Bevins v. King

• Citation: 465 A.2d 282,143 Vt. 252
• Decision Date: 26 July 1983
• Docket Number: No. 82-209,82-209
• Parties: Lloyd M. BEVINS and Gyneth Bevins v. Harrison KING and Madeline King.
• Court: United States State Supreme Court of Vermont

Page 282

465 A.2d 282

143 Vt. 252

Lloyd M. BEVINS and Gyneth Bevins v. Harrison KING and Madeline King.

No. 82-209.

Supreme Court of Vermont.

July 26, 1983.

Brown, Cahill & Gawne, Enosburg Falls, for plaintiffs-appellees.

Douglas DeVries, Enosburg Falls, and Michael Rose, St. Albans, on the brief, for defendants-appellants.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

In June of 1980 plaintiffs brought an action seeking damages for breach of contract and misrepresentations in connection with their purchase of a gasoline station and related personal property from defendants in October, 1975. Two weeks prior to trial, plaintiffs filed a memorandum setting forth their reliance on Article 2 of the Uniform Commercial Code (U.C.C.). Two days later, at a pretrial conference, the court issued an order indicating, among other things, that all motions were complete.

On the day of trial, defendants filed a motion to amend their answer, alleging as an affirmative defense the four-year statute of limitations set forth in Article 2 of the U.C.C., 9A V.S.A. § 2-725. Concurrently, they also filed a motion to dismiss Counts I, II, III and V of plaintiffs' complaint on the basis of the statute of limitations. Plaintiffs objected to the motions. After considering counsel's arguments, and with a jury already drawn and waiting, the court "reluctantly" denied defendants' motions and proceeded to trial. The jury subsequently returned a verdict for the plaintiffs.

On appeal, defendants allege as error below (1) that the trial court abused its discretion in denying defendants' motion to amend, (2) that the statute of limitations bars those portions of plaintiffs' complaint that relate to the sale of personal property, and (3) that the trial court erred by failing to instruct the jury on the law of waiver of warranties. We agree with defendants on the first issue and accordingly reverse and remand for a new trial.

Both the Vermont rules of civil procedure and the common law tradition of this state encourage liberality in allowing amendments to pleadings where there is no prejudice to the other party. Tracy v. Vinton Motors, Inc., 130 Vt. 512, 296 A.2d 269 (1972); V.R.C.P. 15. When permission of the court to amend a pleading is required, it "shall be freely given when justice so requires." V.R.C.P. 15(a). Such a motion is addressed to the discretion of the trial court, and its action thereon is not reviewable, unless it appears that the court withheld or abused its discretion. In re Lunde Construction Co., 139 Vt. 376, 428 A.2d 1140 (1981); John v. Fernandez, 124 Vt. 346, 205 A.2d 552 (1964). When there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Hurn v. Retirement Fund Trust of the Plumbing, Heating & Piping Industry, 648 F.2d 1252 (9th Cir.1981).

The principal reasons underlying the liberal amendment policy are (1) to provide maximum opportunity for each claim to be decided on its merits rather than on a procedural technicality, (2) to give notice of the nature of the claim or defense, and (3) to enable a party to assert matters that were overlooked or unknown to him at an earlier stage in the proceedings. 6 C. Wright & A. Miller, Federal Practice & Procedure §§ 1471, 1473 (1971). The rules go so far as to permit amendments during trial and after judgment, provided the opposing party is unable to show prejudice. V.R.C.P. 15(b); see Battenkill Construction Co. v. Haig's, Inc., 133 Vt. 503, 346 A.2d 213 (1975).

In this case, defendants first became aware that plaintiffs were relying on Article 2 of the U.C.C. as the legal basis for Counts I, II, III and V of their complaint when plaintiffs filed their memorandum two weeks prior to trial. Until then, defendants had considered the personalty to be only incidental to the sale of the real estate and thus the entire action subject to the longer statute of limitations applicable to the sale of real property.

In objecting to defendants' motion to amend, plaintiffs claimed surprise and asked for a continuance so they could refashion their pleadings to allege fraud, an action subject to a six-year statute of limitations. 12 V.S.A. § 511. No other grounds for prejudice were cited by plaintiffs. The trial court indicated that if it allowed the amendment it would also grant plaintiffs' request for a continuance. Since plaintiffs' attorney voiced no other concern with respect to the proposed amendment, it is clear on this record that, had the amendment been allowed, together with a continuance, there would have...