In Davis v. Rizzo (issued Tuesday), the Court of Appeals further limited what kinds of post-judgment motions might constitute “proper” Rule 59 motions sufficient to toll the appeal period. Not only must such a motion raise adequate grounds under Civil Rule 59, but the party must also seek valid Rule 59 relief. When the motion fails to do so, the party’s deadline for filing a notice of appeal under Appellate Rule 3 will not be tolled.
An abbreviated outline of Rizzo’s facts follows. Mama Davis is the 99-year-old matriarch of her loving family. This soon-to-be-centenarian is also at the center of a family dispute regarding who will inherit Mama Davis’s worldly goods when/if she passes. The Rizzo plaintiffs filed a lawsuit asserting that defendants exerted undue influence over Mama Davis by convincing her to create a new trust. That trust essentially overrode a 2002 trust that named plaintiffs as expected beneficiaries of Mama Davis’s estate.
Mama Davis moved to intervene in the lawsuit, asserting (by affidavit) that she was fully competent to control her own affairs. She also moved to dismiss plaintiffs’ claims for lack of standing and failure to state a justiciable claim.
The day before the scheduled hearing on Mama Davis’s motion to dismiss, plaintiffs moved for a stay/continuance. Plaintiffs requested additional time for their expert to assess whether Mama Davis was, in fact, competent to control her own affairs. They also sought the appointment of a guardian ad litem to represent Mama Davis’s interests.
By judgment entered March 23, the trial court allowed Mama Davis’s motion to intervene, denied plaintiffs’ motion to stay/continue, and dismissed all of plaintiffs’ claims under Civil Rule 12(b)(6). Within 10 days, plaintiffs filed a “motion to amend” citing Civil Rules 59 and 60—which the trial court denied in May.
Thereafter, plaintiffs noticed an appeal from the March 23 judgment and the May post-judgment order. Defendants moved to dismiss the appeal, arguing that plaintiffs’ post-judgment, motion to amend was not a “proper” Civil Rule 59 motion and, therefore, did not toll plaintiffs’ deadline under Appellate Rule 3 for appealing from the final judgment.
The motion to dismiss prompted the Rizzo court to run plaintiffs’ post-judgment motion through the Appellate Rule 3 “tolling” gauntlet. In doing so, the Rizzo court announced several important Civil Rule 59/Appellate Rule 3 principles regarding tolling:
1. Rule 59 motions can only be used to obtain relief from final judgments.
No surprise here. In recent years, the Court of Appeals has consistently held that Rule 59 does not contemplate relief from interlocutory orders.
2. While Rizzo does not explicitly address whether a Rule 59(e) motion can be used to obtain relief from final judgments entered without a trial, it applied Rule 59 to a non-trial order.
In Rizzo, defendants’ Rule 59 motion to amend was filed following a Rule 12(b)(6) final judgment entered without a trial. It does not appear the appellees’ motion to dismiss was based on the theory that a Rule 59(e) motion is only proper after a trial. That would have been an interesting issue to see analyzed. The last time this issue was before the Supreme Court, it split 3-3 on whether a Rule 59 motion could be applied to final judgments entered without a trial. See here.
Rather than address the issue directly, Rizzo proclaimed that the Court of Appeals has “adopted a liberal interpretation of the grounds listed in Rule 59(a) when applied to Rule 59(e) motions to amend an order entered without a jury trial and has recognized that Rule 59(a) provides ample basis for a party to seek relief on the basis that the trial court misapprehended or misapplied the applicable law.” Id. (cleaned up). Rizzo then engaged in a lengthy analysis as to whether the Rule 59 motion stated proper grounds and sought proper relief.
Thus, the Court of Appeals did one of three things: (a) didn’t consider whether a Rule 59(e) motion can apply to a judgment entered without a trial; (b) silently assumed, without deciding, that a Rule 59(e) motion can apply to a judgment entered without a trial, or (c) decided that hot issue without any discussion.
Rizzo quotes Baker v. Tucker for the proposition that a Rule 59 motion can be used to amend orders “entered without a jury trial.” However, Baker’s actual holding is much narrower than a cursory reading of Rizzo (or even Baker) would initially suggest. In Baker, a Civil Rule 59(e) motion was allowed to toll the appeal deadline of a judgment entered after a bench trial. Although not discussed in Baker, it is notable that Civil Rule 52(b) already contemplates that Rule 59 motions are appropriate for judgments entered after bench trials.
So, by applying Baker to these facts, the Rizzo court was either extending Baker to judgments entered without a trial, or simply skipping over the issue. You decide.
3. A “Proper” Rule 59 Motion Must Seek Relief Pursuant To One Or More Of The Grounds Listed In Rule 59(a).
Again, there are no surprises is this statement. Our readers have long known that “bare bones” Rule 59 motions will not toll the deadline for noticing an appeal. Instead, a “proper” Rule 59 motion must seek relief based on the grounds listed in Rule 59(a).
4. Even when a Rule 59 motion is based on one or more of the grounds for relief listed in Rule 59, the deadline for noticing an appeal will not be tolled unless the motion seeks relief from that final judgment.
The Court of Appeals assumed that plaintiffs’ motion to amend stated adequate grounds for seeking relief under the Rule 59(a) criteria (at least when interpreted liberally). Nonetheless, the Rizzo court still concluded that the motion to amend was an improper Rule 59 motion. Why?
Because plaintiffs’ motion had not requested valid Rule 59 relief. Plaintiffs’ Rule 59 motion asked the trial court to reconsider its interlocutory decision, which had declined to hold the proceedings in abeyance until Mama Davis’s competency could be determined. At the same time, plaintiffs’ motion asserted that it was unnecessary to disturb the “finality of the dismissal order.” The Rizzo court deemed the nature of plaintiffs’ Rule 59 request fatal:
“Rule 59 provides no grounds to request relief in the form of reconsidering an interlocutory decision a party alleges is collateral to the merits of a final judgment dismissing the case, or of amending an order dismissing a case by granting previously denied discovery requests or injunctive relief. . . . [I]n light of plaintiffs not requesting the trial court reconsider its Rule 12(b)(6) dismissals, the relief requested was beyond the trial court’s jurisdiction to grant.”
5. A proper Rule 59 motion cannot be used to reargue matters already decided by the trial court.
Alternatively, the Rizzo court concluded that plaintiffs’ post-judgment motion was not a proper Rule 59 motion because it had reasserted arguments already addressed by the trial court.
Again, this principle is no big surprise. It traces its roots back to Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417 (1997), which stated that a Rule 59 motion “cannot be used as a means to reargue matters already argued or to put forth arguments which were not made but could have been made.”
But think about that quote from Smith for a moment: a Civil Rule 59 motion (1) cannot be used to reassert old arguments, and (2) cannot be used to assert (most types of) new arguments. While this quote from Smith does not exactly align with the text of Rule 59(a), Smith has burned too many practitioners to be ignored.
6. The More Things Change . . . .
Two years ago, I recommended that parties resist the urge to give the trial court one last chance for anything other than final judgments entered after trial. This recommendation is particularly pertinent when the deadline for noticing an appeal is at stake.
Some practitioners may find comfort in Rizzo’s silence on whether a Rule 59 motion can be used to challenge a judgment entered without a trial. However, even if such a motion could be permissible in such a case, the circumstances under which a non-trial, Rule 59 motion would be “proper” seem fairly limited. In other words, Rizzo does not lessen the risks of seeking post-judgment relief–it heightens it. Therefore, once you are beaten in the trial court, heading back for a second round is dangerous.
Let me know your thoughts on Rizzo (including your assessment of the risks associated with filing Rule 59 motions in non-trial situations) in the comments below!