To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief. If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.” As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases. A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1. But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome: Continue Reading
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Keywords: Rule 59
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Rule 59: Not for Relief from Interlocutory Orders – A New Opinion
In a prior post, I discussed whether North Carolina’s Rule of Civil Procedure 59—the “new trial” rule—could be used to seek relief from final judgments not resulting from a jury or non-jury trial. That post focused on other types of final, appealable judgments, such as summary judgment orders and default judgments. I concluded that North Carolina case law is not crystal clear on the question, but that the recent case of Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283 (2011), indicates that filing Rule 59 motions for relief from these types of judgments could imperil an appeal. Proper Rule 59 motions toll the appeal period for the underlying judgment pending disposition of the motion. See N.C. R. App. P. 3(c)(3). If the basis for the Rule 59 motion is not proper, the appeal period will not have been tolled.
Yesterday the Court of Appeals again addressed Rule 59’s applicability to orders other than trial judgments, but this time analyzed a pretrial, interlocutory order. In Tetra Tech Tesoro, Inc. v. JAAAT Tech. Services, LLC, a construction dispute, a subcontractor sued a contractor for unpaid work. The trial judge granted the subcontractor a preliminary injunction requiring the contractor Continue Reading
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New Trial Motions under Rule 59: Only for Post-trial Relief?
North Carolina Rule of Civil Procedure 59 permits a trial judge to order a “new trial” for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and several other bases. Rule 59 relief is designed to follow fast on the heels of a trial judgment: a new trial motion must be served within 10 days of entry of judgment, and the court cannot extend this deadline. By its plain language, Rule 59 clearly is intended to provide relief after a “trial.” Several of the listed grounds indeed explicitly relate to juries and verdicts or are otherwise relevant only in a post-trial context. And, of course, the stated remedy is itself a new “trial.” To what extent are parties nevertheless allowed to use Rule 59 to seek relief from judgments not resulting from a jury or non-jury trial? And why might it matter? As discussed below, it appears that invoking Rule 59 for appealable orders other than trial judgments could put the movant’s appeal rights at risk.
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Rule 4(j1), service by publication, and the “due diligence” requirement: What’s email got to do with service of process?
Appropriate service of process is one of the necessary elements for personal jurisdiction—meaning the documents used to initiate a civil lawsuit, a summons and complaint, must be served on the defendant in a manner that allows the court to exercise authority over her. Any judgment entered without service of process is void unless a defendant makes a general appearance in a case or otherwise waives objection to the lack of appropriate service. For that reason, issues with service of process can result in a judgment being set aside.
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Seven Sets of Mediation Rules – and Loads of Forms – Have Been Revised
Unless you are frequently immersed in mediation practice, you may have missed a recent renaming and overhaul of seven sets of rules governing court mediation in North Carolina. The updates went into effect on March 1, 2020 after the North Carolina Supreme Court approved them in late January. The bulk of the changes involve extensive reformatting, updates to titles and terminology, uniform phrasing and references, and incorporation of the specific names of relevant forms. But in some of the sets there are also notable substantive changes or clarifications. In addition, to reflect the various amendments, the Administrative Office of the Courts (AOC) has updated many of its mediation-related forms.
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Pleading med mal: Rule 9(j), res ipsa loquitur, and a new Court of Appeals opinion
Rule 9(j)’s special pleading requirement
Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other types of negligence suits. The plaintiff must allege that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care. The rule is very strict, and if a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.” See, e.g., Vaughan v. Mashburn, 795 S.E.2d 781 (N.C. App. 2016) (acknowledging the harshness of the result).
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“To Effectuate a Decision Already Made”: The Role of a Substitute Judge Under Rule 63
Imagine this scenario: Judge A had a busy civil calendar before leaving for vacation. Although all the hearings are complete, the judge did not make rulings on some issues. As to a couple of other matters, the judge announced her intended rulings in court but did not enter orders, some of which will require written findings of fact. Sadly the Judge fell very ill during vacation, will not be able to resume her duties on the bench, and will soon retire due to disability. Will another judge be able to complete the work Judge A started?
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Is it too late to seek Rule 11 sanctions?
As every North Carolina litigator should know, Rule 11 of the Rules of Civil Procedure states that, by signing a pleading or “other paper” (motion, subpoena, etc.) related to the litigation, the attorney certifies that,
to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If an opposing party decides that the paper violates one more of these requirements—legal sufficiency, factual sufficiency, or proper purpose—that party can move the court to impose “an appropriate sanction,” which may include attorney fees and other expenses. Rule 11 does not, however, set a time limit for filing a Rule 11 motion. So when is it too late? I have been asked this question (or similar ones) a few times in recent months. The short answer, of course, is that it depends on the facts. But I thought I would share the parameters I have observed from reviewing the case law: Continue Reading
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May a Different Judge Hear My Rule 60(b) Motion?
Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b). This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:
- Mistake, inadvertence, surprise, or excusable neglect;
- Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
- Fraud…, misrepresentation, or other misconduct of an adverse party;
- The judgment is void;
- The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
- Any other reason justifying relief from the operation of the judgment.
Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order. But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench. It’s not surprising, then, that fairly often my colleagues and I are asked: May a judge other than the original judge hear and rule on a Rule 60(b) motion? Continue Reading
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Appeal Deadlines and Tolling under Rule 3(c)(2): Don’t Be So Sure!
Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this: There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal. E.g., Bailey v. State, 353 N.C. 142, 156 (2000). In other words, Thou Shalt Not Miss Thy Appeal Deadline. Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.
The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure.” (Served pursuant to Rule 5 within three days of entry of judgment.) Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”
By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made. Not so fast. In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply. If there was actual notice, the 30 days instead began to run upon entry of judgment. Here, in brief, are the opinions: Continue Reading