{ "id": 11870466, "name": "STEWART H. SMITH and THOMAS H. BATTEN v. VICKY SUE JOHNSON, JOHN B. HARDEE, and CELESTE HARDEE DAY", "name_abbreviation": "Smith v. Johnson", "decision_date": "1997-03-04", "docket_number": "No. COA96-489", "first_page": "603", "last_page": "607", "citations": [ { "type": "official", "cite": "125 N.C. App. 603" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "74 ALR Fed. 516", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "328 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "873", "parenthetical": "Rule 60(b) cannot be used as a substitute for appellate review" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525110 ], "year": 1985, "pin_cites": [ { "page": "498", "parenthetical": "Rule 60(b) cannot be used as a substitute for appellate review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0494-01" ] }, { "cite": "431 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 855", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526653 ], "year": 1993, "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0855-01" ] }, { "cite": "846 F. Supp. 310", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1200630 ], "year": 1994, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/f-supp/846/0310-01" ] }, { "cite": "225 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561129, 8561197, 8561176, 8561115, 8561150 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0309-02", "/nc/290/0309-05", "/nc/290/0309-04", "/nc/290/0309-01", "/nc/290/0309-03" ] }, { "cite": "222 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "750" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553858 ], "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0029-01" ] }, { "cite": "361 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358588 ], "year": 1987, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0490-01" ] } ], "analysis": { "cardinality": 445, "char_count": 8813, "ocr_confidence": 0.758, "pagerank": { "raw": 4.265961502537584e-07, "percentile": 0.9155597488502225 }, "sha256": "df44d4b82e789e48e0c1a6e44c14b18a45163a8732a26094e8c0a10a23d08983", "simhash": "1:293c53180aade878", "word_count": 1519 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "STEWART H. SMITH and THOMAS H. BATTEN v. VICKY SUE JOHNSON, JOHN B. HARDEE, and CELESTE HARDEE DAY" ], "opinions": [ { "text": "GREENE, Judge.\nVicky Sue Johnson and John B. Hardee (defendants) appeal an order dated and filed 7 November 1995 striking their affirmative defense of adverse possession. The defendants also appeal the denial of their \u201cMotion To Set Aside Judgment And For a New Hearing\u201d (motion), which order was dated 21 December 1995.\nThe undisputed facts are that Stewart H. Smith and Thomas H. Batten (plaintiffs) initiated this action against defendants seeking damages and injunctive relief after defendants cleared a piece of land owned by plaintiffs and placed a mobile home on it. Defendants answered and asserted as an affirmative defense that they acquired title to the piece of property by adverse possession.\nThe order striking the defendants\u2019 affirmative defense of adverse possession was in response to the plaintiffs\u2019 request for sanctions as a consequence of alleged discovery violations. After the sanction order the trial court granted summary judgment for the plaintiffs. The motion requested that the summary judgment be set aside \u201cpursuant to Rule 60(b)(3)\u201d and that a \u201cnew trial be granted pursuant to Rule 59(a)(2) and (7).\u201d\nDefendants\u2019 motion detailed the factual and procedural history of the case and specifically alleged that plaintiffs decided to seek a motion for sanctions for defendants having failed to comply with discovery requests when it was \u201cwell-known\u201d that defendants\u2019 counsel was vacationing out of the country; plaintiffs did not first seek a motion to compel discovery; and all of the information and documents plaintiffs sought, \u201cwith the exception of a few receipts,\u201d had been available to plaintiffs at a previous preliminary injunction hearing concerning the same action. Based upon this information, defendants alleged that \u201c[p]laintiffs\u2019 counsel has engaged in unprofessional and offensive trial tactics\u201d and that plaintiffs have been unable to show that they were prejudiced by the alleged discovery violations. On 27 December 1995 the defendants gave notice of appeal \u201cfrom the final Judgment dated and filed November 7, 1995, and from the Order denying Defendants\u2019 Motion to Set Aside Judgment and for New Hearing dated December 21, 1995.\u201d\nThe dispositive issue is whether the notice of appeal from the 7 November 1995 order striking the defendants\u2019 affirmative defense was timely.\nRule 3 of the North Carolina Rules of Appellate Procedure provides thirty days to file an appeal from a judgment or order in a civil action. N.C. R. App. P. 3(c) (1997). \u201cThe running of the time for filing and serving a notice of appeal in a civil action ... is tolled ... by a timely [Rule 59] motion\u201d for a new trial or to alter or amend a judgment. N.C. R. App. P. 3(c), (c)(3), (c)(4).\nTo qualify as a Rule 59 motion within the meaning of Rule 3 of the Rules of Appellate Procedure, the motion must \u201cstate the grounds therefor\u201d and the grounds stated must be among those listed in Rule 59(a). N.C.G.S. \u00a7 1A-1, Rule 7(b)(1) (1990); N.C.G.S. \u00a7 1A-1, Rule 59(a) (1990); Dusenberry v. Dusenberry, 87 N.C. App. 490, 492, 361 S.E.2d 605, 606 (1987); see Charles Alan Wright et al., Federal Practice and Procedure: Civil 2d \u00a7 2811, at 132 (1995) (hereinafter Federal Practice) (motion that \u201cdoes not sufficiently state grounds has been treated as a nullity and ineffective\u201d for extending time for taking appeal). The mere recitation of the rule number relied upon by the movant is not a statement of the grounds within the meaning of Rule 7(b)(1). The motion, to satisfy the requirements of Rule 7(b)(1), must supply information revealing the basis of the motion. Sherman v. Myers, 29 N.C. App. 29, 30, 222 S.E.2d 749, 750 (motion must state \u201cspecific grounds upon\u201d which relief is sought), appeal dismissed and disc. rev. denied, 290 N.C. 309, 225 S.E.2d 830 (1976); Federal Practice \u00a7 2811, at 132 (pro forma statement of grounds not sufficient).\nIn this case the defendants indicate in the motion that they rely on Rule 59(a)(2) & (7) as the bases of their motion. There are, however, no allegations in the motion revealing any \u201c[mjisconduct of the jury or prevailing party,\u201d N.C.G.S. \u00a7 1A-1, Rule 59(a)(2), or an \u201c^Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law.\u201d N.C.G.S. \u00a7 1A-1, Rule 59(a)(7).\nIt appears that the motion is merely a request that the trial court reconsider its earlier decision granting the sanction and although this may properly be treated as a Rule 59(e) motion, Federal Practice \u00a7 2810.1, at 122, it cannot be used as a means to reargue matters already argued or to put forth arguments which were not made but could have been made. See Waye v. First Citizen\u2019s Nat\u2019l Bank, 846 F. Supp. 310, 314 (M.D. Pa. 1994); N.C.G.S. \u00a7 59(e) (motion to alter or amend must be based on grounds listed in Rule 59(a)). In this case the defendants attempt to reargue matters already decided by the trial court and the motion thus cannot be treated as a Rule 59(e) motion.\nBecause the motion is not a Rule 59 motion, the time to file an appeal from the 7 November 1995 order was not tolled. Therefore, defendants\u2019 27 December 1995 notice of appeal from the order was not timely and must be dismissed. Saieed v. Bradshaw, 110 N.C. App. 855, 859, 431 S.E.2d 233, 235 (1993).\nDefendants have timely appealed from the denial of their motion. Having determined, however, that the motion is merely a request that the trial court reconsider its earlier decision and having determined that it does not qualify as a Rule 59(e) motion, and because there are no other provisions for motions for reconsideration, the motion was properly denied. We note that the motion also asserts that it is based on Rule 60(b)(3). The defendants make no argument in their brief in support of this contention. In any event, there are no allegations in the motion of any \u201c[fjraud . . . , misrepresentation, or other misconduct of an adverse party.\u201d N.C.G.S. \u00a7 1A-1, Rule 60(b)(3) (1990). As noted earlier the motion is nothing more than an attempt by the defendants to correct what they see as an erroneous order and this cannot be done under Rule 60(b). Coleman v. Coleman, 74 N.C. App. 494, 498, 328 S.E.2d 871, 873 (1985) (Rule 60(b) cannot be used as a substitute for appellate review). Thus to the extent the motion is considered a Rule 60(b) motion, it was properly denied by the trial court.\nAppeal from order dismissed and appeal from motion affirmed.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Ward and Smith, P.A., by Donald S. Higley, II and Ryal W. Tayloe, for plaintiff-appellees.", "David P. Voerman, P.A., by David P Voerman, for defendant-appellants Johnson and Hardee.", "Lee, Hancock, Lasitter & King, P.A., by Moses D. Lasitter, for defendant Day." ], "corrections": "", "head_matter": "STEWART H. SMITH and THOMAS H. BATTEN v. VICKY SUE JOHNSON, JOHN B. HARDEE, and CELESTE HARDEE DAY\nNo. COA96-489\n(Filed 4 March 1997)\n1. Appeal and Error \u00a7 206 (NCI4th)\u2014 sanctions and summary judgment \u2014 Rule 59 motion for reconsideration \u2014 time for notice of appeal \u2014 not tolled\nDefendant\u2019s notice of appeal was not timely where plaintiffs filed an action seeking damages and injunctive relief for clearing a piece of land and placing a mobile home on it, defendants answered and asserted adverse possession as an affirmative offense, plaintiffs requested sanctions for discovery violations, the trial court struck the adverse possession defense as a sanction and the court granted summary judgment for plaintiffs on November 7, defendants requested that the summary judgment be set aside and a new trial granted, that motion was denied on December 21, and appeal was taken on December 27. Although the thirty-day period for filing an appeal under Rule 3 of the Rules of Appellate Procedure is tolled by a timely Rule 59 motion, it appears that this motion is merely an attempt to reargue matters already decided by the trial court and thus cannot be treated as a Rule 59(e) motion.\nAm Jur 2d, Appellate Review \u00a7\u00a7 285 et seq., 292 et seq.\nTolling of time for filing notice of appeal in civil action in federal court under Rule 4(a)(4) of Federal Rules of Appellate Procedure. 74 ALR Fed. 516.\n2. Judgments \u00a7 541 (NCI4th)\u2014 Rule 59 and 60 motion\u2014 denied \u2014 merely a request to reconsider\nA motion to set aside a sanction order and a summary judgment under N.C.G.S. \u00a7 1A-1, Rules 59 and 60 was properly denied where the motion was merely a request to reconsider its earlier decision and did not qualify as a Rule 59(e) motion and contained no allegations of fraud, misrepresentation, or other misconduct and thus was properly denied as a Rule 60 motion.\nAm Jur 2d, Judgments \u00a7\u00a7 203, 205, 495.\nAppeal by defendants Vicky Sue Johnson and John B. Hardee from orders entered 7 November 1995 and 21 December 1995 in Craven County Superior Court by Judge W. Russell Duke, Jr. Heard in the Court of Appeals 14 January 1997.\nWard and Smith, P.A., by Donald S. Higley, II and Ryal W. Tayloe, for plaintiff-appellees.\nDavid P. Voerman, P.A., by David P Voerman, for defendant-appellants Johnson and Hardee.\nLee, Hancock, Lasitter & King, P.A., by Moses D. Lasitter, for defendant Day." }, "file_name": "0603-01", "first_page_order": 641, "last_page_order": 645 }