Grant & Hastings, P.A. v. Arlin

HEDRICK, Chief Judge. Defendant contends that the trial judge erred in denying her motion to amend her answer to allege a counterclaim for malfeasance, negligence, and fraud. She argues that the trial court erred in finding and concluding that the counterclaim she sought to allege was a compulsory counterclaim. She argues that the counterclaim was permissive. In Garage v. Holston, 40 N.C. App. 400, 258 S.E. 2d 7 (1979) we held that a motion made pursuant to G.S. 1A-1, Rule 15 for leave of court to amend to allege a counterclaim was addressed to the sound discretion of the trial judge and the denial of such a motion was not reviewable absent a clear showing of abuse of discretion. We have also held that an order denying a motion to amend an answer was interlocutory and not immediately ap-pealable, Buchanan v. Rose, 59 N.C. App. 351, 296 S.E. 2d 508 (1982), but that denial of a motion to amend to allege a compulsory counterclaim was immediately appealable under G.S. 1-277 as affecting a substantial right. Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E. 2d 119, disc. rev. denied and appeal dismissed, 294 N.C. 736, 244 S.E. 2d 154 (1978). In the present case, defendant made a motion to amend her answer to allege a counterclaim six months after the original answer was filed. Thus, under G.S. 1A-1, Rule 15, the trial judge had broad discretion to permit or deny the amendment, whether the counterclaim to be alleged was compulsory or permissive. Since defendant has shown no abuse of discretion on the part of the judge in denying the motion to amend, it is not necessary to decide whether the counterclaim was compulsory or permissive. The order denying defendant’s motion to amend is affirmed. Affirmed. Judges Wells and Eagles concur.