Blount v. Kicklighter, 46549

• Decision Date: 18 November 1971
• Docket Number: No. 3,No. 46549,46549,3
• Parties: J. A. BLOUNT v. C. E. KICKLIGHTER et al
• Court: Georgia Court of Appeals

Page 543

186 S.E.2d 543

125 Ga.App. 159

J. A. BLOUNT v. C. E. KICKLIGHTER et al.

No. 46549.

Court of Appeals of Georgia, Division No. 3.

Nov. 18, 1971.

Rehearing Denied Dec. 9, 1971.

William F. Braziel & Associates, William F. Braziel, Savannah, for appellant.

John R. Harvey, Pembroke, Allen, Edenfield, Brown & Franklin, Statesboro, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Blount, d/b/a Blount Construction Company, orally agreed to effect a remodeling of Kicklighter's restaurant building. He brought suit November 27, 1968, alleging that the work had been done and that the Kicklighters owed him, according to the agreement, the sum of $11,024.09.

Kicklighter and his wife answered, admitting that there had been an agreement for the performance of the work, but denying owing the sum of $11,024.09, and further asserting that the agreement had been that Blount would do the work on the basis of cost of materials plus 15 percent, and the cost of labor plus 40 percent; that plaintiff had been paid $14,300, and that he had failed and refused to submit properly documented bills demonstrating that any additional sum was owed; and that plaintiff failed to furnish a superintendent in accordance with the agreement, because of which portions of the work had to be done over, 'with resulting additional expense and damage to defendant.'

Interrogatories were served by each party on the other, supplemented, and answered. Finally, on November 6, 1969, the case came on for trial and, after a jury was stricken and in the box, defendant offered an amendment by which he counterclaimed against the plaintiff for $2,100 as damages resulting from 'delays in completion of the work, thereby denying the defendant opportunity to operate his business during the unreasonable time of performance, all of which resulted in damages to the defendant in the amount of $2,100.00.' Plaintiff objected to the allowance of the amendment on the grounds that it was untimely, that plaintiff had not been afforded opportunity to investigate or to examine defendant's books and records, or to obtain and produce witnesses to rebut the claim. Defendant urged that even under the Civil Practice Act the 'right to amend is as broad as the plan of salvation,' that the defendant had the right to amend at any time before the verdict was returned, that 'it's been a difficult case to organize,' and that the original answer did give notice that defendant had a claim for damages.

The court ruled that defendant had a right to amend, but 'the only question in my mind is why did you wait until this hour until we got the jury and amend?' In response defendant's counsel asserted that 'it took a great deal of accounting to come up with the particular amount.'

Finally, the court allowed the amendment, but offered to continue the case if plaintiff desired to have it done, after which plaintiff's attorney announced that he would proceed with a trial of the case but that he still insisted upon his objections to the allowance of the amendment, and would except to the order allowing it. After submission of evidence the jury returned a verdict for the defendant. Plaintiff moved fo a new trial, and now appeals from the overruling of the motion, enumerating that judgment, as well as the allowance of the amendment and the allowance of evidence in support thereof (duly objected to) as errors. Held:

1. Defendant's claim for damages for loss of business due to delay in the performance of the contract for remodeling the building grows out of the same transaction and is a compulsory counterclaim, and is required to be filed as a part of and at the same time as the answer and other defensive pleadings, unless a later filing is permitted by the court. Code Ann. § 81A-113(a).

2. A delayed filing of a compulsory counterclaim may be made by leave of the court if it was omitted through oversight, inadvertence, excusable neglect, or if justice requires it. Code Ann. § 81A-113(f).

3. '(T)he courts should be very liberal in allowing amendments to include compulsory counterclaims, and even permissive counterclaims where no prejudice would result, where the pleader has not been guilty of inexcusable neglect, or has not by reprehensible conduct deprived himself of any claim to special consideration by the court. . . . The motion should be made promptly and may be denied for laches or lack of good faith.' 3 Moore, Federal Practice, p. 89, par. 13.33.

4. Before a delayed filing of a counterclaim is allowed, the court should require the submission of evidence and make a finding therefrom as to whether the delay was occasioned by oversight, inadvertence or excusable neglect. A finding of oversight or of inadvertence is unsupported if it appears from the pleadings or the facts that the defendant or his counsel had knowledge of the existence of the claim when the defensive pleadings were prepared and filed in the first instance. 'It is true that as a general rule leave to amend (and...