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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-443
                

NORTH CAROLINA COURT OF APPEALS
        

Filed: 4 December 2007

DELLA KATE SMITH (widow and
now deceased), DONNIE S.
LEDBETTER and husband,
JAMES MELVIN LEDBETTER,
    Petitioners,
    

v .                                 Union County
                                    No.    92 SP 92
JIMMIE S. STARNES and husband,
CURTIS W. STARNES, TED S. SMITH     
and wife, FAIRIS W. SMITH,
    Respondents.
                
                    

    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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