SUPREME COURT 

OF 

NEVADA 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

WEST COAST PAVING, INC., 

Appellant, 

vs. 

ENGINEERED STRUCTURES, INC.; 

AND PETRO WEST, INC., A UTAH 

CORPORATION, 

Respondents. 

ORDER OF AFFIRMANCE 

No. 67877 

FILED 

JUL 2 8 2016 

E K. NDEMAN 

t 

DEP. 

-r 

CHI 

DE 

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 

(0) 1947A ico-23F-A 
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 

SUPREME COURT 

OF 

NEVADA 2 

10) W47A 
, J. 

J. 

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. 

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. 

SUPREME COURT 

OF 

NEVADA 3 

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