Appeal by Steven I. Cohen, d/b/a Homestead Mobile Home Park,
from a judgment entered 7 April 2004 by Judge W. Russell Duke, Jr.
in Pitt County Superior Court. Heard in the Court of Appeals 10
Ozie L. Hall, pro se, plaintiff-appellee.
Mills & Economos, LLP, by Larry C. Economos, for defendant-
Steven I. Cohen, d/b/a Homestead Mobile Home Park, (defendant)
appeals from a judgment entered 7 April 2004 consistent with a jury
verdict finding defendant liable on a claim of breach of contract
and awarding Ozie L. Hall (plaintiff) $41,000.00 in damages and
interest at eight percent (8%). For the reasons below we dismiss
this appeal and remand this matter to the trial court.
Facts and Procedural History
In November 1998, plaintiff and defendant entered into a
contract stating that plaintiff would provide specified services inexchange for compensation. According to the contract, plaintiff
was to be paid twenty percent (20%) of the actual net proceeds of
the sale of Homestead Mobile Home Park. Plaintiff alleges the
contract entitled him to a security interest in defendant's
property in the amount of $80,000.00. Because defendant failed to
provide the security interest, inter alia
, plaintiff filed a
complaint for breach of contract, specific performance, fraudulent
misrepresentation, and deceptive trade practices.
This matter came to trial on 15 March 2004 at the civil
session of Pitt County Superior Court, the Honorable W. Russell
Duke, Jr., presiding. On 18 March 2004, the jury returned its
verdict finding defendant liable for breach of contract. On 7
April 2004, the trial court entered its judgment consistent with
the jury verdict, awarding plaintiff damages of $41,000.00 plus
costs and interest. Defendant filed a Notice of Appeal of the
trial court's judgment to this Court on 13 April 2004.
On 18 May 2004, defendant filed with the trial court a motion
for relief from judgment pursuant to Rule 60(b)(3) of the North
Carolina Rules of Civil Procedure. Defendant filed a motion with
this Court on 22 September 2004 requesting this matter be remanded
to the trial court for consideration of defendant's Rule 60(b)
motion. This Court entered an Order on 5 October 2004 remanding
the matter for the trial court to conduct an evidentiary hearing on
the pending Rule 60(b) motion and enter an indication of how it
would hold if an appeal were not before this Court. The 5 October
2004 Order also required that the proposed record on appeal beserved within thirty days of the trial court's report of its
inclination to rule on the Rule 60(b) motion. An evidentiary
hearing on the Rule 60(b) motion was held on 13 December 2004 and
on 18 February 2005 the trial court entered Evidentiary Findings,
Conclusions of Law, and Inclination to Rule in favor of defendant;
thereby noting an inclination to grant defendant's Rule 60(b)
motion for relief.
As a general rule, an appellate court's jurisdiction trumps
that of the trial court when one party files a notice of appeal
unless the case has been remanded from the appellate court for
further determination in the trial court. Bell v. Martin
, 43 N.C.
App. 134, 140, 258 S.E.2d 403, 407 (1979) (citing Wiggins v. Bunch
280 N.C. 106, 184 S.E.2d 879 (1971)), rev'd on other grounds
N.C. 715, 264 S.E.2d 101 (1980).
The trial court retains limited
jurisdiction to indicate how it is inclined to rule on a Rule 60(b)
, 43 N.C. App. at 140-42, 258 S.E.2d at 408-09.
Upon the appellate court's notification of a Rule 60(b) motion
filed with the trial court,
this Court will remand the matter to
the trial court so the trial court may hold an evidentiary hearing
and indicate how it [is] inclined to rule on the motion were the
appeal not pending. Id.
at 142, 258 S.E.2d at 409. This practice
allows the appellate court to delay consideration of the appeal
until the trial court has considered the [Rule] 60(b) motion. [So
that upon] an indication of favoring the motion, appellant would be
in position to move the appellate court to remand to the trialcourt for judgment on the motion and the proceedings would
thereafter continue until a final, appealable judgment is
Arguments pertaining to the grant or denial of the
motion along with other assignments of error could then be
considered by the appellate court simultaneously. Id.
here, the trial court entered an inclination to rule in favor of
defendant and grant his Rule 60(b) motion,
we dismiss the instant
appeal and remand this matter to the trial court for entry of a
final order on defendant's Rule 60(b) motion.
Appeal dismissed and remanded.
Chief Judge MARTIN and Judge HUDSON concur.
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