Civil Practice – Motion for Reconsideration – Rule 60 Order – Appeals – Untimely

Ennis v. Munn (Lawyers Weekly No. 13-16-0926, 14 pp.) (Martha A. Geer, J.) Appealed from New Hanover County Superior Court (J. H. Corpening II, J.) N.C. App. Unpub.

Holding: After the trial court granted defendant’s N.C. R. Civ. P. 60 motion to set aside the default judgments against him, plaintiff did not appeal immediately; instead, he filed a motion to reconsider, without citing to any Rule of Civil Procedure. Since plaintiff’s motion to reconsider does not fit within any of the rules that extend the time to file an appeal, plaintiff’s appeal – filed nearly three months after the trial court granted defendant’s Rule 60 motion – is dismissed as untimely as to the Rule 60 order.

We affirm the trial court’s denial of plaintiff’s motion to reconsider, and we dismiss plaintiff’s appeal from the trial court’s grant of defendant’s Rule 60 motion.

Motions under N.C. R. Civ. P. 50(b), 52(b) and 59 toll the time for filing an appeal. Rule 50(b) pertains to judgments notwithstanding the verdict, and Rule 52(b) deals with amendments to findings of fact. Neither applies in this case.

Rule 59 provides for motions for a new trial under Rule 59(a) and for motions to alter or amend a judgment under Rule 59(e). Because there was no trial, plaintiff’s motion to reconsider tolled the time for filing notice of appeal only if the motion constituted a motion to alter or amend the judgment under Rule 59(e). Rule 59(e) provides, “A motion to alter or amend the judgment under section (a) of this rule shall be served not later than 10 days after entry of the judgment.”

In Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 450 S.E.2d 554 (1994), this court ruled that Rule 59 is an inappropriate vehicle to challenge the denial of a Rule 60 motion. The same reasoning leads to the conclusion that Rule 59 is an inappropriate vehicle to challenge the granting of a Rule 60 motion.

Even if Rule 59(e) did apply in this context, the grounds for plaintiff’s motion to reconsider did not fall within the scope of Rule 59(a). Plaintiff’s motion makes a purely legal argument and requests that the trial court “modify” its ruling to state that defendant’s Rule 60 motion “is hereby DENIED as a matter of law.” The appropriate remedy for errors of law committed by a trial court is either appeal or a timely motion for relief under Rule 59(a)(8). Thus, of the nine grounds for a new trial recognized in Rule 59(a), the only ground potentially applicable to defendant’s motion for reconsideration is Rule 59(a)(8).

In order to obtain relief under Rule 59(a)(8), a party must show a proper objection at trial to the alleged error of law giving rise to the Rule 59(a)(8) motion. There was, of course, no trial in this case. Assuming, without deciding, that Rule 59(a)(8) applies to the Rule 60(b) hearing, plaintiff did not, in that hearing, make the argument that he included in his motion for reconsideration. Therefore, he did not object at the hearing to the error of law that was the basis for his motion for reconsideration. Consequently, plaintiff’s motion for reconsideration does not meet the requirements under Rule 59(a)(8).

Since plaintiff’s motion was not based on a ground enumerated in Rule 59(a), it was not a proper Rule 59(e) motion for that reason as well.

Because the motion for reconsideration was not a proper Rule 59(e) motion, it did not toll the time for filing notice of appeal, and plaintiff’s notice of appeal from the order granting defendant’s Rule 60(b) motion was untimely.

Although plaintiff’s appeal from the trial court’s denial of his motion to reconsider is properly before this court, since plaintiff’s motion to reconsider was not a proper Rule 59 motion, the trial court did not abuse its discretion in denying it.

Dismissed in part; affirmed in part.