Civil Practice – Contract – Rule 60 Motion – Timely Appeal

Southern Seeding Service Inc. v. Martin’s Grading & Construction. (Lawyers Weekly No. 10-16-0902, 7 pp.) (Robert N. Hunter, J.) Appealed from Durham County District Court. (Nancy Gordon & James T. Hill, JJ.) N.C. App. Unpub.

Holding: When a timely appeal is not filed on the denial of a Rule 60 motion, relief cannot be granted. A second motion that is merely a restatement of the Rule 60 motion will be dismissed.

Procedural History

Plaintiff Southern Seeding Service filed a small-claim action against defendant Martin’s Grading & Construction seeking damages for breach of contract. Judgment was entered in favor of plaintiff, and defendant gave timely notice of appeal.

The notice of appeal named “Greg S. Martin, d/b/a Martin’s Grading” as the appellant. An arbitrator found in favor the plaintiff in an award listing damages recoverable from “Martin’s Grading and Construction.” Plaintiff contested the amount awarded and appealed for a trial in district court, naming Martin’s Grading & Construction as sole defendant.

On July 2, 2008, judgment was entered in favor of the plaintiff with an order for defendant to pay damages of $3,749. Plaintiff attempted to recover but was informed by the clerk of court that a writ of execution against Greg Martin’s property could not be obtained until the caption in the judgment was changed to reflect Greg Martin’s involvement as a party.

On Feb. 20, 2009, plaintiff filed a Rule 60 motion requesting that the trial court substitute the name “Greg S. Martin d/b/a Martin’s Grading & Construction” in the caption and amend the judgment to reflect the new caption. Judge Nancy Gordon denied the motion, concluding that as a matter of law plaintiff was not entitled to relief it sought under Rule 60.

Plaintiff then filed a second motion, stating there was no confusion as to the person and the business and it was entitled to execute the judgment against the property. Judge James T. Hill denied the motion, noting that the plaintiff had already made a Rule 60 motion that was denied.

Analysis

We disagree with plaintiff’s argument that Greg Martin and his business are the same legal entity and that Greg Martin is named in the judgment through his trade name.

Rules of Civil Procedure require that notices of appeal be timely. In this case, the notice of appeal for the ruling denying the Rule 60 motion was not filed until well outside the bounds of the rules. The second motion was merely a restatement of the Rule 60 motion with no additional issues presented.

We affirm the order denying plaintiff’s second motion, and we dismiss the appeal of the Rule 60 motion.