Opinion
No. 907SC908
Filed 7 May 1991
Rules of Civil Procedure 58 (NCI3d) — time of entry of judgment — notice of appeal timely Entry of judgment did not occur on 2 April 1990 when the trial judge announced his ruling in open court and the clerk noted the ruling in the minutes but occurred on 30 April when the trial judge signed the written order that had been drafted by respondent's counsel at the judge's direction, and petitioner's notice of appeal filed on 22 May 1990 was thus timely. Paragraph one of Rule 58 was inapplicable because the trial judge made a "contrary direction" when he directed respondent's counsel to prepare the order; paragraph two of Rule 58 was inapplicable because the judge did not direct the clerk to make a notation of the judgment in the minutes; and paragraph three of Rule 58 did not apply because it deals only with cases in which judgment is not rendered in open court. Entry of judgment did not occur on 2 April because the date was not clearly identifiable as the time the court entered judgment, there was no fair notice to the parties on 2 April that entry of judgment had occurred, and the entry of judgment was not final on 2 April in that the findings of fact and conclusions of law in the order were not set forth until the signing of the order of 30 April.
Am Jur 2d, Appeal and Error 69, 303; Judgments 57.
APPEAL by petitioner from Order entered 14 June 1990 in EDGECOMBE County Superior Court by Judge Richard B. Allsbrook. Heard in the Court of Appeals 20 February 1991.
East Carolina Legal Services, Inc., by Wesley Abney, for petitioner-appellant.
Poyner Spruill, by Michael S. Colo, Ernie K. Murray and Steven A. Rowe, for respondent-appellee.
Judge GREENE concurring.
Judge WELLS dissenting.
The issue on appeal in this case is whether the trial court erred in dismissing the petitioner's appeal for failure to give timely notice of appeal.
The petitioner initially appealed to the Superior Court of Edgecombe County following a denial by the Rocky Mount Board of Education of his request to be reinstated as a school employee. On 2 April 1990, after conducting a hearing on the matter, Judge Richard B. Allsbrook announced in open court that he was denying the relief sought by the petitioner on the ground that the petitioner had been employed at-will by the respondent. Respondent's counsel was directed by Judge Allsbrook to prepare a written Order consistent with his open-court announcement. The record indicates that the clerk of court noted Judge Allsbrook's decision in the court minutes of 2 April 1990.
On 30 April 1990, the trial judge signed the written Order prepared by the respondent's counsel. The petitioner filed a Notice of Appeal to this court on 17 May 1990. On 22 May 1990, the respondent filed a Motion to Dismiss the petitioner's appeal for the reason that the petitioner had failed to timely file his Notice of Appeal. The trial judge found that the Order denying the petitioner's relief was entered on 2 April 1990 and, therefore, dismissed the petitioner's appeal as being untimely. From the Order dismissing his appeal, the petitioner appeals.
I
The dispositive issue in this case is when did the entry of Judgment take place — on 2 April 1990 when the trial judge announced his ruling in open court, which ruling was noted in the minutes by the clerk of court, or, on 30 April 1990 when the trial judge signed the written order that had been drafted by respondent's counsel. For the reasons which follow, we find that the Order from which the petitioner sought to appeal was entered on 30 April 1990 and, therefore, conclude that the petitioner's appeal was timely made.
This case is controlled by the recent decision of Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991), wherein our Supreme Court provided guidance as to when entry of judgment occurs for purposes of determining the timeliness of an appeal. In Stachlowski, the Court held that where the procedures of Rule 58 are followed, the entry of judgment occurs when the Clerk of Court makes a notation in the minutes; however, when the "case does not fit squarely within the rubric of Rule 58," the entry of judgment is determined by the "spirit and purpose of the rule." 328 N.C. at 279, 401 S.E.2d 642.
We turn first to a consideration of whether Rule 58 was followed in this case. Rule 58 provides as follows:
Subject to the provisions of Rule 54 (b): Upon a jury verdict that a party shall recover only a sum certain or costs or that all relief shall be denied or upon a decision by the judge in open court to like effect, the clerk, in the absence of any contrary direction by the judge, shall make a notation in his minutes of such verdict or decision and such notation shall constitute the entry of judgment for the purposes of the rules.
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 judge shall approve the form of the judgment and direct its prompt preparation and filing.
In cases where judgment is not rendered in open court, entry of judgment for the purposes of these rules shall be deemed complete when an order for the entry of judgment is received by the clerk from the judge, the judgment is filed and the clerk mails notice of its filing to all parties. The clerk's notation on the judgment of the time of mailing shall be prima facie evidence of mailing and the time thereof.
N.C. Gen. Stat. 1A-1, Rule 58 (1990) (emphasis added).
Applying the mandates of Rule 58 to this case, we find that paragraph one of Rule 58 is inapplicable here because the trial judge made a "contrary direction" when he directed the respondent to prepare the order. Stachlowski, 328 N.C. at 280, 401 S.E.2d at 641. Paragraph two is also inapplicable to this case because although the clerk made a notation in the minutes, the record fails to indicate that such entry was made upon the judge's direction. In fact, in the order dismissing the petitioner's appeal as untimely, the trial judge found as a fact that the court's ruling was "noted in the minutes by the Clerk of Court without instructions by the Court." See generally id. at 280-81, 401 S.E.2d at 641; See also Behar v. Toyota of Fayetteville, 90 N.C. App. 603, 605, 369 S.E.2d 618, 620 (1988). Finally, paragraph three does not apply to this case because it deals with cases where judgment is not rendered in open court.
Having determined above that this case does not "squarely fit within the rubric of Rule 58," we now turn to a consideration of this case in light of the spirit and purpose of Rule 58. In Stachlowski, the Court set forth three relevant factors in this part of the analysis: (1) an easily identifiable point at which entry occurred, such that (2) the parties have fair notice of the court's judgment and the time thereof, and that (3) the matters for adjudication have been finally and completely resolved so that the case is suitable for appellate review. 328 N.C. at 287, 401 S.E.2d at 645.
In considering the factors outlined in Stachlowski, we find first that 2 April 1990 is not clearly identifiable as the time that the court entered judgment. The record indicates that the trial judge announced his decision in open court on that date. However, he did not direct the clerk to enter the judgment and further, he directed the counsel for the prevailing party to prepare the written order. These facts do not support an entry of judgment on 2 April 1990. Nor do we find there to have been fair notice to the parties on 2 April 1990 that the entry of judgment had occurred. Here, the trial judge directed the respondent to prepare an order which was to contain findings of fact and conclusions of law that were needed to prepare the record on appeal. In Stachlowski, the Court summed the applicability of this factor to cases such as the one at hand by stating: "Thus, in cases where entry of judgment cannot be determined from the express language of Rule 58, fair notice concerns indicate that `entry' occurs only after draft orders or judgments are submitted to and adopted by the court." 328 N.C. at 283, 401 S.E.2d at 643. Lastly, we conclude that the entry of judgment was not final on 2 April 1990. The findings of fact and conclusions of law in Judge Allsbrook's order were not set forth until the signing of the order on 30 April 1990. Again, in Stachlowski, the Court stated with respect to this factor that "[I]n cases where Rule 58 does not expressly apply, considerations of finality and fair notice to the parties militate against finding entry of judgment prior to adoption of the requisite findings." 328 N.C. at 286, 401 S.E.2d at 644.
In conclusion, we find that the entry of judgment occurred when the trial judge signed the order on 30 April 1990. As such, petitioner's notice of appeal was timely given and he may now cause the record of appeal to be settled and certified as provided by Rule 11 of the Appellate Rules of Procedure. His appeal shall be considered taken as of the date of the mandate of this opinion.
Reversed and remanded.
Judge GREENE concurs in a separate opinion.
Judge WELLS dissents.