Appeal by Respondents-Appellants from order entered 8 November
2006 by Judge Linwood O. Foust in Union County Superior Court.
Heard in the Court of Appeals 31 October 2007.
Griffin, Smith, Caldwell, Helder & Helms, P.A., by R. Kenneth
Helms, Jr., for Petitioners-Appellees.
Steven D. Starnes, for Respondents-Appellants.
ARROWOOD, Judge.
In March 1929, H.S. Plyler and his wife conveyed to T.S. Smith
(T.S.) and his two brothers, A.E. Smith (A.E.) and T.S.E. Smith
(T.S.E.), a parcel of land containing 202 acres. Each owned an
undivided one-third interest in the 202 acres. The property
comprised one 63 acre plot, one 31.5 acre plot, and one 94.8 acre
plot. On 13 November 1944, three deeds were simultaneously
recorded: the first deed conveyed T.S.E.'s undivided interest in
the three tracts of property to T.S. and A.E.; the second deedconveyed A.E.'s undivided interest in the 63 and 31.5 acre tracts
to T.S. and wife, Della Kate Smith (Della); the third deed conveyed
T.S.'s undivided interest in the 94.8 acre plot to A.E. and wife,
Annie Ruth Smith (Annie).
T.S. died intestate on 21 April 1954, survived by Della and
his three children, Jimmie S. Starnes (Starnes) and Ted S. Smith
(Smith) (together, Respondents); and Donnie S. Ledbetter
(Ledbetter). On 10 April 1992, Della, Ledbetter and her husband,
James M. Ledbetter, (Petitioners) filed a petition to partition one
tract of the property among Della and her three children, and to
sell a second tract of the property, dividing the proceeds among
Della and her children in proportion to their interests.
Petitioners alleged that the title to the real property was vested
as follows: Della owned a one-half undivided interest in the
property and a life estate in the Respondents' and Ledbetter's one-
sixth undivided interests, and that Ledbetter, Starnes and Smith
each owned a one-sixth undivided interest in the property subject
to Della's life estate. Respondents answered, denying Petitioners'
allegations as to the “precise interests that the parties own in
said real estate[,]” and filed a counterclaim praying that the
court sell all properties and divide the proceeds among Della and
her children in proportion to their interests.
On 3 June 1993, Petitioners filed a motion for summary
judgment pursuant to N.C.R. Civ. P. 56 seeking a determination of
the ownership interests of the disputed property among Petitioners
and Respondents. The motion was heard on 21 June 1993 at 10:00A.M., and an order was filed granting Petitioners' motion for
summary judgment on 21 June 1993 at 10:20 A.M. The court ordered
that title to the real property was vested as follows: Della owned
a one-half undivided interest and a life estate in the interests of
Ledbetter and Respondents, and that Ledbetter, Starnes and Smith
each owned a one-sixth undivided interest in the property subject
to Della's life estate.
More than thirteen years later, on 13 July 2006, Respondents
filed a N.C. R. Civ. P. 59 and 60 motion for a new trial, amendment
of the judgment, or relief from the order filed on 21 June 1993.
On 19 July 2006, Respondents filed a memorandum in support of their
13 July 2006 motion, citing Darcy v. Osborne, 101 N.C. App. 546,
400 S.E.2d 95 (1991), as the sole authority for Respondents'
argument that the 13 July 2006 motion was timely filed. On 9
November 2006, the trial court entered an order denying
Respondents' motion for a new trial, amendment of the judgment, or
relief from the order, stating that “[a]n [o]rder granting the
[s]ummary [j]udgment was rendered, entered and filed in open court
on July 21, 1993 at 10:20 [A.M.,]” and “[t]he time for moving for
relief pursuant to Rule 59 and Rule 60 . . . expired more than 10
years ago.” From this order, Respondents appeal.
N.C. Gen. Stat § 1A-1, Rule 59(b) (2005) states that “[a]
motion for a new trial shall be served not later than 10 days after
entry of the judgment.”
Id. N.C. Gen. Stat. § 1A-1, Rule 59(e)
(2005) states that “[a] motion to alter or amend the judgment undersection (a) of this rule shall be served not later than 10 days
after entry of the judgment.”
Pursuant to N.C. Gen. Stat. § 1A-1,
Rule 60(b)(6) (2005), “[a] motion [for relief from judgment or
order] shall be made within a reasonable time, and for reasons (1),
(2) and (3) not more than one year after the judgment, order, or
proceeding was entered or taken.”
The question for our review is
when the summary judgment order was entered for purposes of
triggering the time limitations of Rule 59(b) and (e) and Rule
60(b)(6).
“'It is . . . highly desirable that the moment of entry of
judgment be easily identifiable and it is also desirable that fair
notice be given to all parties of the entry of judgment.'”
Reed v.
Abrahamson, 331 N.C. 249, 255, 415 S.E.2d 549, 552 (1992) (quoting
N.C. Gen. Stat. § 1A-1, Rule 58 comment). In
Reed, our Supreme
Court stated:
“Subject to the provisions of Rule 54(b): Upon
a jury verdict that a party shall recover only
a sum certain or costs or that all relief
shall be denied or upon a decision by the
judge in open court to like effect, the clerk,
in the absence of any contrary direction by
the judge, shall make a notation in his
minutes of such verdict or decision and such
notation shall constitute the entry of
judgment for the purposes of these rules. The
clerk shall forthwith prepare, sign, and file
the judgment without awaiting any direction by
the judge.
In other cases where judgment is rendered in
open court, the clerk shall make a notation in
his minutes as the judge may direct and such
notation shall constitute the entry of
judgment for the purposes of these rules. The
judge shall approve the form of the judgment
and direct its prompt preparation and filing.
In cases where judgment is not rendered in
open court, entry of judgment for the purposes
of these rules shall be deemed complete when
an order for the entry of judgment is received
by the clerk from the judge, the judgment is
filed and the clerk mails notice of its filing
to all parties. The clerk's notation on the
judgment of the time of mailing shall be prima
facie evidence of mailing and the time
thereof.”
Id. at 251-252, 415 S.E.2d at 550 (quoting N.C. Gen. Stat. § 1A-1,
Rule 58 (1990)).
In
Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991),
our Supreme Court stated that:
The language of Rule 58 clearly establishes
that entry of judgment occurs when the clerk
makes some notation in the minutes. In cases
where the procedures used do not fit within
the express provisions of the rule or where
there is no evidence to indicate when or
whether such notation was made,
the spirit and
purpose of the rule should determine when
entry of judgment occurs. As described above,
relevant factors in this analysis are: (1) an
easily identifiable point at which entry
occurred, such that (2) the parties have fair
notice of the court's judgment and the time
thereof, and that (3) the matters for
adjudication have been finally and completely
resolved so that the case is suitable for
appellate review.
Id. at 287, 401 S.E.2d at 645.
In the instant case, Respondents argue that the 21 June 1993
order “has still not been entered[,]” because there is no evidence
of the clerk's notation or of the certificate of service providing
notice to Respondents. Therefore, Respondents argue that the “time
for filing their [m]otion . . . has never tolled and was still open
. . . on [13 July 2006][,]” approximately thirteen years later.
Respondents cite
Darcy v. Osborne, 101 N.C. App. 546, 400S.E.2d 95, as authority for this argument. In
Darcy, the trial
court rendered its decision in open court on 6 November 1989, and
filed the written judgment on 6 March 1990. The defendants were
not served with notice that the judgment had been filed until 3
April 1990, after which the defendants filed notice of appeal on 10
April 1990. Plaintiffs contended that the time for appeal should
have been measured from the time the written judgment was filed, 6
March 1990. However, this Court stated that “[p]aragraph three of
Rule 58 specifies three separate events which must occur before
entry of judgment is complete[,]”
including notice to the parties.
Id. at 549, 400 S.E.2d at 96. The Court reasoned that because
“there [was] no evidence in the record on appeal that notice of
filing was mailed to the parties, nor does the judgment exhibit a
time of mailing constituting prima facie evidence of mailing
notice[,]”
Id. at 547, 400 S.E.2d at 95, “entry of judgment did not
occur under paragraph three of Rule 58.”
Id.
at 549, 400 S.E.2d at
96. The Court further stated that because the “judgment has never
been entered . . . the 30-day period provided by N.C.R. App. P.
3(c) has not been triggered, much less has it expired.”
Id.
We conclude that
Darcy is distinguishable from the instant
case. Paragraph three of Rule 58, which the Court applied in
Darcy, pertained only to “cases where judgment [was] not rendered
in open court[.]”
See Rule 58;
see also Stachlowski, 328 N.C. at
283, 401 S.E.2d at 642
(stating with regard to paragraph one of
Rule 58 that “[e]ntry of judgment occurs [upon a judge's decision
and the clerk's notation,] and because 'it involves an open courtverdict or decision, all parties are deemed to be on notice of the
fact and time of the entry'” (quoting W. Shuford,
N.C. Civil
Practice and Procedure § 58-4 (1988)).
On 9 November 2006, the trial court found, and the evidence
supports, that the 21 June 1993 summary judgment order was entered
in open court. Respondents do not dispute this finding of fact.
Furthermore, only twenty minutes elapsed from commencement of the
hearing on 21 June 1993 at 10:00 A.M. until the filing of the
summary judgment order. Paragraph three of Rule 58 is inapplicable
to this case.
We believe our Supreme Court's decision in
Stachlowski is
instructive here. In
Stachlowski, the Court held, after
considering the circumstances of the case, that the lack of a
notation in the clerk's minutes did not prevent entry of judgment.
The Court considered three factors
to determine that the purpose of
Rule 58 was accomplished.
The relevant factors in
Stachlowski for
this determination are as follows:
(1) an easily identifiable point at which
entry occurred, such that (2) the parties have
fair notice of the court's judgment and the
time thereof, and that (3) the matters for
adjudication have been finally and completely
resolved so that the case is suitable for
appellate review.
Id. at 287, 401 S.E.2d at 645. “These factors [the Court said,]
should determine the point at which entry of judgment occurs in
cases in which the express provisions of Rule 58 are ineffective
for that purpose.”
Id. at 282, 401 S.E.2d at 642. Here, as in
Stachlowski, there is no evidence in the appellate
record as to the clerk's notation in the minutes, which would
clearly establish entry of judgment; therefore, we look to “the
spirit and purpose of the rule [to] determine when entry of
judgment occur[red].”
Stachlowski,
328 N.C. at 287, 401 S.E.2d at
645.
In this case, (1) the court simultaneously signed and filed
the summary judgment order twenty minutes after the hearing began,
which is an easily identifiable point of entry of judgment; (2) the
evidence tends to show, and Respondents do not argue the contrary,
that Respondents were present in open court when the order was
signed and filed,
see Stachlowski, 328 N.C. at 282, 401 S.E.2d at
642
(stating with regard to paragraph one of Rule 58 that “because
'it involves an open court verdict or decision, all parties are
deemed to be on notice of the fact and time of the entry'” (quoting
N.C. Civil Practice and Procedure § 58-4)); and (3)
the summary
judgment order established Respondents' and Petitioners' ownership
interests _ the foundation upon which each subsequent step in the
partition proceeding was based.
As further evidence of Respondent's notice in open court and
their awareness of the 21 June 1993 summary judgment order, the
partition proceedings continued after the entry of the order with
an order appointing commissioners, filed on 25 August 1993, and a
report of commissioners, filed on 20 January 1994, to which
Respondents filed exceptions on 31 January 1994. On 23 March 1994,
Respondents withdrew the exceptions, and an order confirming the
report of commissioners was filed on 8 April 1994, whichdistributed the property to the Respondents and Petitioners.
Respondents did not take any action in this matter between their
withdrawal of the exceptions to the report of the commissioners on
8 April 1994 until their motion _ twelve years later _ on 13 July
2006.
We conclude, based on the spirit and purpose of Rule 58, and
considering the relevant factors set forth in
Stachlowski, that the
order granting summary judgment was rendered, entered and filed in
open court on 21 June 1993 at 10:20 A.M., and pursuant to Rule
59(b) and (e) and Rule 60(b)(6), Respondents' motion for a new
trial, amendment of the judgment or relief from the order is more
than ten years too late.
Affirmed.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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