                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                WEST COAST PAVING, INC.,                             No. 67877
                Appellant,
                vs.
                ENGINEERED STRUCTURES, INC.;
                                                                          FILED
                AND PETRO WEST, INC., A UTAH
                CORPORATION,
                                                                          JUL 2 8 2016
                                                                               E K. NDEMAN
                Respondents.
                                                                         CHI   DEP.
                                                                                           t
                                       ORDER OF AFFIRMANCE
                                                                               DE     -r


                            This is an appeal from a final judgment and an order denying
                a post-judgment motion for a new trial in a contract and tort action.
                Second Judicial District Court, Washoe County; Connie J. Steinheimer,
                Judge.
                            Smith's Food & Drug Centers, Inc. (Smith's) hired Engineered
                Structures, Inc., (ESI) as the general contractor for the development and
                construction of a gas station. ESI then hired subcontractors Petro West,
                Inc., (Petro West) and West Coast Paving, Inc., (West Coast) to perform
                various tasks associated with installing underground fuel tanks. During
                installation, one of the tanks was damaged. When ESI refused to
                compensate Petro West for the installation, Petro West filed a complaint
                against ESI and Smith's. ESI filed a counterclaim against Petro West. On
                March 2, 2012, Petro West filed a third-party complaint against West
                Coast for indemnity The district court subsequently issued a scheduling
                order, setting a January 19, 2013, deadline for filing motions to amend
                pleadings or add parties. Beginning on June 10, 2013, the district court
                held a three-day bench trial. Following the close of evidence, ESI made an
                oral motion pursuant to NRCP 15(b) to amend its counterclaim to add
                West Coast as a counter-defendant. The district court granted ESI's
SUPREME COURT
        OF
     NEVADA


(0) 1947A                                                                      ico-23F-A
                motion to amend, and issued a judgment holding West Coast partially
                liable. West Coast appeals.
                           West Coast argues that the district court abused its discretion
                in granting ESI's motion to amend its counterclaim to name West Coast as
                a counter-defendant because the motion disregarded the scheduling order
                deadlines pursuant to NRCP 16(b). We disagree. The district court acted
                within its ample discretion in granting West Coast's motion to amend
                because the amendment sought to align the pleadings with the issues
                adduced at trial.   See NRCP 15(b) (providing that amendment "may be
                necessary to cause [the pleadings] to conform to the evidence and to raise
                these issues may be made upon motion of any party at any time, even
                after judgment"); see also State, Univ. & Ginty. Coll. Sys. v. Sutton,   120

                Nev. 972, 988, 103 P.3d 8, 19 (2004) (concluding that an order granting a
                motion to amend a pleading is reviewed for an abuse of discretion); Cole v.
                Layrite Prods. Co., 439 F.2d 958, 961 (9th Cir. 1971) (interpreting the
                federal counterpart to NRCP 15(b), and stating that "[i]t is well settled
                that the amendment of pleadings to conform to proof under Rule 15(b) of
                the Federal Rules of Civil Procedure rests in the sound discretion of the
                trial court"); Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005)
                ("[F]ederal decisions involving the Federal Rules of Civil Procedure
                provide persuasive authority when this court examines its rules.").
                            West Coast argues that it was prejudiced by the amendment
                to the counterclaim. However, the parties addressed West Coast's
                participation in damaging the tanks during trial, and a West Coast
                employee testified to the same.   See Jeong v. Minn. Mitt. Life Ins. Co., 46
                Fed. Appx. 448, 450 (9th Cir. 2002) (providing that FRCP 15(b)
                amendment is proper unless it results in prejudice, and that when

SUPREME COURT
       OF
    NEVADA
                                                     2
10) W47A
                  considering prejudice, a court should evaluate "the opposing party's ability
                  to respond and its conduct of the case, not whether the amendment led to
                  an unfavorable verdict"); see also Campbell v. Bd. of Trs. of Leland
                  Stanford Junior Univ., 817 F.2d 499, 506 (9th Cir. 1987) (providing that
                  FRCP 15(b) permits amendment unless the issues were "only inferentially
                  suggested by incidental evidence in the record"). Therefore, West Coast
                  was not unfairly prejudiced by the amendment.'
                              Accordingly, we
                              ORDER the judgment of the district court AFFIRMED.




                                                                                      J.



                                                                                  ,   J.




                                                      Gibbons


                  cc:   Hon. Connie J. Steinheimer, District Judge
                        Madelyn Shipman, Settlement Judge
                        Stephenson & Dickinson
                        Erickson Thorpe & Swainston, Ltd.
                        Clarkson Draper & Beckstrom, LLC
                        Hoy Chrissinger Kimmel, PC
                        Washoe District Court Clerk


                         'We have considered the parties' remaining arguments and conclude
                  that they are without merit.

SUPREME COURT
        OF
     NEVADA
                                                        3
(0) 1947A    e,
