Opinion
No. COA15-807
08-16-2016
TD BANK N.A., Plaintiff, v. EAGLES CREST AT SHARP TOP, LLC, JOHN W. HOLDSWORTH and JOHN H. SEATS, Defendants.
Ward and Smith, P.A., by Norman J. Leonard and Lance P. Martin, for plaintiff-appellee. David R. Payne, P.A., by David R. Payne, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Yancey County, No. 13-CVS-73 Appeal by defendants from order entered 11 July 2014 and 5 December 2014 by Judge Gary M. Gavenus in Superior Court, Yancey County. Heard in the Court of Appeals 13 January 2016. Ward and Smith, P.A., by Norman J. Leonard and Lance P. Martin, for plaintiff-appellee. David R. Payne, P.A., by David R. Payne, for defendant-appellant. STROUD, Judge.
Defendants appeal an order granting summary judgment in favor of plaintiff and an order denying reconsideration of the summary judgment order. For the following reasons, we dismiss plaintiff's appeal of the summary judgment order and affirm the order denying reconsideration of the summary judgment order.
I. Background
In February of 2013, plaintiff filed a verified complaint alleging defendants defaulted on a promissory note. Plaintiff requested $307,491.52 plus interest and attorney fees. In May of 2013, defendants answered and raised several affirmative defenses. In April of 2014, plaintiff filed a motion for summary judgment. On 11 July 2014, the trial court granted plaintiff's motion for summary judgment. Later in July, defendants filed a "MOTION FOR RELIEF FROM OR RECONSIDERATION OF SUMMARY JUDGMENT ORDER[.]" In December of 2014, the trial court denied defendants' motion. On 2 January 2015, defendants filed a notice of appeal from both the July order granting summary judgment and the December order denying reconsideration.
II. Summary Judgment Order
Plaintiff has filed a motion to dismiss defendants' appeal to the July order granting summary judgment. Plaintiff argues that defendants' appeal was untimely as the order was filed in July of 2014, but the notice of appeal was not filed until January of 2015. Rule 3(c) of the North Carolina Rules of Appellate Procedure provides:
In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within thirty days after entry of judgment if 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; or
(2) within thirty days after service upon the party
N.C. App. P. Rule 3(c) (2015).of a copy of the judgment if service was not made within that three day period; provided that
(3) if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party, as provided in subdivisions (1) and (2) of this subsection (c).
Defendants contend that under Rule 59 of the Rules of Civil Procedure, the time for entering their appeal from the summary judgment order was tolled by their motion for reconsideration. But Rule 59 is not a valid means to challenge pretrial orders. See generally Bodie Island Beach Club Ass'n, Inc. v. Wray, 215 N.C. App. 283, 294-95, 716 S.E.2d 67, 77 (2011) ("[B]ecause both Rule 59(a)(8) and (9) are post-trial motions and because the instant case concluded at the summary judgment stage, the court did not err by concluding that it was not proper to set aside default against Defendant SRS and vacate the summary judgment pursuant to Rule 59(a)(8) and (9)." (quotation marks and brackets omitted)). In fact, defendants acknowledged the possibility that a Rule 59 motion was not an appropriate means to seek relief from the summary judgement order even in their motion for reconsideration, noting that
[o]n its face, Rule 59 appears to provide a mechanism for rehearing actions that have been tried to the point of a judgment. Even so, there is analogous federal
support for the concept that Rule 59 is broad enough to encompass a rehearing of any matter decided by the court in the absence of a jury. See Nat'l Corn Growers Ass'n v. Baker, 623 F. Supp. 1262 (C.I.T. 1985)[.]
Nat'l Corn Growers Ass'n is an opinion from the United States Court of International Trade; it is not binding precedent for this Court, nor would it be precedential for any court, since it was reversed by the Court of Appeals for the Federal Circuit. See Nat'l Corn Growers Ass'n v. Baker, 840 F.2d 1547 (Fed. Cir. 1988). Since Rule 59 is not applicable to the summary judgment order, it could not have tolled the time for appeal pursuant to North Carolina Rule of Appellate Procedure 3. See id. at 287-95, 716 S.E.2d at 72-77 ("Because both Rule 59(a)(8) and (9) are properly made after a trial, and the case sub judice concluded at the summary judgment stage, SRS' 6 August 2010 motion did not toll the appeal, permitting us to dismiss the appeal as to the 30 July 2010 Order and the 24 September 2010 Order." (emphasis added)).
Defendants' motion for reconsideration also cites Rule 52 of the North Carolina Rules of Civil Procedure. Rule 52 generally addresses findings of fact by the trial court. See N.C. Gen. Stat. § 1A-1, Rule 52 (2013). Summary judgment orders generally do not include findings of fact, and Rule 52 is not a valid avenue to challenge a summary judgment order. See Hodges v. Moore, 205 N.C. App. 722, 723, 697 S.E.2d 406, 407 (2010) ("We hold this order to be sufficient and that the provisions of Rule 52 of the Rules of Civil Procedure do not apply to orders granting summary judgment pursuant to Rule 56. Rule 52(a)(2) does not apply to the decision on a summary judgment motion because, if findings of fact are necessary to resolve an issue, summary judgment is improper." (citation and quotation marks omitted)). Because neither Rule 52 nor Rule 59 were appropriate routes to challenge the summary judgment order, defendants' time for appeal was not tolled. See generally Bodie Island Beach Club Ass'n, Inc., 215 N.C. App. at 287-88, 716 S.E.2d at 72. Therefore, we grant plaintiff's motion to dismiss defendants' appeal to the summary judgment order as untimely filed.
III. Reconsideration Order
Defendants did file a timely notice of appeal from the order denying reconsideration of summary judgment. Although the motion filed with the trial court cited Rules 52, 59, and 60 of the Rules of Civil Procedure, on appeal defendants rely solely upon Rule 59. Rules 52 and 60 are not even mentioned in defendants' argument section of their brief. Furthermore, while defendants redirect us back to "the argument sections presented in their response brief" filed in opposition to plaintiff's motion to dismiss the appeal, this "brief" also primarily relies upon Rule 59. Because Rule 59 was not a valid route to challenge the order for summary judgment, see id., 215 N.C. App. at 294-95, 716 S.E.2d at 77, defendants' motion for reconsideration was properly denied.
IV. Conclusion
For the foregoing reasons, we dismiss defendants' appeal to the summary judgment order as untimely, and we affirm the trial court's order denying reconsideration of the summary judgment order.
DISMISSED in part; AFFIRMED in part.
Judges ELMORE and DIETZ concur.
Report per Rule 30(e).