{
  "id": 8527834,
  "name": "VICKY DIXON PATE v. EASTERN INSULATION SERVICE OF NEW BERN, INC., and THE NORTH CAROLINA HOME BUILDERS HEALTH BENEFIT TRUST",
  "name_abbreviation": "Pate v. Eastern Insulation Service of New Bern, Inc.",
  "decision_date": "1991-01-15",
  "docket_number": "No. 907SC541",
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    "judges": [
      "Judges Wells and Johnson concur."
    ],
    "parties": [
      "VICKY DIXON PATE v. EASTERN INSULATION SERVICE OF NEW BERN, INC., and THE NORTH CAROLINA HOME BUILDERS HEALTH BENEFIT TRUST"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff filed this action against Eastern Insulation Service of New Bern, Inc. (hereinafter Eastern), and North Carolina Home Builders Health Benefit Trust (hereinafter Home Builders) seeking damages in the amount of $15,884.20. Plaintiff alleged that Eastern promised her that, if she paid the insurance premiums, she could continue to be covered under Eastern\u2019s group insurance plan with Home Builders even after she ceased to be an employee of Eastern. Subsequently, plaintiff accumulated $15,884.20 in medical bills which Home Builders refused to pay. Home Builders claimed that plaintiff was ineligible for health care benefits because she was no longer employed by defendant Eastern. Both defendants filed motions for summary judgment which were heard on 8 January 1990. The trial court orally granted summary judgment in favor of both defendants. On 9 January 1990, plaintiffs attorney presented to the trial court a recent decision by a panel of this Court. The court on its own motion scheduled a new hearing for 21 February 1990. After considering oral and written arguments of counsel for defendants and plaintiff, the trial court denied Eastern\u2019s motion for summary judgment and allowed Home Builders\u2019 motion as to plaintiff\u2019s claim and Eastern\u2019s cross-claim. Defendant Eastern appeals.\nEastern contends that the court lacked the power to enter the 21 February order denying summary judgment to Eastern. The issue is whether the trial court still had jurisdiction on 9 January 1990 to order a new hearing and to reverse its own order. We hold that the trial court had jurisdiction and that its actions were proper under N.C. Gen. Stat. \u00a7 1A-1, Rule 59(d).\nWe first note that no written notice of appeal, which would divest jurisdiction from the trial court, had been filed with the clerk of superior court when the trial judge scheduled the new hearing. See N.C.R. App. P. 3(a) (1990). N.C. Gen. Stat. \u00a7 1A-1, Rule 59(d) provides:\nNot later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.\nThe trial court rendered a decision at the conclusion of the 8 January 1990 hearing and requested both defendants submit proposed judgments. On the next day of the same regular session of Wilson County Superior Court, 9 January 1990, plaintiff approached the trial judge with the Court of Appeals\u2019 4 January 1990 decision in Carroll v. Daniels and Daniels Const. Co., 96 N.C. App. 649, 386 S.E.2d 752, reversed, 327 N.C. 616, 398 S.E.2d 325 (1990). On 17 January 1990, the judge sent a letter to counsel for all parties, stating:\nOn Tuesday, January 9,1990, Attorney James F. Rogerson presented me with a recent case from the Court of Appeals, filed January 4, 1990, on the issue of equitable estoppel. If I had been aware of this case at the time of the hearing on the Motion, my ruling may have been different. Therefore, in light of this recent case and the fact that Mr. Rogerson, the primary attorney for Ms. Pate, was unable to be present at the hearing, I desire to hear further arguments on this Motion before entering a judgment.\nI will have the trial court administrator add this matter to the calendar for the February 19, 1990 term of Civil Court in Edgecombe County, Tarboro, N.C. Also, I am enclosing a copy of the recent Court of Appeals decision.\nIf you have any questions or comments, please do not hesitate to contact my office.\nWe find the trial court\u2019s letter complied with Rule 59(d).\nWe reject Eastern\u2019s argument that it was not given proper notice of the court\u2019s intention to reconsider its grant of summary judgment in favor of Eastern. The judge informed all parties of its decision to hear additional arguments in light of the Court of Appeals\u2019 decision in Carroll. Furthermore, counsel for Eastern appeared at the 21 February hearing and argued in favor of upholding the grant of summary judgment, thereby waiving any objection as to inadequate notice. See Raintree v. Rave, 38 N.C. App. 664, 248 S.E.2d 904 (1978).\nWe hold that the trial court properly reconsidered its oral decision of 8 January 1990 and that the trial court still possessed jurisdiction to deny defendant Eastern\u2019s motion for summary judgment. We shall not consider the defendant\u2019s appeal on the merits of the denial of Eastern\u2019s motion for summary judgment because such denial is an interlocutory order not immediately appealable. Motyka v. Nappier, 9 N.C. App. 579, 176 S.E.2d 858 (1970). That portion of Eastern\u2019s appeal must be dismissed. The result is that the case is remanded to the Superior Court of Wilson County for further proceedings on plaintiff\u2019s claim against defendant Eastern without prejudice to the consideration on appeal at the appropriate time of the trial court\u2019s order of 21 February 1990.\nAffirmed and remanded.\nJudges Wells and Johnson concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Connor, Bunn, Rogerson & Woodard, P.A., by James F. Rogerson; and Thomas and Farris, P.A., by Allen G. Thomas and Julie A. Turner, for plaintiff appellee.",
      "Howard, From, Stallings & Hutson, P.A., by John N. Hutson, Jr., for Eastern Insulation of New Bern, Inc., defendant appellant.",
      "The McNair Law Firm, by James L. Stuart, for North Carolina Home Builders Health Benefit Trust, defendant appellee."
    ],
    "corrections": "",
    "head_matter": "VICKY DIXON PATE v. EASTERN INSULATION SERVICE OF NEW BERN, INC., and THE NORTH CAROLINA HOME BUILDERS HEALTH BENEFIT TRUST\nNo. 907SC541\n(Filed 15 January 1991)\n1. Trial \u00a7 53 (NCI3d)~ summary judgment reconsidered by trial court \u2014 jurisdiction\nThe trial court properly reconsidered its oral decision in an action to collect benefits under a group health insurance plan and possessed jurisdiction to deny defendant Eastern\u2019s motion for summary judgment where plaintiff\u2019s attorney showed the trial court a recent Court of Appeals opinion after summary judgment had been granted for defendants, the court scheduled a new hearing on its own motion, and, after considering oral and written arguments of counsel, the court denied defendant Eastern\u2019s motion for summary judgment and allowed defendant Home Builders\u2019 motion as to plaintiff\u2019s claim and Eastern\u2019s cross-claim. No written notice of appeal had been filed when the trial judge scheduled the new hearing, the judge informed all parties of its decision to hear additional arguments in light of the Court of Appeals decision, and counsel for Eastern appeared at the hearing and argued in favor of upholding the grant of summary judgment, thereby waiving any objection as to inadequate notice.\nAm Jur 2d, Motions, Rules, and Orders \u00a7 27; Summary Judgment \u00a7 28.\n2. Appeal and Error \u00a7 118 (NCI4th)\u2014 denial of motion for summary judgment \u2014interlocutory\nAn appeal on the merits of the denial of a motion for summary judgment was not considered because such denial was an interlocutory order not immediately appealable.\nAm Jur 2d, Appeal and Error \u00a7 104.\nReviewability of order denying motion for summary judgment. 15 ALR3d 899.\nAppeal by defendant Eastern Insulation Service of New Bern, Inc., from order entered 21 February 1990 by Judge Cy A. Grant, Sr., in WILSON County Superior Court. Heard in the Court of Appeals 4 December 1990.\nConnor, Bunn, Rogerson & Woodard, P.A., by James F. Rogerson; and Thomas and Farris, P.A., by Allen G. Thomas and Julie A. Turner, for plaintiff appellee.\nHoward, From, Stallings & Hutson, P.A., by John N. Hutson, Jr., for Eastern Insulation of New Bern, Inc., defendant appellant.\nThe McNair Law Firm, by James L. Stuart, for North Carolina Home Builders Health Benefit Trust, defendant appellee."
  },
  "file_name": "0415-01",
  "first_page_order": 443,
  "last_page_order": 447
}