SlAi E Or WASHlnG 111: 

### 2013DEC 16 AH 9^7

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TIM McCLINCY, an individual; McCLINCY BROTHERS FLOOR COVERING, INC., a Washington corporation, dba McCLINCY'S HOME DECORATING, Respondents,

v. MILLER ROOFING ENTERPRISES, INC., Appellant. No. 69606-8-1 DIVISION ONE

UNPUBLISHED FILED: December 16. 2013



### Cox, J. — This case is here on a CR 54(b) certification from the trial court 

## following an earlierappeal, reversal, and remand in part, forfurtherproceedings.1 On remand, Miller Roofing Enterprises Inc. moved for leave to amend its answer. Because the trial court properly exercised its discretion indenying Miller's 

### request to add 12 new affirmativedefenses, we affirm. This action arose out ofa series ofcontracts between Miller and Tim 

### McClincy and related entities (collectively "McClincy"). Those contracts include a written contract, entered into in 1997, and two oral contracts, entered into in 

### 2006,for roofing work on a commercial building owned by a McClincy entity.
1 McClincy v. Miller Roofing Enters. Inc.. noted at 168 Wn. App. 1001, 2012 WL 1587914.No. 69606-8-1/2

A bench trial in October 2010 culminated in a finaljudgment infavor of McClincy inthe amount of $1,388,193.59. Millerappealed, and this court reversed in part in an unpublished decision. As to the written contract claim, this court held that there was insufficient evidence to support a particularfinding, and itreversed thejudgmentto the
extent ofthat claim. As to the oral contract claims, this court held that itwas unclear whether these claims were barred by the statute oflimitations, whether Millerwaived the affirmative defense ofuntimely service of process, and when McClincy had notice ofthe defects underlying its claims. This court noted that the damages on which the breach ofwritten contract claim was based were not segregated from 

### the damages awarded forthe breach ofthe oral contract claims. Accordingly, this court reversed thejudgment on the two oral contract claims and remanded forfurther proceedings. In no way can the priordecision of this court be reasonably read as a "do-over" ofthe entire original trial. In July 2012, following remand, Miller moved to amend its answerto assert 12 new affirmative defenses in addition to the seven defenses itpreviously 

### asserted inthe original trial. These new defenses included: (8) Untimely service of process. (9) Untimely notice ofalleged defects. 

### (10) There is a lack ofprivity between PlaintiffMcClincy Brothers Floor Covering, Inc. and this Defendant and, therefore Plaintiff McClincy Brothers Floor Covering, Inc. lacks standing to pursue claims against Defendant.No. 69606-8-1/3

(11) The damages sustained by Plaintiffs are unavoidable from the standpoint ofthis Defendant. (12) Intervening and superseding cause. (13) Plaintiffs accepted the performance of Defendants. (14) Plaintiffs misused the product. (15) No warranty was provided or any applicable warranty expired. (16) Plaintiffs' claim is barred by the rules governing spoliation of evidence. (17) Plaintiffs' claim for repair costs willresult in an unjust enrichment and substantial increase in the value of the property and its reasonable useful life. (18) Plaintiffs' claim and suit are barred by RCW 4.16.326(1)(g). (19) The alleged breaches do not and will not adversely affect the performance ofthe building(s) and any adverse effect is merely technical and not significant 

### to a reasonable person.[2] In its motion for leave to amend, Millerargued that several ofthese 

### defenses were "formalizing arguments made by Miller previously." 

### McClincy opposed the motion. McClincy correctly argued thatthe prior decision of this court limitedthe scope ofissues to be addressed on remand. 

### McClincy also argued that allowing the amendmentwould be prejudicial, that Millerwaived these affirmative defenses, and that the defenses were barred by the doctrine ofcollateral estoppel.
Clerk's Papers at 9.No. 69606-8-1/4

The trial court denied Miller's motion for leave to amend. It later entered
an order and certified it for immediate review pursuant to CR 54(b) as a final appealablejudgment. MOTION TO AMEND ANSWER Millerargues that the trial court manifestly abused its discretion by denying its motion for leave to amend the answer and affirmative defenses. Specifically, itargues that Washington law permits amendments to pleadings after remand and that the amendment is proper under CR 15. We hold that the trial court properly exercised its discretion when itdenied this motion. The decision to grant leave to amend pleadings is within the sound 

### discretion ofthetrial court.3 Whenreviewing the trial court'sdecision to grant or to deny leave to amend, the reviewing court applies a manifest abuse of discretion test.4 Our review ofthe trial court's exercise ofdiscretion is guided by principles 

### stated inIn re Marriage ofLittlefield and the authorities on which it relies.5 In that case, the supreme court stated: A court's decision is manifestly unreasonable if it is outside 

### the range ofacceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds ifthe factual 

### 3Hines v. Todd Pac. Shipyards Corp.. 127Wn. App. 356, 373-74, 112 P.3d 522 (2005). 4Herron v. Tribune Publ'q Co.. Inc., 108 Wn.2d 162, 165, 736 P.2d 249 

### (1987) (citing Del Guzzi Constr. Co. v. Global Nw.. Ltd.. 105 Wn.2d 878, 888, 719P.2d 120(1986)). 

### 5In re Marriage ofLittlefield. 133 Wn.2d 39, 940 P.2d 1362 (1997).No. 69606-8-1/5
findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not 

### meettherequirements ofthecorrect standard.[6] Here, the trial court correctly construed the remand to be about limited issues, not the whole case. At oral argument, the trial court stated: 

### And they knocked out a few things, which Ithink narrows it. In fact, they did take the time to narrow the issues on remand. 

### They didn't justsay it's a do-over, they said specifically what I'm to consider. They didn'tsay open up the record. They didn't 

### sayopen up discoveryagain. They said, directly, you need to find enough evidence, one way or the other.

But Ithink it would be absolutely prejudicial to allow the 

### amendment at this late stage inthe proceedings. It's likesaying 

## everything that [Miller's priorcounsel] did doesn'tcount.[7] The question is whether the trial court's decision is outside the range of acceptable choices, given ourpriordecision and the facts and the applicable legal standard. 

### Miller argues that "longstanding Washington law" broadly permits amendments to pleadings after remand, citing to various cases. McClincy 

### argues that because this case was remandedwith instructions toretry only certain discrete issues, circumstances in this case are "starkly different" from the 

### circumstances in the cases cited byMiller. Which ofthese contrasting views is correct under the circumstances ofthis case is at issue. 

### 6Id at 47 (citing Statev. Rundguist. 79Wn. App. 786, 793, 905P.2d 922 (1995)). 

### 7Report of Proceedings (Oct. 30, 2012) at 17 (emphasis added).No. 69606-8-1/6


### Neither party cites the supreme court'sopinion in Ennis v. Ring.8 Butdicta in that case supports the trial court's decision. 

### Thatcase involved two appeals.9 Theoriginal action was broughtbycourt commissioners for rent and for breach of lease.10 At the conclusion of the case, 

### thetrialjudgeentered ajudgmentofdismissal without prejudice.11 The supreme court, on the first appeal, reversed in part with instructions to grant a new trial 

### upon the causes ofaction which had beendismissed erroneously.12 On remand, the lessees amended their answerto include a counterclaim.13 The case was appealed a second time, and the plaintiffs urged that "the trial court should not 

### have permitted amendment ofthe answerto include an entirely new defense 

### afterremand for retrial onspecific issues."u In its opinion, thecourt stated: "We have no quarrel with this contention, in proper circumstances, but it is clear it 

### isnot applicable to theinstantcase."15 Although this statementwasdicta, it

856 Wn.2d 465, 341 P.2d 885 (1959). 9 Id at 469. 

### 10jd 11 Id 12 Id 13 Id 

### 14 Id. at 470 (emphasis in original). 15 Id.No. 69606-8-1/7
supports the trial court's exercise of discretion in this case. In sum, a "remand for retrial on specific issues" is different from a general remand. Nonetheless, even ifan amendment to a pleading in this circumstance is procedurally proper, the amendment is still governed by CR 15. Forthat reason,

we next consider the decision under that rule. CR 15(a) governs amendments of pleadings. The rule provides that leave 

### toamend "shall befreely given whenjustice so requires."16 Thepurpose ofthe rule is to "facilitate proper decisions on the merits, to provide parties with adequate notice ofthe basis for claims and defenses asserted against them, and to allow amendment ofthe pleadings except where amendment would result in 

### prejudice to theopposing party."17 The factors a court may consider indetermining prejudice include undue delay, unfair surprise, and whetherthe amendment is likely to result in jury 

### confusion, introduce remote issues, orlead to a lengthy trial.18 Thetiming ofa motion to amend pleadings, interms ofthe "progress oflitigation," may result in 

### prejudice butotherwise is notdispositive.19 Similarly, thefactthatanamendment could have been included in an earlier pleading will not preclude amendment

16 CR 15(a). 

### 17 Wilson v. Horslev. 137 Wn.2d 500, 505, 974 P.2d 316 (1999) (citing Caruso v. Local Union No. 690. 100 Wn.2d 343, 349, 670 P.2d 240 (1983)). 18 Herron, 108 Wn.2d at 165-66. 

### 19 ]d at 166 (citing Caruso. 100Wn.2d at 349-50)).No. 69606-8-1/8


### absentprejudice.20 Overall, the "touchstone" forthedenial ofa motion toamend is the prejudice such an amendmentwould cause to the nonmoving party.21 A 

### showing ofactual prejudice must rise beyond conclusory assertions.22 Here, the trial court explicitly stated that its justification for the court's denial ofthe motion was the prejudice that McClincy would endure: Idon't think that's what this opinion is telling me to do, is to reopen the record on all issues and allow [Miller] to plead affirmative defenses that were never pled by [Miller's prior counsel] in the first place. That'sprejudicial; that wouldbe a manifestabuse of discretion.[22] The trial court's determination of prejudice is well supported. McClincy's counsel argued to "[pjrove up affirmative defenses that were not pled require[s] 

### new discovery, new evidence, [and] new expense."24 He stated that"the prejudice is the time, the delay, and the extraordinary expense," and he argued 

### that"[McClincy] doesn't have theresources availableto[it]."25 McClincy also submitted a declaration from its attorney outlining the 

### impact ofsuch an amendment. McClincy's counsel indicated that some or all of the 13 witnesses who testified at trial would have to be re-deposed, and some or 

### 20 Caruso. 100 Wn.2d at 350. 21 Wilson. 137Wn.2dat505. 

### 22 See Walla v. Johnson, 50 Wn. App. 879, 884, 751 P.2d 334 (1988); Caruso. 100 Wn.2d at 351. 

### 23 Report ofProceedings (Oct. 30,2012) at 18. 24 ]d at 14. 25 Id.No. 69606-8-1/9

all would have to be recalled for trial testimony. He stated that even if Millerdid not intend to engage indiscovery, McClincy would still have to marshal evidence in opposition. Although McClincy was not able to pinpoint the exact cost of relitigating these issues, McClincy's arguments rise beyond mere conclusory assertions. McClincy clearly identifies each defense that will require new evidence and expert testimony. In Oliver v. Flow International Corp., this court held that the opponent's showing of prejudice was adequate to justify denial of a motion to amend the 

### complaintbecause "[a] new round ofdiscovery would have beennecessary."26 As discussed above, this would be a similar concern here. 

### Insum, given the trial court's concern about reopening the record, and McClincy's arguments that the amendment would be prejudicial, the trial court did not manifestly abuse its discretion when itdenied Miller's motion. 

### Miller makes a number ofarguments that the amendment is proper under 

### CR 15, but they are not persuasive. Accordingly, we reject all of them. First, Miller argues thatthere is no prejudice to McClincy because 

### McClincy did not object to Miller'sjurydemand. That is irrelevant. Equally irrelevant is that no trial date has been set. The issue is not whether McClincy 

### would have ample time to conduct discovery, amend its complaint, or identify

26 137 Wn. App. 655, 664, 155 P.3d 140 (2006).No. 69606-8-1/10



### new witnesses. Rather, the issue is whether McClincy would have to do this at all. Thus, Miller's arguments are not helpful. Second, Millercontends that McClincy's argument that itwill have to reopen discovery at enormous cost is made "without any evidentiary support, and fails to acknowledge recoveries by [McClincy]." But, as discussed above, the declaration submitted by McClincy's counsel, as well as the arguments made at oral argument, both demonstrate the expense that McClincy might incur if discovery was reopened. Although McClincy could not pinpoint the cost, this showing was adequate. Additionally, Miller's suggestion that McClincy could
move for a protective order is irrelevant. Millercites no authority for the proposition that this is the "proper remedy" for potential prejudice, or that this is to be considered in a CR 15 analysis when determining whetherthe opposing party 

### will sufferprejudice. Thus, we rejectthesearguments.27 Third, Millerargues that the evidence establishes that "Miller, and not 

### [McClincy], would be severely prejudiced ifMillerwere forced to try this matter without some limited discovery." But again, Millerhas cited no authority that 

### requires a courtto consider prejudice to the moving party or that instructs a court to weigh the competing prejudices. 

### Fourth, Miller argues that many ofthese defenses are now appropriate "in 

### light of the changed procedural posture of the case" and that the issues are "now

27 State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990): Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
10No. 69606-8-1/11
reconfigured." Miller's argument has no weight. As discussed above, the issues
are not "reconfigured" on remand. Finally, Millerargues that several ofthe affirmative defenses are proper under CR 15(b), which provides that "[w]hen issues not raised [in] the pleadings
are tried by express or implied consent of the parties, they shall be treated as if 

### they had beenraised in thepleadings."28 Millerargues that a numberofthese defenses "merely formalize arguments previously made by Miller." Under CR 15(b), "failure so to amend does not affect the result ofthe trial of [those] issues." Accordingly, whether McClincy impliedly consented to any of these defenses must still be addressed. In determining whetherthe parties impliedly tried an issue, an appellate 

### courtwill consider the record as a whole.29 Butthe record that is presently before this court in this review is very limited. Itobviously is not the same record that was before this court on the prior review. Thus, we are not able to make the determination about which ofthese defenses, ifany, were impliedly consented to 

### by McClincy inthe prior trial. The trial court is inthe best position to make this determination in the first instance. We defer to the trial court to make that determination in this case. 

### In this court's prior opinion, this court expressly directed the trial court, on remand, to considerwhether Millerwaived one ofthese defenses (service of

28 CR 15(b). 

### 29 Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999). 11No. 69606-8-1/12
process). The trial court indicated in its oral ruling that itwould follow this court's instructions: "I'm going to just go paragraph by paragraph, based on what their 

### remand directs thisCourttodo."30 Accordingly, evenifMiller's answer does not formally reflect the addition ofthese defenses, the trial court willconsider the relevant defenses, including any defenses that may have been impliedly consented to, on remand. In sum, we conclude that the trial court did not manifestly abuse its discretion indenying the motion for leave to amend. McClincy would be 

### prejudiced by such an amendment. Further, whetherthere is a formal amendment does not affect the trial court's limited review and consideration of the relevant issues. WAIVER, COLLATERAL ESTOPPEL, AND STARE DECISIS 

### McClincyargues thatthe proposed affirmative defenses are barred by 

### waiver, by the doctrine of collateral estoppel, and bystare decisis. Because of
our disposition, we need not address these arguments. We affirmthe orderdenying the motion to amend. 

# X

WE CONCUR: 

## '-US^t-y

# Aca: tyjud^

30 Report of Proceedings (Oct. 30, 2012) at 17. 12