Background

• Whitworth appeals Rule 60 denial after 12 Aug 2010 nunc pro tunc order granting Window World’s intervention; district court proceeding concluded before the intervention order.
• District court previously granted TRO and later a consent order addressing Window World, Inc.’s interests in the company and related stock transfers.
• Consent order of 6 Nov 2007 resolved Window World-related issues; Todd Whitworth’s death occurred in 2010 and prompted related superior court litigation.
• The 12 Aug 2010 intervention order contained findings and conclusions contrary to earlier 2007/2008 orders and was entered without proper notice or service.
• Rule 60 motion alleged lack of notice, ex parte contact, and due process violations; final equitable distribution judgment from 24 Jan 2008 left no pending issues.
• Court held the district court lacked jurisdiction to issue the 12 Aug 2010 nunc pro tunc order and vacated it.

Issues

Key Cases Cited

• Long v. Long, 102 N.C. App. 18, 401 S.E.2d 401 (1991) (nunc pro tunc requires prior signing of an order; may not retroactively create a ruling)
• Rockingham Cnty. Dep’t of Soc. Servs. v. Tate, 202 N.C. App. 747, 689 S.E.2d 913 (2010) (entry nunc pro tunc cannot cure absence of substantive ruling at hearing when prejudice not shown)
• Hill v. Hill, 105 N.C. App. 334, 413 S.E.2d 570 (1992) (alimony nunc pro tunc only if decreed or signed and not entered due to mistake; prejudice not shown)
• Walton v. N.C. State Treasurer, 176 N.C. App. 273, 625 S.E.2d 883 (2006) (nunc pro tunc used to correct record; not to create new substantive order)
• Whiteco Indus., Inc. v. Harrelson, 111 N.C. App. 815, 434 S.E.2d 229 (1993) (final decree; court may correct or enforce judgment but cannot extend jurisdiction for new issues)
• Lowe v. Bryant, 55 N.C. App. 608, 286 S.E.2d 652 (1982) (after final disposition, court lacks authority to rule on merits)