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Evans v. B&E Pace Investment LLC

Court of Appeals of Utah

March 8, 2018

Paul Evans, Jeanette Evans, and Kern River Gas Transmission Co., Appellants,
v.
B&E Pace Investment LLC, GSH Geotechnical Inc., Sky Properties Inc., Eaglepointe Development LC, Smoot Real Estate, Ralph Cannon Real Estate, and Wilford W. Cannon, Appellees.

         Second District Court, Farmington Department The Honorable Michael G. Allphin No. 150700392

          Brent O. Hatch and Shaunda L. McNeill, Attorneys for Appellants Paul Evans and Jeanette Evans

          John A. Snow, Alex B. Leeman, John A. Hutchings, and Burton G. Davis, Attorneys for Appellant Kern River Gas Transmission Co.

          Benson L. Hathaway Jr., Analise Q. Wilson, and Ryan R. Beckstrom, Attorneys for Appellees B&E

          Pace Investment LLC, Sky Properties Inc., Eaglepointe Development LC, Smoot Real Estate, Ralph Cannon Real Estate, and Wilford W. Cannon

          Craig C. Coburn and Brian D. Bolinder, Attorneys for Appellee GSH Geotechnical Inc.

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

          HARRIS, JUDGE

         ¶1 Permission to amend pleadings should be "freely give[n], " see Utah R. Civ. P. 15(a)(2), especially where permission is sought at or near the end of fact discovery, before expert discovery, before any trial date has been set, and where the grounds for at least some of the amendments were first discovered only weeks before the end of the fact discovery period. Under the circumstances of this case, we conclude that the district court exceeded its discretion when it denied two motions to amend, and therefore reverse.

         BACKGROUND

         ¶2 On August 5, 2014, a massive landslide (the Landslide) decimated a hillside in North Salt Lake, Utah. The Landslide was approximately 500 feet wide, 500 feet long, and 60 feet deep, and displaced between 300, 000 and 400, 000 cubic yards of earth and debris. Among the properties located near the bottom of the Landslide was a residential home owned by Paul and Jeanette Evans (collectively, Evans) and a tennis club (the Tennis Club). Both Evans and the Tennis Club claim that their properties were damaged by the Landslide.

         ¶3 On April 21, 2015, the Tennis Club sued the City of North Salt Lake, various developers and real estate entities (Developers), and John Does[1] for causes of action related to the Landslide. Developers soon answered, and filed counterclaims against the Tennis Club as well as third-party claims against various entities, including Kern River Gas Transmission Co. (Kern River), GSH Geotechnical Inc. (GSH), [2] and Evans. In July 2015, Evans answered Developers' claims, and also filed counterclaims against Developers and various John Does for, among other things, negligence, nuisance, breach of fiduciary duty, and fraudulent non-disclosure. Later, in January 2016, the district court consolidated into this action a separate lawsuit filed by Kern River against Developers and GSH, in which Kern River brought claims for negligence, nuisance, and injunctive relief. After the consolidation, the lawsuit then pending before the district court involved, by our count, seventeen parties represented by fifteen different law firms.

         ¶4 In February 2016, the district court entered a stipulated case management order that arranged the various parties involved in the litigation into ten different "sides, " and allowed for each "side" to conduct five elective depositions, over and above twenty-eight depositions that all parties agreed were essential. The order set the fact discovery deadline for September 30, 2016; the expert discovery deadline for April 28, 2017; and the deadline for dispositive motions for May 31, 2017. The district court subsequently extended each of those deadlines by ninety days, with the close of fact discovery set to occur around the end of December 2016.

         ¶5 Although the case management order makes no mention of it, the parties (apparently on their own) mutually decided to work toward a mediation and, in an effort to limit litigation costs, agreed that, prior to the mediation, they would limit themselves to written discovery and to six or seven depositions that were deemed the most critical. After completing that limited discovery, the parties attempted mediation as scheduled in June 2016, but were unable to reach a settlement at the mediation conference. The parties did not completely abandon settlement efforts, however; ...


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