Mauney v. Morris

• Decision Date: 18 February 1986
• Docket Number: No. 231PA85,231PA85
• Parties: Fred W. MAUNEY v. James H. MORRIS and wife, Dorothy W. Morris, Morris Rentals, Inc., a North Carolina Corporation, and Morris Caseworks, Inc., a North Carolina Corporation.
• Court: North Carolina Supreme Court

Page 397

340 S.E.2d 397

316 N.C. 67

Fred W. MAUNEY v. James H. MORRIS and wife, Dorothy W. Morris, Morris Rentals,

Inc., a North Carolina Corporation, and Morris

Caseworks, Inc., a North Carolina Corporation.

No. 231PA85.

Supreme Court of North Carolina.

Feb. 18, 1986.

DeLaney, Millette & McKnight, P.A. by Steven A. Hockfield, Charlotte, for plaintiff-appellant.

No counsel contra.

FRYE, Justice.

The primary question before this Court is whether the trial judge erred in denying plaintiff's motion to amend his complaint to add a cause of action to enforce a materialman's or laborer's lien where the motion was filed within the statutory period allowed for bringing an action to enforce such a lien. For the reasons outlined below, we find that plaintiff's motion should have been granted.

Plaintiff began an action against the individual defendants James and Dorothy Morris and corporate defendant Morris Rentals on 18 July 1983 by filing a summons and a notice of lis pendens to have an equitable lien placed upon defendants' property. He also moved to extend time to file his complaint. This motion was granted, and plaintiff filed an unverified complaint and moved to include corporate defendant Morris Caseworks, Inc., on 8 August 1983.

Plaintiff's original complaint alleged that he had performed demolition and construction work and other services for defendants, including work on a night club ("The Club") that defendants were trying to start. Included in the services plaintiff rendered defendants were the following:

23. From [late September or early October, 1982], the plaintiff devoted all of his time, energies and services to the improvement of the real property, the building and operation of The Club and his work for defendant Casework and defendant James Morris as general contractor.

24. The time which the plaintiff devoted to the defendants for the work described in paragraph 23 above was in excess of four thousand (4,000) hours from late September 1982 through late June or early July 1983. Plaintiff devoted seven (7) days per week on an average basis of at least fifteen (15) hours per day to the enterprises of the defendants.

....

26. The plaintiff devoted his hours as described above in the following manner: at least 200 hours to the providing services for defendant James H. Morris as general contractor, at least 700 hours to making actual physical improvements on the real property, at least 1,720 hours to working in The Club and overseeing its operation, at least 600 hours working for defendant Casework and at least 780 hours operating as a vice president of defendant Rentals and promoting and setting up the concept for The Club.

....

28. In addition to the contribution of his time, services and all of his energies to the enterprise of the defendants, the plaintiff contributed the following to the defendants for the improvement of the real property and for the paying off of the mortgage on the real property:

a. Eight thousand (8,000) old brick having a fair market value of One Thousand Four Hundred Dollars ($1,400.00);

b. Seventeen (17) table stands having a fair market value of Three Hundred Forty Dollars ($340.00) c. A sound system having a fair market value of Eight Thousand Dollars ($8,000[sic] );

d. Old antique wood for the entrance to The Club having a fair market value of One Thousand Dollars ($1,000.00);

e. Maple wood for the dance floor for The Club having a fair market value of Five Hundred Dollars ($500.00); and

f. Two Thousand Dollars ($2,000.00) in cash which the plaintiff had received for payment of a debt owed to him.

Plaintiff also alleged that he contributed two 1953 Chevrolet dump trucks, a forty-foot box trailer, a 1952 Chevrolet flatbed truck and a 1974 Chevrolet pickup truck having a combined value of $6,700, and the use of his tools. Then, according to plaintiff, in July 1983, defendants wrongfully barred him from The Club and kept the trucks, the trailer, and plaintiff's tools.

As reimbursement for these efforts, plaintiff alleged that defendants orally promised to pay him by taking him into a partnership and conferring various other benefits upon him. Because defendants had failed to perform according to this agreement, plaintiff therefore sought damages and an equitable lien on the real property on a theory of unjust enrichment, specific performance of the oral contract, and an accounting of defendants' various enterprises.

Defendants answered on 8 September 1983 and moved to strike the notice of lis pendens on the grounds that the action was one to secure a personal judgment for the payment of money and plaintiff was therefore not entitled to file a notice of lis pendens. Defendants' motion was granted on 3 October 1983. On 8 October, plaintiff filed a Claim of Lien in the amount of $27,950, giving 20 September 1982 as the first date and 15 June 1983 as the last date goods and services were furnished to defendants' property. On 8 December 1983, plaintiff filed a motion to amend his complaint, along with the proposed amendment. In the amendment, plaintiff stated a claim against defendants for materials and labor furnished by him for improvements to defendants' real property and sought to enforce the Claim of Lien. Defendants opposed this motion. The trial judge denied plaintiff's motion to amend on 11 January 1984. From this denial, plaintiff appealed to the Court of Appeals.

In its opinion, the Court of Appeals decided first that the order denying plaintiff's motion to amend, although interlocutory, was appealable because a substantial right was involved. Mauney v. Morris, 73 N.C.App. at 591, 327 S.E.2d at 250. While this decision certainly appears to be correct, we do not consider it here because defendants have failed to file a brief or to argue this or any other issue before this Court. The issue is therefore deemed abandoned. N.C.R.App.P. 28.

The question remaining for this Court's consideration is the one decided against the plaintiff in the court below, whether the trial court erred in denying his motion to amend. Rule 15(a) of the North Carolina Rules of Civil Procedure reads 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.

N.C.R.Civ.P. 15(a) (1983).

Correctly noting that plaintiff had no automatic right to amend his complaint at the time he filed his motion, the Court of Appeals held that the trial judge did not abuse his discretion by denying the motion because to do so would have had the effect of extending the statute of limitations governing materialmen's and laborer's liens. In reaching this holding, the court below first decided that the amendment to the complaint stated a new cause of action. Therefore, despite the fact that the trial judge had found, and the Court of Appeals agreed, that this cause of action arose out of the same transactions and occurrences as those stated in the original complaint, the Court of Appeals concluded that the new cause of action could not relate back to the original filing date. We note,...