111 N.C. App. 910 | N.C. Ct. App. | 1993
In this appeal, defendant contends that the trial court erred, first, when it failed to rule upon defendant’s motion to amend her answer prior to granting summary judgment, second, in granting summary judgment for plaintiff when defendant’s amended answer raised genuine issues of material fact, and, third, in allowing plaintiff’s motion for summary judgment before defendant had completed discovery. After carefully reviewing defendant’s assignments of error, we find no basis for reversing the trial court’s order.
Defendant assigns error to the trial court’s failure to rule on her motion to amend the answer and to the trial court’s granting summary judgment without first ruling on the motion. She contends that the trial court should have granted her motion since it was properly filed, calendared, and before the court. We agree that the trial court’s failure to rule on the motion was error, but we find this error to be harmless. In the case of Carolina Builders v. Gelder & Associates, 56 N.C. App. 638, 289 S.E.2d 628 (1982), this Court found that the trial court committed error as a matter of law when it ruled upon the defendant’s motion for summary judgment without considering the plaintiff’s motion to amend the complaint. The Court stated that “[t]he Rules of Civil Procedure achieve their purpose of insuring a speedy trial by providing for and encouraging liberal amendments to pleadings under Rule 15. Failure to rule on a motion to amend contravenes this purpose by inviting piecemeal litigation and preventing consideration of the merits of the action on all the evidence available.” Id. at 640, 289 S.E.2d at 629 (citation omitted). Specifically, Rule 15(a) provides that leave to amend pleadings “shall be freely given when justice so requires.” N.C. Gen. Stat. § 1A-1, Rule 15(a) (1990). The motion to amend is properly addressed to the discretion of the trial judge who must weigh the motion in light of all circumstances. Gladstein
We can detect in the record before us no reason the trial court should not have allowed defendant’s motion to amend. The defendant filed the motion in a timely manner, and plaintiff would not have suffered any discernible prejudice by the judge’s allowance of the motion. Indeed, we agree with plaintiff’s argument that, since defendant filed her motion within thirty days after serving the original answer and since the case had not been placed on the trial calendar, she had an absolute right to amend and thus did not need to file a motion. N.C.G.S. § 1A-1, Rule 15(a). We do not, however, accept plaintiff’s unsupported argument that this right justified the trial court’s action with regard to defendant’s motion.
The trial court’s failure to allow defendant’s motion to amend, however, did not prejudice the defendant, because the defendant had not verified the amended answer, and, thus, the trial court would not have been able to consider it when ruling upon plaintiff’s motion for summary judgment. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). We, therefore, overrule defendant’s first two assignments of error.
Defendant’s final argument is that the trial court erred in allowing plaintiff’s motion for summary judgment when discovery procedures were still pending. We find nothing in the record to indicate, however, that defendant requested that the trial court continue the hearing because discovery was still pending or that defendant moved to compel plaintiff’s responses to the discovery. Because defendant failed to request a continuance at the hearing, she has failed to preserve this question for appellate review. N.C.R. App. P. 10(b). We overrule this assignment of error.
We affirm the trial court’s entry of summary judgment.
Affirmed.
