Articles related to Rule 59

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:

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 […]

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

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 […]

In Lacey v. Kirk, (COA14-688; Dec. 31, 2014), the Court of Appeals considered whether a judge’s statements in the jury’s presence entitled defendant to a new trial. Defendant took issue with several things the judge said while defendant testified, including instructing her to “tell the truth” when she was evasive; that she had “a problem” if she couldn’t prove a point without hearsay; and to “answer the question first” before explaining. The court held that—considered cumulatively and in context—these comments were an attempt to aid the flow of evidence and were not prejudicial. Also, the judge’s instructions to counsel to move faster and avoid repetition “exhibited a certain degree of impatience” but were “meted out” to both sides and were appropriate to preserve court time. Lacey is a fresh example our courts’ basic analysis of judge statements in front of a jury: Neutrality is paramount, but context and cumulative impact determine whether questionable remarks taint a party’s case.