Opinion
March 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Stockton & Lewis, Roger Sollenbarger, Denver, for defendant in error, Mack Trucks, Inc.
John E. McDermott, Loye & Bangert, Benjamin R. Loye, Wheatridge, for plaintiff in error.
No appearance for defendant in error, Harry L. Earl.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This was a property damage action, seeking recovery for damage to a truck as a result of flood loss. Complaint was filed by Mack Trucks, Inc., (Mack) against Rocky Mountain Trucking Institute, Inc., (the Institute). A third party complaint alleging fraud was then filed by the Institute against Harry L. Earl, dba Earl Insurance Agency (Earl). The Institute appeals from a judgment in favor of Mack and a dismissal of the third party action.
I.
The Institute first claims error in the rendering of a judgment against it in favor of Mack. Its contention is that the contract Mack sued upon was entered into between Mack and a sole proprietorship and not between Mack and the corporation made a defendant in this action. There was disputed evidence in the record regarding this argument; however, the court concluded that the agreement was entered into between Mack and the Institute as a corporate entity.
We will not disturb this factual determination of the trial court since it is well supported by evidence in the transcript and admissions contained in the pleadings. Alcove's Inc. v. Pehr, 161 Colo. 268, 421 P.2d 469.
II.
The Institute readily admits that it was unable to prove its claim of fraud and deceit against Earl. At the close of the evidence, however, it moved to amend the pleadings to change its allegations against Earl from an action in fraud to one of breach of contract under the provisions of R.C.P.Colo. 15(b).
The court refused to allow the amendment, stating as follows:
'The court feels that, as pointed out, there is certainly no proof of fraud and deceit. The only other theory that might be invoked by the defendant and third party plaintiff is that of contract. It is the court's feeling that there was no prima facie case and no proof of the contract for which the third party defendant would be liable.'
The record adequately supports this conclusion and, under the facts in this case, it was clearly not an abuse of discretion for the court to deny the amendment which attempted to inject an entirely new claim into the proceedings. Quandary Land Development Co. v. Porter, 159 Colo. 8, 408 P.2d 978. This aspect of the case also entailed a factual determination based on adequate evidence in the record. We will not disturb this ruling on review. Underhill v. Detert, 152 Colo. 223, 381 P.2d 265.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.