2018 UT App 37

THE UTAH COURT OF APPEALS

PAUL EVANS, JEANETTE EVANS, AND KERN RIVER GAS 

TRANSMISSION CO.,

Appellants,

v.

B&E PACE INVESTMENT LLC, GSH GEOTECHNICAL INC., SKY

PROPERTIES INC., EAGLEPOINTE DEVELOPMENT LC, SMOOT REAL 

ESTATE, RALPH CANNON REAL ESTATE, AND WILFORD W. CANNON,

Appellees.

Opinion

No. 20170114-CA

Filed March 8, 2018

Second District Court, Farmington Department

The Honorable Michael G. Allphin

No. 150700392

Brent O. Hatch and Shaunda L. McNeill, Attorneys

for Appellants Paul Evans and Jeanette Evans

John A. Snow, Alex B. Leeman, John A. Hutchings, 

and Burton G. Davis, Attorneys for Appellant

Kern River Gas Transmission Co.

Benson L. Hathaway Jr., Analise Q. Wilson, and 

Ryan R. Beckstrom, Attorneys for Appellees B&E 

Pace Investment LLC, Sky Properties Inc., 

Eaglepointe Development LC, Smoot Real Estate, 

Ralph Cannon Real Estate, and Wilford W. Cannon

Craig C. Coburn and Brian D. Bolinder, Attorneys for

Appellee GSH Geotechnical Inc.

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

GREGORY K. ORME and DAVID N. MORTENSEN concurred.
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20170114-CA 2 2018 UT App 37

HARRIS, Judge:

¶1 Permission to amend pleadings should be “freely 

give[n],” see Utah R. Civ. P. 15(a)(2), especially where permission 

is sought at or near the end of fact discovery, before expert 

discovery, before any trial date has been set, and where the 

grounds for at least some of the amendments were first 

discovered only weeks before the end of the fact discovery 

period. Under the circumstances of this case, we conclude that 

the district court exceeded its discretion when it denied two 

motions to amend, and therefore reverse.

BACKGROUND

¶2 On August 5, 2014, a massive landslide (the Landslide) 

decimated a hillside in North Salt Lake, Utah. The Landslide was 

approximately 500 feet wide, 500 feet long, and 60 feet deep, and 

displaced between 300,000 and 400,000 cubic yards of earth and 

debris. Among the properties located near the bottom of the 

Landslide was a residential home owned by Paul and Jeanette 

Evans (collectively, Evans) and a tennis club (the Tennis Club). 

Both Evans and the Tennis Club claim that their properties were 

damaged by the Landslide.

¶3 On April 21, 2015, the Tennis Club sued the City of North 

Salt Lake, various developers and real estate entities

(Developers), and John Does1for causes of action related to the 

Landslide. Developers soon answered, and filed counterclaims 

against the Tennis Club as well as third-party claims against 

various entities, including Kern River Gas Transmission Co. 

 

1. A John Doe is “[a] fictitious name used in a legal proceeding to 

designate a person whose identity is unknown.” John Doe, 

Black’s Law Dictionary (10th ed. 2014).
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20170114-CA 3 2018 UT App 37

(Kern River), GSH Geotechnical Inc. (GSH),

2 and Evans. In July 

2015, Evans answered Developers’ claims, and also filed 

counterclaims against Developers and various John Does for, 

among other things, negligence, nuisance, breach of fiduciary 

duty, and fraudulent non-disclosure. Later, in January 2016, the 

district court consolidated into this action a separate lawsuit 

filed by Kern River against Developers and GSH, in which Kern 

River brought claims for negligence, nuisance, and injunctive 

relief. After the consolidation, the lawsuit then pending before 

the district court involved, by our count, seventeen parties 

represented by fifteen different law firms.

¶4 In February 2016, the district court entered a stipulated 

case management order that arranged the various parties 

involved in the litigation into ten different “sides,” and allowed 

for each “side” to conduct five elective depositions, over and 

above twenty-eight depositions that all parties agreed were 

essential. The order set the fact discovery deadline for September 

30, 2016; the expert discovery deadline for April 28, 2017; and the 

deadline for dispositive motions for May 31, 2017. The district 

court subsequently extended each of those deadlines by ninety 

days, with the close of fact discovery set to occur around the end 

of December 2016.

¶5 Although the case management order makes no mention 

of it, the parties (apparently on their own) mutually decided to 

work toward a mediation and, in an effort to limit litigation 

costs, agreed that, prior to the mediation, they would limit 

themselves to written discovery and to six or seven depositions 

that were deemed the most critical. After completing that limited 

discovery, the parties attempted mediation as scheduled in June 

 

2. GSH was originally a party to this appeal. Since the filing of 

the notice of appeal, however, all claims involving GSH have 

been dismissed.
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2016, but were unable to reach a settlement at the mediation 

conference. The parties did not completely abandon settlement 

efforts, however; they continued to informally discuss the 

possibility of settlement, even after the June conference, and the 

mediator remained involved until December 2016.

¶6 After the mediation conference proved unsuccessful, the 

parties attempted to proceed with fact discovery pursuant to the

case management order. They soon began to discuss dates for 

the remaining depositions, but coordinating the schedules of 

fifteen different law firms proved difficult and required 

significant lead time. Depositions noticed in July ended up 

taking place as late as November. Depositions noticed in 

September ended up taking place as late as December.

¶7 On June 10, 2016, as the parties were preparing for the 

mediation conference, and roughly six months before the end of 

fact discovery, Evans filed a motion for leave to amend their 

pleadings. Specifically, Evans sought permission to add 

negligence claims against GSH and another engineering firm

related to their alleged involvement with geotechnical work on 

the hillside. Due to the impending mediation, Evans agreed to 

extend the deadline for any response to its motion to amend 

“until mediation was completed.” Because the mediator 

remained involved and settlement discussions continued 

informally even after the failed mediation conference, Evans did 

not consider the mediation truly “completed” until December 

2016, when the mediator’s involvement ended. Thus, Evans did 

not submit the June 2016 motion to amend for the court’s 

decision until December 9, 2016.

¶8 Meanwhile, in August 2016, Kern River filed its own 

motion seeking leave to amend its pleadings. Specifically, Kern 

River asked permission to add additional cross-claims against 

Developers alleging negligence, nuisance, and unjust 

enrichment. The parties did not postpone briefing on this 
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20170114-CA 5 2018 UT App 37

motion, and Kern River submitted it for decision in due course. 

In October 2016, the district court granted Kern River’s motion 

and allowed the amendment to include the additional claims.

¶9 On December 13, 2016, with only a few weeks left in the 

fact discovery period, and while the parties were finishing up 

depositions, the district court consolidated yet another case into 

this action. In that other case, Questar Gas Company (Questar) 

had brought negligence and nuisance claims against the City of 

North Salt Lake related to the Landslide.

¶10 That same day, the district court denied Evans’s June 2016

motion to amend, concluding that the motion was untimely

because, even though it had been filed in June, it had not been 

submitted for decision until December, and explaining that 

“[t]he close of the extended date of fact discovery is now only 

sixteen days away.” A few days later, Evans asked the court to 

reconsider its ruling, asserting that any delay in submitting the 

motion for decision was due to professional courtesies Evans’s 

counsel had extended to GSH related to the ongoing settlement 

discussions. The district court denied the motion to reconsider.

¶11 Near the end of December, as the fact discovery period 

was ending, three additional motions to amend were filed. On

December 29, 2016, Evans moved yet again to amend their 

pleadings. Evans again sought to add negligence claims against 

GSH (but this time not against the other firm). In addition, this 

time Evans sought to add various new claims (such as breach of 

fiduciary duty, civil conspiracy, and pattern of unlawful activity) 

against the existing Developers and/or their principals, including 

claims alleging that some of the Developer entities were the alter 

egos of their principals. On December 23, 2016, the Tennis Club 

filed a motion for leave to amend, seeking to add new claims 

against the existing Developers and/or their principals that were 

similar to the claims Evans sought to add. And on December 30, 

2016, Kern River filed a motion seeking leave to amend, asking 
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for permission to bring negligence claims against two

engineering firms, Bingham and Geostrata.

¶12 All of the parties that moved to amend—the Tennis Club, 

Evans, and Kern River—asserted that the facts supporting the 

filing of many of these new claims did not come to light until the 

depositions taken between September and December 2016, and 

that they were therefore unable to bring these claims earlier.

3 To 

take one specific example, Kern River asserts that a principal of 

one of the Developers initially testified that Bingham was not 

 

3. Whether Evans or Kern River actually did discover relevant 

facts late in the fact discovery period that they did not already 

know is a factual issue. Indeed, on appeal, Developers contest 

Evans’s and Kern River’s assertion that, before taking the 

depositions that occurred late in the fact discovery period, they 

lacked sufficient factual knowledge to bring their new claims. In 

its various rulings on the motions to amend, however, the 

district court did not mention this issue, and certainly did not 

endeavor to resolve the contested factual questions. We can, of 

course, affirm a district court’s decision on any alternative 

ground apparent from the record. See Bailey v. Bayles, 2002 UT 58, 

¶ 10, 52 P.3d 1158. However, because we are in no position to 

resolve factual disputes that the district court left unresolved, it 

is not apparent on this record that Evans’s and Kern River’s 

factual assertions are incorrect. Thus, for the purpose of our 

analysis in this opinion, we simply assume that the factual 

claims made by the movants are true. Certainly, if the district 

court had made factual findings on this issue, we would have

deferred to those findings in the same way we defer to other 

factual findings made by a trial court. See, e.g., Outsource 

Receivables Mgmt., Inc. v. Bishop, 2015 UT App 41, ¶ 5, 344 P.3d 

1167 (stating that “we review a trial court’s factual findings 

under the deferential clearly erroneous standard”) (citation and 

internal quotation marks omitted)).
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involved in the geotechnical work on the hillside, but that in one

of the later depositions, a construction manager for one of the 

Developers testified that Bingham was indeed involved in the 

geotechnical work on the hillside.

¶13 The district court denied all three motions, explaining that 

“[w]hile no trial date has been set, it is clear that this case is in 

the advanced procedural stages of litigation and that alterations 

to claims at this point are untimely.” The court also determined

that “adding new parties and new claims at this late stage of 

litigation will result in prejudice to those parties,” but the only 

prejudice the district court identified was that “fact discovery is 

closed” and that “[f]act discovery is a crucial element in 

preparing for trial.”

¶14 Evans and Kern River now seek interlocutory review of 

the district court’s denial of their respective motions to amend.

4

We granted them leave to appeal, and now consider their claims.

ISSUE AND STANDARD OF REVIEW

¶15 Both Evans and Kern River argue that the district court 

erred by denying their respective motions to amend. “We review 

a district court’s decision on a motion to amend under an abuse 

of discretion standard.” Tretheway v. Furstenau, 2001 UT App 400, 

¶ 7, 40 P.3d 649; see also Stichting Mayflower Mountain Fonds v. 

 

4. The Tennis Club elected not to pursue an interlocutory 

challenge to the district court’s order. Instead, because the 

statute of limitations had not yet run on its new claims, it elected 

to file a separate lawsuit containing the claims it had sought 

leave to file. After this court granted permission for Evans and 

Kern River to bring this interlocutory appeal, the district court 

stayed all matters in both this case and the Tennis Club’s new 

case pending the outcome of this appeal.
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20170114-CA 8 2018 UT App 37

United Park City Mines Co., 2017 UT 42, ¶¶ 48–49 (stating that the 

question on appeal is “whether we find an abuse of discretion in 

the district judge’s decision to deny the motion,” and stating that 

a district judge has “substantial discretion” in making that 

determination). 

ANALYSIS

¶16 Rule 15 of the Utah Rules of Civil Procedure instructs 

district courts that they “should freely give permission [for a 

party to amend its pleadings] when justice requires.” Utah R. 

Civ. P. 15(a)(2). “The purpose of rule 15 is to provide litigants the 

maximum opportunity for each claim to be decided on its merits 

rather than on procedural niceties.” Shah v. Intermountain 

Healthcare, Inc., 2013 UT App 261, ¶ 7, 314 P.3d 1079 (emphasis, 

brackets, citation, and internal quotation marks omitted). Trial 

courts should therefore “liberally allow amendments unless the 

amendments include untimely, unjustified, and prejudicial 

factors.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 

¶ 58, 221 P.3d 256.

¶17 In determining whether to allow a proposed amendment, 

courts are instructed to generally focus on three main factors: (1)

timeliness; (2) prejudice; and (3) justification. Swan Creek Village 

Homeowners Ass’n v. Warne, 2006 UT 22, ¶ 20, 134 P.3d 1122. 

“[M]otions to amend are typically deemed untimely when they 

are filed in the advanced procedural stages of the litigation 

process, such as after the completion of discovery, on the eve of 

a scheduled trial date, or after an order of dismissal has already 

been entered,” or where the motion is filed “several years into 

the litigation.” Kelly v. Hard Money Funding, Inc., 2004 UT App 

44, ¶¶ 29–30, 87 P.3d 734.

¶18 In evaluating the “prejudice” factor, courts must keep in 

mind that “a showing of simple prejudice is not enough to 

support a denial of a motion to amend.” Id. ¶ 31. Indeed, “almost 
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every amendment of a pleading will result in some practical 

prejudice to the opposing party.” Id. (citation and internal 

quotation marks omitted). Instead, for this factor to support 

denial of the motion, the nonmoving party must suffer “undue 

or substantial prejudice” that is “unavoidable.” Id. “Mere 

inconvenience to the opposing party is not grounds to deny a 

motion to amend.” Id. (emphasis, citation, and internal quotation 

marks omitted). The key to this part of the inquiry is whether 

“the opposing side would be put to unavoidable prejudice by 

having an issue adjudicated for which he or she had no time to 

prepare.” Swan Creek, 2006 UT 22, ¶ 21, (emphasis, brackets, 

citation, and internal quotation marks omitted). A motion to 

amend may well be “prejudicial when the nonmoving party 

would have little time to prepare a response before trial,” 

Daniels, 2009 UT 66, ¶ 59, but if any such prejudice can be 

avoided with a reasonable, brief, and targeted extension of the 

fact discovery cutoff date, prejudice may not be present, see 

Timm v. Dewsnup, 851 P.2d 1178, 1183 (Utah 1993) (noting that 

“[t]here can be no prejudice” if the court “give[s] ample time for 

an answer” to the new claims (citations and internal quotation 

marks omitted)); see also DeLuca v. Winer Indus., Inc., 857 F. Supp. 

606, 608 (N.D. Ill. 1994) (granting a motion to amend that was 

filed on “the day fact discovery closed,” and determining that 

granting the motion “would not unduly prejudice [defendants] if 

the fact discovery deadline is extended for the limited purpose 

of completing discovery on the additional claims”).

¶19 With regard to justification, “the analytic thrust should . . . 

be focused on the reasons offered by the moving party for not”

raising the issues earlier. Kelly, 2004 UT App 44, ¶ 38. In cases 

where “the party knew of the events or claims earlier yet failed 

to plead them due to a dilatory motive, a bad faith effort during 

the pleading process, or unreasonable neglect in terms of 

pleading preparation,” the justification factor will weigh against 

allowing the amendment. Id. On the other hand, “‘where the 

party’s prior knowledge was minimal, or where it was instead 
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20170114-CA 10 2018 UT App 37

based on suspicious or inconclusive evidence, the party’s 

decision to hold off on pleading those allegations until reliable 

confirmation could be obtained’” should not be held against that 

party. Swan Creek, 2006 UT 22, ¶ 22 (quoting Kelly, 2004 UT App 

44, ¶ 38).

¶20 Although courts should consider all three factors, “the 

circumstances of a particular case may be such that a court’s 

ruling on a motion to amend can be predicated on only one or 

two of the particular factors.” Kelly, 2004 UT App 44, ¶ 42. The 

applicability of the three factors will vary from case to case, but 

our supreme court has emphasized that, in many cases, the 

factor that “the trial court should primarily consider” is “whether 

granting the motion would subject the opposing party to 

unavoidable prejudice.” Aurora Credit Servs., Inc. v. Liberty West 

Dev., Inc., 970 P.2d 1273, 1282 (Utah 1998) (emphasis added); see

also Kelly, 2004 UT App 44, ¶ 31 (observing that “courts should 

focus on whether the nonmoving party would suffer prejudice if 

the motion to amend is granted” (citation and internal quotation 

marks omitted)).

¶21 Here, Evans and Kern River assert that their respective 

motions to amend were timely, that no unavoidable prejudice 

will result from allowing the amendment, and that they had 

good reason for waiting until December 2016 to bring the claims. 

We agree with these assertions.

¶22 The district court determined that the motions to amend 

filed in late December 2016 were untimely because “[f]act 

discovery is now closed more than a year and a half after the 

filing [of] this case and after being extended twice,” and stated 

that, “[w]hile no trial date has been set, it is clear that this case is 

in the advanced procedural stages of litigation and that 

alterations to claims at this point are untimely.” It is certainly 

true that the case had been pending for about a year and a half 

when the motions were filed, and that the fact discovery
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20170114-CA 11 2018 UT App 37

deadline had already been extended. But the motions were filed 

right at the end of the fact discovery period, which is not 

necessarily a tardy time to file such motions, at least not in cases 

where the moving party learns facts during the fact discovery 

period that put it on notice that it might possess valid claims. 

And we simply disagree with the district court’s characterization 

that the case was “in the advanced procedural stages of 

litigation”—after all, fact discovery was just concluding, expert 

discovery had not yet even begun, and no trial date had been set.

¶23 We acknowledge that the motions to amend, at least with 

regard to some of the new claims, could perhaps have been filed 

a few weeks earlier, and that this very well might have made a 

difference to the district court, given that the court granted Kern 

River’s earlier motion to amend in October 2016, and allowed 

consolidation of the Questar case in mid-December. Parties 

should certainly endeavor to bring new claims to the attention of 

the court as soon as possible after the relevant facts are 

discovered. But in this case, Evans and Kern River claim to have 

been discovering relevant facts well into December 2016, and we 

do not think it unreasonable under the circumstances of this case 

for Evans and Kern River to have waited until December to file 

all of their asserted new claims in one omnibus motion.

¶24 In our view, the timeliness factor does not weigh against 

amendment under the circumstances presented here. We 

consider the procedural posture of this case to be comparable to 

other cases in which an appellate court has reversed a district 

court’s denial of a motion to amend. See, e.g., Gillman v. Hansen, 

486 P.2d 1045, 1046 (Utah 1971) (holding that the district court 

erred in denying a motion to amend when “the case had not 

been set for trial” and “the only adverse effect which the 

amendment could have on the plaintiff might be to require the 

taking of a further deposition of the defendant”); Nunez v. Albo, 

2002 UT App 247, ¶ 33, 53 P.3d 2 (holding that the district court 

erred in denying a motion to amend when “no trial date had 
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been set, no expert discovery had taken place, and discovery was 

still on-going”).5

¶25 We are likewise unconvinced that any undue or 

substantial unavoidable prejudice would be visited upon any of 

the defendants if Evans and Kern River are allowed to bring 

their new claims in this action. The only prejudice identified by 

either the district court or by any of the defendants is that, at the 

time the motions were filed, fact discovery was ending and 

defendants would not have an opportunity to conduct discovery 

 

5. We also note, in connection with our discussion of timeliness, 

that the statute of limitations had not yet run (and, according to 

Evans, has still not yet run) on the new claims that Evans, Kern 

River, and the Tennis Club wanted to bring by way of their 

December 2016 motions to amend. Indeed, the Tennis Club 

demonstrated this by filing a new lawsuit upon learning that it 

would not be permitted to bring those new claims into this case. 

While consideration of whether the statute of limitations has run 

on the putative new claims is not one of the factors that the case 

law instructs courts to weigh, it is a factor that may sometimes 

be relevant, and the three main factors are not necessarily 

exclusive. See Kelly v. Hard Money Funding, Inc., 2004 UT App 44, 

¶ 39, 87 P.3d 734 (observing that in addition to evaluating 

timeliness, prejudice, and justification, “Utah law does not 

preclude trial courts from considering other factors in their rule 

15(a) determinations”). In many cases, whether the statute of 

limitations has run on the proposed new claims can, as a 

practical matter, change the analysis. If a party can (as the Tennis 

Club did here) simply file a new lawsuit if the motion to amend 

is denied, in some cases that fact may weigh in favor of granting 

the motion to amend, because it may be more efficient in the 

long run for a court to simply allow the new claims to be 

brought in the original action than to deny the motion to amend 

and then have to wrestle later with motions to consolidate.
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and fully defend themselves against the new claims. But this sort 

of prejudice can be easily remedied by a brief, tailored extension 

to the discovery deadlines to allow the defendants to conduct 

discovery on those new claims. Indeed, Evans and Kern River, in 

their motions to amend, indicated that they would have no 

objection to such an extension.

¶26 We do not mean to suggest that extending or reopening 

discovery deadlines can never constitute “undue or substantial” 

prejudice. See Kelly, 2004 UT App 44, ¶ 31 (citation and internal 

quotation marks omitted). Certainly, if trial is imminent and 

reopening discovery would necessitate moving the trial date, or 

if expert discovery has been completed and allowing new claims 

would put the parties to the expense of re-deposing (or 

obtaining supplemental reports from) experts, the situation 

would be different. But where facts underlying potential new 

claims are discovered for the first time during fact discovery 

itself, and the party seeking to bring the new claims files its 

motion to amend as fact discovery is ending, there will usually 

not be undue and substantial prejudice to any party by allowing 

the amendment and permitting a reasonable extension of fact 

discovery that is tailored to address the new claims.

¶27 In this case, any prejudice can easily be ameliorated by 

allowing for a brief and targeted extension of the discovery 

deadlines. This is not a case where “the ongoing passage of time 

makes it increasingly difficult for the nonmoving party to 

effectively respond to the new allegations or claims.” Id. ¶ 30.

Under the circumstances of this case, the prejudice factor does 

not weigh in favor of denying the motion to amend.

¶28 Finally, with regard to justification, there is no indication, 

on the facts of this case, that Evans and Kern River acted with a 

“dilatory motive, bad faith, or unreasonable neglect.” Hudgens v. 

Prosper, Inc., 2010 UT 68, ¶ 18, 243 P.3d 1275 (citation and 

internal quotation marks omitted). One reason for the delay was 
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that all parties participated in good faith in a mediation 

conference, and agreed to conduct only limited discovery prior 

to the mediation. But the main reason Evans and Kern River did 

not bring many of these claims earlier was that they claim not to 

have had a sufficient factual basis to bring them until after they 

participated in the depositions that took place between 

September and December 2016. Given parties’ obligations, 

pursuant to rule 11 of the Utah Rules of Civil Procedure, not to 

bring claims for which they possess an insufficient factual basis, 

waiting until that factual basis is present is a perfectly reasonable

justification for not bringing the claims earlier. On balance, we 

think it better to encourage parties to wait to file claims until 

they possess a sufficient factual basis to bring them, instead of 

encouraging parties to bring marginal claims earlier in the 

proceedings for which supporting evidence may be sketchy.

¶29 Accordingly, none of the three factors weigh in favor of 

refusing to allow amendment of pleadings in this case. We 

therefore conclude that the district court should have granted 

the motions to amend, and that it exceeded its discretion in 

denying them.

CONCLUSION

¶30 In this case, “justice require[d]” granting the motions to 

amend filed by Evans and Kern River. See Utah R. Civ. P. 15(a). 

We therefore reverse the district court’s orders denying the 

motions to amend, and remand the case for further proceedings 

consistent with this opinion.