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461
Divested of Jurisdiction? The Effect of Filing a
Notice of Appeal While a Posttrial Tolling
Motion Is Pending Before the Trial Court
KATIE GREENE
*
A
BSTRACT
What happens when there is a tolling motion under Rule 3 of the North
Carolina Rules of Appellate Procedure pending before a trial court and a
subsequent notice of appeal is filed? As the case law currently stands,
depending on which of three tolling motions is pending, the trial court may
be divested of jurisdiction to rule on the motion—a divestiture that could
lead the appellate court to dismiss the appeal as untimely. This Article
argues that the North Carolina courts have drawn arbitrary distinctions
between the different tolling motions to determine whether a trial court is
divested of jurisdiction. Instead, the North Carolina Rules of Appellate
Procedure should be amended to conform with the approach laid out in the
Federal Rules of Appellate Procedure, in which a trial court retains
jurisdiction over a tolling motion even after a notice of appeal is filed and
the notice of appeal does not become effective until there is an order
disposing of the tolling motion.
I
NTRODUCTION
Under the North Carolina Rules of Appellate Procedure, a party
seeking to appeal a judgment or order in a civil case has thirty days after
the entry of judgment to file a notice of appeal.
1
However, certain posttrial
motions will toll this thirty-day time period until the trial court rules on
these “tolling motions.” The parties then have thirty days after the
resolution of the tolling motion to file a timely notice of appeal.
2
These
* Law Clerk to the Honorable Robert B. Jones, Jr., Magistrate Judge for the U.S.
District Court for the Eastern District of North Carolina. Many thanks to all who offered
insight and suggestions throughout the development of this Article.
1. N.C.
R. APP. P. 3(c)(1) (“In civil actions and special proceedings, a party must file
and serve a notice of appeal . . . within thirty days after entry of judgment . . . .”).
2. Id.
R. 3(c)(3) (“[I]f a timely motion is made by any party for relief under Rules
50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is
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462 CAMPBELL LAW REVIEW [Vol. 37:461
three tolling motions are motions for relief under (1) Rule 50(b) of the
North Carolina Rules of Civil Procedure for judgment notwithstanding the
verdict (JNOV),
3
(2) Rule 52(b) for amendment of the judgment,
4
or (3)
Rule 59 for a new trial.
5
Problems arise when there is a tolling motion pending before a trial
court and a party files a notice of appeal before the trial court has ruled on
the tolling motion. This may occur when one party strategically files a
notice of appeal while a tolling motion is pending to deprive the other party
of a ruling on that motion, perhaps aiming to make the other party’s
position more difficult on appeal. If a subsequent notice of appeal is filed
while a tolling motion is pending, the trial court may be divested of
jurisdiction to rule on the tolling motion. Generally, filing a notice of
appeal divests a trial court of jurisdiction over a case.
6
Throughout the
pendency of an appeal, the trial court has a very limited role—the trial
judge is functus officio.
7
When the court becomes functus officio, it is
without further authority and “has completed its duties pending the
decision of the appellate court.”
8
Filing a notice of appeal while there is a
pending tolling motion may divest the trial court of jurisdiction, leaving it
tolled as to all parties until entry of an order disposing of the motion and then runs as to
each party from the date of entry of the order . . . .”). But see Estate of Hurst ex rel. Cherry
v. Moorehead I, LLC, 748 S.E.2d 568, 572 n.2 (N.C. Ct. App. 2013) (holding in a case
involving multiple defendants, where only one defendant filed a tolling motion, that the
notice of appeal as to the other defendants was dismissed as untimely where it was filed
more than thirty days after the entry of judgment).
3. N.C.
GEN. STAT. § 1A-1, Rule 50(b) (2013).
4. Id. § 1A-1, Rule 52(b).
5. Id. § 1A-1, Rule 59; N.C.
R. APP. P. 3(c)(3). Note, however, that the North Carolina
Court of Appeals has held in an unpublished opinion that an improper Rule 59 motion failed
to toll the thirty-day time period for filing a notice of appeal. Diversified Fin. Servs., LLC
v. F&F Excavating & Paving, Inc., No. COA11-292, 2011 N.C. App. LEXIS 2306, at *6–11
(N.C. Ct. App. Nov. 1, 2011) (dismissing an appeal as untimely where appellants relied on a
Rule 59 motion to toll the time period for filing a notice of appeal but failed to include in
their motion one of the nine enumerated grounds for which a new trial may be granted under
Rule 59).
6. Wiggins v. Bunch, 184 S.E.2d 879, 880 (N.C. 1971) (“As a general rule an appeal
takes the case out of the jurisdiction of the trial court.” (quoting Am. Floor Mach. Co. v.
Dixon, 133 S.E.2d 659, 662 (N.C. 1963))).
7. Bowen v. Hodge Motor Co., 234 S.E.2d 748, 749 (N.C. 1977) (“[A]n appeal
removes a case from the jurisdiction of the trial court and, pending the appeal, the trial judge
is functus officio.”). Black’s Law Dictionary defines functus officio as an officer or official
body “without further authority or legal competence because the duties and functions of the
original commission have been fully accomplished.” Functus officio, B
LACK’S LAW
DICTIONARY (10th ed. 2014).
8. RPR & Assocs., Inc. v. Univ. of N.C.-Chapel Hill, 570 S.E.2d 510, 513 (N.C. Ct.
App. 2002).
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2015] DIVESTED OF JURISDICTION 463
functus officio. This potential divestiture of jurisdiction creates problems
for parties who wish to file a notice of appeal but are otherwise outside of
the thirty-day period following the entry of judgment.
Whether a notice of appeal divests the trial court of jurisdiction
depends on which of the three tolling motions was pending when the notice
of appeal was filed. The North Carolina appellate courts have held that a
notice of appeal filed while a Rule 59 motion is pending divests the trial
court of jurisdiction over the Rule 59 motion.
9
If a Rule 52(b) motion is
pending before the trial court, however, the North Carolina appellate courts
have held that the trial court retains jurisdiction to consider that motion,
even after the notice of appeal is filed.
10
This distinction among the tolling
motions is arbitrary, and North Carolina courts should instead retain
jurisdiction to rule on tolling motions even after a notice of appeal is filed.
Part I of this Article explains the general rule regarding divestiture of
jurisdiction and its consequences. Part II discusses the effect of filing a
notice of appeal while a tolling motion under Rule 3(c) of the North
Carolina Rules of Appellate Procedure is pending before the trial court.
Part III concludes by recommending that the North Carolina Rules of
Appellate Procedure be amended to conform to the approach laid out in the
Federal Rules of Appellate Procedure, whereby trial courts retain
jurisdiction over pending tolling motions even after a notice of appeal has
been filed.
I. DIVESTITURE OF JURISDICTION AND ITS CONSEQUENCES
This Part discusses the general mechanics of divestiture of jurisdiction
and its consequences. Generally, filing a notice of appeal takes a case out
of the trial court’s jurisdiction.
11
Throughout the pendency of the appeal,
the trial court is functus officio.
12
Functus officio means “having performed
his or her office,”
13
and refers to the “trial court hav[ing] completed all of
its duties vis-à-vis the matter before it.”
14
The Supreme Court of North
Carolina has vacated orders issued by a trial court after a notice of appeal
9. Lovallo v. Sabato, 715 S.E.2d 909, 912 (N.C. Ct. App. 2011) (citing Sink v. Easter,
217 S.E.2d 532, 541 (N.C. 1975)).
10. Id. (citing York v. Taylor, 339 S.E.2d 830, 831 (N.C. Ct. App 1986)).
11. Wiggins, 184 S.E.2d at 880.
12. Bowen, 234 S.E.2d at 749.
13. Functus officio, B
LACK’S LAW DICTIONARY (10th ed. 2014).
14. Thomas L. Fowler, Functus Officio: Authority of the Trial Court After Notice of
Appeal, 81 N.C.
L. REV. 2331, 2333 (2003).
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was filed, noting that these orders are “void for want of jurisdiction.”
15
North Carolina courts have recognized that this general rule regarding
divestiture of jurisdiction is “subject to two exceptions and one
qualification.”
16
While an appeal is pending, the trial court judge still has
jurisdiction over the case during the session in which the judgment at issue
was announced and also for the purpose of settling the record on appeal.
17
Additionally, “‘the trial judge, after notice and on proper showing, may
adjudge that the appeal has been abandoned’ and thereby regain
jurisdiction of the cause.”
18
In keeping with this understanding of the trial
court’s authority after a notice of appeal has been filed, the Supreme Court
of North Carolina held in American Floor Machine Co. v. Dixon
19
that a
notice of appeal divested a trial court (the equivalent of a North Carolina
district court) of jurisdiction over the case and “removed the case to the
Superior Court for all purposes except the certification of a correct
record.”
20
Determining whether a trial court has been divested of jurisdiction
where parties are relying on tolling motions to file a timely appeal is
critical, because Rule 3’s requirements are jurisdictional.
21
Failure to
comply with Rule 3’s requirements will result in dismissal of an appeal,
because jurisdiction over the case will not vest in the appellate court.
22
Parties cannot stipulate that the requirements of Rule 3 have been met in an
effort to create jurisdiction.
23
The North Carolina Court of Appeals has
explicitly stated that jurisdiction “cannot be conferred by consent, waiver
15. Lowder v. All Star Mills, Inc., 273 S.E.2d 247, 259 (N.C. 1981) (vacating the trial
court’s orders approving the payment of fees and expenses entered after a notice of appeal
had been filed).
16. Bowen, 234 S.E.2d at 749.
17. Id.
18. Id. (quoting Am. Floor Mach. Co. v. Dixon, 133 S.E.2d 659, 662 (N.C. 1963)).
19. Am. Floor Mach. Co., 133 S.E.2d 659.
20. Id. at 662.
21. In re Harts, 664 S.E.2d 411, 413–14 (N.C. Ct. App. 2008) (dismissing a notice of
appeal from a judgment as untimely where the notice of appeal was filed within thirty days
of an award of attorney’s fees but more than thirty days after the entry of judgment (citing
Henlajon, Inc. v. Branch Highways, Inc., 560 S.E.2d 598, 600–01 (N.C. Ct. App. 2002))).
22. Mason v. Dwinnell, 660 S.E.2d 58, 63 (N.C. Ct. App. 2008) (“Without proper
notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the
parties may waive the jurisdictional requirements . . . .” (quoting Bromhal v. Stott, 447
S.E.2d 481, 483 (N.C. Ct. App. 1994), aff’d in part, 462 S.E.2d 219 (N.C. 1995))).
23. Von Ramm v. Von Ramm, 392 S.E.2d 422, 425 (N.C. Ct. App. 1990) (holding that
the court did not have jurisdiction over an appeal seeking review of two judgments where
the appellant referred to only one judgment in the notice of appeal, even though the parties
stipulated in the record on appeal that notice of appeal was timely given as to both
judgments).
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or estoppel[;] . . . [j]urisdiction rests upon the law and the law alone. It is
never dependent on the conduct of the parties.”
24
Because the requirements
of Rule 3 are jurisdictional, courts may not extend the time for filing a
notice of appeal.
25
Further, Rule 2 of the North Carolina Rules of
Appellate Procedure may not be invoked to save an appeal that suffers
from a jurisdictional defect.
26
Even so, North Carolina appellate courts
may still be able to consider the merits of an appeal if a party files a
petition for writ of certiorari, even if that party failed to file a timely notice
of appeal.
27
The mere filing of a notice of appeal, however, does not divest the
trial court of jurisdiction over a case.
28
Perfection of an appeal is the action
that actually divests the trial court of jurisdiction.
29
An appeal is perfected
when it is docketed in the appropriate appellate court.
30
Once an appeal is
perfected, the date for the appeal relates back to the date of filing of the
notice of appeal.
31
One commentator has stated that, “in cases where the
appeal is perfected, it is the notice of appeal that effectively terminates the
trial court’s jurisdiction.”
32
Section 1-294 of the North Carolina General Statutes provides that,
once an appeal is perfected by being docketed in the appellate court, that
24. Id. (emphasis added) (quoting Feldman v. Feldman, 73 S.E.2d 865, 867 (N.C.
1953)).
25. N.C.
R. APP. P. 27(c); Copper ex rel. Copper v. Denlinger, 667 S.E.2d 470, 479
(N.C. Ct. App. 2008) (“[T]he deadline for filing a notice of appeal in a civil case under Rule
3 cannot be extended by any North Carolina court as the rule is jurisdictional.”), rev’d in
part on other grounds, 688 S.E.2d 426 (N.C. 2010).
26. Copper, 667 S.E.2d at 479. Rule 2 provides:
To prevent manifest injustice to a party, or to expedite decision in the public
interest, either court of the appellate division may, except as otherwise expressly
provided by these rules, suspend or vary the requirements or provisions of any of
these rules in a case pending before it upon application of a party or upon its own
initiative, and may order proceedings in accordance with its directions.
N.C.
R. APP. P. 2 (emphasis added).
27. Anderson v. Hollifield, 480 S.E.2d 661, 663 (N.C. 1997) (“Construing [Rule 3(a),
Rule 27(c), and Rule 21(a)(1)] together, we conclude that Rule 21(a)(1) gives an appellate
court the authority to review the merits of an appeal by certiorari even if the party has failed
to file notice of appeal in a timely manner.”) (emphasis added). Rule 21(a)(1) governs the
writ-of-certiorari process. See N.C.
R. APP. P. 21(a)(1).
28. Lowder v. All Star Mills, Inc., 273 S.E.2d 247, 258 (N.C. 1981) (holding that
perfection of an appeal divests the trial court of jurisdiction, and that perfection “means
more than merely giving notice of appeal”).
29. Id.
30. Fowler, supra note 14, at 2333–34 n.9 (citing Lowder, 273 S.E.2d at 259).
31. Id.
32. Id.; see also Lowder, 273 S.E.2d at 258–59.
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perfection “stays all further proceedings in the court below upon the
judgment appealed from, or upon the matter embraced therein.”
33
Despite
this statutory language and the general functus officio principle, the North
Carolina Court of Appeals held in RPR & Associates, Inc. v. University of
North Carolina-Chapel Hill
34
that when a party files a notice of appeal
from a nonappealable interlocutory order, the notice of appeal does not
divest the trial court of jurisdiction over the case.
35
Thus, when a party
files a notice of appeal from an interlocutory order, “[t]he trial court has the
authority . . . to determine whether or not its order affects a substantial right
of the parties or is otherwise immediately appealable.”
36
If, however, a
trial court determines that an interlocutory order is nonappealable, the trial
court does not have the authority to dismiss the appeal.
37
The interplay between section 1-294 and RPR was highlighted in a
2014 North Carolina Business Court order.
38
In Union Corrugating Co. v.
Viechnicki,
39
the defendant filed a notice of appeal after the business court
granted a preliminary injunction.
40
Even though the court was unable to
dismiss the appeal as interlocutory, it noted that the order granting the
preliminary injunction was likely unappealable because it did not affect a
substantial right.
41
Citing RPR, the court refused to stay discovery
proceedings and ordered that the case should proceed.
42
Because the trial
court was unable to dismiss the appeal, the case would have to continue on
appeal for the appellate court to dismiss the appeal as interlocutory. Even
though the case was essentially proceeding on appeal, the trial court denied
33. N.C. GEN. STAT. § 1-294 (amended 2015). Section 1-294 was recently amended to
include the following italicized language: “When an appeal is perfected as provided by this
Article it stays all further proceedings in the court below upon the judgment appealed from,
or upon the matter embraced therein; unless otherwise provided by the Rules of Appellate
Procedure; but the court below may proceed upon any other matter included in the action
and not affected by the judgment appealed from.” Id. (amended by Act of May 21, 2015,
ch. 25, sec. 2, 2015 N.C. Sess. Laws 93, 93) (emphasis added).
34. RPR & Assocs., Inc. v. Univ. of N.C.-Chapel Hill, 570 S.E.2d 510 (N.C. Ct. App.
2002).
35. Id. at 514. A party may immediately appeal from an interlocutory order if the trial
court, in its discretion, decides that the order affects a substantial right of the party. Id.
(citing N.C.
GEN. STAT. §§ 1-277(a), 7A-27(d) (2013)).
36. Id. (citations omitted).
37. Estrada v. Jaques, 321 S.E.2d 240, 248 (N.C. Ct. App. 1984).
38. Union Corrugating Co. v. Viechnicki, No. 14CVS6240 (N.C. Super. Ct. Oct. 31,
2014), http://www.ncbusinesscourt.net/TCDDotNetPublic/default.aspx?CID=3&caseNumbe
r=14CVS6240 (order denying motion to dismiss appeal and motion to stay the case).
39. Id.
40. Id. at 3.
41. Id. at 7–8.
42. Id. at 8.
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the defendant’s motion for a stay under section 1-294 because the court had
determined that the order was likely unappealable. Union Corrugating
highlights the tension between RPR’s directive that trial courts determine
whether orders are interlocutory and the inability of trial courts to dismiss
interlocutory appeals, in addition to the tension between RPR and the
language of section 1-294.
II. T
HE EFFECT OF A SUBSEQUENT NOTICE OF APPEAL
ON PENDING TOLLING MOTIONS
As the case law currently stands, a trial court may be divested of
jurisdiction over a pending tolling motion after a notice of appeal is filed.
Whether a trial court is divested of jurisdiction depends on which tolling
motion was pending when the notice of appeal was filed. The North
Carolina appellate courts have held that filing a notice of appeal when a
Rule 59 motion is pending divests the trial court of jurisdiction over the
Rule 59 motion.
43
The North Carolina appellate courts have held, however,
that filing a notice of appeal while a Rule 52(b) motion is pending before a
trial court does not divest the trial court of jurisdiction over that motion.
44
The case law is unclear as to whether a trial court would be divested of
jurisdiction over a pending motion under Rule 50(b) when a notice of
appeal is later filed. Further, the North Carolina Court of Appeals has held
that trial courts are divested of jurisdiction when notices of appeal and
posttrial motions are filed contemporaneously, stating that “[e]ven where
notices of appeal are filed on the same day as the motion for a new trial, the
trial court is without jurisdiction to rule on the motion.”
45
The North Carolina appellate courts have drawn arbitrary distinctions
between the tolling motions to determine whether a trial court is divested of
jurisdiction after a notice of appeal is filed. In Parrish v. Cole,
46
the North
Carolina Court of Appeals held that a notice of appeal did not divest the
trial court of jurisdiction over a pending Rule 52(b) motion, explaining that
allowing the trial court to rule on the Rule 52(b) motion would ultimately
help streamline the appellate process and allow the trial court to rule on
matters that it was uniquely equipped to handle.
47
But in Wiggins v.
43. Lovallo v. Sabato, 715 S.E.2d 909, 912 (N.C. Ct. App. 2011) (citing Sink v. Easter,
217 S.E.2d 532, 541 (N.C. 1975)).
44. Id. (citing York v. Taylor, 339 S.E.2d 830, 831 (N.C. Ct. App. 1986)).
45. Am. Aluminum Prods., Inc. v. Pollard, 389 S.E.2d 589, 592 (N.C. Ct. App. 1990)
(citing Seafare Corp. v. Trenor Corp., 363 S.E.2d 643, 649 (N.C. Ct. App. 1988)).
46. Parrish v. Cole, 248 S.E.2d 878 (N.C. Ct. App. 1978).
47. Id. at 880.
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468 CAMPBELL LAW REVIEW [Vol. 37:461
Bunch,
48
the Supreme Court of North Carolina held that a notice of appeal
divested a trial court of jurisdiction over a Rule 59 motion.
49
In contrast to
the Parrish decision, the Wiggins court did not provide much explanation
as to why the notice of appeal divested the trial court of jurisdiction. This
different treatment of the tolling motions is unwarranted, given that the
reasoning of the Parrish court as to why the trial court should retain
jurisdiction over a Rule 52(b) motion extends to the other tolling motions
as well. Some aspects of Rule 50(b) motions and Rule 59 motions are
uniquely addressed to the trial court, like Rule 52(b) motions, and it is
unclear what effect divestiture of jurisdiction would have on the error-
preservation requirements to obtain appellate review of Rule 50(b)
motions.
A. Rule 52(b) Motions
In Parrish v. Cole, the North Carolina Court of Appeals held that the
filing of a notice of appeal did not divest a trial court of jurisdiction over a
Rule 52(b) motion to amend findings of fact.
50
The Parrish court reasoned
that allowing the trial court to resolve a 52(b) motion would ultimately not
disrupt the appellate process, and accordingly, the trial court was not
divested of jurisdiction over a Rule 52(b) motion even after a notice of
appeal had been filed.
51
Allowing trial courts to retain jurisdiction over
Rule 52(b) motions would not cause significant delay in the appellate
process, given that proper motions made pursuant to Rule 52(b) must be
brought within ten days of entry of the judgment or of an order by the trial
court—and the trial judge cannot extend this time period.
52
The Parrish
court cited to Wiggins, distinguishing Wiggins because that case also
involved a Rule 60(b) motion, which can be made within one year of the
entry of judgment.
53
Additionally, a Rule 60(b) motion is not a tolling
motion under Rule 3.
54
Accordingly, when compared to a Rule 52(b)
motion, “a Rule 60(b) motion has a greater potential for disrupting the
appellate process because an appeal may have been substantially advanced
at the time the motion is made.”
55
48. Wiggins v. Bunch, 184 S.E.2d 879 (N.C. 1971).
49. Id. at 882.
50. Parrish, 248 S.E.2d at 880.
51. Id.
52. Id. at 879–80.
53. Id. at 880 (citing Wiggins, 184 S.E.2d 879); see also N.C.
GEN. STAT. § 1A-1, Rule
60(b) (2013).
54. Parrish, 248 S.E.2d at 880.
55. Id.
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2015] DIVESTED OF JURISDICTION 469
The Parrish court reasoned that allowing the trial court to fix its own
errors through ruling on the Rule 52(b) motion promoted judicial economy
and ultimately would streamline the appellate process. Allowing the trial
court to retain jurisdiction over the Rule 52(b) motion “results in a system
in which the trial court has jurisdiction to reform, amend or alter its
decision prior to an appeal in order to give the appellate court a clearer
understanding of the trial court’s decision.”
56
The Parrish court also discussed the purpose of motions made
pursuant to Rule 52(b), stating that “the primary purpose of Rule 52(b) is to
enable the appellate court to obtain a correct understanding of the factual
issues determined by the trial court.”
57
In addition to allowing a trial court
to amend findings of fact, Rule 52(b) also permits a trial court to make new
findings of fact.
58
The court noted that, “[i]f a trial court has omitted
certain essential findings of fact, a timely motion under Rule 52(b) can
correct this oversight and avoid remand by the appellate court for further
findings and, perhaps, avoid multiple appeals.”
59
Further, “[a] complete
record on appeal, resulting from a Rule 52(b) motion, will provide the
appellate court with a better understanding of the trial court’s decision, thus
promoting the judicial process.”
60
Thus, the primary factors driving the
Parrish court’s holding that a notice of appeal did not divest a trial court of
jurisdiction over a Rule 52(b) motion were the unique relationship of the
trial court to a case and the potential to streamline the appellate process by
allowing the trial court to fix its own errors before the case progressed on
appeal.
B. Rule 59 Motions
In Wiggins v. Bunch, the Supreme Court of North Carolina held,
without a great deal of explanation, that a notice of appeal divests a trial
court of jurisdiction over a Rule 59 motion.
61
In Wiggins, both a Rule 59
motion and a Rule 60(b) motion were pending before the trial court.
62
The
Wiggins court looked to federal practice, since the question of whether a
trial court retained jurisdiction over a Rule 59 motion and a Rule 60(b)
motion after a notice of appeal had been filed was one of first impression
56. Id.
57. Id. at 879 (quoting C
HARLES ALLEN WRIGHT, HANDBOOK OF THE LAW OF FEDERAL
COURTS § 96, at 478 (3d ed. 1976)).
58. N.C.
GEN. STAT. § 1A-1, Rule 52(b).
59. Parrish, 248 S.E.2d at 879.
60. Id. at 880.
61. Wiggins v. Bunch, 184 S.E.2d 879, 882 (N.C. 1971).
62. Id. at 880–82.
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for North Carolina courts.
63
Specifically, the court considered whether the
general rule regarding divestiture of jurisdiction had been changed by the
1948 amendments to the Federal Rules of Civil Procedure.
64
The court
quoted Moore’s Federal Practice in its discussion for the proposition that
under the Federal Rules of Appellate Procedure,
during the pendency of an appeal it is generally held that the district court
is without power to grant relief under Rule 59; or to vacate, alter or amend
the judgment under Rule 60(b), whether the 60(b) motion is made prior to
or after the appeal is taken, except with permission of the appellate court.
65
Ultimately, the court concluded that the 1948 amendments to the
Federal Rules of Civil Procedure did not change the general rule of
divestiture of jurisdiction, and once “the appeal was taken[,] the trial court
was divested of jurisdiction except to aid in certifying a correct record.”
66
Thus, the Wiggins court held that a notice of appeal divested the trial court
of jurisdiction over a Rule 59 motion.
Despite the holding in Wiggins, the reasoning of the Parrish court also
applies to Rule 59 motions and suggests that trial courts should retain
jurisdiction over Rule 59 motions even after a notice of appeal is filed.
Rule 59 provides nine grounds for which a trial court may grant a new trial
or amend a judgment.
67
These nine grounds include the following:
(1) Any irregularity by which any party was prevented from having a fair
trial; (2) Misconduct of the jury or prevailing party; (3) Accident or
surprise which ordinary prudence could not have guarded against; (4)
Newly discovered evidence material for the party making the motion which
he could not, with reasonable diligence, have discovered and produced at
the trial; (5) Manifest disregard by the jury of the instructions of the court;
(6) Excessive or inadequate damages appearing to have been given under
the influence of passion or prejudice; (7) Insufficiency of the evidence to
justify the verdict or that the verdict is contrary to law; (8) Error in law
occurring at the trial and objected to by the party making the motion, or (9)
Any other reason heretofore recognized as grounds for new trial.
68
Several of these grounds are uniquely addressed to the trial court—for
example, claims of trial-court irregularities and excessive or inadequate
damages. The trial judge is in the best position to make the determination
of whether a new trial should be granted or the judgment amended on these
63. Id.
64. Id. at 881.
65. Id. (quoting 7 J
AMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 60:30(2)
(2d ed. 1970)).
66. Id. at 882.
67. N.C.
GEN. STAT. § 1A-1, Rule 59(a) (2013).
68. Id.
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grounds, since he has presided over the presentation of evidence and
observed the witnesses and their testimony.
Applying the Parrish court’s reasoning, by allowing the trial judge to
make these determinations, the trial court would be correcting its own
errors before the case progresses on appeal. This might also avoid the
possibility of the appellate court having to remand the case, which would
further prolong the ultimate resolution. And Rule 59, like Rule 52, requires
that motions be brought within ten days of the entry of judgment.
69
Thus,
allowing trial courts to retain jurisdiction over a Rule 59 tolling motion
would not delay the appellate process, since these motions must be brought
quickly after the entry of judgment. The Parrish court also discussed the
impact of the pending Rule 60(b) motion in Wiggins, noting that parties
have more time to file a Rule 60(b) motion and that such motions do not
toll the time for filing a notice of appeal.
70
The presence of the Rule 60(b)
motion may have impacted the Wiggins holding that a subsequent notice of
appeal divested the trial court of jurisdiction. Further, if a Rule 59 motion
is pending and a trial court is divested of jurisdiction by the filing of a
notice of appeal, the reviewing appellate court is left without the guidance
of the trial judge on that issue. The guidance of the trial judge may be
particularly valuable, given his or her relationship to the case.
Accordingly, the Parrish court’s reasoning also applies to Rule 59 motions
and suggests that trial courts should retain jurisdiction over Rule 59
motions even after a notice of appeal is filed.
C. Rule 50(b) Motions
The case law is unclear as to whether a notice of appeal would divest a
trial court of jurisdiction over a pending Rule 50(b) motion for judgment
notwithstanding the verdict. The Parrish reasoning, however, also
suggests that a trial court should retain jurisdiction over a Rule 50(b)
motion. Rule 50(b)(2) requires a party who is seeking appellate review of a
motion for directed verdict made at the close of all the evidence to also
make a motion for JNOV under Rule 50(b)(1) to preserve the issue for
appellate review.
71
As with the other tolling motions, a motion for JNOV
must be made within ten days of the entry of judgment, and thus, allowing
a trial court to retain jurisdiction over a Rule 50(b) motion would not
substantially delay the appellate process.
72
Further, it is unclear what
impact divestiture of jurisdiction would have on Rule 50(b)’s error-
69. Id. § 1A-1, Rules 52, 59.
70. Parrish v. Cole, 248 S.E.2d 878, 880 (N.C. Ct. App. 1978).
71. N.C.
GEN. STAT. § 1A-1, Rule 50(b)(2).
72. Id. § 1A-1, Rule 50(b)(1).
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preservation requirements—whether the filing of a motion for JNOV is
enough to preserve the issue for appellate review, or whether a party must
actually obtain a ruling from the trial court on the motion.
The current case law draws an arbitrary distinction between the tolling
motions under Rule 3 to determine whether the filing of a notice of appeal
divests a trial court of jurisdiction over a pending tolling motion. The
reasoning of the Parrish court actually suggests that trial courts should
retain jurisdiction over all of the tolling motions, not just a motion made
under Rule 52(b). In the interests of efficiency, trial courts should be able
to fix their own errors before a case progresses on appeal. In many cases,
this allows trial judges to make discretionary determinations that they are in
the best position to make, having presided over the trial and having seen
the evidence first-hand. Additionally, all three tolling motions must be
brought within ten days of the entry of judgment. Allowing trial courts to
retain jurisdiction over these motions will not unduly delay the appellate
process, as these tolling motions must be filed quickly after the entry of
judgment. One commentator on the divestiture doctrine in North Carolina
makes the same suggestion—that trial courts should retain jurisdiction over
tolling motions, even after the filing of a notice of appeal—stating that
“[p]ermitting a trial court to correct its own errors in a timely fashion,
through . . . Civil Rules 52 and 59 . . . is more efficient than a literal
application of the functus officio rule.”
73
III. T
HE FEDERAL APPROACH
The Federal Rules of Appellate Procedure have been amended to
allow a trial court to rule on a pending tolling motion even after a notice of
appeal is filed.
74
The Federal Rules include the same tolling motions as the
North Carolina Rules of Appellate Procedure, in addition to motions for
attorney’s fees and motions for relief under Rule 60.
75
The tolling
provision in Rule 4 was amended in 1979 to provide that the filing of a
notice of appeal had no effect on a pending tolling motion.
76
After the trial
court ruled on the tolling motion, the parties had thirty days to file another
notice of appeal.
77
The committee note explained that the purpose of other
contemporaneous amendments to the Federal Rules was “to expedite the
processing of appeals after the filing of the notice of appeal, and that it was
73. Fowler, supra note 14, at 2369.
74. F
ED. R. APP. P. 4(a)(4).
75. Id.
76. 16A C
HARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3950.4,
at 322 (4th ed. 2008).
77. Id.
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therefore desirable for the amended Rule 4(a)(4) to forestall ‘proceed[ing]
with the appeal while the district court has before it a motion the granting
of which would vacate or alter the judgment appealed from.’”
78
The
drafters of the Federal Rules of Appellate Procedure, like the North
Carolina Court of Appeals in Parrish, were considering judicial economy
and ways to expedite the appeals process. The federal drafters were
similarly hoping to avoid the need to remand a case if a trial judge could
address any issues before the case proceeded on appeal and was removed
from the trial court’s jurisdiction.
The 1979 amendments to the Federal Rules created problems for
parties who failed to file a second notice of appeal after a trial court ruled
on a tolling motion.
79
Thus, in 1993, the Federal Rules of Appellate
Procedure were amended again to provide “that a notice filed before
disposition of any of the motions listed in Rule 4(a)(4) was ineffective until
the entry of the order disposing of the last such remaining motion.”
80
As
discussed in Wiggins, the North Carolina appellate courts have been willing
to take guidance from the federal practice regarding divestiture. The North
Carolina appellate courts should do so again in this instance and adopt the
federal approach, whereby a notice of appeal does not divest a trial court of
jurisdiction over a pending tolling motion, regardless of which type of
tolling motion is pending. In order to make this change, in light of the
existing case law and the statutory language of section 1-294, there will
need to be amendments to the North Carolina Rules of Appellate Procedure
to address this issue of divestiture of jurisdiction and posttrial tolling
motions. Such amendments would provide much-needed clarity in this
area, and could eliminate the jurisdictional issues that are so easy to
unwittingly create under the current case law. Given the recent amendment
to section 1-294, these amendments to the North Carolina Rules of
Appellate Procedure appear to be forthcoming.
C
ONCLUSION
The current case law provides that the filing of a notice of appeal may
divest a trial court of jurisdiction over a pending tolling motion under Rule
3 of the North Carolina Rules of Appellate Procedure, depending on which
type of tolling motion is pending before the trial court. The North Carolina
appellate courts have drawn arbitrary distinctions among the tolling
motions, in an attempt to justify why a notice of appeal divests trial courts
of jurisdiction over certain motions but not others. The North Carolina
78. Id. at 322–23 (quoting the advisory committee’s notes to 1979 amendments).
79. Id. at 323–24.
80. Id. at 325.
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Court of Appeals has held that a trial court retains jurisdiction to consider a
Rule 52(b) motion to amend the judgment, as this allows the trial court to
fix its own errors and lessens the chance that the appellate courts may have
to remand the case back to the trial court during the pendency of the appeal.
Applying that same reasoning to tolling motions made under Rule 50(b)
and Rule 59, trial courts should also retain jurisdiction over those motions
even when a notice of appeal is filed before a court has ruled on the tolling
motion. Because of their relationship to the case, a trial judge is in a
unique position to correct errors made at trial in the context of a Rule 59
motion. Further, it is unclear what effect divestiture of jurisdiction would
have on the error-preservation requirements in Rule 50(b)(2)—whether the
trial court must actually rule on a motion for JNOV or whether simply
filing the motion preserves the issue for appellate review.
The Federal Rules of Appellate Procedure provide that a notice of
appeal filed while a tolling motion is pending has no effect until the tolling
motion is resolved. The drafters of the federal rules recognized that a
tolling motion may allow a trial judge to alter or amend a judgment being
appealed from, and concerns of judicial economy weigh in favor of
allowing the trial judge to rule on that motion before the appeals process
begins. The reasoning behind the federal procedure mirrors the discussion
of the court of appeals in Parrish as to why the trial court retains
jurisdiction over a Rule 52(b) motion, and accordingly, the North Carolina
Rules of Appellate Procedure should be amended so that trial courts retain
jurisdiction over posttrial tolling motions even after a notice of appeal is
subsequently filed.
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