Appeal by petitioners from orders entered 27 September 2005
and 8 December 2005 by Judge W. Erwin Spainhour in Richmond County
Superior Court. Heard in the Court of Appeals 19 March 2007.
Moser Schmidly & Roose, LLP, by Stephen S. Schmidly, and Law
Office of Marsh Smith, P.A., by Marsh Smith, for petitioners-
appellants.
Roy Cooper, Attorney General, by Lisa C. Glover and Scott A.
Conklin, Assistant Attorney Generals, for respondent-appellee.
MARTIN, Chief Judge.
On 25 April 2005, petitioners North Carolina Alliance for
Transportation Reform (“NCATR”) and Herb Zerof filed a petition forwrit of certiorari seeking judicial review of the Environmental
Assessment (“EA”) and Finding of No Significant Impact (“FONSI”)
prepared by respondent, the North Carolina Department of
Transportation (“NCDOT”), for Transportation Improvement Program
Project R-2502. Project R-2502 involved the widening of highway
US-1 in Richmond County, north of Rockingham, from two lanes to
four lanes. Petitioners alleged that respondent improperly divided
the project into two segments, R-2501 for the southern portion of
the project and R-2502 for the northern portion of the project.
Although petitioners did not live in the proposed corridor for
project R-2502, they alleged they were aggrieved by the EA and
FONSI for R-2502 due to respondent's failure to consider the
indirect and cumulative impacts of R-2501 and R-2502 in one
statement. Petitioners alleged that respondent acted in violation
of the North Carolina Environmental Protection Act, N.C.G.S. §
113A-1 et seq.
NCDOT moved to dismiss the petition based, inter alia, on
North Carolina Civil Procedure Rule 12(b)(1), (2), and (6); the
North Carolina Administrative Procedure Act, N.C.G.S. § 150B-43;
and lack of standing. On 27 September 2005, the trial court
concluded that petitioners were not aggrieved persons under
N.C.G.S. § 150B-43, and that petitioners had failed to exhaust all
administrative remedies before seeking judicial review, as required
by N.C.G.S. § 150B-43. Therefore, the trial court concluded that
it lacked subject matter jurisdiction. Petitioners then filed a “Motion to Alter or Amend Order”
ostensibly pursuant to N.C.G.S. § 1A-1, Rule 59(e). On 3 November
2005, petitioners served four additional exhibits to the motion.
NCDOT moved to strike the additional exhibits. On 8 December 2005,
the trial court denied petitioners' “Motion to Alter or Amend
Order,” concluding that petitioners' motion was not a proper Rule
59(e) motion because it did not specify the grounds for the motion
from the possible grounds listed in Rule 59(a), as required by
N.C.G.S. § 1A-1, Rule 7(b)(1), and was merely an attempt to reargue
matters which already had been argued. The trial court also
allowed, in a separate order, NCDOT's motion to strike the
additional exhibits, concluding they were irrelevant. Petitioners
appealed from both 8 December 2005 orders and the 27 September 2005
order dismissing their petition.
Petitioners argue five issues in their brief. Three of these
issues relate to the 27 September order dismissing the petition;
the remaining issues are directed to the 8 December orders denying
their Motion to Alter or Amend and allowing NCDOT's motion to
strike exhibits. The question of whether the trial court correctly
ruled that the Motion to Alter or Amend was not a proper Rule 59(e)
motion is a threshold issue, and we address it first.
[1] Petitioners challenge the trial court's findings and
conclusions with regard to two deficiencies of the Motion to Alter
or Amend. First, petitioners assign error to the trial court's
findings and conclusions that “Petitioners' Motion cites N.C.R.Civ. P. 59(e) . . . but fails to specify, or provide any
allegations tending to show, which ground in Rule 59(a) is relied
upon”; “[t]o qualify as a Rule 59 motion . . . the motion must
'state the grounds therefor' and the grounds stated must be among
those listed in Rule 59(a)” (quoting
Smith v. Johnson, 125 N.C.
App. 603, 606, 481 S.E.2d 415, 417,
disc. review denied, 346 N.C.
283, 487 S.E.2d 554 (1997) (quoting N.C. Gen. Stat. § 1A-1, Rule
7(b)(1))); and “Petitioners' Motion violates Rule 7(b)(1) and is
not a proper Rule 59(e) motion.” Second, petitioners assign error
to the trial court's findings and conclusions that “Petitioners are
attempting to reargue matters already argued, or which could have
been argued, at the August 18, 2005 hearing on Respondent's Motion
to Dismiss”; “Petitioners' Motion 'is merely a request that the
trial court reconsider its earlier decision'”; and “Petitioners
'attempt to reargue matters already decided by the trial court and
the motion thus cannot be treated as a Rule 59(e) motion.'”
Our review of a Rule 59 motion is guided by the general
principle that
“[t]he determination of whether to grant or deny a
motion pursuant to either Rule 59(a) or Rule 59(e) is addressed to
the sound discretion of the trial court.
”
Young v. Lica, 156 N.C.
App. 301, 304, 576 S.E.2d 421, 423 (2003) (citing
Hamlin v. Austin,
49 N.C. App. 196, 197, 270 S.E.2d 558, 558 (1980)
). “However,
where the [Rule 59] motion involves a question of law or legal
inference, our standard of review is
de novo.”
Kinsey v. Spann,
139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000) (citing
In re
Will of Herring, 19 N.C. App. 357, 359, 198 S.E.2d 737, 739(1973)). The error assigned by petitioners involves a question of
law as to the sufficiency of the motion; therefore, our review of
the trial court's denial of the motion is
de novo.
Rule 59(e) governs motions to alter or amend a judgment, and
such motions are limited to the grounds listed in Rule 59(a). N.C.
Gen. Stat. § 1A-1, Rule 59(e) (2005). Rule 59(a) lists nine
grounds or causes upon which a new trial may be granted. N.C. Gen.
Stat. § 1A-1, Rule 59(a) (2005). Petitioners, in their brief,
argue that the grounds alleged in their motion fall within Rule
59(a)(2) (misconduct of the prevailing party), 59(a)(7)
(insufficiency of the evidence to justify the verdict or the
verdict is contrary to law), and 59(a)(8) (error in law occurring
at trial and objected to by party making the Rule 59 motion).
Id.
However, in their Motion to Alter or Amend, petitioners did not
make reference to any of these grounds of Rule 59(a), nor did they
use any of the language from the rule which would tend to give
notice of their reliance on any of the foregoing grounds. Most
crucially, however, the grounds listed by petitioners do not
“reveal[] the basis of the motion” in terms of the 59(a) grounds.
Smith, 125 N.C. App. at 606, 481 S.E.2d at 417 (quoting N.C. Gen.
Stat. § 1A-1, Rule 7(b)(1) (1990)). In fact, it would have been
equally as possible for petitioners to argue that the grounds for
the motion arose from Rule 59(a)(4) (newly discovered evidence
material for the party making the motion which could not, with
reasonable diligence, have been discovered and produced at the
trial) as it was for them to argue 59(a)(2), (7), and (8). The trial court correctly concluded that “[t]o qualify as a
Rule 59 motion . . . the motion must 'state the grounds therefor'
and the grounds stated must be among those listed in Rule 59(a).”
(quoting
Smith, 125 N.C. App. at 606, 481 S.E.2d at 417). We note
that “[w]hile failure to give the number of the rule under which a
motion is made is not necessarily fatal, the grounds for the motion
and the relief sought must be consistent with the Rules of Civil
Procedure.”
Gallbronner v. Mason, 101 N.C. App. 362, 366, 399
S.E.2d 139, 141,
disc. review denied, 329 N.C. 268, 407 S.E.2d 835
(1991). In
Smith, this Court specifically held that “[t]he motion,
to satisfy the requirements of Rule 7(b)(1), must supply
information revealing the basis of the motion.” 125 N.C. App. at
606, 481 S.E.2d at 417;
see also N.C. Gen. Stat. § 1A-1, Rule
7(b)(1) (2005) (requiring a motion to “state with particularity the
grounds therefor”). In the present case, the basis of the motion
was not apparent from the grounds listed, leaving the trial court
and the opposing party to guess what the particular grounds might
be. Although such deficiency would alone be adequate basis for
dismissal of the motion, the trial court also found that
petitioners simply sought to reargue matters from the earlier
hearing, additionally supporting the court's conclusions that the
Motion to Alter or Amend was not a proper Rule 59(e) motion.
See
Smith, 125 N.C. App. at 606, 481 S.E.2d at 417 (holding a Rule
59(e) 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” and a motion that does so “cannot be treated as a Rule59(e) motion”). Accordingly, the trial court properly held that
the Motion to Alter or Amend violated Rule 7(b)(1) and was not a
proper Rule 59(e) motion.
Because the trial court properly dismissed petitioners' Motion
to Alter or Amend, petitioners' assignments of error directed to
the court's striking exhibits 16-19 to the motion are rendered
moot, and we need not address them.
[2] All of petitioners' remaining arguments pertain to the 27
September 2005 order dismissing their petition for review.
Petitioners filed their notice of appeal on 6 January 2006. N.C.R.
App. P. 3(c)(1) (2005) requires that notice of appeal from a civil
judgment or order be filed and served within thirty days after the
entry of judgment. Although a timely motion made pursuant to Rule
59 will toll the time for taking an appeal, N.C.R. App. P. 3(c)(3)
(2005), when a party makes a motion pursuant to Rule 59 that is not
a proper Rule 59 motion, the time for filing an appeal is not
tolled.
Smith, 125 N.C. App. at 607, 481 S.E.2d at 417. In the
present case, since the time for filing an appeal was not tolled by
the improper Rule 59 motion, petitioners' notice of appeal on 6
January 2006 was not a timely appeal of the 27 September 2005 order
and petitioners' remaining appeal from that order is dismissed.
Affirmed in part, dismissed in part.
Judges WYNN and GEER concur.
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