1. Appeal and Error_appealability_denial of motion to add defendants_possibility of
separate trials
A substantial right was affected and defendant could immediately appeal where the trial
court allowed plaintiff's motion to add two claims but denied his motion to add two individual
defendants. Plaintiff may bring separate actions against these defendants with the possibility of
two trials and inconsistent verdicts.
2. Parties_motion to add denied_undue delay or prejudice
The denial of plaintiff's motion to amend his complaint to add two defendants was not an
abuse of discretion where the court found that the amendment would cause undue delay or
prejudice to defendants.
Judge HUNTER dissenting.
Gray, Newell, Johnson & Blackmon, L.L.P., by Angela Newell
Gray, for plaintiff-appellant.
Foley & Lardner, by Latasha A. Garrison, pro hac vice, for
defendant-appellee Johnson Controls, Inc.
EAGLES, Chief Judge.
Lonnell Carter (“plaintiff”) appeals from an order denying his
motion to amend his complaint to add two individual defendants.
After careful consideration of the briefs and record, we affirm.
Rockingham County Board of Education (“Board”) employed
plaintiff in December 1996 to work as a custodian for the school
system. Beginning in August 2000, plaintiff performed custodial
services at the S.C.O.R.E. Center in Wentworth. On 20 November2000, Cliff Lauten (“Lauten”) and Larry Clark (“Clark”), two
employees of Johnson Controls, Inc., allegedly saw the plaintiff
engaged in “improper conduct” with an unidentified individual on
school property. The Board contracted with Johnson Controls, Inc.
(“Johnson Controls”) to maintain the heating, ventilation and air
conditioning systems at their schools.
Lauten and Clark informed Lonnie Sechrist (“Sechrist”),
Assistant Superintendent for Human Resources for Rockingham County
Schools, that they observed plaintiff engaging in “improper
conduct” with an unidentified person on school property. The Board
and Sechrist “removed [plaintiff] from school property” and
terminated plaintiff's employment.
Plaintiff commenced this action on 6 June 2001 against the
Board, Sechrist, and Johnson Controls alleging negligent
supervision, tortious interference with business relations,
defamation, wrongful discharge in violation of G.S. § 143-422.2,
and unfair and deceptive trade practices. On or about 24 September
2001, plaintiff received the Board's interrogatory responses which
identified Lauten and Clark as the individuals who reported the
alleged incident of “improper conduct” to Sechrist. On 19 November
2001, plaintiff moved to amend his complaint to add the claims of
intentional infliction of emotional distress and negligent
infliction of emotional distress and to add Lauten and Clark as
defendants.
The trial court heard plaintiff's motion to amend at the 22
January 2002 Civil Session of Rockingham County Superior Court
before Judge Catherine Eagles. The trial court granted plaintiff'smotion to amend his complaint to add the additional claims and
denied plaintiff's motion to add the individual defendants.
Plaintiff appeals.
On appeal, plaintiff contends that the trial court's
interlocutory order affects a substantial right and is immediately
appealable and that the trial court erred in denying his motion to
amend his complaint to add two individual defendants. After
careful consideration, we affirm.
[1] Plaintiff first contends that the interlocutory order is
immediately appealable because it affects a substantial right.
Plaintiff argues that he will be able to bring the negligent and
intentional infliction of emotional distress claims against Clark
and Lauten in a separate action. Plaintiff contends that the
possibility of inconsistent verdicts exists if his appeal is not
allowed. Plaintiff further argues that if the denial of his motion
to amend is affirmed, the statute of limitations will prevent
plaintiff from bringing a defamation action against Clark and
Lauten.
“An order is interlocutory if it is made during the pendency
of an action and does not dispose of the case but requires further
action by the trial court in order to finally determine the rights
of all the parties involved in the controversy.” Flitt v. Flitt,
149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). “[A]n order
denying a motion to amend pleadings is an interlocutory order, and
is not immediately appealable.” Buchanan v. Rose, 59 N.C. App.
351, 352, 296 S.E.2d 508, 509 (1982). However, a party may appeal
an interlocutory order when “(1) the order or judgment is final asto some but not all of the claims or parties, and the trial court
certifies the case for appeal pursuant to [G.S.] § 1A-1, Rule
54(b); or (2) when the challenged order affects a substantial right
that may be lost without immediate review.” McConnell v.
McConnell, 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002).
“Whether a substantial right is affected is determined on a
case-by-case basis and should be strictly construed.” Flitt, 149
N.C. App. at 477, 561 S.E.2d at 513. “[T]he right to avoid the
possibility of two trials on the same issues is a substantial right
that may support immediate appeal.” Alexander Hamilton Life Ins.
Co. of Am. v. J&H Marsh & McClennan, Inc., 142 N.C. App. 699, 701,
543 S.E.2d 898, 900 (2001).
Here, the trial court allowed plaintiff's motion to add the
two claims of intentional and negligent infliction of emotional
distress. The statute of limitations for these claims is three
years. See G.S. § 1-52(5) (2001). The statute of limitations has
not expired on these claims. Plaintiff may bring a separate
action against Clark and Lauten for intentional and negligent
infliction of emotional distress. The possibility of two trials on
the same issues exists. Accordingly, on these facts, we hold a
substantial right is affected and the trial court's order denying
plaintiff's motion to add Clark and Lauten is immediately
appealable.
[2] Plaintiff next contends that the trial court erred in
denying his motion to amend his complaint to add two individual
defendants. Plaintiff argues that at the time his complaint was
filed, he did not know the identity of Clark and Lauten. Plaintiffargues that as soon as he received the Board's interrogatory
responses identifying Clark and Lauten, he moved to amend his
complaint to add them as defendants. Plaintiff further argues that
Johnson Controls, the Board, and Sechrist did not show how they
would be materially prejudiced by the amendment. We disagree.
Rule 15(a) of the North Carolina Rules of Civil Procedure
states that:
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. A
party shall plead in response to an amended
pleading within 30 days after service of the
amended pleading, unless the court otherwise
orders.
G.S. § 1A-1, Rule 15(a) (2001). “A motion to amend the pleadings
is addressed to the sound discretion of the trial court.” Mabrey
v. Smith, 144 N.C. App. 119, 121, 548 S.E.2d 183, 185-86, disc.
review denied, 354 N.C. 219, 554 S.E.2d 340 (2001). “The exercise
of the court's discretion is not reviewable absent a clear showing
of abuse.” Development Enterprises v. Ortiz, 86 N.C. App. 191,
195, 356 S.E.2d 922, 925, disc. review denied, 320 N.C. 630, 360
S.E.2d 84 (1987). The party opposing the amendment has the burden
to establish that it would be prejudiced by the amendment. Mauney
v. Morris, 316 N.C. 67, 72, 340 S.E.2d 397, 400 (1986). “Reasons
justifying denial of an amendment are (a) undue delay, (b) bad
faith, (c) undue prejudice, (d) futility of amendment, and (e)repeated failure to cure defects by previous amendments.” Martin
v. Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632, 634 (1985).
Here, defendants Johnson Controls, the Board, and Sechrist
argued at the hearing that plaintiff's amendment should be denied
because it was futile because the plaintiff's own deposition
refuted allegations necessary for the additional claims, that
plaintiff made his motion late in the proceedings, and that
plaintiff had already been deposed. In denying plaintiff's motion
to add Clark and Lauten, the trial court stated that:
[a]s to the new parties, it seems to me
totally clear that you would have to put the
trial off because these people would have to
be served, and then they would have 30 days to
answer, and then they could get an automatic
extension, and then -- I just don't see -- you
know, you can deal with that otherwise, I
think.
From this, we conclude that the trial court found that the
amendment to add the parties would have caused undue delay or undue
prejudice to defendants. “[P]roper reasons for denying a motion to
amend include undue delay by the moving party and unfair prejudice
to the nonmoving party.” Delta Env. Consultants of N.C. v. Wysong
& Miles Co., 132 N.C. App. 160, 166, 510 S.E.2d 690, 694, disc.
review denied, 350 N.C. 379, 536 S.E.2d 70 (1999). We can discern
no abuse of discretion in the trial court's decision to deny
plaintiff's motion to add Clark and Lauten as defendants.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
Judge LEVINSON concurs.
Judge HUNTER dissents.
HUNTER, Judge, dissenting.
I respectfully dissent from the majority's opinion which
affirms the trial court's decision to deny plaintiff's motion to
amend his complaint to add two individual defendants, Lauten and
Clark.
Before expounding upon the reasons for my disagreement with
the majority, I believe it is important to review the procedural
history of this case, paying particular attention to the proximity
of relevant dates. Lauten and Clark reported plaintiff's alleged
improper conduct on 20 November 2000. Plaintiff commenced his
action against the Board, Sechrist, and Johnson Controls on 6 June
2001. On 21 September 2001, plaintiff received interrogatories
from those defendants that identified Lauten and Clark as his
accusers. Not having known the identity of his accusers prior to
receiving the interrogatories, plaintiff moved to amend his
complaint to add these individuals as defendants on 19 November
2001. The trial court filed an order on 28 December 2001 that (1)
scheduled any pending motions for hearing on 21 January 2002, (2)
required discovery to be completed by 22 March 2002, and (3) set
the trial date for 15 April 2002, with an alternate trial date of
8 July 2002. All pending motions were actually heard on 22 January
2002, and the trial court denied plaintiff's motion to amend his
complaint to add Lauten and Clark as defendants entered on 7
February 2002.
As recognized by the majority, “'[a] motion to amend is
addressed to the [sound] discretion of the trial court. Its
decision will not be disturbed on appeal absent a showing of abuse
of discretion.'” Isenhour v. Universal Underwriters Ins. Co., 345N.C. 151, 154, 478 S.E.2d 197, 199 (1996) (quoting Henry v. Deen,
310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984)). “However, amendments
should be freely allowed unless some material prejudice to the
other party is demonstrated. The burden is upon the opposing party
to establish that that party would be prejudiced by the amendment.”
Mauney v. Morris, 316 N.C. 67, 72, 340 S.E.2d 397, 400 (1986)
(citations omitted).
Here, defendants have failed to establish how allowing
plaintiff to amend his complaint to add Lauten and Clark as
defendants would have prejudiced them in any way. During the
hearing on plaintiff's motion, defendants argued the motion should
be denied solely on the basis that discovery was essentially
completed and it would be “a tremendous amount of waste of time and
money[]” to engage in additional discovery or redo discovery.
However, this Court has held that “[t]he fact that additional
discovery may be required . . . does not amount to prejudice or
make the delay 'undue.'” Coffey v. Coffey, 94 N.C. App. 717, 723,
381 S.E.2d 467, 471 (1989). This holding is especially relevant in
the instant case considering the parties had until 22 March 2002 to
complete discovery, and the only discovery that had been officially
completed at the time of the hearing was the deposition of
plaintiff. Three additional depositions (two of which were Lauten
and Clark) were scheduled for 22 January 2002, the day plaintiff's
motion to amend was heard, and a few interrogatory responses from
the Board were still outstanding.
Moreover, plaintiff's motion to amend was filed within the
applicable statute of limitations period for each claim raised inthe action; therefore, plaintiff could have filed a new complaint
initiating a separate action against these defendants instead of
filing a motion to amend. By granting the motion to amend, the
court would have “promoted judicial economy by avoiding the
necessity for separate trials or for plaintiff to file first a
separate complaint and then a motion to join the two actions.”
Mauney, 316 N.C. at 72, 340 S.E.2d at 400. Instead, by the court
denying the motion, plaintiff lost his opportunity to bring a
defamation action against Lauten and Clark because his motion to
amend was filed one day before the statute of limitations on that
claim expired. Defendants failed to show they were prejudiced by
plaintiff's choice.
Accordingly, I would reverse the trial court's decision
denying plaintiff's motion to amend his complaint because
defendants failed to meet their burden of establishing how they
would be prejudiced by the addition of Lauten and Clark.
*** Converted from WordPerfect ***