West Coast Paving, Inc. v. Engineered Structures, Inc. ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
WEST COAST PAVING, INC., No. 67877
Appellant,
vs.
ENGINEERED STRUCTURES, INC.;
FILED
AND PETRO WEST, INC., A UTAH
CORPORATION,
JUL 2 8 2016
E K. NDEMAN
Respondents.
CHI DEP.
t
ORDER OF AFFIRMANCE
DE -r
This is an appeal from a final judgment and an order denying
a post-judgment motion for a new trial in a contract and tort action.
Second Judicial District Court, Washoe County; Connie J. Steinheimer,
Judge.
Smith's Food & Drug Centers, Inc. (Smith's) hired Engineered
Structures, Inc., (ESI) as the general contractor for the development and
construction of a gas station. ESI then hired subcontractors Petro West,
Inc., (Petro West) and West Coast Paving, Inc., (West Coast) to perform
various tasks associated with installing underground fuel tanks. During
installation, one of the tanks was damaged. When ESI refused to
compensate Petro West for the installation, Petro West filed a complaint
against ESI and Smith's. ESI filed a counterclaim against Petro West. On
March 2, 2012, Petro West filed a third-party complaint against West
Coast for indemnity The district court subsequently issued a scheduling
order, setting a January 19, 2013, deadline for filing motions to amend
pleadings or add parties. Beginning on June 10, 2013, the district court
held a three-day bench trial. Following the close of evidence, ESI made an
oral motion pursuant to NRCP 15(b) to amend its counterclaim to add
West Coast as a counter-defendant. The district court granted ESI's
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motion to amend, and issued a judgment holding West Coast partially
liable. West Coast appeals.
West Coast argues that the district court abused its discretion
in granting ESI's motion to amend its counterclaim to name West Coast as
a counter-defendant because the motion disregarded the scheduling order
deadlines pursuant to NRCP 16(b). We disagree. The district court acted
within its ample discretion in granting West Coast's motion to amend
because the amendment sought to align the pleadings with the issues
adduced at trial. See NRCP 15(b) (providing that amendment "may be
necessary to cause [the pleadings] to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even
after judgment"); see also State, Univ. & Ginty. Coll. Sys. v. Sutton, 120
Nev. 972, 988, 103 P.3d 8, 19 (2004) (concluding that an order granting a
motion to amend a pleading is reviewed for an abuse of discretion); Cole v.
Layrite Prods. Co., 439 F.2d 958, 961 (9th Cir. 1971) (interpreting the
federal counterpart to NRCP 15(b), and stating that "[i]t is well settled
that the amendment of pleadings to conform to proof under Rule 15(b) of
the Federal Rules of Civil Procedure rests in the sound discretion of the
trial court"); Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005)
("[F]ederal decisions involving the Federal Rules of Civil Procedure
provide persuasive authority when this court examines its rules.").
West Coast argues that it was prejudiced by the amendment
to the counterclaim. However, the parties addressed West Coast's
participation in damaging the tanks during trial, and a West Coast
employee testified to the same. See Jeong v. Minn. Mitt. Life Ins. Co., 46
Fed. Appx. 448, 450 (9th Cir. 2002) (providing that FRCP 15(b)
amendment is proper unless it results in prejudice, and that when
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considering prejudice, a court should evaluate "the opposing party's ability
to respond and its conduct of the case, not whether the amendment led to
an unfavorable verdict"); see also Campbell v. Bd. of Trs. of Leland
Stanford Junior Univ., 817 F.2d 499, 506 (9th Cir. 1987) (providing that
FRCP 15(b) permits amendment unless the issues were "only inferentially
suggested by incidental evidence in the record"). Therefore, West Coast
was not unfairly prejudiced by the amendment.'
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
, J.
Gibbons
cc: Hon. Connie J. Steinheimer, District Judge
Madelyn Shipman, Settlement Judge
Stephenson & Dickinson
Erickson Thorpe & Swainston, Ltd.
Clarkson Draper & Beckstrom, LLC
Hoy Chrissinger Kimmel, PC
Washoe District Court Clerk
'We have considered the parties' remaining arguments and conclude
that they are without merit.
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