Civil Practice – Rule 59 Motion – Untimely – Inappropriate Challenge Method

Holding: A motion for a new trial under N.C. R. Civ. P. 59 must be served “not later than 10 days after entry of the judgment.” Plaintiff exceeded this time by approximately nine months; therefore, the trial court did not abuse its discretion in denying plaintiff’s Rule 59 motion.

We affirm the trial court’s denial of plaintiff’s Rule 59 motion.

Moreover, plaintiff’s Rule 59 motion challenged the trial court’s order dismissing his prior appeal. Because the order dismissing the appeal was based on plaintiff’s failure to effect his appeal from a summary judgment order within the proper time period – a procedural matter – it could not possibly be considered a judgment ending the case on its merits. Accordingly, a Rule 59 motion was an inappropriate method of challenging the trial court’s order dismissing plaintiff’s prior appeal.

Mahaffey v. Boyd (Lawyers Weekly No. 011-088-18, 7 pp.) (Chris Dillon, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) Todd Robert Mahaffey, pro se; Matthew Roberson for defendant. N.C. App.