§15.7 Significant Authorities

• Jurisdiction: Washington

§15.7SIGNIFICANT AUTHORITIES

Significant authorities construing CR 15 and FED. R. CIV. P. 15 are set out topically below.

(1)Comparison with federal rule

Federal court construction is useful in evaluating problems relating to CR 15. Harding v. Will, 81 Wn.2d 132, 135 n.2, 500 P.2d 91 (1972).

Inexcusable neglect is not a consideration for FED. R. CIV. P. 15(c) relation-back analysis. Krupski v. Costa Crociere, S.p.A., 560 U.S. 538, 130 S. Ct. 2485, 2496, 177 L. Ed. 2d 48 (2010); cf. Perrin v. Stensland, 158 Wn.App. 185, 240P.3d1189 (2010) (and cases discussed therein). See generally §15.6(4)(d), above.

(2)Distinction between amended and supplemental pleadings

A supplemental pleading does not replace the pleading that came before—it is merely an addition to or continuance of the earlier pleading. Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 736P.2d249 (1987).

The purpose of a supplemental pleading is to update a pleading to include facts and events occurring after the filing of the original pleading. Herron, 108 Wn.2d 162.

(3) Pleadings that may be amended or supplemented

A party's failure to assert a counterclaim or affirmative defense at a mandatory arbitration does not automatically preclude the party's assertion of such claims for the first time in a subsequent trial de novo. Wilson v. Horsley, 87 Wn.App. 563, 942P.2d1046 (1997), aff'd in part, rev'd in part on other grounds, 137 Wn.2d 500, 974P.2d316 (1999).

Under CR 15(a), parties may amend to join a declaratory action to a motion to confirm an arbitration award. Sherry v. Fin. Indem. Co., 160 Wn.2d 611, 617-18, 160P.3d31 (2007).

CR 15 does not apply to lien foreclosures or other special proceedings to which the civil rules are inapplicable. Schumacher Painting Co. v. First Union Mgmt., Inc., 69 Wn.App. 693, 700, 850P.2d1361, review denied, 122 Wn.2d 1013 (1993); CR 81.

CR 15 does not apply to proceedings before administrative agencies. Russell v. Dep't of Human Rights, 70 Wn.App. 408, 413, 854P.2d1087 (1993), review denied, 123 Wn.2d 1011 (1994); see CR 1.

(4)Service of amended or supplemental pleadings and related motions

The amendment filed and served must conform to the proposal approved by the court. Will v. Frontier Contractors, Inc., 121 Wn.App. 119, 128, 89 P.3d 242 (2004), review denied, 153 Wn.2d 1008 (2005).

(5)Response to amended or supplemental pleadings

The trial courthas discretion to reject an untimely response. Cellular Eng'g, Ltd. v. O'Neill, 118 Wn.2d 16, 820 P.2d 941 (1991).

(6)Policies underlying CR 15

CR 15 is designed to avoid "the tyranny of formalism" that characterized former practice. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987).

(7)Amendments under CR 15(a)

When a party files an amended pleading that deletes a former cause of action, the original pleading is considered abandoned and ceases to perform any function. Fluke Capital & Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 724 P.2d 356 (1986).

(a)Amendment as a matter of right

If counsel serves an amendment that cannot be made as of course without first obtaining the court's leave or the opposing party's consent, it is without legal effect. Williams v. Bank of Cal., N.A., 96 Wn.2d 860, 639P.2d1339 (1982).

(b)Amendment by leave of court

Whether an amendment involves new claims or new parties, CR 15(c) will be liberally construed to permit the amendment to relate back to the original pleading if the opposing party will be put to no disadvantage. Lind v. Frick, 15 Wn.App. 614, 617, 550P.2d709 (1976), review denied, 88 Wn.2d 1001 (1977) (substitution of personal representative as real party in interest) (citing DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 427P.2d728 (1967) (pre-CR 15; relying on commentary in Moore's Federal Practice concerning the analogous federal rule), review denied, 88 Wn.2d 1001 (1977)); Perrin, 158 Wn.App. at 194 (same) (citing DeSantis, 71 Wn.2d 222); Kiehn v. Nelsen's Tire Co., 45 Wn.App. 291, 724P.2d434 (1986) (new party), review denied, 107 Wn.2d 1021 (1987).

The burden of proof is on the party seeking the relation back of an amendment to prove the conditions necessary under CR 15(c) for relation back. Segaline v. State, Dept. of Labor & Indus., 169 Wn.2d 467, 477, 238 P.3d 1107 (2010); Foothills Dev. Co. v. Clark Cnty. Bd. ofCnty. Comm'rs, 46 Wn.App. 369, 375, 730 P.2d 1369 (1986), review denied, 108 Wn.2d 1004 (1987); Anderson v. Nw. Handling Sys., Inc., 35 Wn.App. 187, 191, 665 P.2d 449 (1983).

(c)Discretion of the trial court to grant motions to amend

The amendment of pleadings is addressed to the sound discretion of the trial court. Lincoln v. Transam. Inv. Corp., 89 Wn.2d 571, 573 P.2d 1316 (1978).

The decision whether to grant a continuance after permitting an amendment is an exercise of discretion and will not be disturbed except for manifest abuse. In re Pawling, 101 Wn.2d 392, 679P.2d916 (1984).

CR 15 must be liberally applied in favor of permitting amendment. E.g., Sanwick v. Puget Sound Title Ins. Co., 70 Wn.2d 438, 445, 423P.2d624 (1967); Culpepper v. Snohomish Cnty. Dep't of Planning & Cmty Dev., 59 Wn.App. 166, 169, 796P.2d1285 (1990), review denied, 116 Wn.2d 1008 (1991).

(d)Appellate review of rulings on motions to amend

The decision to proceed with the introduction of evidence on a theory that has not been pleaded or to grant a continuance is addressed to the sound discretion of the trial court and will not be disturbed on appeal except for manifest abuse of discretion. The test is whether the opposing party is prepared to meet the new issue. Morgan Bros. v. Haskell Corp., 24 Wn.App. 773, 780, 604P.2d1294 (1979).

Acourt's failure to state a reason on the record for denying leave to amend is an abuse of discretion, because the court on appeal cannot tell whether the motion was denied on a legitimate basis. Rodriguez v. Loudeye Corp., 144 Wn.App. 709, 729, 189P.3d168 (2008) (citing Tagliani v. Colwell, 10 Wn.App. 227, 233, 517P.2d207 (1973), and Walla v. Johnson, 50 Wn.App. 879, 883, 751P.2d334 (1988)); accord Estate of Haselwood v. Bremerton Ice Arena, Inc., 137 Wn.App. 872, 890, 155P.3d952 (2007), aff'd, 166 Wn.2d 489, 210P.3d308 (2009).

If the party opposing a motion to amend fails to request a continuance at the time the motion is granted, that party effectively waives his or her right to appeal the decision granting the amendment. Thomas v. French, 30 Wn.App. 811, 817, 638 P.2d 613 (1981), rev'd on other grounds, 99 Wn.2d 95,659 P.2d 1097 (1983) (amendment ostensibly under CR 15(a)); V. C. Edwards Contracting Co. v. Port ofTacoma, 83 Wn.2d 7, 14, 514 P.2d 1381 (1973) (applying CR 15(b)); accord Daves v. Nastos, 105 Wn.2d 24, 27, 711 P.2d 314 (1985).

Like the decision to grant leave to amend, the decision to grant a continuance is an exercise of discretion and will not be disturbed except for manifest abuse. E.g., Pawling, 101 Wn.2d at 395-96.

The decision to proceed with the introduction of evidence on a theory that has not been pleaded or to grant a continuance is addressed to the sound discretion of the trial court and will not be disturbed on appeal except for manifest abuse of discretion. The test is whether the opposing party is prepared to meet the new issue. Morgan Bros., 24 Wn.App. at 780.

After the lower tribunal's proceedings are concluded, it is too late to amend if no such amendment was previously sought. Ino Ino, Inc. v. City ofBellevue, 132 Wn.2d 103, 142, 937P.2d154 (1997), amended, 943P.2d1385, cert, denied, 522 U.S. 1077 (1998).

Failure to amend under CR 15(b) does not affect the result of the trial regarding issues not formally raised in pleadings but resolved at trial. Accordingly, a party's failure to move to amend the pleadings to conform to the evidence as developed at trial does not foreclose an appellate court from considering the issue. Wright v. Dave Johnson Ins. Inc., 167 Wn.App. 768, 773 n.7, 275P.3d339, review denied, 175 Wn.2d 1008 (2012).

A party's failure to request an amendment makes it impossible to argue on appeal that the Disciplinary Board abused its discretion in failing to exercise its authority sua sponte. In re Disciplinary Proceedings Against Bonet, 144 Wn.2d 502, 29P.3d1242 (2001).

The decision whether to permit relation back under CR 15(c) rests within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion or a failure to exercise discretion. Kommavongsa v. Haskell, 149 Wn.2d 288,295,67P.3d1068 (2003); Caruso v. Local Union No. 690 oflnt'l Bhd. of Teamsters, 100 Wn.2d 343, 670P.2d240 (1983).

An abuse of discretion exists when the trial court's ruling is based on a hypertechnical application of the rule to a nonprejudicial error that has the sole effect of denying a party his or her day in court. Culpepper, 59 Wn.App. 166, 176, 796P.2d1285 (1990).

(e)Reasons for denying motions to amend Futility of proposed amendment

It is an error to permit amendment to add a futile claim. Ino Ino, 132 Wn.2d at 142; Shelton v. Azar, Inc., 90 Wn.App. 923, 926, 954 P.2d 352 (1998); Travis v. Tacoma Pub. Sch. Dist, 120 Wn.App. 542, 554, 85 P.3d 959, 966 (2004).

Failure to cite legal authority in support of proposed claim renders amendment futile. Carillo v. City of Ocean Shores, 122 Wn.App. 592, 94 P.3d 961 (2004).

A party's request to amend to cure any deficiencies in the complaint is futile when that party does not specify the proposed amendment. Matsyuk v. State Farm Fire & Cas. Co., 155 Wn.App. 324, 338-39, 229 P.3d 893 (2010), rev'd on other grounds, 173 Wn.2d 643, 272P.3d802 (2012).

Prejudice to nonmoving party

"The touchstone for denial of an amendment is the prejudice such amendment would cause the nonmoving party." Caruso, 100Wn.2d at 350; accord Herron, 108 Wn.2d 162.

It is an abuse of discretion to deny a motion for leave to amend when no prejudice to the opposingparty...