Middleton v. Middleton

390 S.E.2d 453 (1990) 98 N.C. App. 217

Lance Monroe MIDDLETON and Frances J. Middleton, Plaintiffs,
v.
Bessie D. MIDDLETON, Defendant,
v.
Herman Clayton MIDDLETON, Third Party Defendant.

No. 8822SC1237.

Court of Appeals of North Carolina.

April 17, 1990.

James E. Snyder, Jr., Lexington, for plaintiffs-appellants.

No brief filed for defendant-appellee.

SARAH ELIZABETH PARKER, Judge.

After review of the transcript and record on appeal, we conclude that this appeal was not timely filed. We, therefore, dismiss the appeal pursuant to Rule 3 of the N.C. Rules of Appellate Procedure. The transcript reveals the following dialogue between the trial judge and counsel at the conclusion of the trial, after the jury had returned its verdict:

THE COURT: ... Any motions at the conclusion of the Verdict being recorded?

MR. SNYDER: At the conclusion of the Verdict, the Plaintiffs would make a motion to set aside the Verdict as being against the greater weight of the evidence.

THE COURT: Do you wish to be heard?

MR. SNYDER: No, sir.

THE COURT: Does the Defendant wish to be heard?

MR. GRAY: No, Your Honor.

THE COURT: Third Party Defendant wish to be heard?

MR. LEONARD: No, sir.

THE COURT: The Court would deny that motion.

MR. SNYDER: Further, Your Honor, the Plaintiffs would make a motion for a new trial for reasons of the—

THE COURT: The Court would deny that at this time. Do you wish to give Notice of Appeal?

MR. SNYDER: Not at this time.

THE COURT: Third Party Defendant wish to give Notice of Appeal?

MR. LEONARD: No, Your Honor.

The written judgment was signed and filed 21 April 1988. On 22 April 1988 counsel for plaintiffs filed a written motion for judgment notwithstanding the verdict and, alternatively, for a new trial. A hearing on the motions was held 6 June 1988 and the motions were again denied. Finally, on 13 June 1988 plaintiffs filed their written notice of appeal.

General Statute 1A-1, Rule 50 provides in pertinent part the following:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.

G.S. 1A-1, Rule 50(b)(1). Under Rule 3 of the N.C. Rules of Appellate Procedure, timely filing of a motion for judgment notwithstanding the verdict or for a new trial pursuant to G.S. 1A-1, Rule 50(b) and Rule 59 tolls the period for filing and serving written notice of appeal in civil actions. The full time for appeal commences to run and is to be computed from the entry of the order granting or denying the motions under Rule 50(b) or Rule 59. N.C. Rules App.Proc., Rule 3(c).

In the present case, plaintiffs entered their written notice of appeal within 10 days after the entry of the 6 June order denying their 22 April written motions for judgment notwithstanding the verdict and for a new trial. In our opinion, however, plaintiffs were not entitled to make these written motions or to a hearing on these motions because they had previously made oral motions for judgment notwithstanding the verdict and for a new trial in open court on 14 April 1988 and were afforded an opportunity to be heard which they declined. Their Rule 50(b) and Rule 59 motions having been denied in open court at that time, plaintiffs were not entitled to file written motions requesting the same relief and thereby toll the period for filing written notice of appeal. Since the 13 June 1988 written notice of appeal was not filed within 10 days of entry of judgment, which by the terms of the judgment was 14 April 1988, we dismiss the appeal as untimely.

Appeal dismissed.

EAGLES and ORR, JJ., concur.