Fowler v. Johnson , 18 N.C. App. 707 ( 1973 )

198 S.E.2d 4 (1973) 18 N.C. App. 707

Eliza Brown FOWLER et al., Petitioners,
v.
Major Bernard JOHNSON et al., Respondents.

No. 7322SC336.

Court of Appeals of North Carolina.

July 25, 1973.

Martin & Martin, by Lester P. Martin, Jr., Mocksville, and Gilbert T. Davis, Jr., Mocksville, for petitioner-appellees.

White & Crumpler, by Michael J. Lewis and Sally J. Jackson, Winston-Salem, for respondent-appellants.

BROCK, Judge.

Respondents except to the findings of fact in the judgment and to the entry of the judgment itself. Respondents contend that the greater weight of the evidence is sufficient to show that Cora Johnson held the property adversely to the other cotenants, but, at the same time, in subordination to Lewis Brown. This is not the consideration on appeal. The court's findings of fact are conclusive if supported by any competent evidence, and the judgment supported by such findings will be affirmed, even though there is evidence to the contrary. 1 Strong, N. C. Index, Appeal and Error § 57, p. 223.

Respondents assign as error the trial court's refusal to allow their motion to amend the pleadings pursuant to Rule 15 of the Rules of Civil Procedure. Rule 15(b) allowing for amendments to conform to proof already adduced provides, in pertinent part, as follows: "When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues."

Respondents stipulated at pretrial conference that "neither party desires further amendments to the pleadings. . . ." They also stipulated, both at pretrial conference and at the start of the trial itself, that the sole issue involved was "whether Lewis Brown obtained title to this tract of land described in the petition by adverse possession under the 20-year statute." At trial respondents proceeded under the theory that Cora Johnson adversely possessed the land in question for Lewis Brown, holding the property adversely to other cotenants, but in subordination to Lewis Brown.

After final judgment was entered, respondents moved to amend their pleadings to allege that Cora Johnson adversely possessed the property for herself. Under this theory, respondents claim through Cora Johnson, their grandmother, whatever testate or intestate share to which they are entitled (record does not indicate whether Cora Johnson died testate, or, if so, the provisions of her will).

"The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried, even though there is evidence in the record—introduced as relevant to some other issue—which would support the amendment. This principle is sound, since it cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial." (Emphasis added). 3 J. Moore, Federal Practice Par. 15.13[2] (2nd ed. 1948), p. 991.

In this case, there is evidence—introduced as relevant to the stipulated issue of Lewis Brown's adverse possession—which would support the proffered amendment alleging that Cora Brown adversely possessed the property for herself. However, it cannot be fairly said that there was any implied consent to try this issue. The proposed amendment would completely change the theory on which the case was actually tried. Petitioners may very well have operated on a different tack if they had recognized respondents' post-trial theory as being an issue in the trial.

"Unless and until the court is persuaded to modify its pretrial order, the parties are bound by their admissions and stipulations included in the order, and may not contradict its terms. They are bound by their agreement to limit the issues, and may not introduce at trial issues not among those included in the order." 3 J. Moore, Federal Practice Par. 16.19 (2d ed. 1948), p. 1130. In this case respondents stipulated to the sole issue involved at both the final pretrial conference and the beginning of the trial. Respondents, after final judgment has been entered, seek to avoid their stipulations which were knowingly made and relied on by both parties. No abuse of discretion or error of law has been shown. This assignment of error is without merit.

We have carefully considered respondents' other assignments of error and find them to be without merit.

Affirmed.

VAUGHN and BALEY, JJ., concur.