Landin Ltd. v. Sharon Luggage, Ltd., of Greensboro, Inc.

78 N.C. App. 558 | N.C. Ct. App. | 1985

Lead Opinion

JOHNSON, Judge.

Defendants’ only Assignment of Error is that the trial court erred by ruling that their notice of appeal and appeal entry from the 26 July 1984 judgment was untimely and should be dismissed. With respect to this Assignment of Error defendants have six (6) exceptions to the trial court’s order. Defendants’ principal exception is with the following finding by the court:

(4) This motion came on for hearing before the undersigned Judge presiding at the 24 September 1984 civil session of the Superior Court of Guilford County. At the time of the calendar call on this motion, counsel for defendants stated in open court to the undersigned Judge presiding that he was withdrawing the Motion to Amend Judgment, and would instead pursue this case further by way of appeal. Counsel for defendants requested of the Court that the case be removed from the calendar in light of his withdrawal of the pending motion. Counsel for plaintiffs was present and stated to the Court that he was prepared to proceed with the hearing on defendants’ pending motion at the time this withdrawal of the motion to amend judgment was made by counsel for defendants.

(Emphasis ours.) Defendants, in their brief, present a different version of the 24 September 1984 calendar call of their motion to amend judgment.

At the time of the calendar call on this motion in open court, counsel for defendants stated to the Court that he was unable to provide the Court new evidence and would allow the Court to rule that the motion be disallowed. Counsel for defendants specifically stated to the Court that he would prepare an Order to that effect and present it to the Court and would pursue this case further by way of appeal.

The discrepancy between the trial judge’s finding and defendants’ version of the procedural posture of the case differ with respect to: (1) whether the court ruled on defendants’ motion or whether defendants withdrew it and (2) whether defendants gave an oral notice of appeal while his motion was still pending. The procedural requirements to appeal from a judgment or order of Superior Court is set forth in the North Carolina Rules of Appellate Procedure.

[Gjiving oral notice of appeal at trial, or at any hearing of a timely motion under Rule 59 of the Rules of Civil Procedure for a new trial or to alter or amend a judgment, or under Rule 50 of the Rules of Civil Procedure for a judgment notwithstanding the verdict with or without a motion for a new trial. . . .

Rule 3(a)(1), N.C. Rules App. P. On 26 July 1984 when the jury returned its verdict defendants did not give an oral cross-notice of appeal. On 6 August 1984, ten days after judgment was filed, defendant filed a Rule 59 motion to amend judgment. This motion by defendants tolled the time for filing and serving a cross-notice of appeal until entry of an order on their motion. Rule 3(c) N.C. Rules App. P.

If not taken by oral notice as provided in Rule 3(a)(1), appeal from a judgment or order in a civil action or special proceeding must be taken within 10 days after its entry. The running of the time for filing and serving a notice of appeal in a civil action or special proceeding is tolled as to all parties by a timely motion filed by any party pursuant to the Rules of Civil Procedure enumerated in this subdivision, and the full time for appeal commences to run and is to be computed from the entry of an order upon any of the following motions: . . . (iii) a motion under Rule 59 to alter or amend judgment. . . .

Rule 3(c), N.C. Rules App. P. (emphasis ours). If finding number four (4) by the court that defendants withdrew their Rule 59 motion is without error then the ten (10) day time limit to give notice of appeal under Rule 3(c) would not be tolled because there was never a judicial determination on defendants’ motion. The key term of art used in Rule 3(c) is “entry.” The drafting committee’s commentary to Rule 3(c) provides useful guidance in construing the meaning of Rule 3(c).

‘Entry’ is a word of art with a precise meaning now dictated by Rule 58 of the Rules of Civil Procedure. However satisfactory the procedure under Civil Rule 58 generally, its clear specification of the act which accomplishes ‘entry’ of a judgment of any kind, coupled with its requirement that this be made a matter of record, provides counsel with sure means of determining for purposes of appeal that judgment has been entered and the time of its entry.

Commentary Subdivision (c), N.C. Rules App. P. (emphasis ours).

The technical aspects of Rule 58, N.C. Rules Civ. P. indicate the exact requirements which have to be fulfilled in order to have a judgment entered.

In other cases where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. . . .

The Record on Appeal in the case sub judice is devoid of any ruling whatsoever by the trial court with respect to defendants’ 6 August 1984 motion to amend judgment. The purpose of the requirements for such notations required by Rule 58, N.C. Rules. Civ. P., is to provide a basis for making the time of entry of judgment easily identifiable and to give fair notice to all the parties of the entry of judgment. See Barringer & Gaither, Inc. v. Whittenton, 22 N.C. App. 316, 206 S.E. 2d 301 (1974). Plaintiff was present at the scheduled time for a hearing on defendants’ motion and was not apprised of any ruling by the court on defendants’ motion. To the contrary, plaintiffs assert and the court’s order clearly recites that defendants withdrew their motion. The withdrawal of defendants’ motion required no action by the court. Withdrawal of their motion does not entitle defendants to ten (10) days from their withdrawal to file notice of appeal from the 26 July 1984 judgment. To hold otherwise would thwart the tolling provision of Rule 3(c), N.C. Rules App. P. and circumvent Rule 58, N.C. Rules Civ. P. to wit: to give all interested parties a definite fixed time of a judicial determination they can point to as the time of entry of judgment.

When defendants withdrew their motion defendants indicated that defendants would instead pursue the matter on appeal. At oral argument defendants for the first time urged this court to consider the colloquy with the court during the 24 September 1984 calendar call as an oral notice of appeal, while their motion was still pending. This we decline to do.

We note that in the conclusion to defendants’ brief it is stated that “[t]he Notice of Appeal of defendant-appellants filed on October 4, 1984, was filed and served within ten (10) days of the hearing before the Honorable Thomas W. Ross, Judge Presiding which was held on September 24, 1984.” If defendants as they allege gave oral notice of appeal at the 24 September 1984 calendar call on their motion then there would have been no need for defendants to subsequently file a cross-notice of appeal on 4 October 1984. See Rule 3(a)(1), N.C. Rules App. P. We find that the cross-notice of appeal filed by defendants on 4 October 1984 supports the trial court’s finding that it was not defendants’ intention to give notice of appeal at the 24 September 1984 calendar call on their Rule 59 motion. Moreover, we find that defendants admit in the conclusion to their brief that a cross-notice of appeal was not filed until 4 October 1984, which was two months after the judgment was entered on 26 July 1984. This is beyond the 10 day limit of Rule 3(c), N.C. Rules App. P., because defendants’ motion was not pending 4 October 1984 when they filed their purported cross-notice of appeal. Defendants’ remaining exceptions, which are noted in the Record on Appeal, pertain to the court’s refusal to sign the purported notice of appeal and proposed order dismissing their “pending” motion. The Honorable Judge Ross’ refusal to place his signature on the documents submitted by defendants was consistent with his findings which clearly show defendants withdrew their motion and did not timely file a cross-notice of appeal. Failure to give timely notice of appeal in compliance with G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed. See Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E. 2d 98 (1983). The trial court acted correctly in dismissing defendants’ attempted appeal.

Affirmed.

Judge Webb concurs. Judge Phillips dissents.

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Dissenting Opinion

Judge Phillips

dissenting.

I believe that defendants’ remarks at the 24 September 1984 calendar call constituted an oral notice of appeal.