Opinion
No. COA11–1475.
2012-09-18
Fredricka EVANS, Plaintiff, v. Thaxion BRIDGES and wife, Linda Bridges, Defendants.
No brief filed on behalf of plaintiff-appellee. Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for defendants-appellants.
Appeal by defendants from orders entered 17 September and 17 December 2010, and 13 January 2011 by Judges John Henry Banks and S. Quon Bridges in Vance County District Court. Heard in the Court of Appeals 6 June 2012. No brief filed on behalf of plaintiff-appellee. Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for defendants-appellants.
GEER, Judge.
Defendants Thaxion Bridges and Linda Bridges appeal from the trial court's order denying their motion to set aside a default judgment, its order denying their amended motion for reconsideration of that denial, and its order compelling answers to post-judgment interrogatories. Mr. and Mrs. Bridges' motion for reconsideration did not toll the time for appealing the order denying plaintiffs' motion to set aside the default judgment. Mr. and Mrs. Bridges' appeal from that denial is, therefore, untimely, and we have no jurisdiction to review that order. With respect to the amended motion for reconsideration, we hold that the trial court did not abuse its discretion in denying that motion. Since the appeal of the order compelling post-judgment discovery is derivative of the appeal from the other two orders, we dismiss the appeal in part and affirm in part.
Facts
This appeal arises out of a contract dispute over the construction of a garage by plaintiff Fredericka Evans on Mr. and Mrs. Bridges' property located in Granville County. On 4 June 2010, Granville County filed suit against Mr. and Mrs. Bridges, alleging that they had failed to get a valid zoning permit for the construction of the garage. The County asked the trial court to enjoin use of the garage and to issue an order for abatement.
Before Mr. and Mrs. Bridges filed an answer in the Granville County action, Mr. Evans filed a complaint in Vance County District Court alleging that Mr. and Mrs. Bridges had contracted with him for construction of a deck and garage and owed him $8,306.00 plus interest for the construction work, $290.00 for the conversion of certain of plaintiff's tools by defendants, and $1,289.00 in attorney's fees. There is no dispute that the complaint was served on Mr. Bridges, and Mr. and Mrs. Bridges filed no answer. The clerk of court for Vance County entered default and a default judgment on 22 July 2010, based on Mr. Evans' assertion that his claim was for a sum certain.
Mr. and Mrs. Bridges answered the Granville County complaint on 10 August 2010 and asserted a cross claim for damages against Mr. Evans, alleging that Mr. Evans deceived them by holding himself out to be an experienced builder, that Mr. Evans had been responsible for getting the required permits, and that he knew the structure had not been permitted. On 12 August 2010, Mr. and Mrs. Bridges also filed a motion in this case pursuant to Rule 55(d) and Rule 60(b) of the Rules of Civil Procedure to set aside entry of default and the default judgment.
On 17 September 2010, the trial court in this case entered an order denying Mr. and Mrs. Bridges' Rule 60(b) motion. Rather than appealing that order, on 28 September 2010, Mr. and Mrs. Bridges filed a motion for reconsideration purportedly pursuant to Rules 59(a)(1), 59(a)(7), 59(b), 59(e), 60(b)(1), and 60(b)(6) of the Rules of Civil Procedure. They filed an amended motion for reconsideration based on the same rules on 3 November 2010. The trial court's order denying the motions was entered 17 December 2010. The trial court then issued an order compelling post-judgment discovery and ordering Mr. and Mrs. Bridges to respond to Mr. Evans' post-judgment interrogatories on 13 January 2011. Mr. and Mrs. Bridges filed notice of appeal on 13 January 2011.
Discussion
We must first address this Court's jurisdiction to hear Mr. and Mrs. Bridges' appeal. Rule 3(c) of the Rules of Appellate Procedure requires that an appeal in civil actions must be taken by filing and serving on the parties to the action a notice of appeal “within thirty days after the entry of judgment.” However, “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 30–day period is tolled until entry of an order disposing of the motion. N.C.R.App. P. 3(c)(3).
In this case, the Bridges filed their motion to set aside entry of default and default judgment under Rules 55(d) and 60(b)(1), 60(b)(3), and 60(b)(6) of the Rules of Civil Procedure. The trial court entered its order denying that motion on 17 September 2010. Although Mr. and Mrs. Bridges purported to file a motion under both Rule 59 and Rule 60 for reconsideration of that Rule 60(b) order, that Rule 59 motion could not toll the time for appeal under Rule 3 of the North Carolina Rules of Appellate Procedure because it was not a proper Rule 59 motion. See Smith v. Johnson, 125 N.C.App. 603, 607, 481 S.E.2d 415, 417 (1997) (“Because the motion is not a Rule 59 motion, the time to file an appeal from the 7 November 1995 order was not tolled.”).
This Court has previously held that “Rule 59 is an inappropriate vehicle to challenge the denial of a Rule 60 motion ....“ Garrison ex rel. Chavis v. Barnes, 117 N.C.App. 206, 211, 450 S .E.2d 554, 557 (1994). Rule 59 applies only when a party is seeking relief with respect to a judgment. Curry v. First Fed. Sav. & Loan Ass'n of Charlotte, 125 N.C.App. 108, 112, 479 S.E.2d 286, 289 (1997). The rule cannot be a basis for a motion for reconsideration of a pre-trial order. Id. (holding that Rule 59 did not toll deadline for appeal under N.C.R.App. P. 3 when party filed motion for reconsideration of denial of motion for class certification). See also Bodie Island Beach Club Ass'n v. Wray, ––– N.C.App. ––––, ––––, 716 S.E.2d 67, 77 (2011) (holding trial court properly concluded that it could not set aside default entered against defendant or summary judgment under Rule 59 because those were not post-trial motions).
Since Mr. and Mrs. Bridges' motion for reconsideration was not a true Rule 59 motion, it did not toll the time to appeal the trial court's 17 September 2010 order. Mr. and Mrs. Bridges' appeal of that order was not, therefore, timely. Consequently, we have no jurisdiction to review that order and must dismiss that portion of Mr. and Mrs. Bridges' appeal.
For the same reasons, the trial court did not err in denying, in its order entered 17 December 2010, the portion of Mr. and Mrs. Bridges' motions for reconsideration based on Rule 59.
With respect to Mr. and Mrs. Bridges' amended motion for reconsideration pursuant to Rule 60(b), we note that the rule provides that “the court may relieve a party or his legal representative from a final judgment, order, or proceeding....” (Emphasis added.) Here, Mr. and Mrs. Bridges' motion for reconsideration and amended motion for reconsideration each sought relief from the trial court's “Order [entered] on Friday, September 17, 2010, denying Defendants' Motion to Set Aside the Default Judgment in this matter.” In other words, Mr. and Mrs. Bridges' sought relief, pursuant to Rule 60(b), of the order denying their motion pursuant to Rule 60(b).
Mr. and Mrs. Bridges have cited no authority suggesting that an order denying a Rule 60(b) motion is a “final judgment, order, or proceeding” to which Rule 60(b) applies. In addition, we have found no such authority, either in this State or under the Federal Rules of Civil Procedure. Mr. and Mrs. Bridges have failed, therefore, to demonstrate that their motions for reconsideration were proper Rule 60(b) motions.
Mr. and Mrs. Bridges argue, however, that the trial court erred in denying their request that the court make written findings of fact in denying their motions for reconsideration. During the hearing, the trial court stated that it was denying the request because “[t]he Court, on this type of motion, is not required to make any findings.” The trial court, however, acted under a misapprehension of law. It is well established that “[a] trial court is not required to make written findings of fact when ruling on a Rule 60(b) motion, unless requested to do so by a party.” Creasman v. Creasman, 152 N.C.App. 119, 124, 566 S.E.2d 725, 729 (2002) (emphasis added). Once Mr. and Mrs. Bridges requested findings of fact, the trial court had no discretion to refuse to make them. Sprinkle v. Sprinkle, 241 N.C. 713, 714, 86 S.E.2d 422, 423–24 (1955). Nevertheless, because Mr. and Mrs. Bridges did not file a proper Rule 60(b) motion, any error was harmless.
With respect to Mr. and Mrs. Bridges' appeal of the trial court's order allowing post-judgment discovery, Mr. and Mrs. Bridges acknowledge that their appeal of that order depends upon their prevailing in their appeal of the other orders. Because of our disposition of their appeal, no basis exists for reversing the discovery order. Accordingly, we dismiss the appeal in part and affirm in part.
Dismissed in part and affirmed in part. Judges ROBERT C. HUNTER and BEASLEY concur.
Report per Rule 30(e).