P & D of Gray Court v. Bailey

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

P & D of Gray Court, Inc.       
Respondent,

v.

Tony Bailey and Joan Bailey,       
Appellants.

Appeal From Laurens County

Thomas J. Thompson, Special Referee

Unpublished Opinion No. 2003-UP-557

Submitted July 15, 2003 – Filed September
26, 2003

REVERSED

W. Reid Cox, Jr., of Laurens, for Respondent.

Bryan C. Able, of Laurens, for Appellants.

PER CURIAM:    Tony Bailey and Joan Bailey
appeal the denial of the motion to amend their answer.  We reverse. [1]

FACTS

P & D of Gray Court, Inc. commenced this action
against Tony Bailey and Joan Bailey to evict and cancel the contract rights
of the Baileys.  In their answer, the Baileys set forth a defense of a general
denial and did not assert any affirmative defenses.  At the hearing, the Baileys,
appearing pro se, defended on the basis of an alleged breach of
contract by P & D of Gray Court.  Counsel for P & D of Gray Court scheduled
a supplemental hearing for the purpose of presenting evidence regarding the
alleged breach of contract by P & D of Gray Court.  At the supplemental
hearing, P & D of Gray Court moved to supplement the record with additional
testimony in response to the unpled allegation of breach of contract made by
the Baileys at the previous hearing.  The Baileys, now represented by counsel,
moved to amend their answer.  An Order was issued in which the judge denied
both motions ruling, “Upon consideration of both motions, the Court is impelled
to deny them both and proceed to determine the case based on the original pleadings
and the testimony presented at the original hearing . . . .”  Pursuant to Rule
59(e), SCRCP, the Baileys filed a Notice of Motion and Motion to Alter or Amend
Judgment in which the Baileys erroneously contended the court had granted their
motion to amend their answer.  The judge issued a Supplemental Order, finding
the motions of both parties were still denied.

LAW/ANALYSIS

The Baileys argue the trial judge erred by denying
the motion to amend their answer.  We agree.

Rule 15 (a) states,

A party may amend his pleading once as a matter of course
at any time before or within 30 days after a responsive pleading is served or,
if the pleading is one to which no responsive pleading is required and the action
has not been placed upon the trial roster, he may so amend it at any time within
30 days after it is served.  Otherwise a party may amend his pleading only
by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires and does not prejudice any other party.

A motion to amend is addressed to the sound discretion
of the trial judge, and the party opposing the motion has the burden of establishing
prejudice.  Harvey v. Strickland, 350 S.C. 303, 566 S.E.2d 529 (2002). 
Amendments to conform to the proof should be liberally allowed when no prejudice
to the opposing party will result.  Soil & Material Eng’rs, Inc. v. Folly
Assoc., 293 S.C. 498, 361 S.E.2d 779 (Ct. App. 1987).  Delay in seeking
leave to amend pleadings, regardless of the length of the delay, will not ordinarily
be held to bar an amendment in the absence of a finding of prejudice.  Forrester
v. Smith & Steele Builders, Inc., 295 S.C. 504, 508, 369 S.E.2d 156,
159 (Ct. App. 1988).  In the absence of a proper reason, such as bad faith,
undue delay, or prejudice, a denial of leave to amend is an abuse of discretion. 
Id. at 507, 369 S.E.2d at 158.  The trial judge’s lack of findings in
his Order as to the reason why he denied the motion to amend provides a “sufficient
basis of reversing his decision.”  Id.

The judge did not indicate in his order
why he denied the Bailey’s motion to amend.  The record is void of any arguments
by P & D of Gray Court that it would be prejudiced if the Bailey’s motion
to amend was allowed.  The judge, therefore, abused his discretion in denying
the motion to amend.

CONCLUSION

Accordingly, the decision of the Special Referee is

REVERSED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.

[1] This case was decided without oral argument pursuant to Rule 215,
SCACR.