Bujanda v. Montgomery Ward & Co., 609 P.2d 584 (Ariz. Ct. App. 1980). · Go Syfert
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Bujanda v. Montgomery Ward & Co., 609 P.2d 584 (Ariz. Ct. App. 1980). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …during or after the presentation of evidence pursuant to civil rule 15(b) at p. 316 ⚠ not in text
26 citation events (20 in the last 25 years) across 2 distinct courts.
Strongest positive: In Re Dependency as to A.B. and A.B. (arizctapp, 2024-04-09)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) In Re Dependency as to A.B. and A.B.
Ariz. Ct. App. · 2024 · confidence medium
Leave to amend to conform to the evidence should be liberally granted absent prejudice, Bujanda v. Montgomery Ward & Co., 125 Ariz. 314, 316 (App. 1980), such as the deprivation of an opportunity to factually challenge a new dependency theory, see Carolina H. v. Ariz. Dep’t of Econ.
discussed Cited as authority (rule) In Re Dependency of A.B. and A.B.
Ariz. Ct. App. · 2024 · confidence medium
Leave to amend to conform to the evidence should be liberally granted absent prejudice, Bujanda v. Montgomery Ward & Co., 125 Ariz. 314, 316 (App. 1980), such as the deprivation of an opportunity to factually challenge a new dependency theory, see Carolina H. v. Ariz. Dep’t of Econ.
discussed Cited as authority (rule) Sarbu v. Carp
Ariz. Ct. App. · 2017 · confidence medium
WOOD • Clerk of the Court FILED: AA evidence on the issue of child support, see Bujanda v. Montgomery Ward & Co., 125 Ariz. 314, 316 , 609 P.2d 584, 586 (App. 1980) (stating that although generally amendments to conform to the evidence presented at trial are to be liberally allowed, a court should not permit amendment when one party would be prejudiced). 7
discussed Cited as authority (rule) Hackett v. Hackett
Ariz. Ct. App. · 2016 · confidence medium
P. 15(b); Bujanda v. Montgomery Ward & Co., Inc., 125 Ariz. 314, 315-16 , 609 P.2d 584, 585-86 (App. 1980) (stating that amendment of pleading to conform to the evidence permitted unless amendment would cause prejudice); see also Parker v. City of Tucson, 233 Ariz. 422, 439, ¶¶ 51-52 , 314 P.3d 100, 117 (App. 2013) (finding no prejudice when amendment did nothing to change the theory of the case and the issue had been raised and addressed by the parties). ¶12 The superior court did not enter a final judgment on the counterclaim until April 21, 2015.
examined Cited as authority (rule) Stern v. Stern (3×) also: Cited "see"
Ariz. Ct. App. · 2016 · confidence medium
Bujanda v. Montgomery Ward & Co., Inc., 125 Ariz. 314, 316 (App. 1980).
examined Cited as authority (rule) Parker, Springer Jr., Anderson v. Committee for Sustainable Retirement in Support of Initiative (3×) also: Cited "see"
Ariz. Ct. App. · 2013 · confidence medium
We review the trial court’s decision to permit amendment of the pleadings under Rule 15(b) for an abuse of discretion. 16 Bujanda v. Montgomery Ward & Co., 125 Ariz. 314, 315 , 609 P.2d 584, 585 (App.1980). ¶ 52 The Committee contends it did not “open[ ] the door” to the issue whether Gordon was a qualified circulator because the evidence related to Gordon’s address was introduced “to support an existing claim.” We need not address this argument, however, because the Committee has not shown resulting prejudice.
discussed Cited as authority (rule) SWC Baseline & Crismon Investors, L.L.C. v. Augusta Ranch Ltd. Partnership
Ariz. Ct. App. · 2011 · confidence medium
Bujanda v. Montgomery Ward & Co., 125 Ariz. 314, 315 , 609 P.2d 584, 585 (App.1980). ¶ 82 As SWC points out, the court did not abuse its discretion in denying Augusta Ranch’s motion because neither the slander of title nor the punitive damages claim was “tried by ... consent of the parties.” The evidence on which Augusta Ranch relied was offered on its wrongful recording claims, not by consent on the claims that were dismissed on summary judgment prior to trial.
discussed Cited "see" Lininger v. Dine Out Corp. (2×)
Ariz. Ct. App. · 1981 · signal: see · confidence high
See Bujanda v. Montgomery Ward & Co., Inc., 125 Ariz. 314 , 609 P.2d 584 (App.1980).
discussed Cited "see, e.g." Pillsbury v. Butler
Ariz. Ct. App. · 2021 · signal: see also · confidence medium
Comm’n of Ariz., 139 Ariz. 38, 47 (1983); see also Bujanda v. Montgomery Ward & Co., Inc., 125 Ariz. 314, 316 (App. 1980) (consent cannot be implied “by admission without objection of evidence relevant to an issue within the pleadings”).
Retrieving the full opinion text from the archive…
Enedina M. BUJANDA, a single woman and Cleo M. Garcia, a single woman
v.
MONTGOMERY WARD & CO., INCORPORATED, an Illinois Corporation
No. 2 CA-CIV 3346.
Court of Appeals of Arizona.
Jan 31, 1980.
609 P.2d 584
1980 Ariz. App. LEXIS 406
Healy & Beal, P. C. by James H. Dyer, Tucson, for plaintiffs/appellants., Lesher, Kimble & Rucker, P. C. by Timothy L. Ryan, Tucson, for defendant/appellee.
Hathaway, Howard, Richmond.
Cited by 11 opinions  |  Published

[*315] OPINION

HOWARD, Judge.

This appeal was taken from the trial court’s denial of a new trial after it directed a verdict for appellee, Montgomery Ward & Co.

Appellants, having seen a newspaper advertisement offering hair permanents at a special price, went to appellee’s store. They contend that the permanents were negligently done causing physical injury to both and psychological damage to Mrs. Bujanda. Their complaint alleged that Montgomery Ward owned and operated the beauty shop, that Montgomery Ward employed the persons who injured them, and that the negligence of these employees caused the injuries.

During trial appellants’ attorney attempted to elicit the reasons they went to Montgomery Ward. One of the appellants mentioned the advertisement and the attorney moved for its admission which was objected to. A discussion was had in chambers during which appellants’ attorney indicated he wanted to pursue the theory that appellee was liable for the acts of the beauty shop operators because it held the shop out as its own. He relied on Restatement (Second) of Agency Sec. 267 (1957). Appellee’s attorney argued that the complaint did not allege that theory and objected to any evidence intended to establish it. The trial court sustained the objection and refused to permit an amendment of the complaint to allege apparent authority because it would present a different theory and would prejudice appellee in its defense. At the close of appellants’ case appellee’s motion for a directed verdict was granted.

Appellants contend the trial court erred in refusing the evidence and not permitting an amendment of the pleadings. Error is also assigned in the failure to admit certain evidence, but due to our resolution of the first issue there is no need to consider the other contentions.

Arizona’s Rules of Civil Procedure, Rule 15(b), 16 A.R.S., states:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

Granting or denying a motion to amend a pleading to conform to evidence is in the sound discretion of the trial court. See Romo v. Reyes, 26 Ariz.App. 374, 548 P.2d 1186 (1976). Appellants claim the trial court abused its discretion and rely on several cases to support their position. It is true that in the case of In re Estate of McCauley, 101 Ariz. 8, 415 P.2d 431 (1966) the court stated that: “(r)ule 15(b), Rules of Civil Procedure, provides for an automatic amendment of pleadings . . .” 101 Ariz. at 17, 415 P.2d at 440. This language apparently refers to the first sentence of Rule 15(b) making it mandatory for the court to amend the pleadings to conform to the issues to which there was express or implied consent. There was neither express nor implied consent here to try the issue of apparent authority. Appellants also cite Starkovich v. Noye, 111 Ariz. 347, 529 P.2d 698 (1975); Douglas Investment Co. v. Van Ness, 105 Ariz. 541, 468 P.2d 568 (1970); Gilmore v. Cohen, 95 Ariz. 34, 386 P.2d 81 (1963). The general rule is explained in these cases and each makes it clear that only where the issue is tried with express or implied consent is the moving party entitled[*316] to amendment by right. This is the effect of the first sentence of Rule 15(b). Here there was an objection to the evidence and therefore no implied consent to try the issue.

Appellants also argue that the introduction of some evidence on the issue of who owned the beauty shop and whose name appeared on the advertisement is sufficient to show implied consent. We disagree. Consent to try an issue without the pleadings cannot be implied by admission without objection of evidence relevant to an issue within the pleadings. See Lake v. Stewart, 117 Ariz. 520, 573 P.2d 920 (App.1977); Schumann v. McGinn, 307 Minn. 446, 240 N.W.2d 525 (1976); Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); 3 Moore’s Federal Practice ¶ 15.13, at pp. 15-171-72 (2nd ed. 1948). Here the evidence was relevant to show how appellants came to be at Wards and to show that Wards employed the beauty shop operators though this second proposition was later refuted.

Although liberality in permitting amendments of pleadings to conform to the evidence is the general rule, it has been proper to refuse the amendment where a party who has objected to the evidence would be prejudiced by the amendment. See Associated Engineers & Contractors, Inc. v. State, 58 Haw. 187, 567 P.2d 397 (1977); Truesdale v. Friedman, 270 Minn. 109, 132 N.W.2d 854 (1965).

Appellee objected to admission of the evidence. To have permitted the amendment would have changed the theory of the case. Appellee, brought into court expecting to defend a suit for employee negligence, would have suddenly faced the theory that the operators were independent contractors held out as employees.

Appellants also argue that the trial court should not have directed a verdict, but should have granted appellee a continuance if prejudice existed. No motion for a continuance having been made, the failure to grant one cannot be error.

Appellants also contend that appellee admitted in answers to interrogatories that the operators were employees or agents of Wards. This argument is without merit. The interrogatories were addressed to Wards but asked for information about insurance coverage for “[djefendants and/or their agents, servants or employees . .” Appellee could view this broad inquiry as being prompted by appellants’ apparent theory that Wards exercised control over the operators making them its agents or employees. Wards made it clear in its answers that Maxim’s Beauty Salons, Inc. was the insured. Further the pretrial order listed as an uncontested fact that the operators were employees of Maxim’s.

Affirmed.

HATHAWAY, C. J., and RICHMOND, J., concur.