In his book, Five Seasons, great baseball writer Roger Angell relates the story of a game where, near the end, a hard rain began to fall. It was the bottom of the ninth, the score was tied 2-2, the bases were loaded, and the batter had worked the count to three balls and two strikes. The umpire reluctantly delayed the game for hours until the rain let up sometime after midnight. About a dozen fans had waited out the delay and cheered as the players retook the field. The pitcher uncorked his best pitch, the batter watched it go by, the umpire called strike three, and everyone went home. These days, litigants who have reason to use Rule of Civil Procedure 59 may know how those players felt.
Let’s review Civil Rule 59, then set the Wayback Machine to 2011. Civil Rule 59 addresses post-trial motions for a new trial or amendment of judgments. In Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283, 716 S.E.2d 67 (2011), the Court of Appeals held in a published opinion that the grounds for such a motion set out in Civil Rule 59(a)(8) (“Error in law occurring at the trial and objected to by the party making the motion”) and in Civil Rule 59(a)(9) (“Any other reason heretofore recognized as grounds for a new trial”) apply only to motions filed following a trial.
In other words, under Bodie Island, a Civil Rule 59 motion cannot be used to amend an order that allowed summary judgment and thereby precluded a trial. As a result, even though Appellate Rule 3(c) tolls the time for filing a Notice of Appeal when a Civil Rule 59 motion is pending, that tolling provision does not apply when the Civil Rule 59 motion is “improper.” An impropriety exists when the motion has not been filed post-trial.
This bit of Court of Appeals jurisprudence surfaced before the Court of Appeals again in 2013. In Rutherford Plantation, LLC v. The Challenge Golf Grp. of the Carolinas, LLC, 225 N.C. App. 79, 737 S.E.2d 409 (2013), the defendant appealed both the trial court’s order granting partial summary judgment in favor of plaintiff and the trial court’s order denying defendant’s Rule 59 motion to amend the summary judgment order. Without addressing either Bodie or the tolling provision of Appellate Rule 3, the majority reversed the trial court’s denial of defendant’s Rule 59 motion. However, Judge Stroud dissented, citing Bodie for the proposition that a Rule 59 motion is proper only following a trial and, therefore, the defendant’s Notice of Appeal was not timely filed.
In 2014, Rutherford Plantation was appealed to the Supreme Court on the basis of the dissent but that Court split 3-3, leaving the issue unresolved. Rutherford Plantation, LLC v. The Challenge Golf Group of the Carolinas, LLC, 367 N.C. 197, 753 S.E.2d 152 (2014). While I cannot tell you how I voted, I assure you it was the correct way.
The teeth and staying power of Bodie Island became apparent a couple of years later in TD Bank, N.A., v. Eagles Crest at Sharp Top, LLC, et al., ___N.C. App.___, 791 S.E.2d 651 (2016). In that case, the defendants filed a Rule 59 motion after the trial court allowed the plaintiff’s motion for summary judgment. Only when the Rule 59 motion was denied did the defendants file their Notice of Appeal. In an unpublished opinion, the Court of Appeals dismissed the appeal as untimely, finding that the defendants’ filing of an improper Rule 59 motion did not toll their 30-day deadline for appealing the order granting summary judgment.
Defendants sought discretionary review, which was allowed, giving the Supreme Court another opportunity to address the Court of Appeals’ interpretation of whether a Civil Rule 59 motion arising from anything other than a trial has the effect of tolling the deadline for filing Notice of Appeal under Appellate Rule 3.
The case was argued almost precisely one year ago, on 7 November 2017. In an order filed 26 October 2018, the Supreme Court determined that discretionary review had been providently allowed and dismissed the appeal.
To return to the story that opened this post, practitioners who use Rule 59 might well sympathize with the runners stranded on base. Yet the year-long delay between the oral argument and the DRIA in TD Bank may imply more than a mere disagreement between the Justices, which is usually reflected in an opinion with concurrences and dissents. The DRIA suggests that the Supreme Court may have determined upon close examination that the case was not the best vehicle for resolving the issue. In other words, the Court could still be waiting for a pitch it likes.
NORTH CAROLINA ALL POINTS BULLETIN: In August, 2016, following the Court of Appeals decision in TD Bank, Beth blogged on the risks of using Rule 59 in the context of summary judgment, along with different policy considerations underlying each interpretation. Beth’s advice still stands: Until the Supreme Court speaks to this issue, resist the urge to give the trial court one last chance in any circumstance other than an appeal arising from a trial.