Appeal by defendants from orders entered 14 April 2005 and 2
May 2005 by Judge Gary Locklear in Cumberland County Superior
Court. Heard in the Court of Appeals 14 August 2006.
McCoy Weaver Wiggins Cleveland Rose Ray, PLLC, by Richard M.
Wiggins and James A. McLean, III, for plaintiff-appellees.
The Yarborough Law Firm, by Garris Neil Yarborough, for
Baxley Construction Company, Inc., Rudolph L. Baxley, Jr., and
Constance A. Baxley (collectively defendants) appeal from (1) an
order of the trial court entitled Order Denying Relief From Order
Granting Judgment Notwithstanding Verdict and Granting Relief From
Order Allowing Alternative New Trial and (2) an order rescinding
an earlier order of dismissal. Defendants have also filed a
petition for writ of certiorari asking this Court to review an
order of the trial court granting directed verdict in favor ofplaintiffs and an order granting judgment notwithstanding the
verdict (JNOV) in favor of plaintiffs. For the reasons stated
herein, we affirm the orders of the trial court, but vacate the
order granting JNOV.
The procedural history of the instant case is a convoluted
one. On 13 November 2002, Rosewood Investments, LLC, Timothy O.
Jackson, and Leisa Jackson (collectively plaintiffs) filed a
verified complaint against defendants in Cumberland County Superior
Court alleging they were the holders of several promissory notes
executed by defendants, and that such promissory notes were past
due and in default. The case was heard by a jury on 9 and 10
February 2004. At that time, plaintiffs voluntarily dismissed
their claims regarding two of the promissory notes and proceeded
solely on their claim of a $35,000.00 promissory note allegedly
owed them by defendants. During the trial, plaintiffs introduced
into evidence a copy of the promissory note allegedly owed by
defendants. Defendants did not object. At the close of
plaintiffs' evidence, defendants moved for directed verdict,
arguing that plaintiffs had failed to produce the original
promissory note allegedly owed to them. The trial court denied
defendants' motion, noting that defendants had stipulated at the
beginning of trial that the copy of the promissory note produced by
plaintiffs was a true and correct copy of the original. At the
close of all the evidence, the trial court granted plaintiffs'
motion for a directed verdict as to the liability of defendants on
the $35,000.00 promissory note, but denied their motion fordirected verdict as to defendants' ability to allege a setoff as a
defense to the monies owed. The jury subsequently found that
defendants were entitled to a setoff in the amount of $65,615.80,
more than the entire amount due and owing on the $35,000.00
promissory note. Although the verdict was announced in open court,
a written judgment reflecting the verdict was not entered.
On 17 February 2004, plaintiffs made a motion for JNOV, and
alternatively, for a new trial, on the grounds that the trial court
improperly submitted the issue of a setoff to the jury. A hearing
on the motion was held before the presiding superior court judge,
the Honorable Gary L. Locklear, on 29 March 2004. Judge Locklear
took the matter under advisement.
On 28 June 2004, another superior court judge, the Honorable
Jack Thompson, dismissed the entire case ex mero motu pursuant to
the local rules of superior court for failure of the parties to
timely file an order of judgment in the case. Judge Thompson noted
in his order of dismissal that the parties . . . were given notice
of their failure to comply with Rule 10 of the Local Rules of
Superior Court and were given additional time to file the necessary
closing documents[.] Despite this notice, the parties or their
attorneys of record . . . failed to file the Order of Judgment or
Dismissal or other closing document within the time allowed and
have likewise failed to contact the Court to explain why any
additional time period may be needed[.] Accordingly, Judge
Thompson entered an order dismissing the case without prejudice and
ordered the clerk of superior court to close the file. Neither theparties nor Judge Locklear were aware of Judge Thompson's order
dismissing the case.
On 14 September 2004, Judge Locklear entered an order granting
plaintiffs' motion for JNOV. Defendants did not appeal from this
order. On 21 October 2004, defendants filed a motion for relief
pursuant to Rules 60(b)(1), (3), and (6) requesting the trial court
to reconsider its order granting JNOV in favor of plaintiffs.
Defendants' Rule 60(b) motion came before Judge Locklear on 14
April 2005. In preparation for the hearing, the parties and the
trial court for the first time discovered the earlier 28 June 2004
order dismissing the case. Upon oral motion by plaintiffs, Judge
Locklear entered an order on 14 April 2005 pursuant to Rule 60(b),
nunc pro tunc to 28 June 2004, rescinding Judge Thompson's order of
dismissal, and reopened the case and file for further
consideration. Judge Locklear then considered defendants' Rule
60(b) motion. After hearing arguments by counsel and reviewing the
materials submitted, the trial court determined that the JNOV was
proper, in accordance with the law, and that grounds for relief
from judgment under Rule 60(b) have not been shown[.] The trial
court determined, however, that it did not originally intend to
grant the alternative motion for a new trial, and reversed that
portion of the order. Accordingly, the trial court entered an
order on 2 May 2005 denying in part and granting in part
defendants' motion for relief. Defendants now appeal from this
order of the trial court, as well as the 14 April 2005 order
rescinding the 28 June 2004 order of dismissal.
I. Directed Verdict
By their first three related assignments of error, defendants
argue the trial court erred by denying their motion for a directed
verdict at the close of plaintiffs' evidence and granting
plaintiffs' motion for directed verdict at trial. Defendants
contend plaintiffs failed to submit sufficient evidence of the
promissory note owed to them at trial, in that they introduced into
evidence only a copy of the note, rather than the original
document. Appellate review of these arguments is unavailable.
Rule 3 of the North Carolina Rules of Appellate Procedure
requires that a notice of appeal designate the judgment or order
from which appeal is taken; this Court is not vested with
jurisdiction unless the requirements of this rule are satisfied.
Boger v. Gatton
, 123 N.C. App. 635, 637, 473 S.E.2d 672, 675
(1996); Smith v. Insurance Co
., 43 N.C. App. 269, 272, 258 S.E.2d
864, 866 (1979). For example, where an appellant appeals only from
the denial or granting of a motion for JNOV and does not designate
the underlying judgment in the notice of appeal, the appellant does
not give notice of appeal from the judgment itself. See Boger
N.C. App. at 637, 473 S.E.2d at 675. In such cases, the notice of
appeal fails to properly present the underlying judgment for this
Court's review. Id
.; Von Ramm v. Von Ramm
, 99 N.C. App. 153, 156,
392 S.E.2d 422, 424 (1990).
In the present case, defendants have failed to give notice of
appeal from the underlying judgment entered upon the jury trial of
this matter. Indeed, it appears from the record that an underlyingjudgment was not entered. Judge Thompson dismissed the case for
failure to enter a judgment. Defendants' notice of appeal fails to
designate any underlying judgment. Defendants' notices of appeal
designate only two orders of the trial court: (1) the 14 April
order of the trial court rescinding the order of dismissal;
and (2) the 2 May 2005 order of the trial court denying in part and
granting in part defendants' motion for relief. Thus, this Court
does not have jurisdiction to address the propriety of the trial
court's actions at the underlying trial of this matter. See
State v. McCoy
, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 ([w]e
note that when a defendant has not properly given notice of appeal,
this Court is without jurisdiction to hear the appeal), appeal
, 360 N.C. 73, 622 S.E.2d 626 (2005); Boger
, 123 N.C. App.
at 637, 473 S.E.2d at 675. We therefore dismiss defendants' first
three assignments of error.
In the alternative, defendants ask this Court to review the
trial court's grant of directed verdict through a writ of
certiorari. The writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the
judgments and orders of trial tribunals
when the right to prosecute
an appeal has been lost by failure to take timely action . . . .
N.C.R. App. P. 21(a)(1) (emphasis added). Rule 58 of the North
Carolina Rules of Civil Procedure provides that a judgment is
entered when it is reduced to writing, signed by the judge, and
filed with the clerk of court. N.C. Gen. Stat. § 1A-1, Rule 58
(2005). As noted supra
, judgment has never been entered on theunderlying trial. This Court has no ability to review a judgment
or order that does not exist or appear in the record. We therefore
deny defendants' petition for writ of certiorari to review the
trial court's grant of directed verdict at the jury trial in this
Defendants further argue the trial court erred in its 14
September 2004 order granting JNOV in favor of plaintiffs. As
previously noted, however, defendants failed to file notice of
appeal from the 14 September 2004 order of the trial court.
Alternatively, defendants petition this Court to review the trial
court's order through writ of certiorari. Defendants argue the
trial court lacked jurisdiction to enter the order granting JNOV to
plaintiffs, in that the case was dismissed at the time JNOV was
granted. Given the unusual procedural posture of the instant case,
we grant defendants' petition for writ of certiorari and examine
the 14 September 2004 order of the trial court.
Defendants argue the trial court lacked jurisdiction to enter
the 14 September 2004 order granting JNOV to plaintiffs because the
case had been dismissed by Judge Thompson for failure to prosecute.
Thus, contend defendants, the 14 September 2004 order is void.
Defendants acknowledge that the trial court later rescinded the
earlier order of dismissal, nunc pro tunc
to 28 June 2004, but
argue that the trial court erred in entering the order nunc pro
. Defendants do not challenge the order rescinding the order
of dismissal in and of itself, but object rather to theretroactive nature of the order.
(See footnote 1)
Defendants argue that, after the
trial court rescinded the order of dismissal, it should have
reissued the order granting JNOV, rather than resuscitating the
order by making the order rescinding the dismissal retroactive. We
Nunc pro tunc
is defined as now for then. Black's Law
1097 (7th ed. 1999). It signifies 'a thing is now done
which should have been done on the specified date.' Id
35A C.J.S. Federal Civil Procedure
§ 370, at 556 (1960)).
Nunc pro tunc
orders are allowed only
judgment has been actually rendered, or decree
signed, but not entered on the record, in
consequence of accident or mistake or the
neglect of the clerk . . . provided [that] the
fact of its rendition is satisfactorily
established and no intervening rights are
Long v. Long
, 102 N.C. App. 18, 21-22, 401 S.E.2d 401, 403 (1991)
(emphasis added) (quoting State Trust Co. v. Toms
, 244 N.C. 645,
650, 94 S.E.2d 806, 810 (1956)). Thus, before a court order or
judgment may be ordered nunc pro tunc
to take effect on a certain
prior date, there must first be an order or judgment actually
decreed or signed on that prior date. If such decreed or signedorder or judgment is then not entered due to accident, mistake, or
neglect of the clerk, and provided that no prejudice has arisen,
the order or judgment may be appropriately entered at a later date
nunc pro tunc
to the date when it was decreed or signed. See id.
Hill v. Hill
, 105 N.C. App. 334, 340, 413 S.E.2d 570, 575 (1992),
reversed on other grounds
, 335 N.C. 140, 435 S.E.2d 766 (1993).
There is no evidence in the instant case that the order
rescinding the order of dismissal was decreed or signed on 28 June
2004, nor is there evidence that the delay in entering the order
was 'in consequence of accident or mistake or the neglect of the
, 102 N.C. App. at 22, 401 S.E.2d at 403 (citations
omitted). Rather, the evidence of record indicates the parties did
not learn of the earlier dismissal until 13 April 2005, the day
before the hearing on defendants' motion for relief. The trial
court's attempt to enter the order rescinding the order of
dismissal nunc pro tunc
to 28 June 2004 was therefore ineffective.
. at 21, 401 S.E.2d at 403 (stating that where the trial court's
order was not rendered on 17 October 1988, the trial court's
attempt to enter a later order nunc pro tunc
to that date was
ineffective). Thus, the effective date of the trial court's order
rescinding the earlier order of dismissal is 14 April 2005, the
date on which it was actually rendered and filed. We must now
consider the impact of this new effective date on the 14 September
2004 order granting JNOV.
The trial court entered its 14 September 2004 order granting
JNOV after the case was dismissed but before it was reopened.Where the court dismisses an action, it terminates the same, and
no suit is thereafter pending in which the court can make a valid
order, nor may the court after dismissing the action give further
orders in the judgment. 19 Strong's N.C. Index 4th, Judgments
78 (1992) (footnotes omitted) (citing Burton v. Reidsville
N.C. 405, 407, 90 S.E.2d 700, 702 (1956) ([w]hen the court allowed
the motion to dismiss as in case of nonsuit, it thereby terminated
the action, and no suit was thereafter pending in which the court
could make a valid order) and Johnston v. Johnston
, 218 N.C. 706,
709, 12 S.E.2d 248, 250 (1940) (stating that the trial court had no
authority to grant or deny certain rights of the parties in a
judgment dismissing the action)). Where the trial court is without
jurisdiction or authority to enter an order or judgment, such order
or judgment is void. Vaughn v. Vaughn
, 99 N.C. App. 574, 576, 393
S.E.2d 567, 568 (1990). Because the 14 September 2004 order
granting JNOV was entered after the case had been dismissed but
before it had been revived, the trial court had no authority to
render such judgment, and the 14 September 2004 order granting JNOV
is therefore void. Accordingly, we vacate the 14 September 2004
order of the trial court.
III. Motion for Relief
By further argument, defendants contend the trial court should
have granted their Rule 60(b) motion for relief from the order
granting JNOV. Although we have determined that the order granting
JNOV is void, we nevertheless address defendants' argument in theinterests of judicial economy, given the likelihood of further
proceedings in this matter before the trial court.
Defendants based their motion for relief on Rules 60(b)(1),
(3), and (6). Rule 60(b) provides in pertinent part as follows:
(b) Mistakes; inadvertence; excusable
neglect; newly discovered evidence; fraud,
-- On motion and upon such terms as are
just, the court may relieve a party or his
legal representative from a final judgment,
order, or proceeding for the following
(1) Mistake, inadvertence, surprise, or
. . .
(3) Fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other
misconduct of an adverse party;
. . .
(6) Any other reason justifying relief
from the operation of the
judgment. . . .
N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Defendants' argument
before the trial court and on appeal focuses upon the plaintiffs'
failure at trial to produce the original promissory note they
alleged was owing to them. In their motion for relief, defendants
argued that the failure to produce the original promissory note
amounted to fraud upon the court. This argument has no merit.
There is no evidence in the record to support defendants'
assertion that the underlying judgment was procured by fraud.
Plaintiffs introduced into evidence as Plaintiffs' Exhibit No. 1 a
copy of the promissory note at trial and presented testimonyregarding the note. Defendants did not object to the introduction
of the copy of the note. Defendants stipulated at trial that the
copy of the promissory note attached to plaintiffs' complaint was
a true and correct copy of the note that the Defendants executed.
An admission in a pleading or a stipulation admitting a material
fact becomes a judicial admission in a case and eliminates the
necessity of submitting an issue in regard thereto to the jury.
Crowder v. Jenkins
, 11 N.C. App. 57, 62, 180 S.E.2d 482, 485
(1971). Judicial admissions are binding on the pleader as well as
the court. Universal Leaf Tobacco Co. v. Oldham
, 113 N.C. App.
490, 493, 439 S.E.2d 179, 181 (1994); see also Buie v. High Point
Associates Ltd. Partnership
, 119 N.C. App. 155, 158, 458 S.E.2d
212, 215 (1995) (noting that judicial admissions are conclusive
upon the parties and the trial judge). As defendants stipulated
that the copy of the promissory note produced by plaintiffs was
true and correct, the issue of its authenticity was never in
question. Having stipulated to the authenticity of the promissory
note, defendants are now precluded from attacking the very subject
of their stipulation. The trial court did not err in denying
defendants' motion for relief pursuant to Rule 60(b)(3).
(See footnote 2)
The trial court also properly denied defendants' motion
pursuant to Rule 60(b)(6). Under section 1A-1, Rule 60(b)(6) of
our Rules of Civil Procedure, a judgment may be set aside for anyreason justifying relief from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60(b)(6). Rule 60(b)(6) is equitable
in nature and permits a trial judge to exercise his discretion in
granting or withholding the desired relief. Piedmont Rebar, Inc.
v. Sun Constr., Inc
., 150 N.C. App. 573, 575, 564 S.E.2d 281, 283
(2002). Accordingly, the trial court's ruling may be reversed on
appeal only upon a showing that the decision results in a
substantial miscarriage of justice. Id
It is well settled that Rule 60(b)(6) does not include relief
from errors of law or erroneous judgments. Garrison ex rel. Chavis
, 117 N.C. App. 206, 210, 450 S.E.2d 554, 557 (1994).
'The appropriate remedy for errors of law committed by the court
is either appeal or a timely motion for relief under N.C.G.S. Sec.
1A-1, Rule 59(a)(8).' Id
. (quoting Hagwood v. Odom
, 88 N.C. App.
513, 519, 364 S.E.2d 190, 193 (1988)).
In the present case, defendants based their Rule 60(b)(6)
motion for relief on alleged errors of law: namely, the trial
court's granting of a directed verdict and JNOV in favor of
plaintiffs, despite their failure to produce the original
promissory note at trial. Rule 60(b)(6) may not be used as an
alternative to appellate review, however. See id
. As such, the
trial court properly denied defendants' motion for relief. We
overrule this assignment of error.
In summary, we vacate the 14 September 2004 order of the trial
court granting JNOV in favor of plaintiffs. We affirm the 14 April
2005 order of the trial court rescinding the earlier order ofdismissal, but we hold that the trial court's attempt to enter the
order nunc pro tunc
to 28 June 2004 is ineffective. The effective
date of the order is 14 April 2005. We affirm the 2 May 2005 order
of the trial court.
Order of 14 September 2004 - vacated.
Order of 14 April 2005 - affirmed.
Order of 2 May 2005 - affirmed.
Vacated in part; affirmed in part.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).