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Apodaca v. AAA Gas Co.3/11/2003
), once an answer has been filed, the decision to allow an amended complaint rests solely within the sound discretion of the trial court. Schmitz v. Smentowski, 109 N.M. 386, 390, 785 P.2d 726, 730 (1990); Vernon Co. v. Reed, 78 N.M. 554, 555, 434 P.2d 376, 377 (1967). Although the Rule expressly states that amendments should be given liberally, the "den[ial of] permission to amend is subject to review only for a clear abuse of discretion." Id.; Schmitz, 109 N.M. at 390, 785 P.2d at 730. " n abuse of discretion is said to occur when the court exceeds the bounds of reason, all the circumstances before it being considered." Clancy v. Gooding, 98 N.M. 252, 255, 647 P.2d 885, 888 (Ct. App. 1982) (internal quotation marks omitted) (quoting Acme Cigarette Servs., Inc. v. Gallegos, 91 N.M. 577, 577 P.2d 885 (Ct. App. 1978)).
The court ruled, without elaboration, that an amendment would prejudice the parties because it would cause an estimated two year delay in the resolution of the case. Considering the facts and circumstances before the court, we conclude that the decision was not unreasonable.
The explosion occurred in July 1997, over three years before the scheduled trial date. While Plaintiffs officially intervened eighteen months after the Valencia County complaint was filed, the court was presented with evidence at the hearing that Plaintiffs' counsel were actually involved in representing their clients less than two weeks after the explosion. After Plaintiffs intervened, the Valencia trial was continued at least three times. During argument on the Rule 1-015(A) motion, Plaintiffs' counsel admitted to the court that the facts underlying the motion to amend were always there-Plaintiffs were just "bundling them in a different theory." The three year delay in getting the case to trial combined with the arguments suggesting LPGE would need a continuance to assess its position, develop facts and a defense, and determine what claims could be asserted by way of a third-party complaint against Fisher Controls, as well as the prospective burden of additional costs and expenses to the parties, were proper reasons to deny the motion to amend. Accordingly, we hold that the court did not abuse its discretion in denying Plaintiffs leave to amend under Rule 1-015(A).
We also find that the court did not abuse its discretion under Rule 1-015(B). Rule 1-015(B) allows " mendments to conform the pleadings to the evidence . . . when the issues are tried by the express or implied consent of the parties." Schmitz, 109 N.M. at 390, 785 P.2d at 730. Implied consent to a new theory is generally absent when the evidence is relevant to other pleaded issues. Id.; Wynne v. Pino, 78 N.M. 520, 523, 433 P.2d 499, 502 (1967). Nonetheless, " ven if the party has not consented to amendment, a trial court is required to allow it freely if the objecting party fails to show he will be prejudiced thereby." Schmitz, 109 N.M. at 390, 785 P.2d at 730 (emphasis added). "The test of prejudice is whether the [opposing] party had a fair opportunity to defend and whether [they] could offer additional evidence on the new theory." Id. at 391, 785 P.2d at 731; Wynne, 78 N.M. at 523, 433 P.2d at 502.
LPGE argues, and the trial court agreed, that LPGE never consented to try the UPA claims. To the contrary, LPGE strenuously objected to trying this claim. The failure to object to the admission of the evidence which would support that claim cannot now be used to show consent since the evidence was relevant to other pleaded issues. Although LPGE clearly did not consent to try the theory, it never argued how it would be prejudiced if the amendment was allowed at that time. Plaintiffs had a duty to raise this issue to aler
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