Saintsing v. Taylor

*471 MARTIN (Robert M.), Judge. The defendant Norman Taylor first argues that the trial court erred in failing to remove plaintiffs attorney. Plaintiffs attorney John Haworth had previously represented Evelyn Taylor in a divorce action against defendant Norman Taylor. Norman Taylor argues that he was prejudiced by Mr. Haworth’s representation of the plaintiffs in this case and that there was such an “obvious conflict of interest in it that it is obvious even to a layman.” This conflict is not obvious to this Court and defendant cites no authority in support of it. We agree with the trial judge that defendant has no standing to complain of a conflict. The plaintiffs in this case knew of Attorney Haworth’s previous representation of Evelyn Taylor and both Evelyn Taylor and the plaintiffs agreed to Haworth’s representation of plaintiffs in this action. This assignment of error is without merit. The defendant in his second and fourth assignments of error contends that the trial court erred in refusing to allow him thirty days to respond to plaintiffs’ amended complaint and erred by allowing into evidence a deed pursuant to this amended complaint. We disagree with defendant. On 2 April 1981 plaintiffs served on defendant a motion to amend the complaint. The purpose of the motion was to include in the complaint allegations of ownership of the pie-shaped lot adjoining 340 Marmaduke Circle which had been purchased to eliminate an encroachment. The motion was filed and heard on 6 April 1981 and the order granting the amendment was entered on 13 April 1981. The defendants could file a responsive pleading on or before 17 April 1981 or the beginning of the trial, whichever occurred first. It is well-settled in North Carolina that leave to amend should be freely given pursuant to N.C. Gen. Stat. § 1A-1, Rule 15. The burden is on the party objecting to the amendment to satisfy the trial court that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646, 231 S.E. 2d 591 (1977), Watson v. Watson, 49 N.C. App. 58, 270 S.E. 2d 542 (1980). Further the motion to amend is properly addressed to the discretion of the trial court who must weigh the motion in light of the attendant circumstances. Gladstein v. South Square Assoc., 39 N.C. App. 171, 249 S.E. 2d 827 (1978), disc. rev. denied, 296 N.C. 736, 254 S.E. 2d *472 178 (1979). In this case the defendant did not assert that he was in any way prejudiced because of the amendment or the short time for response. In addition N.C. Gen. Stat. § 1A-1, Rule 15(a) provides specifically that the court can order a response to an amended pleading in more or less than thirty days. We can find no prejudice suffered by defendant and no abuse of discretion on the part of the trial judge in this case. Defendant’s assignments of error are therefore overruled. Defendant asserts in his fifth assignment of error one hundred and one exceptions to the trial Court’s evidentiary rulings on the testimony of Pearl Saintsing. Defendant, however, only presents a specific argument and cites authority for Exception No. 50. We therefore deem his other one hundred exceptions to be abandoned pursuant to Rule 28(b)(3), N.C. Rules App. Proc. The defendant in exception No. 50 contends that the trial court expressed an opinion in violation of Rule 51(a), N.C. Rules Civ. Proc. during the following exchange: “Did Mr. Taylor make any statement to you about whether he had used any of that money that you had given him in connection with the purchase of the home here in Asheboro, Ms. Saintsing? Mr. BURTON: I OBJECT. She’s answered that question. COURT: OVERRULED. You’re going to object to every question, aren’t you? Exception. This Is Defendant Norman Edward Taylor’s Exception No. 50. Mr. BURTON: Not every question. COURT: Just let the record show so that we don’t have the interruption that he is objecting to all of these questions. Generally Rule 51(a), N.C. Rules Civ. Proc., does not apply to the judge’s charge alone, but prohibits the trial judge from making comments at any time during the trial which amount to an expression of opinion as to what has or has not been shown by the testimony. Galloway v. Lawrence, 266 N.C. 245, 145 S.E. 2d 861 (1966). The trial judge must abstain from conduct or language which tends to discredit or prejudice a litigant or his cause to the jury. State v. Carter, 233 N.C. 581, 65 S.E. 2d 9 (1965). The criteria for determining whether the court has deprived a party of his right to a fair trial by improper comments in the hearing of *473 the jury is the probable effect on the jury. Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E. 2d 874 (1971). At this point in the trial, defendant’s attorney had objected forty-two times during the direct examination of Pearl Saintsing. The court properly could have been trying to determine whether defense counsel would accept a continuing objection to the testimony rather than the consistent interruptions. While the court’s remark was somewhat harsh, we cannot say that, standing alone, it was prejudicial. See State v. Frazier, 278 N.C. 458, 180 S.E. 2d 128 (1971). Further the trial court gave the following instruction to the jury during the trial and another similar instruction during the charge to the jury: I instruct you that the law as indeed it should requires the Presiding Judge to be impartial. You’re not to draw any inference from any ruling that I’ve made or any inflection in my voice or any question that I’ve asked or any remarks such as I made to Mr. Burton in sustaining an objection to a leading question that I —or of Mr. Haworth or anybody else in this courtroom, or anything else that I may have said or done during this trial that I have an opinion or have intimated an opinion as to whether any part of the evidence should be believed or disbelieved, as to whether any fact has or has not been proved or as to what your findings ought to be. It’s your exclusive province to find the true facts of this case and to render a verdict reflecting the truth as you find it when the time comes. I instruct you to completely disregard the remark that I made a few minutes ago or any other remarks or anything else I’ve done, if my demeanor hasn’t been right during the course of this trial or at any time to strike that and not consider that as reflecting on either party in this law suit. All right. Thus defendant was not prejudiced by the judge’s remark. This assignment of error is without merit and is overruled. Defendant in his fourteenth and twenty-fourth assignments of error asserts that the trial judge erroneously instructed the jury that if a parol trust were found to exist the parties would each own a one-fourth interest in the property. The allegations in plaintiffs’ complaint and all of plaintiffs’ evidence tends to show that the parties owned the property in equal shares. Pearl Saint-sing testified that, “ . . . [i]t would be to all four of us, but it would be put in their names for best convenience .... I own 1/4 *474 of the property, and Evelyn 1/4 of it. I mean, Gladys a 1/4, Evelyn and Norman 1/4. I think it should be divided equally. We got just as much in it as they have.” Evelyn Taylor testified as follows: There was never any —really any controversy —any objection because it was said that it would be put in our names because it would be more convenient for us to go get the loan because we were much younger than those two, than Pearl and Gladys were. Q. Was there any discussion had about whose property it would be? A. Well, this was our home. I mean, it was considered to be all four of our homes. * * * It was my understanding — it was understood and agreed upon from all parties that the home would belong to Norman Taylor, Evelyn Taylor, Gladys Saintsing and Pearl Saintsing. The defendant, on the other hand, denied that the Saintsings had any ownership interest in the disputed property. The evidence presented supported either a finding that the parties owned the property in equal shares or that no parol trust existed for plaintiffs. Thus the court properly followed the rule stated in Johnson v. Massengill, 280 N.C. 376, 384, 186 S.E. 2d 168, 174 (1972) that, “[t]he issues to be submitted to the jury are those raised by pleadings and supported by the evidence.” Further even if an issue of fact existed concerning the ownership percentages, the defendant waived his objections thereto by failing to demand the submission of that issue to the jury pursuant to Rule 49(c), N.C. Rules Civ. Proc. Thus, these assignments of error are without merit and are overruled. In defendant’s assignments of error numbers seventeen through twenty and twenty-six, he asserts that the trial judge erred in failing to instruct the jury that a presumption of gift existed because the Saintsings were Evelyn Taylor’s foster parents. Assuming that such a presumption would exist between a foster parent and child, the defendant never requested such an instruction. Because the trial court correctly charged that the burden is on plaintiffs to establish the trust by clear, strong, and convincing *475 proof, the failure of the court to charge on the burden of overcoming the presumption of fact that the conveyance was a gift or advancement will not be held prejudicial in the absence of a special request. Waddell v. Carson, 245 N.C. 669, 97 S.E. 2d 222 (1957); 13 Strong’s N.C. Index 3d Trusts § 17 (1978). Thus defendant’s assignments of error are without merit and are overruled. We have carefully examined defendant’s fifteenth and twenty-third assignments of error and find them to be totally without merit and overruled. Defendant in his remaining assignments of error asserts no authority for his positions and under Rule 28(b)(3), N.C. Rules App. Proc., his exceptions should be taken as abandoned. Nonetheless we have carefully examined each of these assignments of error and find them to be without merit. Defendant had a fair trial free from prejudicial error. No error. Judges Vaughn and Arnold concur.