{ "id": 4033158, "name": "JOHN JONES, Plaintiff-Appellee v. SOUTHERN GENERAL INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Jones v. Southern General Insurance", "decision_date": "2012-08-21", "docket_number": "No. COA12-44", "first_page": "435", "last_page": "438", "citations": [ { "type": "official", "cite": "222 N.C. App. 435" } ], "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": "688 F.2d 973", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1465422 ], "year": 1982, "pin_cites": [ { "page": "978", "parenthetical": "\"The language of Rule 59(d" } ], "opinion_index": 0, "case_paths": [ "/f2d/688/0973-01" ] }, { "cite": "361 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358787 ], "year": 1987, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0591-01" ] }, { "cite": "339 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "101" }, { "page": "101" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519964 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "208-09" }, { "page": "208-09" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0205-01" ] }, { "cite": "464 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "702" }, { "page": "703" }, { "page": "704" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916101 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "163" }, { "page": "164" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0161-01" ] } ], "analysis": { "cardinality": 406, "char_count": 7688, "ocr_confidence": 0.751, "pagerank": { "raw": 4.351389287593408e-08, "percentile": 0.2734877593249645 }, "sha256": "c07fcadc6c76244fe1688cc2843f0036c0a9e9afada68224bd1c98dbb8a55fdf", "simhash": "1:9feb011c7f08997f", "word_count": 1335 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, Jr. concur." ], "parties": [ "JOHN JONES, Plaintiff-Appellee v. SOUTHERN GENERAL INSURANCE COMPANY, Defendant-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nJohn Jones (Plaintiff) filed a complaint against Southern General Insurance Company (Defendant) for an alleged breach of contract following Defendant\u2019s denial of Plaintiff\u2019s insurance claim for the alleged theft of Plaintiff\u2019s vehicle. Defendant filed a motion for summary judgment on 14 January 2010 and the trial court denied Defendant\u2019s motion by order entered 22 March 2010. The case was tried before a jury on 9 May 2011 and the jury returned a verdict in favor of Defendant. Thereafter, on 17 June 2011, the trial court entered an order granting Plaintiff a new trial sua sponte. Defendant appeals.\nI.Factual Background\nDefendant issued Plaintiff an automobile liability insurance policy (the policy) for Plaintiff\u2019s 1999 Ford Expedition. Plaintiff thereafter reported a claim for the alleged theft of his insured vehicle on 14 July 2005. Following an investigation into Plaintiff\u2019s claim, Defendant sent Plaintiff a letter on 22 May 2006 denying Plaintiff\u2019s claim. In its letter, Defendant contended that Plaintiff had violated provisions of the policy by making \u201cfraudulent statements\u201d and \u201c[engaging] in fraudulent conduct in connection with [the] accident or loss for which coverage is sought under [the] policy[.]\u201d\nFollowing denial of his claim, Plaintiff filed this action against Defendant for breach of contract. At trial, the jury found in favor of Defendant and the trial court entered judgment on 24 May 2011. The trial court entered an order granting a new trial on 17 June 2011, twenty-four days after judgment had been entered.\nII.Issues on Anneal\nDefendant raises on appeal the issues of whether: (1) the trial court timely filed its order granting a new trial under N.C. Gen. Stat. \u00a7 1A-1, Rule 59(d); (2) the trial court erred in \u201csetting aside the verdict and ordering a new trial[;]\u201d (3) the trial court erred by denying Defendant\u2019s \u201cmotion for summary judgment and . . . motion for directed verdictf;]\u201d and (4) the court \u201cerred in refusing to deem all requests for admissions admitted by operation of law[.]\u201d\nIII.Order Granting a New Trial\nDefendant contends that the trial court failed to order a new trial within the ten day time limit allowed by N.C. Gen. Stat. \u00a7 1A-1, Rule 59(d). Rule 59(d) states:\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.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 59(d) (2011). In the present case, judgment was entered on 24 May 2011. The trial court did not enter an order granting a new trial until 17 June 2011, twenty-four days after judgment was entered. The trial court\u2019s order for a new trial occurred outside the permissible time limit described in Rule 59(d) and, therefore, was not properly entered.\nPlaintiff contends in his brief that \u201c[a] trial judge does not violate the North Carolina Rules of Civil Procedure in ordering a new trial more than ten days after entry of judgment when it acts upon its own initiative by issuing a Notice and Order within ten days as required by Rule 59(d)[,]\u201d and cites Chiltoski v. Drum, 121 N.C. App. 161, 464 S.E.2d 701 (1995), in support thereof. In Chiltoski, however, this Court considered whether an order for a new trial must contain \u201cfindings [or] explication reflecting the grounds for the court\u2019s action.\u201d Chiltoski, 121 N.C. App. at 163, 464 S.E.2d at 702. This Court did not consider whether the trial court may order a new trial outside the ten day time limit stated in Rule 59(d). Id.\nThis Court has held that \u201c[w]hen a statute\u2019s language is clear and unambiguous, it must be given effect, and its clear meaning may not be evaded by the courts under the guise of construction.\u201d State v. Felts, 79 N.C. App. 205, 208-09, 339 S.E.2d 99, 101 (1986). We find no ambiguity in the language of Rule 59(d). Under N.C.G.S. \u00a7 1A-1, Rule 59(d), the trial court may order a new trial on its own initiative \u201c[n]ot later than 10 days after entry of judgment^]\u201d N.C.G.S. \u00a7 1A-1, Rule 59(d).\nWhile this Court normally reviews a trial court\u2019s order for a new trial only for abuse of discretion, \u201cwhen the trial court grants or denies a new trial \u2018due to some error of law,\u2019 then its decision is fully reviewable.\u201d Chiltoski, 121 N.C. App. at 164, 464 S.E.2d at 703 (quoting Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987)). Because the trial court entered an order for a new trial outside the permitted time limit set forth in N.C. Gen. Stat. \u00a7 1A-1, Rule 59 (d), this Court reviews that order de novo. The trial court\u2019s order for a new trial was not permissible under N.C.G.S. \u00a7 1A-1, Rule 59(d) and is, therefore, reversed.\nIt should be noted that Rule 59(d) in the Federal Rules of Civil Procedure allows a trial court to order a new trial on its own motion up to twenty-eight days after judgment. See Fed. R. Civ. Pro. 59(d). This rule was amended in 2009 to allow a twenty-eight day period after federal courts had held that the rule required a trial court to order a new trial, not merely act toward ordering a new trial, within ten days following judgment. See Fed. R. Civ. Pro. Adv. Comm. N., 59(d) (2009); Tarlton v. Exxon, 688 F.2d 973, 978 (5th Cir. 1982) (\u201cThe language of Rule 59(d) is explicit: the trial court may order a new trial for any reason it might have found sufficient on motion of a party, not later than 10 days after entry of judgment. In the case at bar, the district court\u2019s order of June 3 was obviously filed more than 10 days after the March 27 judgment.\u201d (internal quotations omitted)). The North Carolina Rules of Civil Procedure have not been so amended. We recognize the inherent difficulty in completing the procedural requirements for filing an order for a new trial in a matter of only ten days following entry of judgment. However, the opportunity for changing Rule 59(d) to allow a more reasonable time for a trial court to order a new trial sua sponte lies with the North Carolina General Assembly. We must give effect to the present \u201cclear and unambiguous\u201d language of Rule 59(d). See Felts, 79 N.C. App. at 208-09, 339 S.E.2d at 101.\nHaving determined that the trial court\u2019s order of a new trial was untimely, this Court need not address Defendant\u2019s arguments concerning the trial court\u2019s reasons for ordering a new trial. Furthermore, as Defendant is no longer an aggrieved party upon reversal of the trial court\u2019s order for a new trial, we need not consider whether the trial court erred by denying Defendant\u2019s motions for summary judgment and directed verdict, or by \u201crefusing to deem all requests for admissions admitted by operation of law.\u201d We therefore reverse the trial court\u2019s order for a new trial and remand the case for entry of judgment upon the verdict rendered by the jury. See Chiltoski, 121 N.C App. at 165, 464 S.E.2d at 704.\nReversed and remanded.\nJudges STEPHENS and HUNTER, Jr. concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Messick Law Firm, by Melissa A. Bowers and William C. Messick, for Plaintiff-Appellee.", "Baucom, Clay tor, Benton, Morgan & Wood, P.A., by James F. Wood, III, for Defendant-Appellant." ], "corrections": "", "head_matter": "JOHN JONES, Plaintiff-Appellee v. SOUTHERN GENERAL INSURANCE COMPANY, Defendant-Appellant\nNo. COA12-44\n(Filed 21 August 2012)\nCivil Procedure \u2014 Rule 59 \u2014 new trial \u2014 ten-day limit\nThe trial court erred by ordering a new trial 24 days after judgment was entered. N.C.G.S. \u00a7 1A-1, Rule 59(d) is clear and unambiguous, and has a time limit of ten days.\nAppeal by Defendant from order entered 17 June 2011 by Judge Abraham Penn Jones in Superior Court, Wake County. Heard in the Court of Appeals 8 May 2012.\nMessick Law Firm, by Melissa A. Bowers and William C. Messick, for Plaintiff-Appellee.\nBaucom, Clay tor, Benton, Morgan & Wood, P.A., by James F. Wood, III, for Defendant-Appellant." }, "file_name": "0435-01", "first_page_order": 445, "last_page_order": 448 }