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Saintsing v. Taylor

Filed: June 1, 1982.

PEARL SAINTSING, INDIVIDUALLY: AND PEARL SAINTSING, ADMINISTRATOR OF THE ESTATE OF GLADYS SAINTSING
v.
NORMAN E. TAYLOR AND EVELYN L. TAYLOR



Appeal by defendant Norman E. Taylor from Wood, Judge. Judgment entered 17 April 1981 in Superior Court, Randolph County. Heard in the Court of Appeals 29 April 1982.

Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.

Martin

The defendant Norman Taylor first argues that the trial court erred in failing to remove plaintiff's attorney. Plaintiff's attorney John Haworth had previously represented Evelyn Taylor in a divorce action against defendant Norman Taylor. Norman Taylor argues that he was prejudiced by Mr. Haworth's representation of the plaintiffs in this case and that there was such an "obvious conflict of interest in it that it is obvious even to a layman." This conflict is not obvious to this Court and defendant cites no authority in support of it. We agree with the trial judge that defendant has no standing to complain of a conflict. The plaintiffs in this case knew of Attorney Haworth's previous representation of Evelyn Taylor and both Evelyn Taylor and the plaintiffs agreed to Haworth's representation of plaintiffs in this action. This assignment of error is without merit.

The defendant in his second and fourth assignments of error contends that the trial court erred in refusing to allow him thirty days to respond to plaintiffs' amended complaint and erred by allowing into evidence a deed pursuant to this amended complaint. We disagree with defendant.

On 2 April 1981 plaintiffs served on defendant a motion to amend the complaint. The purpose of the motion was to include in the complaint allegations of ownership of the pie-shaped lot adjoining 340 Marmaduke Circle which had been purchased to eliminate an encroachment. The motion was filed and heard on 6 April 1981 and the order granting the amendment was entered on 13 April 1981. The defendants could file a responsive pleading on or before 17 April 1981 or the beginning of the trial, whichever occurred first.

It is well-settled in North Carolina that leave to amend should be freely given pursuant to N.C. Gen. Stat. § 1AS-1, Rule 15. The burden is on the party objecting to the amendment to satisfy the trial court that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977), Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542 (1980). Further the motion to amend is properly addressed to the discretion of the trial court who must weigh the motion in light of the attendant circumstances. Gladstein v. South Square Assoc., 39 N.C. App. 171, 249 S.E.2d 827 (1978), disc. rev. denied, 296 N.C. 736, 254 S.E.2d

178 (1979). In this case the defendant did not assert that he was in any way prejudiced because of the amendment or the short time for response. In addition N.C. Gen. Stat. § 1A-1, Rule 15(a) provides specifically that the court can order a response to an amended pleading in more or less than thirty days. We can find no prejudice suffered by defendant and no abuse of discretion on the part of the trial judge in this case. Defendant's assignments of error are therefore overruled.

Defendant asserts in his fifth assignment of error one hundred and one exceptions to the trial Court's evidentiary rulings on the testimony of Pearl Saintsing. Defendant, however, only presents a specific argument and cites authority for Exception No. 50. We therefore deem his other one hundred exceptions to be abandoned pursuant to Rule 28(b)(3), N.C. Rules App. Proc.

The defendant in exception No. 50 contends that the trial court expressed an opinion in violation of Rule 51(a), N.C. Rules Civ. Proc. during the following exchange:

"Did Mr. Taylor make any statement to you about whether he had used any of that money that you had given him in connection with the purchase of the home here in Asheboro, Ms. Saintsing?

Mr. Burton: I Object. She's answered that question.

Court: Overruled. You're going to object to every ...


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