result of removal of the Swoyers' building.
Cline has not shown that the Swoyers and King's Construction failed to use reasonable care to protect the common wall during the demolition. Cline admitted that the common wall was structurally sound after the demolition work was completed, and he agreed with the conclusion of the Dressier report that the wall was not damaged after the fire. Moreover, the majority of the inspections of the common wall performed after the wall was demolished suggested that the deterioration of the wall was due to gradual water infiltration and the absence of continued support.
The HDHY report stated that there was no deflection of the wall on May 24, 2007, and that the “deflection occurred between May 24, 2007, and June 2009.” HDHY concluded at the end of its report: “ It is possible that demolition of the Swoyer structure caused the wall deflection.” (Emphasis added.) HDHY's speculation came almost 3 years after the fire and 32 months after the demolition. HDHY's report did not state that the damage to the common wall occurred during the demolition. Therefore, Cline has not provided evidence that either the Swoyers or King's Construction failed to exercise reasonable care in the demolition process.
The fire occurred on May 24, 2007, and the demolition took place in August 2007. Dressier inspected the wall in September 2007 and did not note any deflection of the wall. Cline obtained estimates from two companies for repair of the wall in January 2008. Cline still did nothing to protect the wall or his building. In June 2008, the Swoyers hired Summerville to coat their side of the wall. The adjoining landowner—in this case Cline—could have protected the common wall and his property but did not, even though his insurance company gave him money for repairs.
There is no evidence in the record on appeal to support a claim that King's Construction did not use reasonable care in the demolition. Also, Cline could have protected the wall and his building but failed to do so. Therefore, there is no genuine issue of material fact on this issue, and the district court did not err in granting summary judgment.
Access to Adjoining Building to Protect a Common Wall
Cline alleges that the Swoyers prevented him from exercising his right to inspect the exterior of the party wall after the demolition by using no trespass signs and trespass warnings from the Oskaloosa police to prevent him from entering their property to inspect the wall. Cline claimed that because the Swoyers interfered with his inspection of the wall, they assumed responsibility for his damages. Cline also claims the Swoyers actively tried to conceal the damage to the wall by hiring Summerville to apply coating to the wall.
Several days after the August 2007 demolition, Cline contacted State Farm and told them that the common wall was bowed and that the wall could fail. In response to Cline's concern, State Farm hired Dressier to inspect the common wall, and the inspection revealed that the wall did not exhibit any signs of damage or movement. State Farm recommended that the wall be cleaned and sealed with an appropriate mortar compound.
In January 2008, Cline was aware that water was penetrating the wall and posed a threat to the wall's structural integrity. In March 2008, Cline reiterated these concerns to State Farm and explained that repeated freeze-thaw cycles were causing stone to fall out of the wall. Therefore, the evidence establishes that Cline was aware of the threat of possible moisture damage to the wall. Not only did Cline fail to protect his property, he made no objection to Summerville coating the wall. This evidence demonstrates that Cline had notice of the demolition, had opportunities to inspect the wall, and had adequate opportunity to ensure that the wall and his building were protected.
Cline argues that the Swoyers were somehow committing a separate tort by prohibiting him from entering their property to inspect the common wall. Cline argues that this case is analogous to a case in which a property owner is aware of a dangerous condition on his or her property and has a duty to warn entrants onto the property of the existence of the dangerous condition. Cline appears to suggest that the Swoyers had an affirmative duty to warn him of the foreseeable risk of loss of support for the common wall due to the removal of the Swoyers' building and that the Swoyers breached this duty by failing to warn him of these consequences. However, there are two serious flaws with Cline's argument.
Cline suggests that the Swoyers' position in this case is analogous to a situation where homeowners list their home for sale, are aware of a defect, and actively attempt to conceal the existence of that defect from a potential buyer. Cline cites Osterhaus to support his argument, but that case is easily distinguishable. In Osterhaus, 291 Kan. 759, our Supreme Court addressed a property seller's obligation to provide accurate and honest disclosures in a seller's property disclosure statement regarding the existence of defects. This case does not involve the sale of a residential property or the duty to disclose the existence of defects when filling out a seller's property disclosure statement and, thus, Osterhaus has no application to Cline's case.
Although the Lambert court did not specifically address which property owner bears the responsibility of maintaining the structural integrity of a common wall after one building is demolished, the most pressing issue for the adjoining landowner would be to ensure that the common wall is structurally sound and able to provide continuing support for the remaining building. This conclusion is in accord with the holding of at least one other court that has considered this particular question. See City of La Crosse v. Jiracek Companies, Inc., 108 Wis.2d 684, 691–92, 324 N.W.2d 440 (1982) (concluding that the trial court correctly placed post-demolition burden of supporting the common wall on the adjoining landowner).
Also, Cline has failed to demonstrate that there was a dangerous condition about which the Swoyers had a duty to warn him. It appears that Cline is arguing that the Swoyers were aware, or at the very least should have been aware, that the demolition of their building would result in the common wall deflecting eastward. However, Cline cites no relevant legal authority for that conclusion. Instead, the possibility that a common wall could shift after demolition of an adjoining building is reasonably discernible and is more akin to an open and obvious condition about which an adjoining property owner has no corresponding duty to warn. Cf. Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991).
There is no evidence in the record on appeal that the Swoyers possessed any information that the demolition of their building would subsequently cause the common wall to gradually deflect eastward. Instead, the evidence establishes that shortly after the demolition, there were no noticeable defects or deficiencies with the wall. The Dressier report confirmed that the wall was structurally sound after the demolition, and Cline agreed with this conclusion.
Cline has failed to show that: (1) the Swoyers impaired his ability or prevented him from protecting his building or the common wall both before and after the demolition of the Swoyers' building; or (2) the Swoyers were responsible for committing additional tortious actions by preventing him from entering their property to inspect the common wall or by not disclosing that the demolition of their building could cause the common wall to shift. The district court did not err in granting the Swoyers summary judgment on this issue.
Responsibility for a Subcontractor's Work
In granting summary judgment, the district court concluded that the Swoyers were not liable for the work performed by Summerville because there was no evidence that the Swoyers had the right to control Summerville's work. The district court concluded that Summerville was an independent contractor and not an employee of the Swoyers.
In responding to a party's summary judgment motion, Supreme Court Rule 141(b) (2011 Kan. Ct. R. Annot. 232), requires the party opposing the summary judgment motion to file a memorandum or brief stating whether each factual assertion of the movant is controverted. To oppose a summary judgment motion, a party must introduce something of evidentiary value to establish a material dispute of fact. Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987).
The Swoyers attached affidavits from Karl Swoyer and Summerville in support of their motion for summary judgment. The affidavits explained that Swoyer did not give Summerville any specific instructions on how to complete the wall-coating job and that he did not control the manner in which Summerville's work was performed. In response, Cline submitted his affidavit, as well as one from Artie Owen, a tenant of Cline's. Owen's affidavit stated that Karl Swoyer had given Summerville explicit instructions on how to perform the job of repairing the wall.
The statements attributed to Summerville and his employees cited in Cline's and Owen's affidavits are hearsay, and they are therefore inadmissible unless they fall within a recognized hearsay exception. See K.S.A.2011 Supp. 60–460. Cline has failed to show that these statements fall within a recognized hearsay exception; therefore, they are inadmissible. The district court correctly concluded that Summerville was an independent contractor.
On appeal, Cline does not challenge the district court's entry of summary judgment in favor of the Swoyers on this issue. An issue not briefed by an appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Motion to Amend Petition
Cline claims the district court abused its discretion in denying his motion to amend his petition after new evidence was discovered. Cline claims that the April 27, 2010, HDHY report and the September 1, 2011, report of CFS Engineers are evidence that the removal of the Swoyers' building caused his building's wall deflection problem. Cline's motion to amend asserted new claims of negligence against both King's Construction and Summerville, as well as a negligence claim for the removal of lateral support for the common wall.
A district court is given broad discretionary power under K.S.A.2011 Supp. 60–215 to permit or deny the amendment of pleadings, and its actions will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Rowland v. Val–Agri, Inc., 13 Kan.App.2d 149, Syl. ¶ 1, 766 P.2d 819,rev. denied 243 Kan. 780 (1988). An appellate court generally reviews a district court's decision on a motion to amend pleadings for an abuse of discretion. Thompson v. State, 293 Kan. 704, 709, 270 P.3d 1089(2011).
K.S.A.2011 Supp. 60–215 provides:
“(a) Amendments before trial (1) Amending as a matter of course. A party may amend its pleading once as a matter of course within:
“(A) 21 days after serving it; or
“(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under subsections (b), (e) or (f) of K.S.A. 60–212, and amendments thereto, whichever is earlier.
“(2) Other amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent, or the court's leave. The court should freely give leave when justice so requires.”
Because Cline's motion to amend his petition was filed well outside the 21–day time period specified in K.S.A.2011 Supp. 60–215(a)(l), Cline was required to obtain the Swoyers' written consent or obtain leave of court. Cline did not seek or receive the Swoyers' permission to amend his petition; therefore, the decision of whether to allow Cline to amend his petition rested solely within the district court's discretion. Cline has not shown that the district court abused its discretion in denying the amendment on this issue.
Statute of Limitations
Cline claims the district court erred in not allowing his amendment to his petition because the statute of limitations was tolled. He claims that the structural damage to the wall from the demolition was not evidenced until February 2010.
K.S.A. 60–513(a)(4) provides that an “action for injury to the rights of another, not arising on contract, and not herein enumerated” shall be brought within 2 years. K.S.A. 60–513(b) provides, in pertinent part:
“[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
A claim that the Swoyers were liable for the negligence of King's Construction and Summerville had to be filed within 2 years of the work being completed unless Cline is able to demonstrate that the injury was not reasonably ascertainable until some later date.
The evidence established that King's Construction demolished the Swoyers' building in August 2007. Summerville finished coating the common wall with mud mortar at the end of June 2008. Cline filed his petition in district court on July 9, 2010. This meant that Cline's petition was not timely filed unless he can show that the statute of limitations was tolled.
Claims against Summerville
In his original petition, Cline alleged that Summerville negligently repaired the common wall and that the Swoyers were liable for Summerville's negligence. Cline knew when Summerville did the repairs, but Cline failed to file his petition within 2 years thereafter. Similarly, any negligence claim that Cline could have asserted directly against Summerville is also barred by the 2–year statute of limitations. A motion to amend may be denied if the proposed amendment would be futile. Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, 327, 913 P.2d 119 (1996). A futile amendment to a pleading includes an amendment to add a claim that is barred by the statute of limitations. Stormont–Vail Healthcare, Inc. v. Zoble, No. 103,353, 2010 WL 4157102, at *5 (Kan.App.2010) (unpublished opinion). Therefore, the district court did not abuse its discretion in denying Cline's motion to amend his petition to include a negligence claim against Summerville.
Claim against King's Construction
King's Construction demolished the Swoyers' building on August 24, 2007. Cline filed his petition on July 9, 2010, which was 3 three years after the demolition.
Moreover, Cline has not shown that the statute of limitations was tolled because the damage to the common wall was not reasonably ascertainable after the demolition occurred. Three days after the demolition was completed, Cline called his insurer and stated that he was concerned that the common wall was moving. In September, Cline again contacted his insurer to report that he had a serious concern that the common wall was bowing and that he was unsure if this was due to age, the fire, or the demolition. Cline continued to speak with his insurer throughout early 2008 to relay his concerns about the condition of the common wall, and Cline's concerns were addressed when his insurer sent him a check for $30,365.40.
This evidence establishes that as far back as late August 2007, Cline thought there were possible structural defects in the common wall that could have been caused by the demolition of the Swoyers' building. Even though Cline was unaware of the scientific or technical problem with the wall, the structural or integrity problems were readily ascertainable after the demolition was completed, and Cline's negligence claim against King's Construction was not timely. See Friends University v. W.R. Grace & Co., 227 Kan. 559, 563, 608 P.2d 936 (1980). Thus, any amendment to his petition would have been futile, and the district court did not abuse its discretion in denying Cline's motion to amend his petition.
Amendment to Claim Lateral Support Damage
Cline also sought to amend his petition to add a claim against the Swoyers for the removal of lateral support. Cline contends that the Swoyers' removal of their building deprived the common wall of the required lateral support and that the loss of that lateral support caused the common wall to recede from his building.
In his original petition, Cline alleged that he suffered “[d]amage to the value of his building due to the negligence of defendants in preserving the structural integrity of the wall, which negligence resulted in the wall moving away from plaintiffs building, thereby rendering plaintiff's building unsafe and unuseable.” Essentially, Cline's original negligence claim alleged that the Swoyers had a duty to provide lateral support for the common wall and that they breached that duty by demolishing their building and not providing any substitute support for the wall. Cline's original petition asserted a removal of lateral support claim against the Swoyers, even though the words lateral support were not used. Thus, Cline's motion to amend his petition to add a claim against the Swoyers for the removal of lateral support was futile, and the district court did not abuse its discretion in denying that motion.
Affirmed.