Carolina Garage, Inc. v. Holston

253 S.E.2d 7 (1979)

40 N.C. App. 400

CAROLINA GARAGE, INC. v. John Robert HOLSTON.

No. 7821SC432.

Court of Appeals of North Carolina.

March 20, 1979.

*9 Hudson, Petree, Stockton, Stockton & Robinson, by F. Joseph Treacy, Jr., Winston-Salem, for plaintiff appellee.

Wesley B. Grant, Concord, for defendant appellant.

HEDRICK, Judge.

Defendant's single assignment of error is as follows:

The Court's denial of defendant's Motion under North Carolina Rule of Civil Procedure 13(f) for leave to set up a counterclaim by amendment to the defendant's Answer, on the grounds that the counterclaim was omitted from the Answer by oversight, inadvertence or excusable neglect and justice required the allowance of the Motion and the denial of the Motion was prejudicial to the defendant and demonstrated an abuse of discretion.

Rule 13(f) provides: "When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment." Additionally, Rule 15(a) provides in pertinent part:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . .

Defendant points out that his motion for leave to amend was filed 28 days after filing of the answer, but that the case had been calendared for trial prior to the time he sought to add his counterclaim, and, under Rule 15(a), he could not amend his answer without leave of court. He now contends that he sufficiently demonstrated "oversight, inadvertence or excusable neglect" in his motion pursuant to Rule 13(f), that justice requires that he be permitted to add the proposed counterclaim, and that the trial judge's denial of his motion constituted an abuse of discretion.

Assuming that defendant's proposed counterclaim is compulsory and thus the Order in the present case is immediately appealable, see Hudspeth v. Bunzey, 35 N.C.App. 231, 241 S.E.2d 119, cert. denied and app. dismissed, 294 N.C. 736, 244 S.E.2d 154 (1978), we think the trial court acted well within its discretion in denying defendant's motion. It has repeatedly been held that a motion under Rule 15(a) for leave of court to amend a pleading is addressed to the sound discretion of the trial judge and the denial of such a motion is not reviewable absent a clear showing of an abuse of discretion. Hudspeth v. Bunzey, supra; Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588 (1972); Galligan v. Smith, 14 N.C.App. 220, 188 S.E.2d 31 (1972). It has also been held that leave to amend should be freely given and the party objecting to the amendment has the burden to satisfy the trial *10 court that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977); Roberts v. Reynolds Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972).

In the present case, we believe the plaintiff carried its burden in showing that it would be prejudiced if defendant's motion for leave to amend its answer to add a counterclaim was allowed. The proposed counterclaim set forth for the first time allegations of fraud and the making of false statements under oath. These allegations not only greatly changed the nature of the defense but also subjected the plaintiff to defending a claim in addition to proving his own case. Had the motion been allowed, further discovery would likely have been sought, thus further delaying the trial. Defendant's motion was filed some one and a half years after the suit was instituted and over three years after the truck had been sold at public auction. In light of these factors, the judge's denial of defendant's motion did not constitute an abuse of discretion.

Finally, defendant contends that the trial judge improperly considered the merits of the counterclaim in ruling on his motion. Even assuming that the trial judge should not have considered the merits of the proposed counterclaim, the court's statement to that effect is merely gratuitous since there are ample additional grounds for the trial court's denial of defendant's motion. If any error was committed, it could not have been prejudicial to the defendant.

For the reasons stated above, the Order appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.

Affirmed and remanded.

VAUGHN and CLARK, JJ., concur.