Opinion
No. COA15-1327
07-19-2016
MOTISOLA K. GRAHAM, Plaintiff, v. BRIAN E. GULLETTE and CAROL G. CHOICE, Defendants.
Marcari, Russotto, Spencer & Balaban, PC, by Frank F. Voler, for Plaintiff-Appellee. Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, Joseph S. Johnston, and Meredith T. Berard, for Defendant-Appellants.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Durham County, No. 14-CVS-2230 Appeal by Defendants from order entered 9 March 2015 and judgment entered 16 March 2015 by Judge Elaine M. O'Neal Bushfan in Durham County Superior Court. Heard in the Court of Appeals 28 April 2016. Marcari, Russotto, Spencer & Balaban, PC, by Frank F. Voler, for Plaintiff-Appellee. Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, Joseph S. Johnston, and Meredith T. Berard, for Defendant-Appellants. DILLON, Judge.
Defendants Brian E. Gullette ("Gullette") and Carol G. Choice ("Choice") (collectively referred to as the "Defendants") appeal from an order (the "Order") denying their Motion for Leave to File Second Amended Answer to add contributory negligence as an affirmative defense. For the following reasons, we affirm.
Defendants also appealed the judgment entered 16 March 2015 in favor of Plaintiff Motisola K. Graham ("Plaintiff'); however, Defendants make no argument on appeal regarding that judgment.
I. Background
In March 2009, a vehicle owned by Choice and driven by Gullette collided with Plaintiff's vehicle, when Gullette drove across Plaintiff's lane of travel while attempting a left turn.
At the time of the collision, there were red flashing lights pointed at traffic from the road on which Gullette was traveling. There was a stop sign five to ten feet back from the intersection on that road. There were yellow flashing caution lights facing traffic from the road on which Plaintiff was traveling.
Plaintiff testified that she initially spotted Choice's vehicle behind the stop sign, which was approximately seven to eight car lengths from her vehicle. Plaintiff was traveling at approximately 40 to 45 miles per hour, and Gullette was traveling at 5 miles per hour when their vehicles collided. Plaintiff sustained numerous injuries, incurred significant medical expenses, and lost earnings.
In March 2012, Plaintiff filed a complaint seeking damages from Defendants. In May 2012, Defendants filed an answer generally denying the allegations set forth in Plaintiff's complaint, but did not assert contributory negligence as an affirmative defense. Plaintiff subsequently took a voluntary dismissal without prejudice.
In March 2014, Plaintiff filed a new complaint which was substantially similar to the 2012 complaint. In May 2014, Defendants filed an answer, which failed to plead contributory negligence. Days later, Defendants filed an amended answer, again neglecting to plead contributory negligence as an affirmative defense.
In May 2015, shortly before trial, Defendants filed the Motion for Leave to File Second Amended Answer (the "Motion") to include contributory negligence as an affirmative defense in their answer. The basis of the Motion was a 2007 Google Earth photograph of the intersection. Defendants argued that the photograph raised a "jury issue on Plaintiff's contributory negligence," given the "presence of the yellow flashing light, the distance between the stop sign and the intersection as show[n] in the photograph, and Plaintiff's apparent failure to brake before the collision." Additionally, Defendants contended that the photograph was new evidence, as all other images of the intersection were "either indecipherable regarding the precise location of the stop signs . . . , or taken after the intersection was changed to a four-way stop."
The trial court conducted a pre-trial hearing on the Motion, during which counsel for Plaintiff raised a number of counterarguments. Specifically, counsel for Plaintiff argued that the Motion, if granted, would be prejudicial. Counsel affirmed that he chose not to depose Defendants and call the state trooper who investigated the accident at trial, in large part because he believed contributory negligence was not at issue. Counsel noted Defendants' considerable delay in asserting contributory negligence and the impact that defense would have on "the whole landscape and dynamic of the case."
After hearing argument from counsel for both parties, the trial court rendered the Order and denied the Motion:
I am not inclined to allow the Motion to amend the Second Amended Answer [sic]. As we all know, North Carolina law is real settled in the area of contributory negligence, and it does change the landscape of the case, in my opinion. So in my discretion, I am not going to allow that amended, the Amended Answer to be filed.The matter was tried before a jury. The jury returned a verdict in favor of Plaintiff, finding Gullette negligent and awarding Plaintiff damages. Judgment was entered by the Court reflecting the jury's verdict. Defendants timely appealed.
II. Standard of Review
In their sole argument on appeal, Defendants challenge the Order. We review the Order under the abuse of discretion standard. See FNB Se. v. Lane, 160 N.C. App. 535, 537, 586 S.E.2d 530, 532 (2003).
III. Analysis
Defendants contend that the trial court abused its discretion as there was no rational basis for denying the Motion. Defendants cite Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542 (1980) and a series of cases for the unremarkable proposition that a trial court shall liberally grant leave to amend a pleading pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure. E.g., Watson v. Watson, 49 N.C. App. 58, 60-61, 270 S.E.2d 542, 544 (1980). Defendants also argue that the trial court's specified reason for denying the Motion, to wit, that granting the Motion would "change the landscape of the case," was not grounded in case law. Furthermore, even assuming this reason encapsulates a valid basis for denying the Motion, Defendants attest that the Order was "unsupported by [any apparent] reason or basis in the record."
After reviewing the record on appeal, we conclude that the trial court did not abuse its discretion by denying the Motion. Although Rule 15 undoubtedly encourages liberal amendment of pleadings, it is axiomatic that the denial of a Rule 15 motion "is not reviewable absent a clear showing of abuse of discretion." Rabon v. Hopkins, 208 N.C. App. 351, 353, 703 S.E.2d 181, 184 (2010) (emphasis added). Of course, an unfortunate consequence of this rule is that matters will sometimes be resolved upon a procedural defect. See Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 25, 588 S.E.2d 20, 25 (2003). Even so, it is of paramount importance that we not substitute our judgment for that of the trial court.
We have carefully reviewed the transcript, and it is obvious that the trial court denied the Motion because adding contributory negligence as an issue on the eve of trial would prejudice Plaintiff. The trial court was merely stating a reason why granting the Motion would prejudice Plaintiff by stating that injecting contributory negligence as a litigable issue would "change the landscape of the case."
"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." Carter v. Rockingham Cty. Bd. of Educ., 158 N.C. App. 687, 690, 582 S.E.2d 69, 72 (2003). Here, Plaintiff's counsel forwent examining several key witnesses and stipulated to certain pieces of evidence in large part because he believed the issue of contributory negligence would not be litigated. Had the Motion been granted, counsel for Plaintiff would have had to re-orient his trial strategy. Plaintiff filed her initial complaint on 12 March 2012. Defendants moved to amend their answer to include contributory negligence over three years later on the eve of trial. The trial court's denial of the Motion was not an abuse of discretion. See Keith v. N. Hosp. Dist. of Surry Cty., 129 N.C. App. 402, 406, 499 S.E.2d 200, 203 (1998).
IV. Conclusion
We affirm the Order. Additionally, because Defendants have not raised any arguments regarding the 16 March 2015 judgment, we affirm that judgment as well.
AFFIRMED.
Chief Judge MCGEE and Judge ZACHARY concur.
Report per Rule 30(e).