Steel Creek Development Corp. v. James, 35 N.C. App. 272 (1978)

Feb. 7, 1978 · North Carolina Court of Appeals · No. 7726SC235

35 N.C. App. 272

STEEL CREEK DEVELOPMENT CORPORATION and R. S. SMITH and wife, EVELYN L. SMITH Additional Parties v. EARL TERRY JAMES and wife, MARTHA S. JAMES d/b/a TERRY’S MARINA

No. 7726SC235

(Filed 7 February 1978)

Pleadings § 10— scope of order allowing “responsive pleadings”

An order allowing defendants to file “responsive pleadings” within 30 days after additional parties plaintiff filed an amendment to the complaint did not permit defendants to respond only to the new matter alleged in the amendment but permitted them to respond in any proper way they deemed appropriate, including further answers and defenses and a counterclaim.

Judge Britt dissents.

APPEAL by defendants from Graham, Judge. Order entered 14 January 1977 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 19 January 1978.

This appeal brings to the Court the propriety of an order signed by Judge Graham in Mecklenburg County striking an answer by the defendants. The Steel Creek Development Corporation brought this action as plaintiff and on 16 July 1976, Judge Thornburg signed an order permitting R. S. Smith and wife, Evelyn L. Smith to be made additional parties plaintiff. The order provided that said additional parties plaintiff were granted 30 days to file an amendment to the complaint or to adopt the prior pleadings. The order further provided that “the defendants are granted 30 days from the date of service upon an Amendment to complaint or adoption of pleadings upon them within which to file responsive pleadings.” The additional parties plaintiff filed an amendment to the complaint on 13 August 1976. The defendants filed an answer to the amended complaint on 9 September 1976 in which they set up several further answers and defenses and a counterclaim. The plaintiffs filed a motion to strike the answer to the amended complaint and on 14 January 1977, Judge Graham signed an order striking the answer to the amended complaint on the ground that the order entered by Judge Thornburg required and permitted the defendants to respond only to the new matter alleged by the plaintiffs in the amendment to the complaint. This appeal followed.

Fairly, Hamrick, Monteith & Cobb, by Laurence A. Cobb, for plaintiffs appellees.

Richard A. Cohan, for defendants appellants.

WEBB, Judge.

We note at the outset that the appellants did not comply with the rules in that the record does not contain all the pleadings filed in the Superior Court of Mecklenburg County. Rule 9(b)(1), Court of Appeals Rules. We have, nevertheless, decided to overlook this violation and decide the matter on its merits.

We believe that Judge Graham was in error in allowing the motion of the plaintiffs. The order of Judge Thornburg provided that the defendants were granted 30 days after the filing of an amendment to the complaint to file responsive pleadings. We do not believe that the word “responsive” should be given such a limited definition as to require that the defendants could only answer pleadings filed by the plaintiffs. We interpret the order allowing the defendants to file responsive pleadings to give them the right to respond in any proper way they deem appropriate to the amended complaint. This would include further answers or counterclaims.

For this reason, we order that the case be reversed.

Reversed.

Judge HEDRICK concurs.

Judge BRITT dissents.