Appeal by Defendant from judgment entered 11 July 2005 by
Judge James M. Webb in Superior Court, Moore County. Heard in the
Court of Appeals 12 September 2006.
P. Wayne Robbins, for plaintiff-appellee.
V. Lane Wharton, Jr., for defendant-appellant.
Under our appellate rules, a party may not present for the
first time in an appellate brief a question raising issues of law
not set out in the assignments of error contained in the record on
(See footnote 1)
Here, Defendant argues that the trial court's judgment
was invalid and too vague to be enforceable. Because Defendant
made no assignment of error that covers this issue, we must dismiss
his first argument. As to Defendant's second argument, we hold
that the trial court did not abuse its discretion by allowing
Plaintiff to amend its complaint. At a trial commenced on 13 March 1995, a jury determined
Defendant Waymon Marsh owed Plaintiff Roy Burt Enterprises, Inc.
$68,783.12. The record does not show the date on which the trial
court announced the judgment in court but does indicate the
judgment was filed on 26 April 1995.
On 15 March 2005, Roy Burt Enterprises, Inc. (hereafter Roy
Burt) commenced a civil action against Waymon Marsh to renew the
prior judgment for an additional ten years. In its complaint, Roy
Burt alleged it was awarded a judgment totaling $68,783.12 on 13
March 1995. Roy Burt alleged Waymon Marsh has since failed to pay
any of the judgment, and that the [j]udgment remains outstanding
Defendant Marsh in his answer, conceded that on 13 March 1995,
Roy Burt was awarded a judgment against Waymon Marsh totaling
$68,783.12, and that Defendant Marsh made no payments between the
date of the judgment and filing his answer. Waymon Marsh then
asserted that because the judgment was rendered 13 March 1995 and
Roy Burt commenced a civil action to renew the prior judgment on 15
March 2005, Plaintiff Roy Burt did not institute nor file its
complaint within the ten-year statutory period allowed to renew the
judgment. Waymon Marsh requested that the 1995 judgment not be
renewed and that Roy Burt recover nothing.
At the 11 July 2005 hearing on this matter, Plaintiff Roy Burt
was present, but Defendant Marsh was not, despite an indication on
the record on appeal that on 29 June 2005, Waymon Marsh filed
notice of the hearing. At the hearing, Roy Burt moved to amend itscomplaint to evidence the 1995 judgment was awarded 22 March 1995.
The trial court granted Roy Burt's motion to amend, and then
granted judgment in favor of Roy Burt to renew the 1995 judgment
for an additional ten years.
Waymon Marsh appeals, arguing (I) the trial court's decision
is not a valid judgment because (a) an existing judgment cannot be
revived or renewed in North Carolina and (b) the decision is too
vague and uncertain to be enforceable, and (II) the trial court
erred in allowing Plaintiff Roy Burt to amend its complaint without
prior notice to Defendant Waymon Marsh nor allowing an opportunity
Regarding Waymon Marsh's first argument, we need only
summarily point out that it is outside the scope of the following
three assignments of error that he makes on appeal:
1. The Court erred in allowing an amendment
for which there was no Motion to Amend
showing good cause in an attempt to
extend the 10 year statute.
2. That the Court erred in not allowing
Judgment for Defendant, the 10 year
statute of limitations having expired.
3. That the Court erred in allowing Judgment
for Plaintiff, the 10 year statute of
limitations having expired.
To present a question for appellate review, an appellant must
reference an assignment of error pertinent to the question
presented. N.C. R. App. P. 28(b)(6) (2005). Under Rule 10, the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal . . . . N.C.R. App. P. 10(a) (2005). Moreover, Rule 28(a) states [r]eview is
limited to questions so presented in the several briefs. N.C. R.
App. P. 28(a) (2005). These rules prevent a party from presenting
for the first time in an appellate brief a question raising issues
of law not set out in the assignments of error contained in the
record on appeal. Branch Banking & Trust Co. v. Staples
, 120 N.C.
App. 227, 231, 461 S.E.2d 921, 925 (1995)
(citation omitted). The
rules of appellate procedure are mandatory and failure to follow
these [rules] will subject an appeal to dismissal. N.C. Dep't of
Transp. v. Viar
, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005)
In this case, as it is clear on its face that Waymon Marsh's
argument falls outside of the scope of his three assignments of
error. Accordingly, we must dismiss his first argument on appeal.
Waymon Marsh next argues the trial court erred in allowing Roy
Burt to amend its complaint on the day of the hearing, to the
prejudice of Defendant Marsh, without prior notice and an
opportunity to respond. We disagree.
Rule 15(a) of the North Carolina Rules of Civil Procedure
states that a party may amend his pleading by leave of the court
and leave shall be freely given when justice so requires. N.C.
R. Civ. P. Rule 15(a) (2005). This rule gives the trial court
broad discretion in determining whether leave to amend will be
granted after the time for amending as a matter of course has
expired. Tyson v. Ciba-Geigy Corp.
, 82 N.C. App. 626, 629, 347S.E.2d 473, 476 (1986). The trial court's grant of a motion to
amend a pleading will not be disturbed absent a clear showing the
trial court abused its discretion. Members Interior Constr., Inc.
v. Leader Constr. Co., Inc.
, 124 N.C. App. 121, 124, 476 S.E.2d
399, 402 (1996).
Waymon Marsh argues it was prejudicial error for the trial
court to grant Roy Burt's amendment to the complaint without
allowing Defendant Marsh an opportunity to respond. Waymon Marsh
cites Turner Halsey Co., Inc. v. Lawrence Knitting Mills, Inc.
N.C. App. 569, 248 S.E.2d 342 (1978), where the plaintiff amended
its complaint on the same day summary judgment was granted. In
this Court noted in dicta that [w]hen the complaint is
amended defendant should be entitled to amend his answer to meet
the contents of the new complaint . . . . Id.
at 573, 248 S.E.2d
at 345 (citations omitted).
Here, as in Turner,
Plaintiff Roy Burt moved to amend its
complaint on the same day judgment was granted; however, in this
case there is no evidence Defendant Marsh was not provided an
opportunity to object or to make a request for a reasonable time to
respond. Indeed, the record shows that Waymon Marsh filed a notice
on 29 June 2005 giving notice of the hearing for this matter.
Moreover, in rendering the judgment in this matter, the trial court
stated Waymon Marsh had been sent notice by the Clerk of Superior
Court of the setting of the case and [had] informed the Trial Court
Administrator that he was aware of the setting and in fact had set
the case. Thus, contrary to Defendant Marsh's assertion, he wasprovided an opportunity to respond but chose to waive that
opportunity by failing to appear. Accordingly, we hold the trial
court did not abuse its discretion in granting Roy Burt's motion to
amend its complaint.
Dismissed in part, affirmed in part.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).