SlAi E Or WASHlnG 111:

2013 DEC 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UNPUBLISHED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 earlier appeal, reversal, and remand in part, for further proceedings.1

On remand, Miller Roofing Enterprises Inc. moved for leave to amend its answer.

Because the trial court properly exercised its discretion in denying Miller's

request to add 12 new affirmative defenses, we affirm.

This action arose out of a series of contracts 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 final judgment in favor of

McClincy in the amount of $1,388,193.59. Miller appealed, 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reversed in part in an unpublished decision.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 particular finding, and it reversed the judgment to the

extent of that claim.

As to the oral contract claims, this court held that it was unclear whether

these claims were barred by the statute of limitations, whether Millerwaived the

affirmative defense of untimely service of process, and when McClincy had

notice of the defects underlying its claims. This court noted that the damages on

which the breach of written contract claim was based were not segregated from

the damages awarded for the breach of the oral contract claims. Accordingly,

this court reversed the judgment on the two oral contract claims and remanded

for further proceedings. In no way can the prior decision of this court be

reasonably read as a "do-over" of the entire original trial.

In July 2012, following remand, Miller moved to amend its answer to

assert 12 new affirmative defenses in addition to the seven defenses it previously

asserted in the original trial. These new defenses included:

(8) Untimely service of process.

(9) Untimely notice of alleged defects.

(10) There is a lack of privity between Plaintiff McClincy

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 of this 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 will result 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 of the building(s) and any

adverse effect is merely technical and not significant

to a reasonable person.[2]

In its motion for leave to amend, Miller argued that several of these

defenses were "formalizing arguments made by Miller previously."

McClincy opposed the motion. McClincy correctly argued that the prior

decision of this court limited the scope of issues to be addressed on remand.

McClincy also argued that allowing the amendment would be prejudicial, that

Miller waived these affirmative defenses, and that the defenses were barred by

the doctrine of collateral 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

appealable judgment.

MOTION TO AMEND ANSWER

Miller argues that the trial court manifestly abused its discretion by

denying its motion for leave to amend the answer and affirmative defenses.

Specifically, it argues 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 it denied this motion.

The decision to grant leave to amend pleadings is within the sound

discretion ofthe trial court.3 When reviewing the trial court's decision to grant or

to deny leave to amend, the reviewing court applies a manifest abuse of

discretion test.4

Our review of the trial court's exercise of discretion is guided by principles

stated in In re Marriage of Littlefield 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 of acceptable choices, given the facts and the applicable

legal standard; it is based on untenable grounds ifthe factual

3Hines v. Todd Pac. Shipyards Corp.. 127 Wn. App. 356, 373-74, 112

P.3d 522 (2005).

4 Herron 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)).

5 In re Marriage of Littlefield. 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

meetthe requirements ofthe correct 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't say open up the record. They didn't

say open up discovery again. 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 in the proceedings. It's like saying

everything that [Miller's prior counsel] did doesn't count.[7]

The question is whether the trial court's decision is outside the range of

acceptable choices, given our prior decision 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 remanded with instructions to retry only

certain discrete issues, circumstances in this case are "starkly different" from the

circumstances in the cases cited by Miller. Which ofthese contrasting views is

correct under the circumstances of this case is at issue.

6Id at 47 (citing State v. Rundguist. 79Wn. App. 786, 793, 905 P.2d 922

(1995)).

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

Neither party cites the supreme court's opinion in Ennis v. Ring.8 But dicta

in that case supports the trial court's decision.

That case involved two appeals.9 The original action was brought by court

commissioners for rent and for breach of lease.10 At the conclusion of the case,

the trial judgeentered a judgment ofdismissal without prejudice.11 The supreme

court, on the first appeal, reversed in part with instructions to grant a new trial

upon the causes of action which had been dismissed erroneously.12 On remand,

the lessees amended their answer to include a counterclaim.13 The case was

appealed a second time, and the plaintiffs urged that "the trial court should not

have permitted amendment of the answer to include an entirely new defense

afterremand for retrial on specific issues."u In its opinion, the court stated:

"We have no quarrel with this contention, in proper circumstances, but it is clear it

is not applicable to the instant case."15 Although this statement was dicta, it

8 56 Wn.2d 465, 341 P.2d 885 (1959).

9 Id at 469.

10 jd

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 if an amendment to a pleading in this circumstance is

procedurally proper, the amendment is still governed by CR 15. For that reason,

we next consider the decision under that rule.

CR 15(a) governs amendments of pleadings. The rule provides that leave

to amend "shall be freely given when justice so requires."16 The purpose ofthe

rule is to "facilitate proper decisions on the merits, to provide parties with

adequate notice of the basis for claims and defenses asserted against them, and

to allow amendment of the pleadings except where amendment would result in

prejudice to the opposing party."17

The factors a court may consider in determining prejudice include undue

delay, unfair surprise, and whether the amendment is likely to result in jury

confusion, introduce remote issues, or lead to a lengthy trial.18 The timing ofa

motion to amend pleadings, in terms of the "progress of litigation," may result in

prejudice but otherwise is not dispositive.19 Similarly, the fact that an amendment

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. 100 Wn.2d at 349-50)).
No. 69606-8-1/8

absent prejudice.20 Overall, the "touchstone" for the denial ofa motion to amend

is the prejudice such an amendmentwould cause to the nonmoving party.21 A

showing of actual prejudice must rise beyond conclusory assertions.22

Here, the trial court explicitly stated that its justification for the court's

denial of the motion was the prejudice that McClincy would endure:

I don'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's prejudicial; that would be a manifest abuse 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 the resources available to [it]."25

McClincy also submitted a declaration from its attorney outlining the

impact of such 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 of Proceedings (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 in discovery, 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

complaint because "[a] new round ofdiscovery would have been necessary."26

As discussed above, this would be a similar concern here.

In sum, 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 it denied Miller's motion.

Miller makes a number of arguments that the amendment is proper under

CR 15, but they are not persuasive. Accordingly, we reject all of them.

First, Miller argues that there is no prejudice to McClincy because

McClincy did not object to Miller's jury demand. 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, Miller contends that McClincy's argument that it will 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. Miller cites 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 whether the opposing party

will suffer prejudice. Thus, we reject these arguments.27

Third, Miller argues that the evidence establishes that "Miller, and not

[McClincy], would be severely prejudiced if Miller were forced to try this matter

without some limited discovery." But again, Miller has cited no authority that

requires a court to consider prejudice to the moving party or that instructs a

court to weigh the competing prejudices.

Fourth, Miller argues that many of these 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).

10
No. 69606-8-1/11

reconfigured." Miller's argument has no weight. As discussed above, the issues

are not "reconfigured" on remand.

Finally, Miller argues that several of the 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 been raised in the pleadings."28 Miller argues that a number ofthese

defenses "merely formalize arguments previously made by Miller."

Under CR 15(b), "failure so to amend does not affect the result of the trial

of [those] issues." Accordingly, whether McClincy impliedly consented to any of

these defenses must still be addressed.

In determining whether the parties impliedly tried an issue, an appellate

court will consider the record as a whole.29 But the record that is presently

before this court in this review is very limited. It obviously 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 of these defenses, if any, were impliedly consented to

by McClincy in the prior trial. The trial court is in the 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 consider whether Millerwaived one of these 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).

11
No. 69606-8-1/12

process). The trial court indicated in its oral ruling that it would follow this court's

instructions: "I'm going to just go paragraph by paragraph, based on what their

remand directs thisCourt to do."30 Accordingly, even if Miller's answer does not

formally reflect the addition of these defenses, the trial court will consider 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 in denying the motion for leave to amend. McClincy would be

prejudiced by such an amendment. Further, whether there 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

McClincy argues that the proposed affirmative defenses are barred by

waiver, by the doctrine of collateral estoppel, and by stare decisis. Because of

our disposition, we need not address these arguments.

We affirm the order denying the motion to amend.

X

WE CONCUR:

'-US^t-y Aca: tyjud^

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

12