York v. Taylor , 79 N.C. App. 653 ( 1986 )

339 S.E.2d 830 (1986)

Ruben L. YORK
v.
Michael TAYLOR and wife, Gloria Taylor.

No. 8521DC828.

Court of Appeals of North Carolina.

March 4, 1986.

Harrell Powell, Jr., and Garry Whitaker, Winston-Salem, for plaintiff, appellant.

James H. Early, Jr., Winston-Salem, for defendants, appellees.

HEDRICK, Chief Judge.

The notice of appeal from the default judgment for defendants with respect to plaintiff's claim and defendants' counterclaim against plaintiff was filed at the same time as plaintiff's Rule 52(b) motion for amended and additional findings of fact and Rule 60(b) motion for relief from judgment. The trial court is not divested of jurisdiction to hear and rule on a Rule 52(b) motion even though notice of appeal has been given. Parrish v. Cole, 38 N.C.App. 691, 248 S.E.2d 878 (1978). The trial court does not have jurisdiction, however, to rule on motions pursuant to Rule 60(b) where such motion is made after the notice of appeal has been given. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971), reh. denied, 281 N.C. 317 (1972). From our research, we have discovered no cases with respect to whether the trial court has jurisdiction to rule on Rule 60(b) motions that are filed contemporaneously with the notice of appeal. We do have, however, precedent holding that the appellate court is the proper place to file Rule 60(b) motions while the case is pending appeal. Swygert v. Swygert, 46 N.C.App. 173, 264 S.E.2d 902 (1980). Moreover, in Swygert this Court remanded a Rule 60(b) motion filed in this Court pending appeal to the trial court for a hearing and determination on the questions and issues raised by the motion. It would be incongruous for us to say that the trial court had jurisdiction to rule on a Rule 52(b) motion but was divested of jurisdiction to hear a Rule 60(b) motion filed at the same time. This is especially true since we have the authority to remand the Rule 60(b) motion to the trial court for a hearing and determination pending appeal. Id. Therefore, under the circumstances of this case, we hold that the trial court had jurisdiction to rule on plaintiff's Rule 60(b) motion.

We therefore address the question of the correctness of the trial court's ruling denying plaintiff's Rule 60(b) motion. It is the duty of the trial court in ruling on a Rule 60(b) motion to make findings of fact and to determine from such facts whether the movant is entitled to relief from such judgment or order. Hoglen v. James, 38 N.C.App. 728, 248 S.E.2d 901 (1978). Although the record indicates that a hearing was conducted, at which plaintiff's counsel was not present, the trial court made no findings of fact resolving the critical issues as to whether plaintiff was entitled to relief from judgment on the grounds of "mistake, inadvertence, surprise, or excusable neglect" and whether plaintiff had a meritorious defense to defendants' counterclaim.

We therefore vacate the order denying plaintiff's motion and remand the case to the district court for a new hearing and ruling on all issues raised by the 60(b) motion.

There are, pending in this Court, rulings on defendants' motion to dismiss plaintiff's appeal, plaintiff's petition for writ of certiorari and other questions relating to plaintiff's appeal which are not yet resolved, and if these questions are not rendered moot by the trial court's ruling on plaintiff's 60(b) motion, see, Beard v. Pembaur, 68 N.C.App. 52, 313 S.E.2d 853, cert. denied, 311 N.C. 750, 321 S.E.2d 126 (1984), we will, on motion of plaintiff, reinstate these unresolved questions in our calendar for disposition. The order denying plaintiff's Rule 60(b) motion is vacated and the case is remanded for further proceedings.

Order vacated and remanded.

WEBB and PARKER, JJ., concur.