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Carolina Builders Corp. v. Gelder & Associates Inc.

Filed: April 6, 1982.

CAROLINA BUILDERS CORPORATION
v.
GELDER & ASSOCIATES, INC., CLARENCE W. GELDER AND EDGAR R. BAIN, SUBSTITUTE TRUSTEE



Appeal by plaintiff from Canady, Judge. Judgment entered 30 October 1980 in Superior Court, Wake County. Heard in the Court of Appeals 8 December 1981.

Becton, Judge. Judge Clark and Judge Whichard concur.

Becton

Plaintiff assigns error to the trial court's failure to rule on the motion to amend its complaint. The trial court apparently gave no consideration to the amended complaint in ruling on the summary judgment motion for it refused to allow plaintiff to include it in the record on appeal. We subsequently allowed plaintiff to file it as an amendment to the record pursuant to App. R. 9(b)(6).

We hold that the trial court's failure to rule on the motion to amend was error as a matter of law and that the trial court prematurely ruled on defendant's motion for summary judgment.

"The Rules of Civil Procedure achieve their purpose of insuring a speedy trial by providing for and encouraging liberal amendments to pleadings under Rule 15." Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 714, 220 S.E.2d 806, 809 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976). Failure to rule on a motion to amend contravenes this purpose by inviting piecemeal litigation and preventing consideration of the merits of the action on all the evidence available. See Gladstein v. South Square Assoc., 39 N.C. App. 171, 249 S.E.2d 827 (1978), disc. review denied, 296 N.C. 736, 254 S.E.2d 178 (1979); Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420 (1972).

We further hold that in this case the motion to amend should have been allowed. Rule 15(a) of the Rules of Civil Procedure states that leave to amend pleadings "shall be freely given when

justice so requires." See Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 245 S.E.2d 782 (1978); see also Foman v. Davis, 371 U.S. 178. 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).

In the present case, we perceive no apparent reason why the motion to amend should not have been allowed, and the trial court stated none. In Public Relations, Inc., we found neither undue delay nor prejudice when the plaintiff filed a motion to amend its complaint so as to allege personal jurisdiction over the defendant approximately six weeks after the defendant had filed a motion to dismiss for lack of jurisdiction and one day after the trial court had allowed that motion to dismiss. In the present case the motion to amend was filed less than four months after the original complaint and eight months before the hearing on defendants' motion for summary judgment. It is conceivable that it took plaintiff four months to obtain, through discovery, the documents necessary to support the new claim contained in the amended complaint. Allowance of the amendment will not prejudice defendants as they will have ample opportunity to respond to it. Nor can we say that allowance of the motion to amend would be futile even though upon remand the trial court may determine that plaintiff cannot recover on the claim asserted in the amended complaint.

Entry of summary judgment in favor of defendants is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Disposition

Reversed and ...


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