Dusenberry v. Dusenberry

WELLS, Judge.

The defendant asks us to review three orders entered by the district court below: (1) an equitable distribution order that failed expressly to provide for payment of post-judgment interest on the marital property awarded, (2) an order denying two N.C. Gen. Stat. § 1A-1, Rule 59(e) of the Rules of Civil Procedure, motions to alter or amend a judgment, and (3) an order dismissing an appeal. Of these three orders we need only deal with the latter two, inasmuch as our affirmance of them precludes review of the equitable distribution award.

As indicated above, the district court’s second Order Distributing Marital Property of 7 May 1986 made no express provision for payment of post-judgment interest to defendant. On 15 May defendant served on plaintiff a Motion to Amend or Alter Judgment, which read in its entirety as follows:

Now COMES the Defendant, by and through Counsel, who moves this Honorable Court pursuant to Rule 59(e) to alter or amend the judgment entered by this Court in its Order dated May 7, 1986.

This is the 15th day of May, 1986.

On 23 May the defendant served on plaintiff an Amended Motion to Alter or Amend Judgment. In this second motion defendant expressly requested the court to amend the 7 May judgment to provide for post-judgment interest. As stated above, on 27 June the district court signed an order denying both of defendant’s Rule 59(e) motions.

Plaintiff contends that the 15 May motion was properly denied because it failed to comply with Rule 7(b)(1) of the Rules of Civil Procedure. We agree. Rule 7(b)(1) provides, in pertinent part: “An application to the court for an order shall be by motion which . . . shall be made by writing, shall state the grounds therefor, and shall set forth the relief or order sought.” [Emphasis added.] A bare-bones motion like that of 15 May, which neither states the grounds nor specifies the relief sought, fails to inform either the court or the adverse party of what the movant wants. Such complete failure to give notice cannot fairly be passed off as a technical defect, as defendant would persuade us. For where court and adverse party cannot comprehend the basis of a motion, they are rendered powerless to respond to it.

Defendant’s Amended Motion to Alter or Amend Judgment of 23 May was served 16 days after the equitable distribution order was entered and was therefore untimely. It follows that the trial court’s denial was proper. In sum, we affirm the trial court’s order denying both of defendant’s Rule 59(e) motions.

The district court dismissed defendant’s appeal because counsel for defendant had not, within ten days of entry of the 7 May distribution order, either given proper notice of appeal or filed “a proper Rule 59(e) motion . . . adequate to suspend the finality of the Court’s May 7, 1986 Order or stay the running of the appeal time.” [Emphasis added.] Apparently, the trial court reasoned that if a Rule 59(e) motion fails to comply with the requirements of Rule 7(b) of the Rules of Civil Procedure, it is ipso facto ineffective to suspend the running of the appeal time. We agree. Rule 59(c) provides as follows: “A motion to alter or amend the judgment under section (a) of this rule shall be served not later than 10 days after entry of the judgment.” In order to suspend the running of the appeal clock, a Rule 59(e) motion must not only be timely served, it must also meet the demands of Rule 7(b). In the present case, since defendant’s first Rule 59(e) motion failed either to state the grounds or set forth the relief sought, it was ineffective to toll the running of the appeal clock. Therefore, the trial court’s dismissal of defendant’s appeal is affirmed.

As indicated above, because of our affirmance of the trial court’s order denying defendant’s Rule 59(e) motions, we cannot reach the merits of defendant’s claim for post-judgment interest dating from 19 April 1984, the date of the first distribution order subsequently vacated. However, we note that, as plaintiff candidly concedes in his brief, defendant is entitled to interest on $78,627.85 from the date of the distribution order of 7 May 1986 until paid, and we remand for amendment of that order to reflect this entitlement.

Affirmed as modified and remanded.

Judges Eagles and Martin concur.