Carolina Garage, Inc. v. Holston, 7821SC432

• Decision Date: 20 March 1979
• Docket Number: No. 7821SC432,7821SC432
• Citation: 253 S.E.2d 7,40 N.C.App. 400
• Court: North Carolina Court of Appeals
• Parties: CAROLINA GARAGE, INC. v. John Robert HOLSTON.

Page 7

253 S.E.2d 7

40 N.C.App. 400

CAROLINA GARAGE, INC. v. John Robert HOLSTON.

No. 7821SC432.

Court of Appeals of North Carolina.

March 20, 1979.

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 court that he would be...