Rabon v. Hopkins

• Decision Date: 07 December 2010
• Docket Number: No. COA10–455.,COA10–455.
• Citation: 703 S.E.2d 181
• Parties: Lisa Sanderson RABON, Plaintiff,v.Fay Elizabeth HOPKINS and Keystone Freight Corp., Defendants.
• Court: North Carolina Court of Appeals

703 S.E.2d 181

Lisa Sanderson RABON, Plaintiff,

v.Fay Elizabeth HOPKINS and Keystone Freight Corp., Defendants.

No. COA10–455.

Court of Appeals of North Carolina.

Dec. 7, 2010.

OPINION TEXT STARTS HERE

Appeal by Defendants from judgment entered 27 July 2009 by Judge John O. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 26 October 2010.

Bretzmann & Aldridge, L.L.P., High Point, by Raymond A. Bretzmann, for Plaintiff.

Dickie, McCamey & Chilcote, PC, Charlotte, by John T. Holden, for Defendants.

STEPHENS, Judge.

Facts

On 11 April 2008, Plaintiff Lisa Sanderson Rabon was involved in a collision with a tractor-trailer owned by Defendant Keystone Freight Corporation (“Defendant Keystone”) and operated by Defendant Fay Elizabeth Hopkins (“Defendant Hopkins”).

On 12 June 2008, Plaintiff filed a complaint against Defendants in Guilford County Superior Court, setting forth claims for relief based on the alleged negligence of Defendant Hopkins, imputed negligence of Defendant Keystone under the theory of respondeat superior, and negligent entrustment by Defendant Keystone. On 3 September 2008, Defendants filed their answer, which set forth the affirmative defenses of unavoidable accident and sudden emergency.

On 13 July 2009, following extensive discovery by both parties, the trial court permitted Defendants to substitute counsel. On 15 July 2009, the day the trial was set to begin, Defendants filed a motion for leave to amend their answer to include the defense of contributory negligence. The trial court denied Defendants' motion and also granted Plaintiff's motion to preclude Defendants from presenting any evidence of alleged negligence by Plaintiff. The case was tried before a jury at the 13 July 2009 Civil Session of the Superior Court of Guilford County, the Honorable John O. Craig, III presiding.

The evidence presented at trial tended to show that on 11 April 2008, Defendant Hopkins was employed by Defendant Keystone as a truck driver and, in the course of that employment, was operating a Volvo tractor that was pulling a trailer loaded with K–Mart goods. Traveling southwest from Greensboro, North Carolina, where she had picked up the trailer from the K–Mart distribution center, Defendant Hopkins merged onto the exit ramp from Interstate 85 at the Randolph Street exit in Thomasville, North Carolina. Defendant Hopkins testified that as she pulled onto the exit ramp, she noticed a warning light on her truck indicating that the air pressure for the trailer's air brakes was low. Defendant Hopkins testified that she unsuccessfully attempted to slow the truck as it approached a red light at the bottom of the exit ramp. As Defendant Hopkins entered the intersection against a red light, Plaintiff's vehicle collided with Defendant Hopkins' tractor-trailer. Plaintiff suffered severe injuries and was taken by ambulance to the hospital; Plaintiff testified that she had no recollection of the collision. A witness who observed the collision testified that Defendant Hopkins' tractor-trailer was traveling at approximately fifty miles per hour when it was driven through the intersection. After the collision, it was observed that the air line for the trailer's brakes was disconnected from the tractor.

Following the presentation of evidence, the jury returned a verdict finding Defendant Hopkins negligent and awarding Plaintiff $150,000 in damages for personal injuries and $3,500 for property damage. Defendants appeal.

I. Denial of Defendants' motion for leave to amend their answer

Defendants first argue that the trial court's denial of Defendants' motion for leave to amend their answer to include the affirmative defense of contributory negligence was error. We disagree.

Motions to amend are governed by North Carolina Civil Procedure Rule 15(a), which, as applicable to this case, provides that “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. Gen.Stat. § 1A–1, Rule 15(a) (2009). A ruling on a motion for leave to amend 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 abuse of discretion. Martin v. Hare, 78 N.C.App. 358, 360–61, 337 S.E.2d 632, 634 (1985).

A trial court abuses its discretion only where no reason for the ruling is apparent from the record. Ledford v. Ledford, 49 N.C.App. 226, 233–34, 271 S.E.2d 393, 398–99 (1980). Our Courts have held that reasons justifying denial of leave to amend are undue delay, bad faith, undue prejudice, and futility of amendment. See, e.g., Walker v. Walker, 143 N.C.App. 414, 418, 546 S.E.2d 625, 628 (2001); Members Interior Constr., Inc. v. Leader Constr. Co., 124 N.C.App. 121, 124, 476 S.E.2d 399, 402 (1996), disc. rev. denied, 345 N.C. 754, 485 S.E.2d 56 (1997); Martin, 78 N.C.App. at 361, 337 S.E.2d at 634.

It is apparent from the record in this case that the bases for the trial court's denial of Defendants' motion were undue delay and futility of amendment.

The trial court's denial on grounds of futility of amendment appears justified based on Plaintiff's inability to recall the collision and Defendant Hopkins' testimony that she did not believe Plaintiff was at fault in the collision. Nevertheless, in determining whether the trial court abused its discretion in denying Defendants leave to amend their answer, we address undue delay as the apparent basis for the court's ruling.

This Court has held that a trial court may appropriately deny a motion for leave to amend on the basis of undue delay where a party seeks to amend its pleading after a significant period of time has passed since filing the pleading and where the record or party offers no explanation for the delay. See Media Network, Inc. v. Long Haymes Carr, Inc., 197 N.C.App. 433, 447–48, 678 S.E.2d 671, 681 (2009) (affirming denial of leave to amend where defendant filed motion three months after filing answer and offered no credible explanation for the delay); Walker v. Sloan, 137 N.C.App. 387, 402, 529 S.E.2d 236, 247 (2000) (affirming denial where there was nothing in the record to explain why plaintiff waited until three months after defendant filed answer); Caldwell's Well Drilling, Inc. v. Moore, 79 N.C.App. 730, 731, 340 S.E.2d 518, 519 (1986)(affirming denial of leave to amend where record did not indicate why plaintiff waited three months from filing of answer before moving to amend complaint).

In this case, Defendants' answer was filed 3 September 2008 and raised the affirmative defenses of unavoidable accident and sudden emergency. It was not until 15 July 2009—following the conclusion of discovery, on the day the jury was to be impaneled, and over nine months after Defendants' answer was filed—that Defendants moved the court to grant leave to amend the answer to include the defense of contributory negligence.

In their motion for leave to amend, Defendants argued that leave should be granted because the contributory negligence defense was “inadvertently omitted” from the answer. However, Defendants abandoned this explanation at the colloquy on the motion and admitted that the defense was, in fact, deliberately omitted.

Defendants further argued in their motion for leave to amend, and reiterate on appeal, that, in this type of case, the reasonableness of a plaintiff's actions is always at issue such that Plaintiff should have been on notice that contributory negligence was going to be argued by Defendants. We find this argument to be as unpersuasive as it is disingenuous.

Defendants' argument is wholly at odds with our Rules of Civil Procedure, especially the concept of notice pleading. Rule 8(c) requires that, in a responsive pleading, a party must “set forth affirmatively” the defense of contributory negligence, including a “short and plain statement ... sufficiently particular to give the court and the parties notice ” of the occurrences to be proved. N.C. Gen.Stat. § 1A–1, Rule 8(c) (2009) (emphasis added). Further, because Defendants failed to plead contributory negligence as an affirmative defense in the answer, that defense was waived. Nationwide Mut. Ins. Co. v. Edwards, 67 N.C.App. 1, 6, 312 S.E.2d 656, 660 (1984). Accordingly, instead of supporting Defendants' position that Plaintiff was on notice of a contributory negligence defense despite Defendants' deliberate failure to raise that defense in their answer, Rule 8(c) supports the exact opposite position: Plaintiff was not on notice of a contributory negligence defense precisely because of Defendants' failure to properly raise that defense in their answer.

Defendants also argue that Defendants' substitution of counsel in the days leading up to trial gave Defendants the right to assert any defense of their choosing, including any affirmative defense waived before the substitution. This argument borders on the absurd. We find no legal support, and none is presented by Defendants, for the position that a party who voluntarily substitutes counsel in the week before trial is entitled to delay trial in order to present any affirmative defenses the new counsel conjures up, especially one waived by former counsel after indicating to the trial court that “he [prior counsel] could not claim the defense of [c]ontributory [n]egligence in good faith.”

In their final argument as to why the denial of their motion was error, Defendants offer as the explanation for the delay the fact that the defense of contributory negligence “became vastly more important when it became apparent the case would be tried” such that leave should have been granted. This “reasoning” is not only wholly unpersuasive; it offends common sense. Disregarding Defendants' odd determination of the relative importance of a contributory negligence defense at different points pretrial, it must have become “apparent the case would be tried” at some point before the day the case was actually...