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Ford v. Architectural Door & Millwork12/28/2004
The only evidence to which plaintiff points as compelling a verdict in his favor is that a witness, Patrick Conway, a Blackwell Vice-President, testified that the woodwork was, in fact, defective. That, however, to some extent mischaracterizes Conway's testimony and certainly takes it out of context. Conway did testify that there were machine marks on the wood from the milling process. Conway's "admission" that it was a defect, however, came in response to plaintiff's counsel insisting that it was a defect and Conway saying that if counsel wanted to categorize it as a defect, that was fine. Conway went on to testify later that any wood product is going to have natural defects and marks will be left on the wood during the milling process and that it is necessary to properly prepare the wood prior to installation and painting. In short, wood products are never delivered in perfect condition and appropriate preparation by the installer is necessary and appropriate. It was Conway's contention that the product that was delivered was not properly prepared by plaintiff's subcontractors. This testimony is not inconsistent with the jury's verdict that Blackwell was not negligent in the manufacture of the product.
Conflicting evidence was presented at trial regarding the source of the problem and who was responsible for it. Additionally, the jury had the opportunity to view the product. In short, it was reasonable for the jury to conclude that the product was delivered in acceptable condition and that either the finished product was within the range of imperfection that one must accept from a wood product or that there was a problem but that the problem was due to plaintiff's subcontractors failing to properly prepare the casings for installation and painting. In any event, the verdict was not against the great weight of the evidence.
Plaintiff's final argument is that the trial court erred in denying his motion to amend the complaint to add a claim against Blackwell alleging a breach of implied warranty. The decision to allow an amendment to the pleadings is entrusted to the trial court's discretion. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973). The motion came on the sixth day of trial and the trial court denied it as being "tardy." We are not persuaded that the trial court abused its discretion in denying the motion. First, the motion was extremely untimely. Second, despite plaintiff's arguments to the contrary, there is inherent prejudice to a party in adding a legal theory part way through trial. How a case is tried is dependent upon the claims that are made. Changing those claims necessitate a change in strategy. Plaintiff points to no reason why the claim could not have been made before trial commenced. Indeed, plaintiff's explanation in his brief on appeal for seeking to add the claim is that he did so "upon conducting further research and discovering that a tort-based claim against Blackwell-Conway is unavailable pursuant to the 'economic loss doctrine.' " Plaintiff should have done his further research before the sixth day of trial. In short, it is true that delay alone is not grounds to deny a motion to amend. Fyke, supra at 663-664. But delay "is an especially pertinent factor on the eve of, during, or after trial. Id. at 663. We are not persuaded that the trial court abused its discretion.
Moreover, even if the trial court should have allowed the amendment, any error is harmless. This claim would have required a finding that Blackwell was negligent in the manufacture of the casings and, as noted above, the jury determined that it was not. There is no reason to believe that this theory would have been any more successful than those that were presented to
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